Court’s role in reviewing an arbitration award limited when the parties have agreed to submit the matter to arbitration

Court’s role in reviewing an arbitration award limited when the parties have agreed to submit the matter to arbitration

Arbitration between Albany Police Supervisor's Assn. and the City of Albany, 2012 NY Slip Op 03704, Appellate Division, Third Department

The Appellate Division affirmed a ruling by Supreme Court denying the Albany Police Supervisor’s Association’s CPLR Article 75 application to vacate an arbitration award and confirmed the award.

A member of the negotiating unit represented by the Association was served with disciplinary charges that eventually resulted in the termination of the member’s employment with the Albany Police Department.

Essentially the member was charged with allegedly failing to inform and misled superior officers about what had transpired with respect to an incident involving another Albany Police Department police officer. The arbitrator found the member guilty of nine of the 14 charges filed against him and concluded that his termination was the appropriate penalty.

In affirming the arbitration award the Appellate Division noted that "In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 wherein the Court of Appeals said that "[A]n arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice."*

Here, said the court, the arbitrator's findings that member was untruthful when questioned by a superior officer concerning the event is supported by the record and did not result from the arbitrator grossly expanding the charges or other arbitral misconduct.

As to the penalty imposed, dismissal, the Appellate Division rejected the Association’s argument that the penalty was so disproportionate as to constitute arbitral misconduct as "unpersuasive.”

* A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03704.htm

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 03700, Appellate Division, Third Department

The Chenango Forks Central School District distributed a memorandum to its faculty and staff represented by the Chenango Forks Teachers Association announcing that it would discontinue its longstanding practice of reimbursing retirees' Medicare Part B premiums.

While the relevant collective bargaining agreement (CBA) between the parties did not explicitly obligate the school district to make such reimbursements, it had done so since at least 1980 when such reimbursement was required by the Empire Plan, the health insurance plan provided to employees up until 1990.

In 1990 the parties entered into a new CBA, and health insurance coverage was changed to Blue Cross/Blue Shield, which did not require the reimbursement of Medicare Part B premiums. Chenango Forks, however, continued to make such reimbursements.

The Association filed a grievance alleging a violation of the CBA.* At the same time, the Association filed an improper practice charge with the Public Employment Relations Board (PERB) alleging that Chenango Forks had violated Civil Service Law §209-a(1)(d) when it failed to negotiate the discontinuance of reimbursement of Medicare Part B premiums.**

PERB’s Administrative Law Judge (ALJ) found that school district's practice of reimbursement had "giv[en] rise to a reasonable expectation by current employees that they proceed under a promise of post-retirement [reimbursement]" and, thus, Chenango Forks’ unilateral decision to discontinue reimbursement violated its collective bargaining obligations under Civil Service Law §209-a(1)(d).

Ultimately PERB affirmed the ALJ's  conclusions regarding the school district's obligations under Civil Service Law §209-a(1)(d). The district filed an Article 78 challenging PERB's determination.

Rejecting the school district’s argument that reimbursement of Medicare Part B premiums is not a "term and condition of employment" subject to mandatory negotiation, the Appellate Division said that health benefits for current employees are a form of compensation, and thus a term of employment that is a mandatory subject of negotiation.

Although Civil Service Law §201(4) prohibits negotiation of certain retirement benefits, the Appellate Division pointed out that the continuation of health insurance payments to current employees after their retirement is not a retirement benefit within the meaning of that provision, citing Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398, 404 [1979]; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d 801, 802 [1995], lv denied 87 NY2d 812 [1996].

The court explained that such health insurance benefits, although paid after retirement, constitute a form of compensation earned by the employee while employed. Thus, noted the Appellate Division, as the Court of Appeals has held, and PERB rationally concluded, here that Chenango Forks "ha[d] a duty to negotiate with the bargaining representative of current employees regarding any change in a past practice affecting their own retirement health benefits," citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d at 332 [emphasis omitted]; see Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d at 404; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d at 802; Matter of Corinth Cent. School Dist. [Corinth Teachers Assn.], 77 AD2d 366, 367 [1980], lv denied 53 NY2d 602 [1981].

As to the question of whether a binding past practice was established, the Appellate Division said that the issue before PERB was whether, irrespective of any contractual obligation in the parties' CBA, a past practice of reimbursing retirees for Medicare Part B premiums was established such that Chenango Forks was barred from discontinuing that practice without prior negotiation with the Association.***

As to the merits of its past practice determination, the Appellate Division found that PERB had determined that there was a reasonable expectation by unit employees that they would receive reimbursement of Medicare Part B premiums upon their retirement, which finding was “supported by the stipulated facts that [the school district had] reimbursed Medicare Part B premiums to active employees and retirees since at least 1980 and that, despite the fact that the health insurance coverage provided under the CBAs subsequent to 1990 did not require such reimbursement, [the school district had] continued to do so until July 2003.”

Significantly, the Appellate Division said that it could not conclude that, by entering into a new CBA for the 2004-2007 period, which is silent regarding the reimbursement of Medicare Part B premiums, the Association waived its right to negotiate a change in [school district’s] practice of providing Medicare Part B reimbursement, explaining that. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it . . . Such a waiver must be clear, unmistakable and without ambiguity."

As a final point, the Appellate Division stated that the “reimbursing active employees for Medicare Part B premiums does not constitute an improper gift of public funds (see NY Const, art VIII, § 1), as the reimbursements represent compensation earned by employees while employed and in consideration for a benefit furnished to [the school district].”

* A group of school district retirees also commenced a CPLR Article 78 proceeding to annul the district's decision to discontinue Medicare Part B premium reimbursements (Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134 [2005]). This action wast remitted to Supreme Court for further record development to determine whether there had been a "corresponding diminution of benefits or contributions" effected by petitioner from active employees (Chapter 48 of the Laws of 2003; see Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1137-1138). The instant proceeding before the Appellate Division, in contrast, involved current, active employees of school district.

** PERB conditionally dismissed the charge subject to a motion to reopen the matter after the conclusion of the grievance procedure. When the grievance proceeded to arbitration, an arbitrator determined that petitioner was under no contractual obligation to continue the payments.

*** In contrast, the specific issue before the arbitrator was whether school district was under a contractual obligation to make Medicare Part B reimbursement payments to retirees.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03700.htm

Student Intern Program announced by the NYS Department of Civil Service

Student Intern Program announced by the NYS Department of Civil Service

Acting NYS Civil Service Commission President Patricia A. Hite has distributed the following "General Information Bulletin #12-01" to State Departments and Agencies describing a new Student Intern Program that is to be made available to qualified college and graduate school students interested in a career in public service and inviting their respective Department and Agency participation.

GENERAL INFORMATION BULLETIN No. 12-01

TO: Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers
FROM: Patricia A. Hite
SUBJECT: New New York Leaders: Student Intern Program
DATE: May 10, 2012

On February 15, Governor Cuomo launched the New New York Leaders: Student Intern Program, the first ever centralized Student Intern Program for state government. The Program will provide talented undergraduate or graduate students who are New York State residents or who attend a New York State college, university or graduate program and are interested in exploring a career in public service with a single location to apply and be considered for internship opportunities. Students will be exposed to the work of governing and the increasingly complex policy challenges facing New York State. This group of diverse and talented students is the future of state government.

A memorandum from Howard Glaser dated May 9, 2012, advised agency heads of this important initiative, the success of which depends upon agency participation. The Department of Civil Service is hosting the portal for the Student Intern Program which will function as the primary location where agency internship opportunities will be posted and applications will be accepted. Based on the preferred candidate profile submitted by the agency for each internship opportunity, the Department will provide agencies with a list of qualified candidates. It is expected that by fall 2012, all New York State internship opportunities will be included on the New New York Leaders: Student Intern Program portal.

This Program is not intended to replace established agency relationships with colleges and universities; rather, the portal is to serve as a comprehensive recruitment tool for agencies and a single resource to which schools may direct students. The Department will notify New York State colleges and universities of the Program and develop a recruitment plan to actively recruit students from schools with diverse populations. Agencies are encouraged to continue their recruitment efforts. Communication with college and university internship coordinators should continue to ensure the inclusion of candidates with agencies' preferred qualifications; however, students should be directed to the portal to apply for and select specific agency opportunities. Appointments must be made through the centralized process.

We are making every effort to meet agencies' needs while providing schools and students a centralized portal for the Student Intern Program. This fall we will ask for your feedback on the portal and, based upon that input, will seek to expand the visibility of the Program and increase efficiency and transparency in the process of hiring interns.

Student Intern Program Overview

The internship opportunities offered by the New New York Leaders: Student Intern Program may be paid or unpaid, and for graduate or undergraduate students. Applications will be accepted three times a year for internships to be filled in the fall, spring and summer. The internship portal will allow candidates to submit applications, upload resumes and review and identify preferences for internships. Agencies will use the internship portal to post internship opportunities, set hiring criteria, and receive a list of qualified candidates.

Between June 1 and June 27, 2012, agencies will post their Fall 2012 internship opportunities on the internship portal. An agency guide and further directions will be made available to assist you with this process. Agencies will also have the opportunity to attend a Student Intern Program briefing on May 30, 2012 in Room 354 in the Alfred E. Smith Office Building in Albany. Agency staff in locations outside of Albany will have the ability connect to the briefing via webinar. During the briefing, Student Intern Program staff will provide programmatic details of the Program, a demonstration of the internship portal, and guidelines for submitting internships.

Student Intern Program Liaisons

We request that all agencies designate an agency liaison to serve as a point of contact for future communication related to the Student Intern Program. The Student Intern Program Liaison will be responsible for:

• communicating all relevant Student Intern Program information and deadlines to agency staff; and,

• coordinating your agency's input and maintenance of internship posting information in the internship portal.

• May 15, 2012
 - Agencies designate Student Intern Program Liaison

• May 23, 2012
 - DCS provides agencies a guide and template for posting internships

• May 30, 2012
 - Student Internship Program Briefing for Liaisons

• June 1, 2012
 - Access to Internship Portal for Agencies

• June 27, 2012
 - Deadline for Posting Internships

• July 23, 2012
 - Deadline for Students to Apply and Identify Internship Preferences

• July 24 - 31, 2012
 - Agencies Establish Criteria and Receive List of Qualified Candidates

• July 24, 2012 - August 31, 2012
 - Agencies Contact Candidates for Interviews

• September 2012
 - Internships Begin

The Student Intern Program Liaison should be, whenever possible, a professional member of your human resource team. All human resource or personnel staff with access to NYSTEP will have permissions to access the Internship Portal using their Department of Civil Service Web Applications Log In information. Please contact Lynne Harting via email atnysinternships@cs.state.ny.us by Tuesday, May 15, 2012, with the name and contact information for your agency liaison. Please also indicate if the Student Intern Program Liaison will be attending the Student Internship Program briefing in person or connecting via the webinar.

Timeline

To assist you in your planning efforts, the timeline for the New New York Leaders: Student Intern Program for Fall 2012 internships is as follows:

We look forward to your participation in the New New York Leaders: Student Intern Program. For more information on the program, visit our website http://www.nysinternships.com beginning the week of May 14. If you have any questions, please contact Lynne Harting at (518) 473-9721 or contact us at nysinternships@cs.state.ny.us.

The school board rather than the Commissioner of Education in the party that may initiate disciplinary action against a school officer

The school board rather than the Commissioner of Education in the party that may initiate disciplinary action against a school officer

Decisions of the Commissioner of Education, Decision No. 16,350

An individual challenged the actions of the school board and various officers of the school district by filing an appeal with the Commissioner of Education in which he include a request that the Commissioner remove certain school officials from their respective positions.

The Commissioner dismissed the appeal and denied the removal application.

Addressing the denial of the individual’s “removal application” with respect to the superintendent and the assistant superintendent, the Commissioner explained that the individual must seek disciplinary action from the [superintendent’s and the assistant superintendent’s] employer, the board of education, in the first instance. 

Disciplinary action against a superintendent or assistant superintendent, said the Commissioner, is within “the discretion of the employing board of education.”

Accordingly, the individual should have brought his complaint to the board of education, whose decision may then be reviewed in an appeal to the Commissioner of Education.

The decision of the Commissioner is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16350.html

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

A correction officer employed by the New York State Department of Corrections and Community Supervision filed an action in the Court of Claims alleging that he had been subjected to retaliation and a hostile work environment in violation of Executive Law §296.

The officer had claimed that he was disciplined after engaging in an on-duty physical confrontation with another correction officer, contending that the other correction officer involved in the confrontation was not disciplined at all and that a different correction officer involved in a similar but unrelated incident received a lesser punishment. He contended that the disciplinary action taken against him was in retaliation of his having previously filed complaints against his supervisors alleging racism.

The Appellate Division affirmed the Court of Claims’ ruling that the correction officer had failed to establish either claim.

Citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, the court explained that to establish a claim for retaliation, a claimant was required to prove the following four elements:

[1] he or she had engaged in protected activity;

[2] his or her employer was aware that he or she had engaged in such activity;

[3] he or she suffered an adverse employment action based upon his or her activity;

[4] there is a causal connection between the protected activity and the adverse action.

The Appellate Division noted although the first three elements of a retaliation claim were not disputed here, the Court of Claims concluded that there was no evidence of a causal connection between the protected activity and the discipline imposed on claimant.

The Court of Claims had [1] credited the version of events reported by the witnesses to the confrontation and determined that claimant was the aggressor and [2] the confrontation in which the officer had been involved “was more serious than the unrelated incident.”

As to the officer’s “retaliatory hostile work environment claim,” the Appellate Division said that the actions giving rise to such a claim “must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus.”

The Appellate Division held that in determining if such a hostile work environment existed “All of the circumstances must be considered, including ‘the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"  Further, said the court, "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the [claimant], and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so."

Noting that the record supported the conclusion of the Court of Claims that the supervisor's conduct did not pervade claimant's work environment or rise to an actionable level, the court dismissed the correction officer’s appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03487.htm

Comptroller’s audit alleges that a former Village of Wolcott clerk-treasurer made unauthorized payments to herself

Comptroller’s audit alleges that a former Village of Wolcott clerk-treasurer made unauthorized payments to herself

An audit report issued by the State Comptroller's Division of Local Government and School Accountability  alleges that a former Village of Wolcott clerk-treasurer misappropriated more than $68,000 of the village's funds over a four-year period.

The village had contacted the Comptroller's office. After reviewing the village's financial records the auditors reported that the village’s accounting records indicated that unauthorized disbursements in the form of extra payroll payments, unauthorized overtime payments, excessive health insurance buyouts, unearned leave payouts, overpayment of vital statistics fees, and payments inappropriately charged to the village’s records management grant had been made.

The audit report recommended the village:

1. Ensure the village's clerk-treasurer maintains adequate, accurate and timely records and reports on an ongoing basis;

2.Require and review detailed monthly financial reports, which should include cash balances, cash receipts and disbursements made during the month, a comparison of actual revenue and expenditures to budget amounts, and bank reconciliations with copies of the bank statements.

3. Adopt and distribute a Code of Ethics, as required by law; and

4. Monitor cash disbursement records to ensure accuracy.

The Division's audit report is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/villages/2012/wolcott.pdf

An internal investigation of a sexual harassment complaint prior to the filing of a complaint with EEOC not a protected activity within the meaning of Title VII

An internal investigation of a sexual harassment complaint prior to the filing of a complaint with the EEOC not a protected activity within the meaning of Title VII

In a case characterized by the U.S. Court of Appeals, Second Circuit, as one of “first impression,” the court ruled that internal investigations by conducted by an employee of alleged acts of unlawful discrimination in accordance with the employer's policy but initiated prior to the filing of a Title VII complaint does not qualify as a “protected activity.”

The genesis of the case was a complaint made to the employer’s Human Resources Director [HRD] by an employee alleging she had been sexually harassed by a corporate executive.

The HRD began to conduct an internal investigation of the allegations. However, before completing the investigation, the HRD was terminated by employer. Contending that her termination was in retaliation for her participation in the internal investigation, the HRD brought an action againt the employer claiming her investigation activities constituted a protected activity within the meaning of Title VII’s anti-retaliation provision.*

The federal district court granted the employer’s petition for summary judgment, holding that the  HRD’s participation in an internal employer investigation into the employee’s sexual harassment allegations, “an investigation that was not connected to any formal charge with the EEOC,” did not qualify as protected activity under the participation clause of Title VII’s anti-retaliation provision.

Citing Correa v. Mana Prods, Inc., 550 F. Supp. 2d 319, the district court said that “[i]n order to gain protection under the participation clause, the participation must be in an investigation or proceeding covered by Title VII, and thus not in an internal employer investigation.”  In this instance the court found that the HRD’s investigation was conducted pursuant to the employer’s internal procedures and were not  associated with any Title VII proceeding. 

The Court of Appeals agreed with the district court’s ruling.**

Noting that EEOC had submitted an amicus brief urging the court to adopt a  “contrary interpretation of the participation clause, one that embraces internal employer investigations,” the Circuit Court said that although EEOC’s views are entitled to deference to the extent they have the power to persuade, “it did not find the EEOC’s interpretation persuasive in this case and affirmed the district court’s granting of summary judgment dismissing the HRD’s Title VII retaliation claim. 

* Title VII's anti-retaliation provision extends protection both to employees who have "opposed any practice made an unlawful employment practice" under Title VII (the "opposition clause") and to employees who have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII (the "participation clause)." On January 24, 2011 the United States Supreme Court unanimously supported a broad reading of Title VII’s anti-retaliation provision. The high court said that the alleged victim of retaliation has standing to sue even if he or she was not the person who engaged in protected activity [Thompson v. North American Stainless LP, 131 S.Ct. 863, 2011 U.S. LEXIS 913]. In Thompson the court ruled that, under certain circumstances, a third-party termination may constitute an unlawful reprisal under Title VII’s anti-retaliation provision and that “a person claiming to be aggrieved … by an alleged employment practice” and who 'falls within the zone of interests protected by Title VII' has standing to sue his employer." Second Circuit Judge Raymond Lohier, in a concurring opinion, cited Thompson and said that Congress should clarify whether the kind of investigation the HR conducted falls within the protective sweep of the participation clause.

** The court said that it expressed no opinion as to whether participation in an internal investigation that is begun after a formal charge is filed with the EEOC falls within the scope of the participation clause, noting that some courts “have answered this question in the affirmative noting that in Abbott v. Crown Motor Co., 348 F.3d 537, the USCA, 6th Circuit, held that “Title VII protects an employee’s participation in an employer’s internal investigation into allegations of unlawful discrimination where that investigation occurs pursuant to a pending EEOC charge.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/855b7c0d-e303-49c2-a5f6-399603d29346/1/doc/09-0197_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/855b7c0d-e303-49c2-a5f6-399603d29346/1/hilite/

Average weekly wage based on concurrent employments may be used to determine Workers’ Compensation Law benefit

Average weekly wage based on concurrent employments may be used to determine Workers’ Compensation Law benefit

A “year-round” lifeguard employed by the Staten Island Developmental Disabilities Services Office was involved in an automobile accident in the course of his employment and applied for Workers’ Compensation Law benefits.

In determining the individual’s workers’ compensation benefits, the Workers’ Compensation Board’s administrative law judge included the employee's earnings “from concurrent seasonal employment as a lifeguard for the City of New York.” Staten Island appealed but the Workers’ Compensation Board ultimately sustained the administrative law judge’s determination.

The Appellate Division affirmed the Board’s ruling, noting that “The record demonstrates that the claimant was employed on weekends by Staten Island year round for 12 years and had been seasonally employed for the City of New York between the months of May and September since 1978.”

As the lifeguard had worked for both employers concurrently during the previous 12 summers, participated in training and received a promotion with respect to his seasonal employment during the off season and returned to his seasonal lifeguard position following the injury, the Appellate Division concluded that “substantial evidence supports the Board's finding that claimant was concurrently employed.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03490.htm

Police officer found to have testified in his “official capacity” when he referred to his job as a police sergeant

Police officer found to have testified in his “official capacity” when he referred to his job as a police sergeant

The New York City Police Department's Patrol Guide Procedure No. 211-09 requires a police officers to give notice of his or her intention to testify at a criminal trial to the Police Commissioner or to the Department's Legal Bureau.

When a police officer testified at his cousin's criminal trial without complying with Procedure 211-09, he served with disciplinary charges and found was guilty of failing to notify the Police Commissioner and, or, the Legal Bureau that he intended to provide character testimony at a criminal trial and that he did in fact provide testimony, at a trial. The penalty imposed: a forfeiture of 15 days of vacation accruals.

The Appellate Division sustained the disciplinary determination, holding that it was rational and supported by substantial evidence.

The court said that the Assistant Deputy Commissioner of Trials had a rational basis for finding that the police officer had testified in his "official" capacity at the criminal trial given that he referred to his job as a Police Department Sergeant and the judge in the case referred to him as "Sergeant."

Further, said the Appellate Division, the Assistant Deputy Commissioner also had a rational basis for finding that, even if the police officer had not testified in his "official capacity," Patrol Guide Procedure No. 211-09 still applied because the police officer conceded that it was his understanding that he was going to provide character testimony, among other things.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03561.htm

The physician-patient privilege and HIPPA both held to yield to a subpoena duces tecum issued by an administrative agency pursuant to its statutorily assigned functions

The physician-patient privilege and HIPPA both held to yield to a subpoena duces tecum issued by an administrative agency pursuant to its statutorily assigned functions
New York City Health & Hosps. Corp. v New York State Commn. of Correction,2012 NY Slip Op 03571, Court of Appeals

The New York State Commission of Corrections, on behalf of its Medical Review Board, served a subpoena duces tecum on Elmhurst Hospital, a health care facility operated by the New York City Health and Hospitals Corporation (HHC), seeking its records concerning its care and treatment of a deceased correctional inmate in the custody of the City of New York.

Initially the subpoena was quashed upon the ground that it sought material shielded from disclosure by the physician-patient privilege.* The Court of Appeals, however, ruled that the records sought were not properly withheld from the Commission by reason of the alleged physician-patient privilege and that the subpoena should be honored.

The court noted the Board has statutorily assigned functions, powers and duties in the "[i]nvestigat[ion] and review [of] the cause and circumstances surrounding the death of any inmate of a correctional facility."

However, HHC refused to turn over the sought records, contending that the inmate had been treated at Elmhurst in a non-prison unit, and, in view of that circumstance, HHC argued that the Commission had no special entitlement to the deceased inmate's medical records.

The Court of Appeals disagreed, holding that the Legislature intended for the Board to have plenary authority to "investigate and review the cause and circumstances surrounding the death of any inmate ofa correctional facility" and the “Legislature cannot be supposed to have allowed that the thoroughness of the Board's inquiry would vary with the site of an inmate's pre-mortem medical care — that the inquiry respecting the death of an inmate who in the period preceding his or her death was treated in a prison or a prison unit in a hospital would be conducted with the benefit of a full medical record, whereas one respecting an inmate who had received pre-mortem treatment in a non-prison unit would have to be performed without such a record in the event that a waiver of the physician-patient privilege could not be obtained.”

The Court of Appeals then considered an alternative argument advanced by HHC -- the HIPPA Privacy Rule. The court said that the Privacy Rule does not prohibit disclosure of the records sought by the Commission as HIPPA specifically allows for disclosures "required by law," citing 45 CFR 164.512 [a]. This, said the court, includes disclosures pursuant to "subpoenas . . . issued by . . . an administrative body authorized to require the production of information."

The subpoena HHC sought to be suppressed, which the court ruled was enforceable despite CCH’s claim of physician-patient privilege, was held to fall “comfortably within” 45 CFR 164.512 [a].

* On the issue of physician-patient privilege, CPLR 4504 (a) provides, in pertinent part: "[u]nless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing [or] licensed practical nursing . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity. The relationship of a physician and patient shall exist between a medical corporation . . . and the patients to whom [it] . . . render[s] professional medical services."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03571.htm

Emergency/proposed rule making relating to hearings on disciplinary charges filed against tenured school employees in the unclassified service

Emergency/proposed rule making relating to hearings on disciplinary charges filed against tenured school employees in the unclassified service

I.D. No. EDU-19-12-00004-EP; Filing No. 400; Filing Date: 2012-04-24; Effective Date: 2012-04-24

The State Department of Education has promulgated proposed rules to implement Education Law §3020-a, as amended by Part B of Chapter 57 of the Laws of 2012, relating to hearings on disciplinary charges filed against tenured school employees.

The full text of rule and any required statements and analyses may be obtained from: Mary Gammon, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 138, Albany, NY 12234, (518) 473-2183, email: mgammon@mail.nysed.gov

The basic elements underlying this proposed amendment are summarized below:

Amendment of Subpart 82-1 of Title 8 NYCRR. -- Statutory authority: Education Law,  §§207 (not subdivided), 305(1) and (2) and 3020-a, as amended by L. 2012, ch. 57, part B

Specific reasons underlying the finding of necessity: The proposed rule is necessary to implement Education Law §3020-a, as amended by Part B of Chapter 57 of the Laws of 2012, relating to hearings on charges against tenured school employees.

As part of its 2011 legislative agenda, the Board of Regents sought a number of modifications to the tenured teacher hearing process set forth in Education Law §3020-a to address spiraling costs and the extraordinary length of time arbitrators utilized to conduct hearings.

This legislation was introduced in the Assembly and Senate. The Governor's proposed 2012-13 State Budget incorporated some of these reforms, and the State Budget as adopted by the Legislature incorporated a number of important programmatic and fiscal reforms.

The changes take place immediately, and apply to all charges against tenured educators filed with the clerk or secretary of the school district or employing board on or after April 1, 2012.

The new amendments modify the manner in which an arbitrator is selected if the parties fail to agree on an arbitrator selection within 15 days of receipt of the list. Education Law §3020-a(3)(b)(iii) states that ‘‘[i]f the employing board and the employee fail to agree on an arbitrator to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection within such fifteen day time period, the commissioner shall appoint a hearing officer from the list.’’

This provision authorizes the Commissioner to select the arbitrator if the parties fail to agree within 15 days of receipt of the list. It does not apply to NYC where there is an alternative procedure.

The proposed amendment requires the Commissioner to establish a schedule for  “maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed” (emphasis added). The purpose of this amendment is to give the Commissioner the authority to control costs. Pursuant to Education Law §3020-a(3)(c)(i)(B), the proposed amendment authorizes the Department to monitor and investigate a hearing officer's compliance with the timelines set forth in the statute.

The Commissioner may exclude any hearing officer who has a record of continued failure to commence and conclude hearings within the timelines prescribed in the statute.

The proposed amendment continues the requirement that an accurate ‘‘record’’ of the proceedings be kept at the expense of the Department and furnished upon request to the employee and the board of education. However, in accordance with the new law, the proposed amendment permits the Department to take advantage of any new technology to transcribe or record the hearings in an accurate, reliable, efficient and cost effective manner.

In conformity with the new law, the amendment also imposes a one year limitation for the submission of claims for reimbursement for services rendered. The purpose of this amendment is to encourage timely submission of claims so that accurate budget assumptions can be made and claims can be paid for in a reasonable time.

The rule is being adopted as an emergency measure upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to immediately revise Subpart 82-1 of the Commissioner's regulation to conform to and implement the provisions of  §3020-a of the Education Law, as amended by Chapter 57 of the Laws of 2012. Emergency action is also necessary to give employees and employing boards sufficient notice of the new requirements to timely implement them in accordance with the statute.

It is anticipated that the proposed rule will be presented for adoption as a Proposed Rule Making in the State Register and expiration of the 45-day public comment period prescribed in State Administrative Procedure Act §202(4-a).

This notice is intended: to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire July 22, 2012.

Data, views or arguments may be submitted to: Peg Rivers, New York State Education Department, 89 Washington Avenue, Albany, New York 12234, (518) 408-1189, email: privers@mail.nysed.govPublic comment will be received until: 45 days after publication of this notice.

[N.B. This notice was published in the NYS Register dated May 9, 2012]

An individual’s failure to comply with drug test procedures implementing federal regulations cannot be deemed to have violated state or local discrimination laws

An individual’s failure to comply with drug test procedures implementing federal regulations cannot be deemed to have violated state or local discrimination laws

The individual was unable to provide the required urine sample to qualify eligibility for employment as an Assistant City Highway Repairer.

Although Supreme Court summarily granted the individual’s on the issue of liability, the Appellate Division unanimously reversed the lower courts ruling “on the law” and directed that the individual’s complaint be dismissed.

The court said that there was no competent evidence that the individual suffered from a disabling medical condition that prevented him from being able to produce a urine sample nor, assuming that issues of fact exist whether he suffered a medical impairment, the Appellate Division said that the had failed to make any showing that this impairment caused him to be unable to provide a 45-milliliter urine specimen within the required three-hour time period.

Noting that the employer, in determining that the individual failed to comply with its drug test procedures "implementing federal regulations" governing his eligibility for the position as set out in 49 CFR Part 40, the court said that the employer “cannot have violated state or local discrimination laws by [doing so]," citing Kinneary v City of New York, 601 F3d 151.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03527.htm

Local government management guide on information technology governance available from the Office of the State Comptroller

Local government management guide on information technology governance available from the Office of the State Comptroller

Source: Office of the State Comptroller

The Office of the State Comptroller, Division of Local Government and School Accountability has released its latest edition of its Local Government Management Guide on Information Technology Governance.

The Guide is intended to make the oversight of information technology less daunting by providing a template for understanding and strengthening controls over IT. It includes a Security Self–Assessment structured around twelve key areas of IT security that is intended to help local governments exercise effective oversight of IT operations and serve as a starting point for discussions with personnel who are responsible for the day–to–day management of the entity’s computer operations. 

Readers are invited to e-mail the Division -- localgov@osc.state.ny.us --with questions concerning IT governance or for assistance interpreting the self–assessment results.

The Guide is posted on the Internet at:

http://www.osc.state.ny.us/localgov/pubs/lgmg/itgovernance.pdf?utm_source=weeklynews20120505&utm_medium=email&utm_campaign=lgmgitg_pdf

An appointing authority has broad discretion in determining if an omission in the probationer’s application form is material to his or her qualifications for the position

An appointing authority has broad discretion in determining if an omission in the probationer’s application form is material to his or her qualifications for the position

The Appellate Division unanimously affirmed a Supreme Court ruling that dismissed a probationary police officer’s challenge to his termination during his probationary period.

The court said that the appointing authority was “entitled to discharge a probationary police officer ‘for almost any reason, or for no reason at all' as long as it is not in bad faith or for an improper or impermissible reason," citing Duncan v Kelly, 9 NY3d 1024.

The probationer alleged that he was terminated because of his “inadvertent” failure to disclose the psychological treatment he underwent at the age of six. The Appellate Division held that even if the probationer was "ignorant or unaware of or oblivious to his personal history,” the appointing authority was entitled, given the broad discretion vested in it, to deem "such omissions a[s] material to his qualifications."

Citing Talamo v Murphy, 38 NY2d 637, the decision notes that even assuming the truth of the probationer's allegations, his petition failed to allege any facts that would, if proven to be true, constituted a violation of "statute or policies established by decisional law."

As the probationer failed to allege facts supporting a conclusion that his termination was in bad faith, the Appellate Division ruled that “Given this failure, a hearing to resolve the truth of the facts alleged is unnecessary.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03516.htm

Reasons set out in the administrative determination held to trump alternative reasons advanced in the course of litigation

Reasons set out in the administrative determination held to trump alternative reasons advanced in the course of litigation

A candidate for appointment as a firefighter with the City of Buffalo challenged his disqualification for the appointment on the basis of his failing to meet the residence requirement set out in Rule 10 of the City's Classified Civil Service Rules.

Rule 10 requires the applicant to maintain residence for 90 days prior to the date of application or the date of appointment, as the case may be.*

In contrast, the examination announcement stated that applicants for the firefighter position must maintain continuous residence within the City from the date of application to the date of appointment,

Following oral argument, Supreme Court ruled that the City's determination that the candidate failed to comply with Rule 10 was arbitrary and capricious.

The Appellate Division sustained the lower courts ruling.

Noting that the City relied exclusively on Rule 10 of its Classified Civil Service Rules to disqualify the candidate for the firefighter appointment, the court explained that “Although counsel for the City referred during oral argument in Supreme Court to the more onerous residency requirement set forth in the examination announcement, the written notice of disqualification sent to petitioner cited only Rule 10, and the court's decision was based solely on the applicability of Rule 10.”

Further, said the Appellate Division, in its brief on appeal the City referred to Rule 10 and not the residency requirements of the examination announcement. Thus, as Supreme Court determined, the issue presented is whether the City's determination that the candidate failed to comply with Rule 10 was arbitrary and capricious.

Although the examination announcement stated that applicants must maintain continuous residence within the City from the date of application to the date of appointment, as noted the City did not rely on the notice set forth in the examination announcement to disqualify candidate. Thus the Appellate Division concluded that the City's determination to disqualify the applicant based on his purported failure to comply with Rule 10 was arbitrary and capricious.

* There was no dispute that the candidate was a City resident when he applied for the firefighter position and that he had been a City resident for at least 90 days without interruption prior to the date of his application.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03346.htm