Recent rulings and recommendations by OATH Administrative Law Judges

Recent rulings and recommendations by OATH Administrative Law Judges

Summaries published by the NYC Office of Administrative Tribunals and Hearings

Employee alleged to have refused to work overtime
OATH Index No 1748/12

A hospital special officer was charged with insubordination after refusing to work mandatory overtime on 42 occasions. The employee did not appear at the hearing and the matter proceeded by inquest.*

Administrative Law Judge Kara J. Miller found that on each occasion the officer was given a form ordering him to work mandatory overtime and warning him that non-compliance could result in disciplinary action.  Each form was signed and dated by special officer and a supervisor. 

ALJ Miller found that this documentation proved the insubordination.  She recommended that the special officer be suspended without pay for 45 days.

* Courts have held that the appointing authority or its designee may proceed with the disciplinary action even though the employee is not present. Where the individual is to be  tried in absentia, a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did appear at the appointed time and place. Notwithstanding the absence of the individual, the burden is on the charging party to present and prove the disciplinary charges filed against the worker.

The decision is posted at Health & Hospitals Corp. (Jacobi Hospital Ctr.) v. Cooper (in PDF), .

Supervisor charged with leave violations, failure to supervise subordinates, sleeping on duty and misuse of agency property.
OATH Index No. 760/12 

Following a 7-day hearing, ALJ Kevin F. Casey sustained some of the leave violations, the sleeping on duty charge and the misuse of property charge, but he dismissed the failure to supervise charges. 

Noting that it was undisputed that some of supervior’s absences may have been due to medical conditions that he developed after his service at Ground Zero, and that the most serious disciplinary penalty previously imposed on employee was the loss of 10 vacation days, Judge Casey found termination of employment to be an overly harsh penalty and recommended a 48-day suspension without pay, based on principles of progressive discipline. 

The decision is posted on the Internet at Dep’t of Sanitation v. Harris (in PDF),  

Employees alleged to have ignored directives to stop distributing union literature while not on duty
OATH Index Nos. 1497/12, 1499/12, 1707/12

Three New York City correction officers were charged with a number of allegations of misconduct, chief among them refusing to comply with orders to stop distributing union literature on Rikers Island while not on duty and refusing to obey orders to leave the secured island.

The individuals denied they were ever given such orders and asserted a First Amendment right to distribute union information while off-duty. They also offered videos of some of the incidents into evidence.

ALJ Alessandra F. Zorgniotti sustained the charges that correction officers refused to obey orders to stop distributing their materials and orders to leave the island, as well as charges that one officer filed a false report and another failed to turn over his parking pass promptly.

Other allegations were dismissed.

ALJ Zorgniotti noted that a correctional facility presents special circumstances under the First Amendment, and that the employees had failed to prove that their First Amendment rights outweighed the compelling interest of the Department in maintaining a secure facility. 

Judge Zorgniotti recommended that each officer be suspended for 10 days without pay. 

The decision is posted on the Internet at Dep’t of Correction v. Reuter (in PDF), OATH Index Nos. 1497/12, 1499/12, 1707/12

Motor vehicle operator alleged mentally unfit to perform her dutie
OATH Index No. 1546/12  

Administrative Law Judge John B. Spooner found that the individual had a mental disability but that the proof presented at the hearing was insufficient to sustain the allegation that she was presently unfit for her job as a driver.

The ALJ noted that [1] neither of the two incidents proven at trial established that employee was an unfit driver, [2] the individual had recently received favorable evaluations of her driving performance, and[3]  there had been no complaints about the employee since January 2011.

Judge Spooner recommended that the disciplinary charges be dismissed.

The decision is posted on the Internet at  Admin. for Children’s Services v. Anonymous(in PDF),

Newspaper reports admitted into evidence in an administrative disciplinary proceeding

Newspaper reports admitted into evidence in an administrative disciplinary proceeding
2012 NY Slip Op 07479, Appellate Division, Fourth Department

A volunteer firefighter filed an Article 78 petition challenging the Volunteer Fire Company’s decision,  to expel him from membership in the Fire Company following a hearing held pursuant to General Municipal Law §207-l.

The petitioner contended that the Fire Company had violated §160.50 of the Criminal Procedure Law, which provides for the “sealing” of certain record, when the Company admitted into evidence media reports related to the petitioner's arrests or when it presented the testimony of a police investigator who was involved in the relevant criminal investigations.

As to newspaper media reports concerning petitioner's arrests, the Appellate Division, citing New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 AD2d 546, 549, affd 66 NY2d 752, said that such newspaper reports are not "official records and papers . . . relating to [the petitioner's] arrest or prosecution" within the meaning of CPL §160.50(1)(c). Further, said the court, it is " permissible to consider the independent evidence of the conduct [of the petitioner] leading to the criminal charges."

As to the testimony of the police investigator, the court explained that the police investigator was "free to testify from memory" concerning the conduct that led to the petitioner's arrests.”

The Appellate Division then stated there was substantial evidence establishing that the petitioner had exhibited a lack of "good moral character" in violation of Article II, §2 of the Fire Company's Constitution and By-laws and had committed misconduct under General Municipal Law §209-l".

N.B. §209-l provides for the removal of volunteer officers and volunteer members of fire departments charged with, and found guilty of, misconduct or incompetence after a hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07479.htm

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law
Hernandez v Office of the Mayor of the City of New York, 2012 NY Slip Op 08067, Appellate Division, First Department

Sergio Hernandez filed an Article 78 petition seeking a court order annulling the determination of the Office of the Mayor of the City of New York denying his requests under the Freedom of Information Law (FOIL) for certain e-mails sent from or “received by any government email accounts assigned to the Office of the Mayor to or from Cathleen Black, at the time she was a nominee for the position of New York City School Chancellor” and certain other records.

Supreme Court directed the City to produce redacted copies of such e-mails, which as the Appellate Division subsequently noted, were not exempt from disclosure as inter- or intra-agency materials within the meaning of Public Officers Law §89[2][g].

The City appealed the court’s order.

The Appellate Division sustained the lower court’s ruling, explaining that Black was not an agent of the City since she had not yet been retained as Chancellor. In addition, said the court, Black was not acting simply as an outside consultant on behalf of the City, but was a private citizen with interests that may have diverged from those of the City.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08067.htm

Failure to correctly identify the court and the name of the judge signing a search warrant a fatal defect

Failure to correctly identify the court and the name of the judge signing a search warrant a fatal defect

People v Gavazzi, 2012 NY Slip Op 08054, Court of Appeals

This LawBlog’s summary of Gusler v. City of Long Beach, USCA, Docket #11-4493-cv [see http://publicpersonnellaw.blogspot.com/2012/11/the-failure-to-name-parties-appealing.html] noted that the U.S. Court of Appeals, Second Circuit, ruled that the failure to correctly name the parties appealing a federal district court’s ruling was a fatal jurisdictional defect.

In People v Gavazzi the defects challenged by Gavazzi involved the name of the jurisdiction, the name of the court and the name of the justice signing a search warrant.

The Court of Appeals, Justice Smith dissenting, held that a warrant to search Gavazzi’s residence in the Village of Greene, Chenango County, was defective as the result of the inadvertent typing of "Local Criminal Court, Town of Broome, Broome County" at the head of the warrant instead of "Local Criminal Court, Town of Greene, Chenango County." There is no municipality of Broome in either Broome County or Chenango County and the Village Justice signed the warrant without correcting the error.

Further, said the court, the Justice’s signature on a line marked "Signature of Judge or Justice” was illegible.

The Appellate Division had held that the warrant did not substantially comply with §690.45(1)* of the Criminal Procedure Law because it contained "no information from which the issuing court can be discerned" (see 84 AD3d 1427 at 1429). The Court of Appeals agreed with the Appellate Division's analysis, explaining that a search warrant must contain "[t]he name of the issuing court," again citing CPL §690.45 [1]).** Here, however, the Village Justice who signed the warrant included no designation of his court, his signature was illegible, there is no seal, and the caption referred to a nonexistent town.

In the words of the Appellate Division, "on its face the warrant appears to [have been] issued by an unidentified judge in a nonexistent court and town in a different county", concluding that the warrant did not substantially comply with CPL §690.45(1).

The bottom line: evidence sized under color of the warrant had to be suppressed.

* §690.45, in pertinent part, provides that “A search warrant must contain: 1. The name of the issuing court and, except where the search warrant has been obtained on an oral application, the subscription of the issuing judge;"

** The Court of Appeals noted that standard for adherence to the statutory requirement is "substantial — rather than literal — compliance."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08054.htm

Possession of a valid license or permit to perform the duties of the position

Possession of a valid license or permit to perform the duties of the position

Lutz v Krokoff, 2012 NY Slip Op 07938, Appellate Division, Third Department

It is well settled that employment in certain positions or occupations in New York State requires the individual to posses a valid license or its equivalent. Examples of this include teaching in a public school, operating motor vehicle on public highways, practicing law or medicine and serving as a certified public account. In the event the individual no longer possesses the required license or permit, he or she can neither lawfully perform nor be permitted to perform the duties requiring the possession of a valid permit or license.*

When it learned that a police officer’s driver's license was temporarily revoked, the police department’s chief advised the officer that possession of a valid driver's license was a minimum qualification for employment by the department as a police officers and gave him an opportunity to provide documentation demonstrating that he possessed a valid driver’s license.**

When the officer could not produce evidence that he possessed a valid driver’s license his employment was terminated “for failure to meet the minimum qualifications for his position.”

The officer then initiated an Article 78 proceeding challenging his termination as arbitrary and capricious and affected by an error of law. Supreme Court dismissed the police officer’s petition, prompting his appeal to the Appellate Division.

The police department, conceding that possession of a valid driver's license was not specifically listed as a minimum qualification for appointment to the position of a police officer, nevertheless contended that such a license was an implied requirement in view of the fact that the job description for its police officers listed, among other things, the "[a]bility to operate an automobile."

The Appellate Division was not persuaded by this argument, ruling that “summary dismissal of an employee based merely upon an inference cannot be countenanced.” In contrast, said the court, “Where summary dismissal has been upheld for failure to maintain a minimum qualification of employment, the qualification at issue has been clearly and explicitly set forth.”

Further, the court observed that the record indicated that almost one third of the police officers employed by the department performed functions other than those requiring possession of a valid driver’s license and noted that the department’s “Standard Operating Procedures” stated that a police officer shall "[p]ossess a valid New York State driver[']s license, whenever required as a condition of employment" (emphasis supplied by the court).

In the court’s view, this “conditional language” suggested that that there were police officers in the department who were not required to possess a driver's license as a necessary condition of employment.

Noting that the civil service commission having jurisdiction had promulgated a class specification for another position, firefighter, that explicitly required the possession of a valid New York State driver's license at the time of employment and throughout the duration of the individual’s employment as a firefighter, the Appellate Division concluded that the police officer’s termination without a hearing was both arbitrary and capricious and contrary to law and reversed the lower court’s ruling

* See, for example, Meliti v Nyquist, 41 NY2d 183

** In the words of the Appellate Division, citing Carr v NYS Dept. of Transportation, 30 AD3d 1110, "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07938.htm

Self-critical privilege not available to public entities in New York State objecting to the release of certain information

Self-critical privilege not available to public entities in New York State objecting to the release of certain information

Uniformed Fire Officers Assn., Local 854 v City of New York, 2012 NY Slip Op 07899, Appellate Division, First Department

Supreme Court denied the City of New York’s motion to quash a judicial subpoena obtained by the Uniformed Fire Officers Association, Local 854, requiring the City to supply it with copies of drafts of a public safety consultant's report recommending a change affecting the City’s 911 call system.

The Appellate Division sustained the Supreme Court’s ruling, holding that the City failed to show that the public interest would be harmed by the disclosure of drafts of the consultant's report to the Local.

The court explained that the City’s claim of protection under the so-called "self-critical" privilege*was misplaced as “This privilege has never been recognized under New York law.”

Further, the Appellate Division observed that the City had not demonstrated that there were "exceptional and compelling circumstances" that might justify the judicial creation of a new privilege

In the words of the court, “Absent sensitive subject matter or exposure of review participants to liability, the City's contention that the disclosure of the drafts would have a chilling effect on the internal discussions of those engaged in reviewing technical projects such as this is speculative.”

In contrast, said the court, Local 854 had shown a need for the drafts for the purpose of  preparing its case before the City’s Collective Bargaining Board.

* The self-critical analysis privilege, if available, would protect an entity’s self-evaluative materials from disclosure when it is shown that the public interest in preserving the internal evaluations of the organization outweighs an interested party's right to the information.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07899.htm

The failure to name the parties appealing a lower court’s ruling held a fatal jurisdictional defect

The failure to name the parties appealing a lower court’s ruling held a fatal jurisdictional defect

Gusler v. City of Long Beach, USCA, Docket #11-4493-cv

Jay Gusler, acting pro se, filed an action under 42 U.S.C. §1983 alleging that the defendants* unlawfully retaliated against him.

The district court dismissed claims against some of the defendants but then dismissed a motion by the remaining individual defendants' raising a defense of qualified immunity. The remaining defendants then appealed the district court's dismissal of their motion.

The Circuit Court of Appeals rejected the appeal filed by the remaining individual defendants, finding that it lacked jurisdiction to consider the merits of the appeal as they had not filed a timely notice of appeal.

Although the notice of appeal contained the full caption of the action, the body of the appeal stated: “Notice is hereby given that the defendant Nassau County hereby appeals.” However, said the court, while The City of Long Beach is in Nassau County, Nassau County itself is not a party in the action.

The Circuit Court said that the appeal as initially filed did not “provide notice to the court [or] to the opposing parties of the identity of the appellant or appellants” so that neither the Circuit Court, nor the district court, nor the plaintiff  “know . . . which parties are bound by the district court’s [decision] [and] which parties may be held liable for costs or sanctions on the appeal.”

Further, noted the Circuit Court, the amended notice of appeal did not cure the problem as the amended notice was filed after the time to appeal had run.**

The Circuit Court dismissed the appeal, explaining that “Because the notice of appeal did not specify which defendants were taking an appeal of the district court’s decision, we lack jurisdiction to consider their appeal.”

* Gusler had named as the defendants in his action The City Of Long Beach, The Long Beach Volunteer Fire Department, The Long Beach Police Department, and twelve individuals.

** The Circuit Court also pointed out that the defendants “did not seek an extension of time to amend and correct the notice of appeal … and the time to do so has long since passed….”

The Circuit Court's decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/67fcaa5c-1014-4d83-957a-173edf363d85/1/doc/11-4493_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/67fcaa5c-1014-4d83-957a-173edf363d85/1/hilite/

Releasing medical records

Releasing medical records

The Port Authority of New York and New Jersey filed a motion to mandate that the plaintiff authorize the release of all of his medical records preceding the accident in which he alleged he was injured.

Supreme Court directed that the plaintiff provide authorizations to release his medical records but limited the release of his medical records to the five years preceding the accident.

The Appellate Division affirmed the lower court’s order, holding that the Authority “failed to demonstrate that all plaintiff's pre-accident medical records were material and necessary in the defense of this action,” explaining that the plaintiff did not allege that the accident “aggravated or exacerbated a preexisting injury or condition.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07898.htm

Challenging the employee's dismissal during his or her probationary period

Challenging the employee's dismissal during his or her probationary period

Supreme Court dismissed a former probationary employee’s petition seeking to annul his termination from his position, the revocation of his New York City Department of Education [DOE] teaching certification, his placement of his name on the DOE's Ineligible/Inquiry list,* and his overall unsatisfactory rating for the 2010-2011 school year.

The Appellate Division sustained the lower court’s actions, explaining that the probationer had failed to establish that his termination, the revocation of his teaching certificate and his placement on the DOE's ineligible/inquiry list, was done in bad faith.

Addressing the individual’s allegation of bad faith, the court noted the record contained evidence of good faith on DOE’s part. For example, said the Appellate Division, the school principal’s "intention was not to terminate [the] petitioner's employment but to extend his probation for an additional year."

In addition, said the court, the record contained evidence of deficiencies in individual's performance during the probationary period.

As to the individual’s challenge to the revocation of his teaching certification and the placement of his name on the ineligible/inquiry list, the Appellate Division ruled that those challenges were not untimely but that Supreme Court had correctly sustained those administrative determinations.

Finally the Appellate Division pointed out that the lower court had correctly dismissed the individual’s challenge to his “U-rating” as it was premature because he had not yet exhausted his administrative remedies.

*Placing an individual’s name on the "Ineligible/Inquiry" list maintained by the New York Department of Education bars that individual from employment at any DOE school while his or her name remains on such list [McPherson v. New York City Dep't of Education, 457 F.3d 211].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07888.htm

Reassignment of “exclusive duties” being performed by negotiating unit employees to non-unit employees

Reassignment of “exclusive duties” being performed by negotiating unit employees to non-unit employees

Stony Point Police Benevolent Association v Town of Stony Point, PERB Case #U-29118

Attorney Brian D. Nugent* advised NYPPL of a November 14, 2012 ruling by the Public Employment Relations Board [PERB] that considered “exclusivity of unit work” in the context of the employer's reassigning certain duties and functions being performed by employees in a negotiating unit to non-unit employees.

The Stony Point Police Benevolent Association [PBA] filed an improper practice charge with PERB contending that the Town of Stony Point violated §209-a.1(d) of the Civil Service Law [The Taylor Law] when it unilaterally reassigned certain security duties that had been performed exclusively by employees in the  negotiating unit represented by the PBA to non-unit employees.

PERB agreed with the Town that the parties' past practice established a discernible boundary between the work assignment at issue: the reassignment of certain security duties being performed by PBA unit members at the Town's Justice Court to non-unit part-time personnel who were not sworn officers.**

PERB, noting that the duties at issue were transferred from sworn police officers to civilian employees, ruled that under its precedents “it is well-settled that an employer’s civilianization of uniformed services constitutes a de facto change in job qualifications.”

PERB then considered the "balancing test" set out in its decision in Niagara Frontier Transportation Authority, 18 PERB 3083.

Finding that there had been a significant change in the "job qualifications" with respect to the "at-issue" duties, PERB said that the only loss suffered by the PBA and its unit members was the “loss of at-issue work” in contrast to a loss in the number of positions in the unit or a loss of unit member benefits.

PERB's conclusion: the Town had not violated §209-a.1(d) of the Taylor Law, explaining that the Town’s interests associated with the civilianization of the at-issue work outweigh the interests of the unit employees.

* Brian D. Nugent, Esq., Feerick Lynch MacCartney Pllc, http://www.flmpllc.com, represented the Town in this proceeding. 

** See Criminal Procedures Law §1.20.34

No legal obligation to initiate disciplinary charges against an individual

No legal obligation to initiate disciplinary charges against an individual

Decisions of the Commissioner of Education, Decision #16,427

A tenured high school teacher alleged that the high school superintendent neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against the principal of the high school at which he was serving.

The teacher alleged that he reported the school’s principal for alleged violations including failure to identify at-risk students as required by Title I of the federal Elementary and Secondary Education Act (20 USC §6301, et seq.) and scoring irregularities on New York State Regents mathematics examinations.

Following his reporting these alleged violations, the teacher claimed that the principal retaliated against him by [1] placing several disciplinary letters in his personnel file, [2] his being ordered to undergo medical examination and [3] his removal from the school to a “temporary assignment center.”*

The teacher asked the Commissioner to remove the high school superintendent and the Chancellor of the New York City Department of Education from their respective positions because they failed to take disciplinary action against the principal.

After considering a number of procedural issued, the Commissioner said that the teacher’s application “must be dismissed on the merits.”

The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

The teacher alleged that the high school superintendent “neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against [the principal].” However, said the Commissioner, the teacher s failed to meet his burden of proof as he did not establish how the superintendent’s failure to file an Education Law §3020-a charge against the principal, at his request, constituted a willful violation or neglect of duty under the Education Law, requiring her removal under Education Law §306 nor did the teacher show that the superintendent “was under a legal obligation to initiate Education Law §3020-a charges against [the principal].”

The Commissioner ruled that “On the record before me, I find that [the teacher] has failed to demonstrate that [the high school superintendent] has willfully neglected her duties [and] failed to establish any basis for [the superintendent’s] removal” and denied the teacher’s application.

* The teacher was later restored to service at the school..

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16427.html

A school district may sue its board members, employees, former board members and former employees for alleged mismanagement or misconduct

A school district may sue its board members, former board members, employees, and former employees for alleged mismanagement or misconduct

Roslyn Union Free Sch. Dist. v Barkan, 2012 NY Slip Op 07652, Appellate Division, Second Department

The Roslyn Union Free School District initiated a lawsuit  against Michael Barkan, Karen Bodner, William Costigan, Mary Ann Combs Ronna Niederman, Ellen Siegel, and Patricia Schissel to recover damages for alleged breaches of fiduciary duty and negligence.

Supreme Court denied their respective motions to dismiss the complaints insofar as asserted against each of them and they appealed the Supreme Court’s ruling to the Appellate Division.

The Appellate Division sustained the lower court's decision, rejecting their argument that, in the absence of specific enabling legislation, a school district may not commence an action against current or former members of its board of education.

Citing a decision by the Court of Appeals in a prior appeal in this action, Roslyn Union Free School Dist. v Barkan, 16 NY3d 643,the court explained that the plaintiff here – the Roslyn Union Free School District -- is a "corporation" and a corporation has the right to sue and be sued.

Accordingly, said the court, the school district has the right to prosecute an action "for injury and damages sustained by it by reason of mismanagement or misconduct in its affairs, waste of assets, or derelictions in duty by the directors, officers, agents or employees of the corporation."

Finding that the school district’s complaint “adequately alleges causes of action to recover damages for breach of fiduciary duty and negligence,” the Appellate Division dismissed the appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07652.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli For the week of November 12 - 18, 2012 [Click on the caption to access the full report] DiNapoli: Improvements Needed At Saratoga Housing Authority Auditors found lax spending controls at the Saratoga Housing Authority, according to an audit released Friday by State Comptroller Thomas P. DiNapoli. DiNapoli: Schenectady’s Fiscal Condition Improving The City of Schenectady faces an unstable financial future, but increased economic development and better long–term financial planning point to signs of progress, according to an audit issued Tuesday by State Comptroller Thomas P. DiNapoli. DiNapoli: Dunkirk Mishandled Federal HUD Grant Funding The City of Dunkirk spent more than $1 million from the U.S. Department of Housing and Urban Development’s (HUD) Community Development Block Grant program on unauthorized or questionable activities, according to an audit issued Tuesday by State Comptroller Thomas P. DiNapoli. The findings have been referred to HUD for further review. Comptroller DiNapoli Releases Audits New York State Comptroller Thomas P. DiNapoli last Friday announced his office completed the following audits:  Department of Health;  Division of Housing and Community Renewal;  Office of Mental Health,  Quality of Internal Control Certification;  Office of Parks, Recreation and Historic Preservation;  Department of Health Overpayments for Hospital Readmissions; and,  Thoroughbred Breeding and Development Fund. Hurricane Sandy Relief Efforts Comptroller Thomas P. DiNapoli and volunteers from the Comptroller’s Office, along with family and friends, will deliver a semi–trailer truckload of supplies to residents of Long Beach at 1 p.m. Saturday, November 17, at the Long Beach Ice Arena as part of the Comptroller’s Office’s Hurricane Sandy relief campaign. The Comptroller and staff volunteers will unload the truck and assist the relief center with sorting and distribution of the household and cleaning supplies. The Comptroller’s Office continues to work with our partners in government to expedite the approval of all storm related contracts and expenditures. Additional items:

Saratoga Springs Housing Authority criticized in audit Comptroller’s Audit Finds Problems In Dunkirk NY Thruway toll hike on hold

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending November 16, 2012 [Click on the caption to access the full report]

Department of Health, Improper Payments Related to the Medicare Buy-In Program (2010-S-76)
From March 2006 through February 2011, Medicaid made nearly 260,000 improper payments, totaling about $26.8 million, for people enrolled in the Medicare buy-in program. The improper payments included $21.1 million in Medicare premiums for people who were ineligible for the buy-in program. This included improper payments of $1.9 for 532 people who were deceased. The improper payments resulted from insufficient DOH oversight, poor local district practices, and weaknesses in certain Medicaid claims processing controls. Auditors recommended DOH increase oversight of local districts, recover inappropriate Medicare buy-in payments, and improve the Medicaid claims processing system to ensure accurate payment of medical claims for individuals eligible for the buy-in program.
 
Division of Housing and Community Renewal, Quality of Internal Control Certification (2012-S-31)
In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring State agencies and public authorities to institute a comprehensive system of internal controls over their operations. By April 30 each year, DOB requires each covered agency to certify compliance with the act. On April 26, 2011, DHCR submitted its annual Internal Control Certification and reported full compliance with all provisions of the Act. DHCR's internal control certification was submitted timely. However, auditors identified several areas where the quality of the certification and/or the actual internal control program could be improved.

Office of Mental Health, Quality of Internal Control Certification (2012-S43) See 2012-S-31 above for description of requirements
OMH's Internal Control Certification was submitted on time and generally exhibited the necessary quality. Answers to most questions were complete and responsive, and were supported by records and documents maintained by the agency. However, OMH's certification did not provide sufficient detail in describing the results of its reviews of high-risk activities.

Office of Parks, Recreation and Historic Preservation, Quality of Internal Control Certification (2012-S-49) See 2012-S-31 above for description of requirements
On June 25, 2012, Parks submitted its annual Internal Control Certification and reported full compliance with all provisions of the Act. Parks’ Internal Control Certification was submitted, 56 days after the April 30 deadline.  Parks’ certification did not provide the required level of detail, did not support some statements with sufficient documentation, and was unable to provide evidence of the communication of the Internal Control Officer designee to all staff. The office has not yet completed a program of internal control review and its internal audit function has not undergone an external quality assessment as required by professional standards.

Department of Health Overpayments for Hospital Readmissions (Follow-Up) (2012-F-11)
An initial audit report examined whether the Department of Health (DOH) overpaid hospitals when the hospitals readmitted patients they had recently discharged. The audit identified overpayments totaling nearly $163,000 from a review of a judgmental sample of claims from five hospitals. The hospitals have already refunded the overpayments to Medicaid. The audit also identified four other hospitals with questionable claims. In a follow-up report, auditors found DOH officials have made progress in correcting the problems identified in the initial report. Of the five prior audit recommendations, three have been implemented, one has been partially implemented, and one is no longer applicable.

Thoroughbred Breeding and Development Fund, Selected Operating Practices (2011-S-36)
The fund has been receiving the statutory commissions due from the tracks, OTBs, and VLT operators. However, while assessing the statutory commission rates due the fund, we found that the New York Racing Association (NYRA) had shortchanged winning bettors by approximately $7.4 million between Sept. 15, 2010 and Dec. 21, 2011. This happened because NYRA was not complying with statutory retainage rates on exotic bets. As a result of our finding, which was identified in December 2011, an investigation was conducted by the NYS Racing and Wagering Board which led to the firing of NYRA’s president/CEO and its senior vice president/general counsel.  Auditors found the fund improperly underreported statutorily limited administrative expenses and promotional expenses by $399,908 for calendar years 2009 and 2010.

Allegations of negligent hiring and supervision of employee rebutted by evidence submitted by employer in support of its motion to dismiss the lawsuit

Allegations of negligent hiring and supervision of employee rebutted by evidence submitted by employer in support of its motion to dismiss the lawsuit

"John Doe 1," v Board of Educ. of Greenport Union Free Sch. Dist., 2012 NY Slip Op 07633, Appellate Division, Second Department

Parents of a student at the Greenport Union Free School District alleged that a teacher's aide employed by the school district engaged in an inappropriate sexual relationship with their child.

Among the complaints asserted against the school district and certain of its officers was a cause of action alleging that these defendants were [1] vicariously liable for the actions of teacher’s aide and [2] were liable for the negligent hiring and supervision of the aide.

The Appellate Division held that the evidentiary material submitted in support of the school district’s motion to dismiss the action as to the district and certain of its employees demonstrated that the parents did not have a cause of action against those defendants sounding in either vicarious liability or negligent hiring and supervision, explaining that all of the alleged improper acts by school aide took place off school premises and, or, outside of school hours, when the school defendants had no custody or control of the students and no duty to monitor or supervise the conduct of the school aide.

Further, said the court, the evidence demonstrated that the conduct of aide was personally motivated and constituted a complete departure from her duties as a school district employee, thereby negating any potential vicarious liability on the part of the school defendants for her alleged tortious acts.

As to the claim that the school district was liable for negligent hiring and supervision of the aide, the Appellate Division said that the evidence established that school district “properly investigated” the aide prior to her being hired, and that the school district had no notice of any propensity on her part to sexually assault students.

The court also noted that the parents did not allege that the school district defendants knew or had reason to know of any improper behavior by the aide nor was any nexus between aide's employment and the alleged sexual assaults, since they were separated by time, place, and the intervening independent acts of the aide.

Accordingly, ruled the Appellate Division, Supreme Court should have granted that branch of the school district's motion to dismiss the complaint insofar as asserted against the school district and its named officials.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07633.htm

Unless limited by the collective bargaining agreement, an arbitrator has broad powers to fashion an appropriate remedy in resolving a contract grievance

Unless limited by the collective bargaining agreement, an arbitrator has broad powers to fashion an appropriate remedy in resolving a contract grievance
Westchester County Corr. Officers' Benevolent Assn. v County of Westchester, 2012 NY Slip Op 07307, Appellate Division, Second Department

An arbitrator issued an award that directed the Westchester County Department of Correction to cease from denying correction officers the use of a floating holiday or floating vacation day where the maximum allowable number of correction officers who were permitted to take off from work on any particular day had not been reached. When the Westchester County Corr. Officers' Benevolent Association attempted to confirm the award, Supreme Court denied its Article 75 petition.

The Appellate Division reversed the Supreme Court’s ruling.

The Appellate Division explained that "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies," and a court may not "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes that its interpretation would be the better one," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 and other decisions.

Further, said the court, even where an arbitrator makes errors of law or fact, "courts will not assume the role of overseers to conform the award to their sense of justice."

In contrast, while "judicial review of arbitration awards is extremely limited," the Appellate Division noted that a court may vacate an arbitrator's award where the arbitrator "exceeded his [or her] power." Typically courts find that an arbitrator exceeds his or her power where his or her award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

In this instance the Appellate Division found that the Supreme Court’s determination that the arbitrator had exceed a specifically enumerated limitation on his power was incorrect.

The court noted that the collective bargaining agreement provides that "[a] grievance dispute arising under any term of the Agreement involving County policy or discretion may be submitted for arbitration only as to the question of whether or not the County policy was disregarded, or was applied in so discriminatory, arbitrary, or capricious a manner as to constitute an abuse of discretion." However, said the Appellate Division, this provision “does not contain any limitation upon the arbitrator's power to fashion an appropriate remedy where he or she determines that a County policy has been applied in so discriminatory, arbitrary, or capricious a manner as to constitute an abuse of discretion.”

Here, the arbitrator determined that a policy of the Westchester County Department of Correction that permitted only one correction officer per day to use a floating holiday or vacation day was applied in an arbitrary manner to the named grievant.

As the collective bargaining agreement did not set out any limitation on the arbitrator's power to award relief upon making such a finding, the court ruled that the arbitrator had not exceed his power by “directing the Department to cease and desist from denying correction officers the use of a floating holiday or floating vacation day where the maximum allowable number of correction officers who were permitted to take off from work on any particular day, as determined by the Department, has not been reached.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07307.htm

Terminating a probationary employee

Terminating a probationary employee

Wilson v City of New York, 2012 NY Slip Op 07570, Appellate Division, First Department

Supreme Court, New York County, Justice Alice Schlesinger granted a probationary New York City correction officer’s petition to vacate and annul the appointing authority's' decision to terminate him from his position and reinstated him to his former position without back pay.

The Appellate Division unanimously reversed Justice Schlesinger’s ruling “on the law” and affirmed the City’s determination terminating the correction officer from his position.

The court explained that “A probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise, absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason,” citing  Swinton v Safir, 93 NY2d 758.

Further, the Appellate Division said that the burden falls on the petitioner to demonstrate by competent proof that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason.*

There is one exception to this general proposition, however. A probationary employee appointed to a position in the Classified Service to be terminated prior to the end of his or her minimum period of probation is entitled to a hearing pursuant to §75 of the Civil Service Law or its equivalent as such probationary employees hold permanent appointment and enjoy limited tenure rights.

Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. The rationale for this was noted in McKee v. Jackson, 152 AD2d 54. Here the court said that the probationer is entitled to a minimum period of time to demonstrate his or her ability to successfully perform the duties of the position.

In contrast, as the Court of Appeals held in Gray v Bronx Developmental Center, 65 NY2d 904, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

* The Appellate Division said that the record demonstrated that the corrections officer was terminated during his probationary period for absenteeism, violation of the appointing authority's rules by failing to report to his post on one occasion, and by being arrested for obstruction of governmental administration while off-duty  and that he "failed to sustain his burden of showing bad faith or an improper motive."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07570.htm

Arbitration award held to be “irrational and defies common sense” for a second time remanded to a different arbitrator

Arbitration award held to be “irrational and defies common sense” for a second time remanded to a different arbitrator

Social Servs. Employees Union Local 371 v City of New York Admin. for Children's Servs., 2012 NY Slip Op 07403, Appellate Division, First Department

A Child Protection Specialist Supervisor II with the New York City Administration for Children's Services (ACS), pleaded guilty to grand larceny in the fourth degree, for filing false income tax returns using confidential ACS client information to fraudulently claim entitlement to state and local tax credits.

This matter was ultimately assigned to disciplinary arbitrator Rose F. Jacobs, who imposed a penalty of suspension, after which employee was to be restored to his former position.

On appeal of the lower court's confirmance, the Appellate Division vacated the arbitrator's award as "irrational and defies common sense" because "[r]einstated to the position of ACS supervisor, [the employee] again would have access to the ACS database from which he extracted the information he used to perpetrate his crime."*

The court remanded the matter to the arbitrator for her reconsideration of the penalty to be imposed. Notwithstanding the clear directive by the Appellate Division not to do so, the arbitrator again restored employee to his former position.

Supreme Court denied Local 371’s CPLR 7510 petition to confirm the second award of the arbitrator reinstating the employee to his former position and granted the City’s cross petition to vacate the award insofar as it orders the reinstatement of the employee.

Local 371 appealed and the Appellate Division unanimously agreed with Supreme Court's ruling. It then remanded the matter to a different arbitrator for reconsideration of the appropriate penalty explaining that it found, “once again and for the same reasons, that the arbitrator's award is irrational and defies common sense,” citing City School District of the City of New York v Campbell, 20 AD3s 313.

Accordingly, the Appellate Division, approving Supreme Court’s “vacated the award reinstating the grievant,” said that it was remanding the matter to a different arbitrator only for reconsideration of the appropriate penalty.

* See 56 AD3d 322, 322 [1st Dept 2008], lv dismissed 12 NY3d 867.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07403.htm

Claims for certain health insurance benefits and the liquidation of sick leave credits upon retirement rejected

Claims for certain health insurance benefits and the liquidation of sick leave credits upon retirement rejected

Decision 1. Suttlehan v Town of New Windsor, 2012 NY Slip Op 07292, Appellate Division, Second Department [re: Health Insurance]

Decision 2. Suttlehan v Town of New Windsor, 2012 NY Slip Op 07293, Appellate Division, Second Department [re: Sick Leave Credits]

Town of New Windsor Town Justice Donald J. Suttlehan sued the Town, contending that it was in breach of contracts when it (1) eliminated his alleged entitlement, upon his retirement, to fully paid lifetime health care benefits for himself and his spouse [Decision 1] and (2) failing to pay him for his unused sick-leave credits upon his retirement [Decision 2].

On January 7, 2009, the Town adopted resolutions prospectively awarding Justice Suttlehan [a] “fully paid lifetime medical benefits for himself and his spouse” upon his retirement and [b] granted certain post-retirement health-care benefits to elected officials with eight years or more of service. On May 6, 2009 the Town adopted a resolution revoking its January 7, 2009 action with respect to providing “lifetime health care benefits” and Town modified its earlier “unused sick-leave” resolution in accordance with a new schedule.

Justice Suttlehan retired in July 2009. He then filed petitions in Supreme Court challenging the Town’s actions that he alleged truncated certain benefits to which he claimed he was entitled upon his retirement..

With respect to his claim to “lifetime medical benefits,” Justice Suttlehan alleged “breach of contract and promissory estoppel….” He argued that, among other things, that the Town’s January 7, 2009 resolution imposed a contractual obligation upon the Town to provide him with lifetime medical benefits or, in the alternative, that, by adopting the resolution, the Town became obligated to provide him with those benefits under the theory of promissory estoppel.

The Appellate Division sustained the Supreme Court’s dismissal of Justice Suttlehan’s petition, holding that the Town had met its “prima facie burden of establishing that [it was] not obligated to provide lifetime medical benefits to the plaintiff and his spouse, and the plaintiff failed to raise a triable issue of fact in opposition.”

The Appellate Division said the resolution dated May 6, 2009, which revised Justice Suttlehan’s health-care benefits only with respect to coverage for claims made, or to be made, subsequent to his separation from Town employment, was not discriminatory as it was applicable to various elected officials -- the Town Supervisor, Town Clerk, Superintendent of Highways, Receiver of Taxes, Town Justices, and members of the Town Board -- as well as to the Town’s judiciary.

Rejecting Justice Suttlehan’s argument that the resolution violated his rights pursuant to the separation of powers doctrine or the compensation clause of the New York Constitution, the Appellate Division noted that the resolution addressed the prospective reduction of a municipal official's health benefits only after his or her retirement, not the reduction in the salary or benefits of a justice during his or her term in office.

In any event, said the Appellate Division, "[a] municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights," citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326.

As to Justice Suttlehan’s cause of action to recover damages for breach of contract with respect to the liquidation of his unused sick-leave credits, Supreme Court held that he was entitled to payment for 397 unused sick days, The Town appealed the court’s decision.

The Appellate Division vacated the Supreme Court’s ruling, holding that "In general, a public employee whose employment has terminated may not recover the monetary value of unused . . . sick time in the absence of statutory or contractual authority."

The Town, said the court, had met its prima facieburden of showing its entitlement to judgment as a matter of law by demonstrating that there was no statutory or contractual authority for the relief sought by Justice Suttlehan and Supreme Court should have dismissed the Justice’s cause of action to recover damages for breach of contract with regard payment for his unused sick-leave credits.

The “health insurance” decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07292.htm

The “sick leave” decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07293.htm

Recommended penalty for firefighter who tested positive for cocaine: termination in a random drug test

Recommended penalty for firefighter who tested positive for cocaine: termination in a random drug test

OATH Index #1350/12

A firefighter who tested positive for cocaine in a random workplace drug test failed to demonstrate that he consumed the cocaine unknowingly.

OATH Administrative Law Judge Tynia D. Richard did not find the firefighter’s explanation – a supposition that three strange women had surreptitiously drugged him while they drank together on a ski vacation in Lake Placid – to be credible.

The firefighter’s testimony concerning injuries that he suffered before and after the positive drug test in an effort to mitigate the proposed penalty failed to persuade the Administrative Law Judge. In the words of Judge Richard: [The Department] seeks [the firefighter’s] termination, citing the Department’s zero-tolerance policy. [The firefighter] seeks to mitigate on the basis of injuries he sustained while working as a firefighter, including some that occurred after his positive drug test while working for the Department on light duty. I did not find such mitigation.”

ALJ Richard recommended termination of his employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1350.pdf

Challenges to the validity of the appointment of hearing officer, consideration of hearsay evidence and allegations of the denial due process

Challenges to the validity of the appointment of hearing officer, consideration of hearsay evidence and allegations of the denial due process
McKenzie v Board of Educ. of the City Sch. Dist. of Albany, 2012 NY Slip Op 07258, Appellate Division, Third Department

The City School District of Albany filed disciplinary charges against one of employees pursuant to §75 of the Civil Service Law alleging that the employee was guilty of "conduct unbecoming a [s]chool [d]istrict employee and misconduct."

The employee was advised of the identity of the Hearing Officer who was appointed to preside over the §75 disciplinary hearing in writing and a disciplinary hearing was conducted by the designated Hearing Officer..

The Hearing Officer found the individual guilty of the charges and specifications filed against him and recommended the individual be terminated from his position. The School District accepted the Hearing Officers findings and recommendation and the individual was terminated.

The employee appealed, contending that [1] the Hearing Officer's appointment was invalid because School District had failed to provide him with the official notice of the Hearing Officer's designation; [2] he was denied due process because he did not receive adequate notice of the charges that had been filed against him; and [3] hearsay evidence was admitted and considered by the Hearing Officer.

Addressing each of the individual’s arguments, the Appellate Division said:

1. Civil Service Law §75(2) requires that a hearing upon charges of misconduct "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose." The Appellate Division said that these requirements of Civil Service Law §75(2) are satisfied by a written record of such designation, such as . . . a letter to the hearing officer advising him or her that the official designation has taken place," citing. Matter of Arthur v Soares, 95 AD3d 1619.

The court explained that such a letter, along with other exhibits, including the School District’s resolution appointing the Hearing Officer, constituted a written record sufficiently documenting the validity of the Hearing Officer's appointment and satisfied the relevant provisions of Civil Service Law §75(2).

2. As to the individual’s claim that he was denied due process, the Appellate Division said that “Due process requires that ‘a notice of charges must reasonably apprise the accused of the claim being made so that an adequate defense may be mounted,’ and any disciplinary determination must address the accusations as set forth in this statement of charges.” 

The court said that this requirement was satisfied by the written notice charging the individual with misconduct, which stated that the allegations were based on circumstances that resulted in his arrest….” and the seizure by the police of crack cocaine from his person at the time of his arrest.*

3. The court found that the School District’s determination that the individual was guilty of misconduct was supported by substantial evidence and the Appellate Division, citing James v Hoosick Falls Central School District, 93 AD3d at 1133, said “[c]ontrary to petitioner's contention, hearsay evidence is admissible in such administrative proceedings."

Finding that the penalty imposed — termination — was not "so disproportionate to the offense . . . as to be shocking to one's sense of fairness," the Appellate Division dismissed the appeal commenting “other incidents of misconduct that occurred during the 10-year period he was employed by the school district, including numerous arrests … provided ample justification for the decision that he be terminated.

* The court also noted that although evidence was presented at the hearing regarding the individual's past criminal record and other employment issues, “that evidence was relevant to determine the penalty to be imposed if petitioner was found guilty of the charges filed against him.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07258.htm

The “continuing jurisdiction” of the arbitrator once a final determination is made is not automatic

The “continuing jurisdiction” of the arbitrator once a final determination is made is not automatic

New York State Dept. of Corr. Servs. (New York State Corr. Officers & Police Benevolent Assn., Inc.), 2012 NY Slip Op 07242, Appellate Division, Third Department

Upon the conclusion of a disciplinary arbitration the arbitrator found the employee guilty of certain charges and made an “interim award,” imposing a penalty of suspension without pay for 45 days and directing that the employee “otherwise be made whole.”

The final award mirrored the arbitrator's interim award but further provided that the arbitrator was "maintain[ing] jurisdiction . . . in the event that any dispute [arose] between the parties over the implementation of [the] [a]ward."

After the employee returned to work he filed a grievance alleging that the Department of Correctional Services*had not restored all of the back pay, time accruals and other benefits due him as directed by arbitration award.

Ultimately it appears that the employee’s union, the New York State Corr. Officers & Police Benevolent Assn. [NYSCOPBA] asked the arbitrator to reopen the arbitration to ascertain whether employee had been made whole pursuant to the terms of his award. A hearing date was scheduled, but the Department, contending that the arbitrator was powerless to, among other things, reopen, modify or explain the prior award, objected.

Notwithstanding the Department’s objection, the arbitrator conducted a hearing in which only NYSCOPBA participated and subsequently awarded the employee approximately $4,000 in vacation and holiday accruals.

The Department filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the award upon the ground that the arbitrator exceeded his power in reopening the proceeding. In rebuttal, NYSCOPBA argued that the Department had waived its right to seek vacatur of the award and cross-moved to confirm the award.

Supreme Court granted the Department’s application, vacating the award whereupon NYSCOPBA appealed contending that the Department “waived [its] opportunity to vacate the [challenged] arbitration award by, among other things, failing to challenge the arbitrator's assertion of continuing jurisdiction and/or participating in the [challenged] arbitration hearing."

The Appellate Division affirmed the Supreme Court’s ruling, rejecting NYSCOPBA’s argument that the Department had waived any of its rights. The court explained that the Department was “not immediately aggrieved by the arbitrator's purported retention of jurisdiction, the exercise of which admittedly was conditioned upon a future … entirely theoretical dispute between the parties as to the subsequent implementation of the award.”

Further, said the Appellate Division, while NYSCOPBA is correct that "a party that participates in the arbitration may not later seek to vacate the award by claiming it never agreed to arbitrate the dispute in the first place," here the Department expressly objected to the proposed hearing in writing, and it is undisputed that it did not attend in the hearing. Accordingly, the Appellate Division said that it was satisfied that the Department did not "actively participate [in the arbitration]."

As to merits of NYSCOPBA’s appeal, the court said that it is well settled “that an arbitrator has broad discretion to determine a dispute and fix a remedy, and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself.’

The Appellate Division said that the controlling provision of the collective bargaining agreement between the parties specifically provides that “[d]isciplinary arbitrators shall confine themselves to determinations of guilt or innocence and the appropriateness of proposed penalties . . . [and] shall neither add to, subtract from nor modify the provisions of [the CBA]." Further, said the court, the CBA agreement further provides that "[t]he disciplinary arbitrator's decision with respect to guilt[,] innocence [or] penalty . . . shall be final and binding upon the parties," which language “evidences a clear agreement by the parties to the CBA to ‘limit the discretion of disciplinary arbitrators.’"

While there may be circumstances where an arbitrator's retention of jurisdiction will be deemed permissible, in this instance the Appellate Division concluded that “such circumstances cannot — in light of the restrictive language of the underlying CBA — be said to exist here.”

Accordingly, court ruled that arbitrator's retention of jurisdiction in this matter "clearly exceed[ed] a specifically enumerated limitation [upon his] power” and the arbitrator's authority over the issues submitted to him ended once he rendered his decision.

* The Department of Correctional Services is now known as the Department of Corrections and Community Supervision.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07242.htm

Handbook of New York State and Local Taxes, October 2012 Edition

Handbook of New York State and Local Taxes, October 2012 Edition

The Handbook of New York State and Local Taxes provides a general descriptive overview of the taxes which New York State and its local governments impose and is revised periodically to reflect recently enacted changes in the law.

This publication does not include non-tax revenue sources such as motor vehicle fees and the Lottery. Instead, it focuses on taxes, especially those administered by the Department of Taxation and Finance.

The handbook is posted on the Internet at:
http://www.tax.ny.gov/research/stats/statistics/new_reports.htm

New York Public Personnel Law statistics for October 2012

New York Public Personnel Law statistics for October 2012

Total number of postings through October 31, 2012: 2887

Number of readers during the month of October 2012: 18,937

The five most read postings during the month of October 2012: 

Termination by operation of law at:

http://publicpersonnellaw.blogspot.com/2009/11/termination-by-operation-of-law.html;

The legal distinction between domicile and residence at:

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html;

Essentials of the "Pickering Balancing Test” at:

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html;

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member at:

http://publicpersonnellaw.blogspot.com/2011/04/school-board-member-seeking-removal-of.html; and

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law at:

http://publicpersonnellaw.blogspot.com/2011/04/ordering-correction-officer-to-submit.html

PERB’s policy of initially deferring to a contract arbitration procedure between the parties to resolve an “alleged improper practice” challenged

PERB’s policy of initially deferring to a contract arbitration procedure between the parties to resolve an “alleged improper practice” challenged

Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 07178, Appellate Division, Third Department

The New York State Public Employment Relations Board’s [PERB] “deferral policy” in cases alleging "improper practices" was challenged by Westchester County. The County contended that the policy constituted “an abandonment of the exclusive, nondelegable jurisdiction over improper practice charges granted to PERB by Civil Service Law §205(5)(d).”

Essentially, PERB’s policy utilized an agreed-upon binding arbitration procedure set out in a collective bargaining agreement between the parties to resolve a “claimed improper practice” before it would consider the allegation.

The union had filed an improper practice charge with PERB alleging that the County had refused to negotiate an issue concerning the "maintenance of standards" clause in the governing collective bargaining agreement in violation of Civil Service Law §209-a(1)(d).

When PERB applied its deferral policy and conditionally dismissed the charge pending the outcome of binding arbitration conducted pursuant to the negotiated grievance procedure over Westchester's objections, Westchester filed a petition in Supreme Court appealing its ruling.

Supreme Court dismissed the County’s petition, agreeing with PERB that the charge raised an issue covered by the CBA and thus provided a reasonable basis for PERB to apply its policy of deferring the matter to binding arbitration. The Appellate Division agreed, noting that PERB had earlier ruled on this issue, which decision was affirmed in Matter of Westchester County Police Officer's Benevolent Assn. v Public Empl. Relations Bd., 301 AD2d 850. This, said the Appellate Division, gave the union “a reasonably arguable right to submit the conduct alleged in the improper practice charge to binding arbitration.”

The Appellate Division, in sustaining the lower court’s ruling and dismissed the County’s appeal, explained:

1. The application of the policy resulted in a conditional dismissal, meaning that the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process; and

2. The courts have generally deferred to PERB's interpretation of its jurisdiction under Civil Service Law §205(5)(d), citing Matter of Roma v Ruffo, 92 NY2d 489.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07178.htm

Employee served with disciplinary charges alleging he was intoxicated at work

Employee served with disciplinary charges alleging he was intoxicated at work

Human Resources Administration v Grimes, OATH Index #1985/12   

OATH Administrative Law Judge Kevin F. Casey sustained charges that alleged that an employee was intoxicated at work.

Coworkers noticed the individual looked disheveled and was laughing and crying to himself at his desk, in marked contrast to his usual demeanor. "911" was called and the employee was taken to a hospital by the first responders.

Noting that the Emergency Medical Technician's records indicated that the first responders had made a presumptive diagnosis that employee was intoxicated based on his unsteady gait, slurred speech, and the odor of alcohol on his breath, Judge Casey found the individual’s claims to the contrary to be vague and unsupported.

The ALJ recommended that the appointing authority impose a penalty of a 20-day suspension without pay

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1985.pdf

A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued

A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued
Coollick v. Hughes, USCA, 2nd Circuit, 10-5248-cv

The US Circuit Court of Appeals ruled that the Superintendent of the Connecticut Technical High School System was entitled to qualified immunity in a §1983 action in which she was alleged to have deprived the plaintiff of “sufficient notice” before the elimination of her position as a guidance coordinator at a high school.

The Circuit Court of Appeals ruled that in this instance the Superintendent’s conduct, “even when viewed in the light most favorable to [the plaintiff], did not violate the plaintiff’s clearly established rights."

The court explained that “Qualified immunity protects federal and state officials from money damages and 'unnecessary and burdensome discovery or trial proceedings.'” It, however, is an affirmative defense and the federal or state officials being sued “have the burden of raising in their answer and establishing at trial or on a motion for summary judgment.”

In determining if an official is entitled to a claimed right to “qualified immunity” the courts apply the two-prong test set out in Pearson v. Callahan, 129 S. Ct. 808.

The first prong addresses the question of whether the petitioner “stated a cause of action.”

The second prong of the test asks did the “[g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right.”

In this instance the Circuit Court concluded that the Superintendent’s action “were not objectively unreasonable in light of the law that existed at the time of her conduct.”

Further, the Second Circuit said that it has held that when a plaintiff is subject to a collective bargaining agreement that provides adequate post-deprivation procedures, “such post-deprivation procedures . . . are sufficient to satisfy due process” citing Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206

The plaintiff , said the court, “utilized the grievance procedures provided for in the collective bargaining agreement and received a favorable decision" restoring her to the status she had prior to the Superintendent’s actions and awarding her back pay and benefits.*

In any event, the court held that there was nothing “objectively illegal, in a constitutional sense,” in the Superintendent’s action and although she may have been incorrect in deciding that the plaintiff did not have certain rights under the collective bargaining agreement, the plaintiff was able to avoid any harm through the very grievance procedures in place to remedy any such deprivation.

Deciding that there was no constitutional bright lines transgressed by the Superintendent in the course of her handling the plaintiff’s termination, the Circuit Court ruled that the Superintendent was entitled to qualified immunity.

* The Circuit Court observed notwithstanding her prevailing in the grievance she filed, the plaintiff “persists with this lawsuit for additional recovery of punitive damages and reimbursement of attorneys’ fees and costs.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/f1968e72-dc4f-4691-a240-38fa0d574732/5/doc/10-5248_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f1968e72-dc4f-4691-a240-38fa0d574732/5/hilite/