A listing of case summaries by date posted is set out in the sidebar. TO SEARCH this LawBlog's more that 5,000 case summaries type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.
N.B. §22 of New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.
NYPPL's most recent posting is set out below.
December 31, 2013
If a disinterested party could concluded the appointing authority had adjudged the matter in advance of hearing it, remanding the matter to a qualified and impartial individual is required
2013 NY Slip Op 08575, Appellate Division, Third Department
The decision is posted on the Internet at:
December 30, 2013
Although an employee organization and the employer are able to retroactively bind each other to the terms of a collective bargaining agreement, they unable to bind third parties to the agreement under color of the Taylor Law
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07227.htm
December 27, 2013
Governor Andrew Cuomo assumed office as the 56th Governor of the State of New York three years ago. On December 27, 2013 Governor Cuomo office issued the Governor’s 3rd annual year-end report, detailing New York’s progress in 2013.
Information for individual considering retirement available at the Securities and Exchange Commission’s website
Listed below are some of the tools provided by the Commission:
Procedures followed in Educator’s probationary evaluations found to have undermined “the integrity and fairness of the entire review process”
2013 NY Slip Op 07275, Appellate Division, First Department
The New York City Department of Education [DOE] terminated a probationary teacher’s [Educator] employment. Educator challenged her termination during her probationary period and her unsatisfactory [U-rating] evaluation as a probationary employee.
December 26, 2013
Amendment to New York State’s Constitution regarding additional veteran credits available to disabled veterans
FROM: Scott DeFruscio, Assistant Director of Staffing Services
SUBJECT: Amendment to the New York State Constitution re Eligibility for Disabled Veteran Credits on New York State Examinations
DATE: December 26, 2013
- Used non-disabled veteran credits to obtain a civil service appointment or promotion with New York State or a local government, and,
- Subsequent to such appointment is determined by the United States Department of Veterans Affairs to be a qualified disabled veteran, as defined in the New York State Civil Service Law.
- All candidates for examinations for which eligible lists will be established on or after January 1, 2014 will receive notification (attached) of the Constitutional amendment and its effect. The notice will provide the candidate with eligibility information and direct the candidate to this website: www.cs.ny.gov/vetcredits. On the website the candidate will answer questions to assist in determining eligibility and will be able to submit a claim for the additional disabled veteran credits.
- The candidates will have approximately 10 days from receipt of the notice to submit the required information. Candidates may not claim the credits after an eligible list has been established.
- DCS will add the additional credits to scores of candidates who submit a claim and will send these candidates two forms, T-252 and T-252A The candidate will use these forms to request required eligibility verification information from the U. S. Department of Veterans Affairs and the candidate’s previous public sector employer. These forms must be returned to DCS and will be used to verify eligibility for the use of the claimed credit at the time of appointment along with the S-203 Disposition of Veterans Credits documentation. Any candidate who claimed additional disabled veteran credits and has either not provided this Department with needed verification documentation in a timely manner, or who is found to be ineligible, will have the claimed credits removed and their score on the eligible list revised accordingly.
2013 NY Slip Op 08481, Appellate Division, Third Department
* Workers' Compensation Law §123 provides for the continuing jurisdiction of the Board under certain circumstances.
December 24, 2013
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 21, 2013
New York State Comptroller Thomas P. DiNapoli on December 18, 2013 announced his office completed audits of
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli on December 18, 2013 announced his office completed audits of
DiNapoli Announces Public Can Search State Payments on www.openbooknewyork.com
State Comptroller Thomas P. DiNapoli Tuesday announced that state payments to vendors, municipalities, school districts and others are now available at Open Book New York (www.openbooknewyork.com), a transparency website launched by DiNapoli in 2008. Data is updated daily to include approximately 10,000 new payments the Comptroller’s office processes each business day.
DiNapoli: State Public Authority Pay & Employee Perks Overs $7 Billion
New York’s state public authorities pay more than $7 billion in compensation and perks to more than 104,000 employees annually, with nearly $1.8 billion going to employees who earn $100,000 or more, according to a reportreleased Wednesday by State Comptroller Thomas P. DiNapoli.
December 23, 2013
December 21, 2013
Six Agency and Authority Audits Find Overlapping Work Time, Potential Safety Issues Regarding Consecutive Hours Worked
The State Comptroller reports that a review of six state agencies and authorities found a pattern of abuse and poor oversight of employees that hold two or more public jobs, including fraudulently claiming to be working at two places at the same time, New York State Comptroller Thomas P. DiNapoli announced on Friday, December 20, 2013.
Of 345 employees examined, auditors found 75 employees that regularly violated time and attendance policies, costing taxpayers $413,277 for 4,803 hours not worked. This amount represented almost 4.5 percent of the employees’ salaries. Auditors also found employees falsified timesheets, abused sick leave and misrepresented travel time from one job to another.
The Comptroller said: “Dozens of public employees working for more than one public employer have managed to take advantage of lax oversight and take credit for hours they didn’t work,” DiNapoli said. “Our audits found supervisors were lax and often complicit in allowing employees to game the system. This is costing taxpayers too much and could jeopardize public safety. It has got to stop. While the Executive should address this issue with all state agencies, I commend the agencies we audited for taking swift action, and recognizing that changes are needed.”
DiNapoli’s auditors examined the issue of dual employment after identifying red flags in previous audits. The Metropolitan Transportation Authority (MTA), the Office for People with Developmental Disabilities (OPWDD), the Department of Corrections and Community Supervision (DOCCS), the Office of Mental Health (OMH), the Unified Court System (UCS) and the Office of Children and Family Services (OCFS) were selected for audit.
Dual employment is most prevalent at colleges, prisons, health facilities and the courts. The most common secondary positions are as adjuncts, correction officers, and school hourly staff.
In additional findings, DiNapoli’s auditors found 69 employees who claimed to have worked 3,536 hours at two jobs at the same time (overlapping hours). Another 22 employees did not accurately reflect travel time from one job to another, and 16 improperly charged 511 hours of sick leave at one job, even though they were working at a second job.
Specific examples include:
· An MTA track equipment maintainer who also worked for the New York City Department of Environmental Protection (NYCDEP) had work schedules that overlapped four hours each week. He told auditors that a supervisor had approved an alternate schedule seven years ago, which allowed him to report earlier to work at 6 a.m. instead of 8 a.m. in order to get to the NYCDEP on-time, even though his timesheets did not reflect this alternate schedule. During a site visit, auditors found that he arrived shortly before 8 a.m. instead of his earlier start time. This employee reported 193.5 overlapping hours at a cost of $8,232 over the course of a year;
Each of the six entities is performing its own internal investigation of employees identified in the audits. At OCFS, two employees were fired, while a third resigned. The Comptroller’s office has also instructed the agencies to adjust calculations for any unearned pension credits given to the cited employees.
DiNapoli’s auditors recommended that agencies develop more comprehensive regulations to protect public health and safety, when permitted by labor contracts. Agencies should also consult with the Department of Civil Service and public employee unions to articulate more realistic time and attendance policies that reflect legally permissible practices, maximize productivity, and ensure adequate staff coverage.
The agencies and authorities generally agreed with the audit findings and to provide training on time and attendance policies, and recover overpayments for time not worked. The Comptroller’s office will also start providing agencies with data to allow payroll offices to better monitor employees with two or more jobs.
For a copy of the dual employment roll-up report visit: http://osc.state.ny.us/reports/dual_employment_roll_up.pdf
The individual audit for MTA can be found here: http://www.osc.state.ny.us/audits/allaudits/093014/11s46.pdf
The individual audit for OPWDD can be found here: http://www.osc.state.ny.us/audits/allaudits/093014/11s22.pdf
The individual audit for DOCCS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/12s129.pdf
The individual audit for OMH can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/11s47.pdf
The individual audit for OCFS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/11s48.pdf
The individual audit for UCS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/12s79.pdf
December 20, 2013
Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location
December 19, 2013
December 18, 2013
Off-duty peace officer’s display of his weapon in the course of an altercation excused based on hearing officer’s finding that he feared for his safety
State Comptroller Thomas P. DiNapoli Wednesday announced that former Bombay Fire Company President Bridget Martin was sentenced to pay $15,000 in restitution after an auditand investigation by his office uncovered secret bank accounts and other misdeeds.
DiNapoli: DOT Needs To Improve Railroad Bridge Monitoring Program
The Department of Transportation does not adequately monitor whether railroads in New York state comply with bridge inspection and reporting requirements or fully carry out its own bridge inspection responsibilities, possibly putting the public at risk, according to an auditreleased December 10, 2013 by State Comptroller Thomas P. DiNapoli.
Comptroller DiNapoli Releases School Audits
New York State Comptroller Thomas P. DiNapoli announced his office completed audits of
December 17, 2013
New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting
December 16, 2013
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 14, 2013
On Thursday, December 12, 2013 New York State Comptroller Thomas P. DiNapoli announced the following audits had been issued:
Battery Park City Authority, Selected Aspects of Discretionary Spending (2012-S-158)
Auditors sampled 69 discretionary expenditures totaling $112,132 and questioned 53 totaling $100,700 because these transactions did not appear necessary, were not clearly related to the purpose of the authority, were not properly approved or were not adequately supported with documentation. Included in the questioned expenditures were payments totaling $61,800 for charitable contributions to various not-for-profit organizations. In these instances, the authority lacked documentation to show how it determined which organizations to select for donations, how contributing to such organization was related to or supported the authority's mission and why the donated amounts were appropriate. Our follow up showed that the authority made payments totaling $1.05 million for the audit period for charitable donations.
Office of General Services, State Agency Small-Dollar Purchases (Follow-Up) (2013-F-25)
In an initial report, issued in September 2010, auditors looked at the extent to which state agencies process small-dollar transactions using paper-based voucher processes instead of the State procurement card, and to identify potential cost savings and revenue enhancements achievable through better use of procurement cards. In a follow-up, auditors found OGS officials have made significant progress in addressing the issues identified in the initial audit. All three prior audit recommendations have been implemented.
Office for People With Developmental Disabilities, Fire Prevention, Safety and Control (2013-S-20)
Auditors found OPWDD is in compliance with applicable fire prevention, safety and control requirements that help ensure the safety of the vulnerable populations it serves and has significantly improved its fire safety procedures and practices since a 2009 fire in one of its residences that resulted in the death of four individuals.
Office of Alcoholism and Substance Abuse Services, Fire Prevention, Safety and Control (2013-S-40)
Auditors found OASAS is in compliance with applicable fire prevention, safety and control requirements that help ensure the safety of the vulnerable populations it serves.
Department of Civil Service, New York State Dental Program: Payments for Scaling and Root Planing Procedures (Follow-Up) (2013-F-20)
An initial audit report issued in July 2010 focused on Group Health Incorporated’s (GHI) controls over the payment of scaling and root planing procedures and to determine if GHI overpaid for scaling and root planing services. GHI officials have made progress in correcting the problems auditors identified in the initial report. However, improvements are still needed. Of the three prior audit recommendations, two have been implemented and one recommendation is no longer applicable.
Metropolitan Transportation Authority, Inspecting Highway Bridges and Repairing Defects (2012-S-32)
Generally, the MTA’s Long Island Rail Road its Bridges and Tunnels department perform bridge inspections and related repairs to correct flag deficiencies in a timely manner as required by state and federal regulations. However, there were a limited number of exceptions suggesting a need for further improvement. From a sample of 116 flags, auditors found that nine B&T safety flags and two department safety flags on LIRR bridges remained unresolved for extended periods of time ranging from 12 to 45 months after being identified. For three B&T Red Flags, the required re-inspections were performed from two to eleven days late. Five LIRR bridges were being inspected by both the department and the LIRR.
Department of Health, Overpayments to Cabrini Medical Center - Follow-Up (2013-F-19)
An audit report issued in April 2012, identified $1.9 million in Medicaid overpayments to Cabrini Medical Center. The overpayments occurred because a billing company (hired by Cabrini) incorrectly altered information on Cabrini's claims and resubmitted the incorrect claims to Medicaid. In a follow-up, auditors found DOH officials made significant progress in addressing the problems identified in the initial audit. This included the recovery of improper payments totaling $1.46 million, in addition to $904,000 in payments prevented by the initial audit. However, further actions are still needed. Of the six prior audit recommendations, three were implemented and three were partially implemented.
December 13, 2013
Retirees had vested health insurance rights that could not be abrogated by successor collective bargaining agreement
Kolbe v Tibbetts, 22 NY3d 344
The court then remitted the case to Supreme Court, explaining that "Because an issue of fact remains as to whether the parties intended for the right to the "same coverage" to preclude any modifications to the benefits or their attendant costs, including prescription co-pays, it is necessary to remit the case to Supreme Court for a hearing on this issue"
The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in
A Reasonable Disciplinary Penalty Under the Circumstances - Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
Disability Benefits for fire, police and other public sector personnel - Addresses retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html
The Layoff, Preferred List and Reinstatement Manual -Focusing on relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Administrative Law
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Employment Law
- Blogging Government Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Catalog of Law Blogs
- Challenging Adverse Personnel Decisions
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- ReformNY - by NYU's Brennan Center for Justice
- St. Lawrence County Civil Service Web Site
Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, REMEMBER THAT CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG.
THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher, editor, contributors or members of the staff are not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.
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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.