January 31, 2013

Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"
Appeal of C.Z. from actions of the Board of Education of the Jordan-Elbridge Central School District, et. al.
Decisions of the Commissioner of Education, Decision No. 16,450

In this appeal to the Commissioner of Education C.Z. contended that certain alleged actions by school board members were “inappropriate and/or in violation of the Education Law and the Educational Rights and Privacy Act [FERPA].”  C.Z asked the Commissioner to issue an order admonishing the board members.

The Commissioner, stating that he lacked jurisdiction to consider FERPA claims, dismissed this branch of C.Z.’s appeal. The Commissioner explained that “The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]).

The Commissioner also dismissed that portion of C.Z. appeal that, in the words of the Commissioner, “attempts to allege violations of the Open Meetings Law through her claims that [the school board] declined to allow her to attend and to discuss certain issues at an executive session." The Commissioner noted that the §107 of the Public Officer Law “vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

As to the redress sought, admonition of certain members of the school board, The Commissioner noted that it is “well established” that the Commissioner of Education does not have  members any authority to censure or reprimand a board member.

The decision is posted on the Internet at:

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges
New York City Office of Administrative Trials and Hearings

Correction officer found guilty of improper use of force
Recommended penalty: 15-day suspension without pay

A correction officer was charged with improper use of force against two inmates. That officer and his partner were also charged with making false reports and failing to obtain medical attention for an injured inmate.

Administrative Law Judge John B. Spooner found petitioner proved that the first officer used improper force against one of the inmates but he recommended dismissal of the rest of the charges. The recommended penalty was a 15-day suspension, given the inconclusive proof as to the precise extent of the force used.

This was the first OATH case involving videoconference testimony by an inmate from a City jail.

The decision is posted on the Internet at:
Dep't of Correction v. Wingate (in PDF), OATH Index Nos. 1490/12 & 1491/12

Employee found guilty of being intoxicated while on duty
Recommended penalty: termination

An office worker was charged with being intoxicated at work on four occasions during a one-month period.

Administrative Law Judge Kevin F. Casey sustained two of the charges. He rejected as implausible respondent’s claim that his medications and illnesses cause a variety of symptoms, including dizziness and vomiting, which give people the mistaken impression that he was intoxicated, in view of proof that respondent was diagnosed with acute alcohol intoxication at a hospital on one of the charged dates.

Given respondent’s prior disciplinary record -- which included a 40-day suspension for similar, recent misconduct -- and in the absence of evidence of rehabilitation, ALJ Casey recommended termination of respondent’s employment.

The decision is posted on the Internet at:

January 30, 2013

Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Supreme Court denied the petition of an individual seeking to annul the appointing authority’s:

[a] terminating him from his from his position during the required probationary period: and

[b] declining to reinstate the individual to his former “permanent position.”

According to the decision, the individual, then serving as a “Computer Aide,” was appointed to the position of “Computer Science Technician (CST), Level II” from an open-competitive eligible list.

The Appellate Division vacated the Supreme Court’s ruling and remanded the matter for a determination if the individual “effectively resigned* from his permanent position.”

The court explained that while an individual appointed from an open-competitive eligible list to the position from which he or she had been terminated during the probationary period would not be entitled to reinstatement to his or her prior, permanent position “if he voluntarily accepted his appointment to the new position, which would constitute an effective resignation from his prior, permanent position,” in this instance there was a triable issue of fact as to whether the individual “voluntarily accepted the appointment to the subsequent, probationary position.” Accordingly, the Appellate Division remanded the matter to Supreme Court for its further consideration.

A corollary issue that the Supreme Court may be required to explore: was the individual “promoted” to his or her new position within the meaning of the Civil Service Law? §63.1 of the Civil Service Law provides, in pertinent part, as follows:

When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.

Typically “promotion” is the word of art used to describe the advancement of an individual from a lower grade position to a higher-grade position in the “line of promotion.” In the absence or exhaustion of a “promotion list,” an appropriate “open-competitive eligible list” may be used to fill the vacancy.

Indeed, in situations where a promotion examination is not expected to produce sufficient eligibles to fill all the vacancies, actual and anticipated, during the life of the eligible list, an open-competitive examination may be authorized to be held simultaneously with the promotion examination, with the resulting open-competitive eligible list to be certified upon the exhaustion of the promotion eligible list.

In Bethel v McGrath-McKechnie, 95 N.Y2d 7, the Court of Appeals ruled that an individual who accepts an original appointment to a position from an open-competitive examination effectively resigned from his or her former position. The Court of Appeals decided that Bethel had not been promoted and thus Section 63(1) did not apply to her situation.

Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said that Section 63 provides job security to a permanent employee who is transferred or promoted to a position in which he or she is required to serve, but does not satisfactorily complete, a probationary period.

* Typically a resignation from a position is required to be in writing to be effective.

The decision is posted on the Internet at:

January 29, 2013

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required
Kaslow v City of New York, 2013 NY Slip Op 00210, Appellate Division, Second Department

In this CPLR Article 78 proceeding David Kaslow asked Supreme Court to review a determination of the New York City Employees' Retirement System [NYCERS]. 

Kaslow had retired from employment with the New York City Department of Correction [DOC]. NYCERS however, had denied his request for service credit for his prior employment with the New York City Department of Environmental Protection [DEP] for purposes of determining his retirement allowance.

While Kaslow had contended that he was entitled to service credit for his prior employment with DEP, NYCERS said that in accordance with Retirement and Social Security Law §504-a, Kaslow, as a member of the Tier 3 CO-20 retirement plan, was not entitled to service credit for his civilian service with DEP prior to his employment with DOC.

Supreme Court granted Kaslow’s petition, holding that his service with the City's Department of Environmental Protection should have been credited. NYCERS and the City of New York appealed the court’s ruling.

The Appellate Division, noting that "An agency's interpretation of the statutes and regulations that it administers must be given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute,'" said that in the event the question is one of pure legal interpretation of statutory terms, “deference to the agency is not required."

In this instance, said the court, NYCERS's interpretation of the term "credited service," was irrational, unreasonable, and inconsistent with the other applicable statutes governing the retirement benefits of officers employed with the DOC.

Accordingly, and under the circumstances presented in this instance, the Appellate Division concluded that for purposes of determining Kaslow retirement allowance upon his retirement from DOC, his creditable civilian service with DEP should have been included in NYCERS's calculation of his benefits, and, thus, Supreme Court had properly granted Kaslow’s petition.

The decision is posted on the Internet at:

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges
New York City Office of Administrative Trials and Hearings 

Firefighter admitted using cocaine
Penalty recommended: termination and forfeiture of the vesting his pension recommended

A firefighter who tested positive for cocaine admitted to using the drug but argued that he should be permitted to vest his pension and retire when eligible to do so.

Administrative Law Judge Alessandra F. Zorgniotti noted that pursuant to the Department’s “zero tolerance policy,” termination of employment is the usual penalty for a first time positive test, in the absence of exacerbating or extenuating circumstances.

Judge Zorgniotti found that respondent failed to present sufficient evidence in mitigation to justify a lesser penalty and recommended termination of the individual’s employment, without an allowance that his pension be permitted to vest fully.

The decision is posted on the Internet at:
Fire Dep’t v. Arcello (in PDF), OATH Index No. 109/13 

January 28, 2013

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

On January 28, 2013, State Comptroller Thomas P. DiNapoli announced that his office has finalized plans to implement a statewide fiscal monitoring system that would publicly identify local governments experiencing financial strain. The monitoring system will include nine financial indicators, such as cash-on-hand and patterns of operating deficits, together with broader demographic information like population trends and tax assessment growth. The system will start by analyzing those localities whose fiscal year ended December 31, 2012 and later apply it to villages and school districts whose fiscal years end at various periods throughout the year.

DiNapoli’s office drafted the ‘early warning’ monitoring system in September 2012 and shared details of the proposal with all of the state’s local governments and school districts for their review during a 60-day comment period. More than 85 local government and school district officials, as well as a number of affiliated organizations, submitted comments.

Using data already submitted by more than 3,000 local governments, DiNapoli’s office will calculate and publicize an overall score of fiscal stress for approximately 2,300 municipalities and school district across the state. They will be listed as in “significant fiscal stress,” in “moderate fiscal stress,” “susceptible to fiscal stress,” or “not in fiscal stress.”

Once the monitoring system has identified local governments and school districts experiencing fiscal stress, an array of services will be offered by DiNapoli’s office including budget reviews, technical financial assistance, guidance on multi-year financial planning, financial management publications and training.

Additional information concerning the Comptroller’s fiscal stress monitoring system is posted on the Internet at:

Retirement to avoid disciplinary action

Retirement to avoid disciplinary action

A Los Angeles Unified School District teacher arrested and accused of sexually abusing students retired from his position before administrative disciplinary action had been initiated by the school district. School District Superintendent John Deasy, when asked what action the school district planned to take responded “Can you go back and fire someone who’s already retired?”*

An appointing authority of a New York State or political subdivision of the State is able do just that insofar as certain employees are concerned.

For example, 4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides, in pertinent part, provides that, Resignation, provides: that  “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation."** Many local civil service commissions have adopted a similar rule.

Presumably the appointing authority could elect to disregard a “retirement” under similar circumstances.***

In the case of an individual serving in a position in the classified service not otherwise entitled to a pre-termination disciplinary hearing pursuant to law or a collective bargaining agreement, the appointing authority presumably could elect to disregard the resignation, schedule a disciplinary hearing in the exercise of its discretion and in the event the individual is found guilty of the charge[s], record the separation as a “termination for cause” rather than as a resignation.

Undertaking such a disciplinary action could be significant with respect to employment in the public service in the future as application forms for employment or examination with the State or a political subdivision of the State typically  include the following questions.

1. Were you ever discharged from any employment except for lack of work, disability or medical condition?  [ ] yes  [ ] no  

2. Did you ever resign from any employment rather than face discharge? [ ] yes  [ ] no 

Failing to answer these questions correctly could result in the applicant being disqualified for such employment pursuant to §50.4(e), and, or (f) and, or (g) of the Civil Service Law by the responsible Civil Service Commission or Personnel Officer.

Many local civil service commissions and personnel officers have promulgated rules similar to 4 NYCRR 5.3(b).

*  See Los Angeles Times article on the Internet at:

** State Education Law §1133.1 provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

*** See Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61

January 27, 2013

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 of January 21 - 25, 2013 [Click on the caption to access the full report]

DiNapoli Approves Terms of $3.14 Billion Tappan Zee Bridge Contract

State Comptroller Thomas P. DiNapoli last Friday announced he has approved a $3.14 billion contract between the state Thruway Authority and Tappan Zee Constructors to design and build the new Tappan Zee bridge.

Officers of Albany Nanotech Complex Safeguarding Public Funds

Fuller Road Management Corp., the not for profit corporation that runs the State University at Albany’s College of Nanoscale Science and Engineering, is fulfilling its duties to support and provide appropriate internal controls over operations and activities, and promoted an ethical business climate at the multi–billion dollar facility, according to a report released Friday by State Comptroller Thomas P. DiNapoli.

DiNapoli: State Tax Revenues Up, But Still Lag Projections

Tax collections through December totaling $46.4 billion were $48.3 million below the state’s latest estimates and $685.3 million below initial estimates in April. Higher than anticipated personal income tax collections in December likely reflect income paid before federal tax increases take effect in 2013 for high income taxpayers, New York State Comptroller Thomas P. DiNapoli said last week in releasing the December cash report.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of:

the Town of Otto; and,

the Village of Spring Valley.

An initial audit report examining whether DOH was appropriately paying out-of-state providers for ambulatory surgery services provided to New York State Medicaid recipients found $12.2 million in actual and potential Medicaid overpayments for such services during the audit period. Following up, auditors found DOH and the Medicaid Inspector General made progress in addressing the issues identified in the initial audit. This included the recovery of $1,309,960.

An initial audit examined whether nursing home claims submitted to Medicaid for hospital bed reserve days were appropriate. During the five year audit period ended March 31, 2010, Medicaid paid $28 million for bed reserve claims that exceeded the bed reserve day limit. However, because reimbursement rates were the same for both standard and reserve care during our audit period, auditors determined no significant overpayments occurred. Auditors recommended DOH remind nursing homes of the correct way of coding for standard nursing home days and bed reserve days and implement controls within eMedNY to prevent payment of claims for bed reserve days in excess of prescribed limits. In a follow-up, auditors found DOH and the Office of the Medicaid Inspector General have taken significant actions in correcting the problems identified in the initial report.

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors examined travel expenses for the highest-cost travelers in the state as well as other outliers. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. Four of these employees worked at the Office of General Services (OGS) and had travel costs totaling $206,494. Auditors found the travel expenses for the four OGS employees selected for audit were documented and adhered to state travel rules and regulations.

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors examined travel expenses for the highest-cost travelers in the state as well as other outliers. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. Three of these employees worked at the Department Taxation and Finance with outliers in the areas of train fare, fuel and other miscellaneous travel expenses. The employees travel costs totaled $91,686. Auditors found that the travel expenses for the three employees selected for audit were documented and adhered to state travel rules and regulations.

In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring State agencies and public authorities to each 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. Agriculture and Markets’ Internal Control Certification was submitted more than four months after the April 30 deadline, the department's certification did not provide an adequate level of detail describing specific actions it will take to address its partial compliance assessment of its internal audit function. Auditors recommended the department: re-examine priorities to accommodate the timely submission of the Internal Control Certification; provide appropriately detailed responses to questions as requested in the annual Internal Control Certification; and expand and enhance the internal control training and education program to cover all aspects of internal controls for all staff levels.

Auditors determined that Pace’s certification procedures are appropriately designed and were substantially complied with during the audit period for the transactions we tested. Auditors concluded there is not a high risk that a significant number of students certified for TAP are not eligible for awards.  Nonetheless, tests did disclose ten awards totaling $21,236 that school officials incorrectly certified in error.

January 26, 2013

State Comptroller Thomas P. Dinapoli recommends that municipalities conduct background checks of employees providing youth program services

State Comptroller Thomas P. Dinapoli recommends that municipalities conduct background checks of employees providing youth program services
Source: Office of the State Comptroller

Local governments could do more to conduct background checks on individuals working in municipal youth program services, according to an audit released today by New York State Comptroller Thomas P. DiNapoli.

“Failing to perform background checks potentially jeopardizes the safety of children,” said DiNapoli. “It is essential that local officials take action to ensure they are consistently screening all persons who provide youth program services in their communities. Parents need to trust that all of the necessary steps have been taken to keep their children out of harm’s way.”

From January 2010 through May 2012, auditors examined youth program activities in the cities of Binghamton, Middletown, New Rochelle and Utica; as well as the towns of Amherst, Clifton Park, Manlius and Seneca Falls. These municipalities offer activities to more than 409,000 residents.

The Comptroller’s audit found seven of the eight municipalities did not conduct background checks on all of the individuals who deliver their youth program services. Only one, the town of Clifton Park [in Saratoga County], annually screened all program personnel against the state’s sex offender registry and other resources.

Two municipalities, the town of Manlius and the city of New Rochelle, did not screen applicants at all, except for those personnel providing programs where state law mandates screening. The remaining five municipalities performed some screening, but did not do it consistently or did not document the date and results of the screening process.

Of the 1,994 individuals working in youth program services in these municipalities, the Comptroller’s audit did not identify any persons with sex offender or significant criminal histories.

The Comptroller’s audit findings also include:

·        Four of the five municipalities that used volunteers did not check volunteers’ criminal history;

·        Five municipalities that hired contracted workers to offer program services did not screen these workers for sexual offenses prior to delivering services; and

·        Six municipalities performed some variety of background checks for new employees.

Municipal youth programs can include pre-school or afterschool activities, arts and crafts, exercise and fitness, summer camps, seasonal or holiday special events, sports, employment and literacy programs, safety programs, swim programs and therapeutic programs. Background checks are currently required by state law or regulation only for individuals who have contact with children in camps, childcare programs and therapeutic programs.

DiNapoli recommended municipalities conduct background checks for all employees, volunteers and contractors involved in youth programs. Minimally, local officials should utilize the sex offender registry maintained by the New York State Division of Criminal Justice Services. They can also perform various types of criminal history background checks and develop their own procedures to limit liability and ensure the safety of participating children.

Local officials generally agreed with the audit findings and the Comptroller’s recommendations. Their responses are included in the final audit report.

For a copy of the report visit:

January 25, 2013

Unless meeting specified time requirements to advance a grievance to the next step is expressly set out in a collective bargaining agreement, timeliness is an issue for the arbitrator to resolve

Unless meeting specified time requirements to advance a grievance to the next step is expressly set out in a collective bargaining agreement, timeliness is an issue for the arbitrator to resolve
Matter of Board of Educ. of The Rondout Val. Cent. Sch. Dist. (Rondout Val. Fedn. of Teachers), 2012 NY Slip Op 08862, Appellate Division, Third Department

The relevant collective bargaining agreement (CBA) spelled out time frames for the processing of grievances and included a clause stating "[t]he failure on the part of [Rondout Valley Federation of Teachers] to advance a pending grievance to the next stage within the time periods set forth herein shall constitute an abandonment of the grievance."

Certain grievances proceeded through the initial procedural stages of the grievance procedure set out in the CBA and ultimately the Federation filed demands for arbitration of these grievances with American Arbitration Association. Contending that these grievances were not processed consistent with the time requirements spelled out in the CBA and were thus “abandoned,” the school district filed a petition pursuant to CPLR 7503 (b) seeking to stay the arbitrations.

Supreme Court granting the district's petition for a stay, holding that “the submission of a timely demand for arbitration constituted a condition precedent to the filing for arbitration” and the Federation appealed.

The Appellate Division vacated the lower court’s decision with respect to the Federation’s demands for arbitration. The court explained that “Where a collective bargaining agreement contains a broad arbitration clause, the question of whether a party has complied with the procedural requirements of the grievance process — such as time limitations — is to be resolved by an arbitrator absent ‘a provision expressly making compliance with the time limitations a condition precedent to arbitration.’"

Rejecting the school district’s argument that the provision in the CBA's specifying that non-adherence to time limits set out in the CBA constituted an "abandonment" of the grievances and thus precluded advancing them to arbitration, the Appellate Division held that the CBA did not expressly condition access to arbitration on adherence to the time limits set out in the grievance procedure.

Accordingly, the Appellate Division ruled that the question of whether the Federation’s grievances were timely filed is a question of "procedural arbitrability" to be resolved by an arbitrator.

The decision is posted on the Internet at:

January 24, 2013

Overhauled Hatch Act takes effect on January 27, 2013

Overhauled Hatch Act takes effect on January 27, 2013
Source: NYMUNIBLOG published by Harris Beach PLLC*. Reproduced with permission. Copyright © 2013, All rights reserved.

Kevin P. RyanEsq. has posted the following item explaining certain changes resulting from the recently amended Hatch Act on the Harris Beach PLLC blog NYMUNIBLOG. Mr. Ryan writes:

"On December 28, 2012, President Obama signed into law an overhaul of the Hatch Act that eased the restrictions on state or local government employees seeking elected office.

"The Hatch Act, as it existed prior to the enactment of the recent legislation (S. 2170), prohibited state and local government employees whose employment was connected to activities receiving federal funding from running as candidates for partisan political office; from using their official authority to influence an election or nomination; or pressuring or advising another state or local employee to make a political contribution.

"Since the old legislation applied to state and local government employees whose employment was broadly defined as “being in connection with activities receiving federal funding,” it served as a blanket prohibition of nearly all state and local government employees from running for office. 

"By way of example, after Robert J. Duffy resigned as mayor of the City of Rochester to become the lieutenant governor, the then deputy mayor, Thomas S. Richards, was sworn in as acting mayor. After a Hatch Act complaint was filed, Richards was forced to resign that position in order to run in a special election to succeed Mayor Duffy, forcing the appointment of a separate acting mayor in the interim.

"The new legislation relaxes that restriction and takes effect January 27, 2013.

"The legislation approved by Congress and signed into law by the president removes the prohibition on certain state and local employees running for elected office unless their salary is paid entirely by federal funds.  Thus, in relaxing the restriction to employees whose employment is in connection with activities receiving federal funding to those only whose salaries are funded entirely with federal funds, the ability of state and local government employees to run for political office is expanded.

"While the new legislation does expand the ability of state and local government employees to run for office, it still prohibits employees whose employment is “in connection with an activity supported by federal funding” from using their official authority to affect an election or nomination or to coerce or advise another state or local employee to make a political contribution. The new legislation also keeps in place the exemption of the governor, lieutenant governor, the mayor of a city, or other elected official from being subject to the terms of the Hatch Act."

NYMUNIBLOG.COM was created and is maintained by the law firm of Harris Beach PLLC as a public service. For more information about NYMUNIBLOG please go to:

NYPPL comment:.See, also, Civil Service Law §107 "Prohibition against certain political activities; improper influence."

January 23, 2013

Postings on Internet social networks deemed inappropriate may result in disciplinary action

Postings on Internet social networks deemed inappropriate may result in disciplinary action
1 .Rubino v City of New York, 34 Misc 3d 1220(A)
2. In re Tenure Hearing of Jennifer O’Brien, A-2452-11T4, Appellate Division, New Jersey Superior Court
3. Fire Department v Palleschi, OATH Index #551/11
4. Decisions of the Commissioner of Education, Decision 16,121

The posting of material on social networks such as Facebook alleged to be inappropriate has resulted in disciplinary action being initiated against educators; students and employees.

Examples of such disciplinary actions are set out below:

The Rubino case: This decision by New York State Supreme Court Justice Barbara Jaffee illustrates the consequences that may result from a posting on an individual’s Facebook "wall" that the employer subsequently determined was inappropriate. In this instance the posting by a teacher of material deemed inappropriate resulted in disciplinary charges alleging “misconduct, neglect of duty and conduct unbecoming her profession” being filed against the educator by the appointing authority. [See 34 Misc 3d 1220(A].

The O’Brien case: In re Tenure Hearing of Jennifer O’Brien, No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013), the Appellate Division, New Jersey Superior Court, sustained a decision by an administrative law judge, affirmed by New Jersey’s Commissioner of Education, upholding the school district’s termination of an elementary school teacher for posting derogatory remarks about her students on Facebook. The court decided that the teacher’s remarks were not protected by the First Amendment of the U.S. Constitution as the remarks were not made on a matter of public concern.

The Palleschi case: In Fire Department of the City of New York v Palleschi, OATH Index #551/11, a New York City emergency medical technician [EMT] was served with disciplinary charges that alleged such postings resulted in “bringing the agency into disrepute and showing disrespect to the public.” OATH Administrative Law Judge Joan Salzman recommended the termination of  the EMT, who admitted that he had posted private and confidential patient information on his Facebook page, "where 460 of his friends could see it for their amusement."

The Appeal of G.I. case: Commissioner of Education Decision 16,121 considered disciplinary action initiated against a student alleged to have engaged in cyber-bullying. The appeal, Appeal of G.I, on behalf of her daughter K.I., from action of a Board of Education, concerned an alleged threatened “fist fight” resulting from a dispute following the publication of "inappropriate statements" about C.H. on C.H.’s “Facebook” page placed there by K.I.and another student, D.N. K.I. admitted to her teacher that she and D.N. had C.H.’s Facebook password and that they posted the derogatory statements. The Commissioner of Education sustained the school principal’s decision, approved by the school superintendent and the school board, to remove K.I. from her classroom for one day and have her spend the day under the supervision of an administrator.

In any event, there is another lesson here: posting information on a social network may prove to be an example of the Doctrine of Unintended Consequences should such postings be targeted for the purposes of discovery in the course of litigation or arbitration. 

This is a legal issue that courts being asked to address with increasing frequency. In Patterson v Turner, 88 AD3d 617, the court ruled that material on Facebook, if relevant, was subject to discovery while in Abrams v. Pecile, 83 A.D.3d 527, the court declined to permit discovery of material posted on social network sites because the party seeking such access was unable to demonstrate that such material would be relevant in the lawsuit. Presumably the same criteria would be used in situations involving efforts to obtain information posted on a social network account such as Facebook in an administrative disciplinary action or an arbitration.

The Rubino decision is posted on the Internet at:

The O’Brien decision is posted on the Internet at:

The Palleschi decision is posted on the Internet at:

The Commissioner’s decision in Matter of K.I. is posted on the Internet at:

January 22, 2013

Governor Cuomo Outlines 2013-2014 Executive Budget to Maintain Fiscal Responsibility And Continue to Invest in Economic Growth

Governor Cuomo Outlines 2013-2014 Executive Budget to Maintain Fiscal Responsibility And Continue to Invest in Economic Growth
Source: Office of the Governor January 22, 2013.

Governor Andrew M. Cuomo today unveiled the proposed 2013-14 Executive Budget and Management Plan that builds on two years of balanced, fiscally responsible budgeting and invests in economic development, education reform, rebuilding after Superstorm Sandy, provides support to local governments and school districts, and includes no new taxes or fees.

One significant proposed change: Merge the Governor’s Office of Employee Relations with the Department of Civil Service to create a single State Employee Workforce Development Center

Highlights of the Executive Budget:

· Eliminates $1.3 billion budget gap with no new taxes or fees. The expected gap for 2013-14 was projected to be $17.4 billion prior to the last two responsible budgets.
· Holds spending increases below 2 percent for third consecutive year.
· Increases education aid by $889 million, or 4.4 percent, driving an average increase of more than $300/student per year.
· Targets economic development spending to accelerate the commercialization of new technology, launches a third round of the Regional Economic Development Councils, and markets the state’s tourism assets to bolster economic growth, especially Upstate.
· Reforms the Workers' Compensation system to save employers, local governments, and school districts more than $900 million.
· Includes nearly $974 million in savings from government redesign and cost control efforts
· Builds on the significant mandate relief enacted in 2012-13 by providing a Stable Rate Pension Contribution Option to allow local governments and school districts to immediately realize Tier VI savings.
· Raises the minimum wage from $7.25/hour to $8.75/hour.

The Executive Budget includes:

· All Funds spending of $136.5 billion in the fiscal year that begins April 1, 2013, an increase of $2.5 billion or 1.9% from 2012-13. All Funds include federal funds.
· State Operating Funds spending of $90.8 billion, an increase of $1.4 billion, or 1.6 percent. State Operating Funds exclude federal funds and long-term capital spending.

A Continued Commitment to Fiscal Responsibility

Governor Cuomo’s Executive Budget eliminates a budget gap of $1.3 billion in 2013-14 and further lowers the budget gaps projected in future years.

· State Spending Growth Held Under 2% For Third Consecutive Year: The Executive Budget holds annual spending growth in State Operating Funds to 1.6 percent. All Funds spending increases by 1.9 percent from the level estimated for 2012-13.
· No New Taxes or Fees: For the third consecutive year, the Executive Budget closes the budget gap with no new taxes or fees.
· $974 Million in Savings from Government Redesigns and Cost Control Efforts: As a result of initiatives spearheaded by the Governor since he took office to streamline state agency operations, government is doing more with less. The state's 2013-14 fiscal plan takes into account $974 million in savings from state agency redesign and cost-control efforts.

Economic Development

With state finances steadied, New York has the means to target new spending to grow the economy and create jobs and train students for the demands of the 21st Century workforce. The 2013-14 Executive Budget continues to invest in rebuilding New York's economy by funding new initiatives and targeting spending to focus on accelerating the commercialization of new technology to create new businesses, providing additional resources for regional economic strategies guided by the Regional Economic Development Councils, and marketing the state’s tourism assets to bolster economic growth, especially Upstate. Major initiatives include:

· Innovation Hotspots and Tech Transfer: The Executive Budget provides funding for a multi-faceted plan – outlined by the Governor in the 2013 State of the State Address – to foster the commercialization of innovative ideas from our academic institutions. The Budget provides the initial funding to launch: the Innovation Hot Spots program that will create or designate ten high-tech innovation incubators at locations affiliated with higher education institutions to encourage private-sector growth; a new $50 Million Innovation Venture Capital Fund that will provide critical seed and early-stage funding to incentivize new business formation and growth in New York State and facilitate the transition from ideas and research to marketable products; and the Innovation NY Network that will build collaboration among academics, venture capitalists, business leaders, patent lawyers and other professionals to facilitate and enhance the commercialization process.
· Next Generation Job Linkage Program: The Budget includes $5 million in performance grants to incentivize community colleges to place students in high demand jobs.
· Regional Councils: Since their launch in 2011, the Regional Economic Development Councils have leveraged close to $5 billion in total project investment, spurred by $1.5 billion in state funding. To build on this success, the Executive Budget includes $150 million for a third round of the Regional Council process.
· NY Works Economic Development Fund Program: The Executive Budget includes $165 million for capital grants that support job creation and retention and fund investments that facilitate business expansion and the attraction of new businesses.
· Market NY: To bolster Upstate economic growth, the Governor laid out in his State of the State address a multi-faceted marketing plan. The Executive Budget provides the funding needed to launch the Market NY program which includes the Taste-NY initiative and a new competitive grant program for regional tourism marketing.
· Commitment to Western New York: The Executive Budget provides $100 million in funding and Excelsior tax credits as part of the Governor’s ten-year $1 billion commitment to revitalize Buffalo’s regional economy, and $60 million as part of the state's contribution to keep the Bills in Buffalo.
· NYSUNY 2020 and NYCUNY 2020: The Executive Budget includes $55 million for a third round of NYSUNY 2020 and $55 million for a new NYCUNY 2020 program. The competitive funding will support projects that link the knowledge and innovation of higher education to regional economic revitalization.
· House NY: To finance the creation and preservation of more than 14,300 affordable housing units, the Executive Budget initiates a five year, $1 billion investment, including the transfer of the Mitchell-Lama affordable housing asset portfolio from Empire State Development to Homes and Community Renewal.
· Minimum Wage Increase: As called for in the Governor's State of the State address, the Executive Budget increases the minimum wage from $7.25 to $8.75 an hour, bringing it more in line with the cost of living. The change would take effect July 1, 2013. Over 705,000 workers would be affected and total wages would increase by an estimated $1.01 billion per year.
· Major Reform of Workers’ Compensation System: The Executive Budget includes a sweeping reform of the state's complex and inefficient Worker's Comp system that will provide $900 million in savings to employers, local governments, and school districts without affecting the rights of workers. The reform plan will allow the State Insurance Fund to release reserves no longer needed to fund future liabilities, which will be used to fund job-creating capital projects and help reduce the state's debt.
· Unemployment Insurance Reform: The Executive Budget proposes substantial reforms that will decrease costs to employers and modernize the Unemployment Insurance system. For UI claimants, reforms will increase both minimum and maximum weekly benefit rates. For employers, reforms will lower total costs, with a savings of $400 million over ten years.
· Enhance New York Film Production Tax Credit: The Executive Budget extends the Empire State film production tax credit of $420 million a year for an additional five years. Restrictions on claiming the post-production portion of the credit will be reduced and additional reporting will be required to document the effectiveness of the credit in creating jobs.
· Extend Historic Commercial Properties Rehabilitation Credit: To provide assurance to developers who are rehabilitating historic commercial property, or are considering doing so, the Budget extends the existing $5 million per project tax credit for five years (2015-2019) and makes the credit refundable beginning in tax year 2015.

Reimagining Government

The 2013-14 Executive Budget allows New York to take the next steps in reimagining state government, allow for even greater transparency and efficiencies, and improve citizen engagement. A new website – – has been launched to provide New Yorkers with unprecedented access to information and resources regarding the state budget.

· Implement the Justice Center: The Executive Budget implements the Justice Center for the Protection of People with Special Needs by transferring Commission on Quality of Care and Advocacy for Persons with Disabilities operations to the new Justice Center.
· Improve DMV Customer Service. The Executive Budget proposes a comprehensive customer service improvement initiative at the Department of Motor Vehicles (DMV) that is designed to reduce office wait times to 30 minutes or less by early 2014, increase the number of transactions serviced via technology outside of DMV offices by 50 percent, and put in place Saturday hours in certain offices.
· Continue Right-Sizing Prison Capacity: To realign the prison system’s capacity with continuing declines in the offender population and to achieve recurring savings for taxpayers, the Executive Budget recommends the closure of two prisons – Bayview in Manhattan and Beacon in Dutchess County. The closures are expected to reduce bed capacity by more than 432, and will save $18.7 million in 2013-14 and $62.1 million in 2014-15. Closure of the facilities will impact 273 employment positions, all of which can be absorbed in the current system.
· Improve the Workforce Development System: The state's current workforce development system fails to train individuals to fill existing job openings, and is not equipped to prepare New Yorkers for the jobs that will be in demand over the next five to ten years. State agencies will adopt consistent and high performance standards for workforce training and development, in conjunction with and certified by the State Department of Labor.
· Improve Services to Veterans: The Executive Budget enables the New York Employment Services System to be expanded to serve as a centralized statewide case management system for services to veterans, funded through a federal grant.
· Government Consolidation and Mergers: The Executive Budget provides for a series of consolidations and mergers to make government more efficient and save taxpayer dollars:
o Consolidate all of the state’s Medicaid administration activities into the Department of Health
o Transfer the Homeless Housing Assistance Program – which finances construction of housing units for homeless individuals – from the Office of Temporary and Disability Assistance to Homes and Community Renewal to give affordable housing developers a single point of contact and oversight
o Merge the Office of the Welfare Inspector General into the Office of the Inspector General.
o Merge the Governor’s Office of Employee Relations with the Department of Civil Service to create a single State Employee Workforce Development Center
o Coordinate and consolidate public health and environmental labs functions which are currently operated by five agencies.
o The Department of Health and the Department of Civil Service will adopt a common strategy for purchasing health insurance and medical services that could save taxpayers $50 million annually.
o Consolidate disparate state agency print facilities into designated anchor facilities, based on proximity and common printing capability. This will reduce the number of print shops by 63 percent (from 24 to 9), and improve services and consistency while saving taxpayer dollars.
o Consolidate warehouse functions, beginning with new policies to ensure a sound and reliable inventory system.

Mandate Relief and Local Government Aid

Building on the significant mandate relief enacted in 2012-13, the Executive Budget provides local government officials with additional tools to manage their finances in a responsible manner. The 2013-14 Budget contains several new proposals to continue to assist localities during this difficult economic period.

· Stable Rate Pension Contribution Option: With Tier VI in place, there is now an opportunity to adopt an alternate pension funding mechanism – a Stable Rate Pension Contribution Option to allow local governments and school districts to lock in long-term, stable rate pension contributions for a period of years that would dramatically reduce near-term payments but still achieve full funding in each system over the long-term. These immediate and significant savings will provide immediate access to the savings of Tier VI and offer local governments and school districts needed relief, improving their ability to maintain necessary services to their residents and students. Local governments who opt in would avoid significant volatility in contribution rates and be better able to plan for the future. The option is voluntary and requires approval from the Comptroller's office.
· Local Sales Tax Rate Renewals: The Executive Budget allows counties to renew their existing sales tax authority without action by the State Legislature. The current process creates unpredictability that makes it difficult for local officials to manage their budgets. Any proposed rate increase would continue to require State Legislative approval.
· Unnecessary Reporting Requirements: All local government and school district reporting requirements would be eliminated on April 1, 2014 unless the Mandate Relief Council approves continuing them. This will place the burden of proof on state agencies and authorities to justify continuing a report.
· Reform Early Intervention Program: The Executive Budget recommends a series of modifications to the Early Intervention Program that will expand insurance coverage and streamline eligibility determinations, without impacting services, to provide significant fiscal and administrative mandate relief to counties and generate savings totaling more than $60 million over five years.
· Enhance General Public Health Work Program: The General Public Health Work program provides state aid reimbursement to Local Health Departments for a core set of public health services. Reforms associated with the first major overhaul of this program since its enactment will promote state health priorities, incentivize performance, and provide administrative relief to counties. The Budget will achieve $3.5 million in savings in 2014-15 and provide mandate relief for local governments of more than $16 million over five years.
· Reforms to Preschool Special Education: To increase the incentive for local governments to find and recover fraudulent and inappropriate spending by providers, counties and New York City would be allowed to keep 75 percent of all recoveries from local audits, nearly double the 40.5 percent that they are currently allowed to retain. In addition, New York City will be given the authority to establish rates with approved Preschool Special Education providers.
· School District Mandate Relief: As recommended by the Mandate Relief Council, the Executive Budget will create a new waiver process which will allow school districts to petition the State Education Department for flexibility in special education requirements. In addition, the burdensome requirement of maintaining an internal auditor for school districts with fewer than 1,000 students will be eliminated. Parental input will be included as part of the waiver process.
· Local Government Assistance: Consistent with 2012-13, the Executive Budget would maintain $715 million in unrestricted aid (AIM) to cities, towns and villages. In addition, funding for a series of local government efficiency and citizen empowerment programs will be extended.

Sandy Relief

The Executive Budget provides support for Superstorm Sandy recovery and rebuilding projects, programs, and other initiatives. Specifically, the Budget includes appropriations of $21 billion for disaster-related recovery, rebuilding and mitigation. An estimated $30 billion of Federal aid will flow through these appropriations or be directly administered by the Federal government, local governments and other entities.

· Community Reconstruction and Mitigation Plans: Communities that were hit hard by Superstorm Sandy, Superstorm Irene and Tropical Storm Lee will be eligible for rebuilding and mitigation grants.
· The Recreate NY Smart Home and Recreate NY Home Buy-Out Programs: The programs will ensure that New York rebuilds to modern building standards and, in locations where rebuilding is impractical, provide a voluntary home buyout alternative.
· Rebuilding and Hardening of Critical Infrastructure: Investments will be made in the areas of transportation, fuel supply, water supply, wastewater treatment systems, and electric distribution and flood protection systems.
· Repair and Build Natural Infrastructure to Protect Coastal Communities: Address the need to restore damaged beaches, dunes, and berms, and build new natural infrastructure including wetlands, reefs, dunes, and berms to reduce the impact of wave action, storm surges, and sea level rise.
· Restore Healthcare Facilities: Improvements will be made at hospitals, nursing homes and clinics to ensure these critical facilities are more resilient to future storms.
· Universal Protocols for Emergency Response: To improve coordination among state and local emergency response professionals, the Division of Homeland Security and Emergency Services will collaborate with SUNY to develop a training program which covers incident command, response, recovery, and state emergency protocols.
· A New Resilient Information System: Existing mobile messaging and social networking technologies will be leveraged to integrate disaster planning, preparedness and response. This will include “NY-TEXT”, a program to allow mass text messages to be sent to all wireless phones in a chosen area.
· Specialized Training for National Guard Members: Training will be provided in key emergency response categories such as power restoration, search and rescue, heavy equipment operation, and crowd management. During Sandy, more than 4,500 Guard members provided relief and accelerated the recovery. With additional training and skills, these Guard members can have an even greater impact when responding to disasters.
· Pre-positioned Stockpiles of Essential Equipment: Critical equipment such as generators, water tankers, chainsaws, piping, light towers, and pumps will be purchased and pre-positioned in anticipation of the next emergency.
· A Statewide Volunteer Network: Establishment of a network if individuals, non-profit organizations and corporations will help the state meet critical needs in disaster relief efforts by matching volunteers with opportunities to assist.
· A Citizen Education Campaign: This program will better prepare New Yorkers by providing information, resources and supplies, reducing the number of families in need during a disaster and allowing first responders to focus greater attention on those who are most vulnerable.
· Establishment of Vulnerable Population Databases: First responders, outreach workers, and healthcare and human services personnel will have access to information to help find and serve those who may need assistance.
· Energy Sector Worker Training: This new program will ensure availability of skilled professionals to quickly diagnose and replace damaged components and maintain a state of good repair.
· Design-Build for Sandy Relief: The Executive Budget also authorizes Design-Build – a proven way to reduce costs and speed completion – for agencies that will implement disaster recovery projects.
· Strengthening the Public Service Commission: The Budget implements the Moreland Act Commission recommendations to strengthen the oversight and enforcement mechanisms of the Public Service Commission to ensure public utility companies are held accountable and responsive to regulators and customers.
· Implement Community Focused Plans: Counties affected by Sandy, Irene and Lee eligible


The 2013-14 Executive Budget reflects a continued commitment to supporting improved student outcomes, sustainable cost growth, and equitable distribution of aid. It builds on the foundational work of prior years, and begins the implementation of key recommendations of the New NY Education Reform Commission. The total year-to-year increase in aid for education is $889 million, or 4.4 percent.

· Full-Day Pre-kindergarten Program: The Executive Budget provides $25 million to support a full-day pre-kindergarten program targeted toward higher need students in lower wealth school districts via a competitive process.
· Extended Learning Time: In order to provide increased learning opportunities, $20 million will be prioritized to support high-quality extended school day or extended school year programs, with academically enriched programming. Schools that apply to participate in the program must agree to expand learning time by 25 percent. The grant will cover the full cost of expanding learning time for students.
· Community Schools: The Executive Budget supports an innovative program designed to transform schools into community hubs that integrate social, health and other services, as well as after-school programming to support students and their families.
· Reward High-Performing Teachers: The Executive Budget provides $11 million to offer $15,000 in annual stipends for four years to the most effective teachers, beginning with math and science teachers.
· Early College High School Programs: The Executive Budget provides $4 million in new state funding, bringing the state’s total investment in Early College High School programs to $6 million, to improve college access and success.
· Bar Exam for Teachers: To ensure the best and brightest are teaching our children, the State Education Department will increase the standards for teacher certification to require passage of a “bar exam,” in addition to longer, more intensive and high-quality student-teaching experience in a school setting.
· Target School Aid Increases to High-Need School Districts: The Executive Budget provides a $611 million increase in School Aid. High-need school districts will receive 75 percent of the 2013-14 allocated increase and 69 percent of total School Aid. The aid includes $272 million for general support, $289 million for increased reimbursement in expense-based aid programs, and $50 million for a new round of competitive grants.
· Provide Fiscal Stabilization Funding for School Districts in the 2013-14 School Year: In recognition of extraordinary increases in fixed costs, including pension contributions, the Executive Budget provides $203 million in one-time financial relief to school districts.
· Maintain the Commitment to Teacher Evaluation Reform: The Executive Budget will continue to link increases in State Aid to compliance with the teacher evaluation system to ensure implementation and accountability for improving student performance. School districts will not be eligible for aid increases unless they have fully implemented the teacher evaluation process for the 2013-14 school year by September 1, 2013.

Program Overview

Environment and Energy: The Executive Budget increases support for critical environmental protection and energy programs. The Environmental Protection Fund (EPF) will be increased by $19 million to $153 million. The Cleaner, Greener Communities program, administered by NYSERDA to fund energy efficiency and renewable energy projects, will be supplemented by a net $10 million in new state funding. To address a backlog of environmental capital needs, the Budget includes $135 million of new funding for DEC, OPRHP, the Department of Agriculture and Markets, and the Olympic Regional Development Authority under the NY Works program. In addition, the Budget provides the financial platform to implement the Moreland Commission recommendations that will strengthen the oversight and enforcement mechanisms of the Public Service Commission.

Health Care: The Executive Budget maintains the Medicaid spending cap enacted in 2011-12 and recommends funding consistent with its provisions. The Budget achieves $125.3 million in savings from public health and aging programs through program reforms, enterprise-wide efficiency measures, and general cost-control efforts in public health and aging programs. In addition, the Executive Budget continues the state's implementation of the New York Health Benefit Exchange that will serve as a centralized marketplace for the purchase and sale of health insurance, in accordance with the Affordable Care Act.

Higher Education: To ensure New York's students are prepared for the jobs of today and tomorrow, the Executive Budget changes the approach to funding community college workforce and vocational programs. Instead of funding based solely on enrollment, in order to receive State support for these programs, community colleges will be expected to partner with local employers and the Regional Economic Development Councils to identify job training needs. In addition, the Budget provides new funding to community colleges based on performance in measures of student success, including job placement.

Human Services: The Executive Budget provides core supportive services for needy populations and expands upon the 2012-13 Close to Home initiative for youth from outside of New York City to be placed in facilities closer to their home communities. The Executive Budget authorizes the state to undertake up to $100 million over the next five years for “Pay for Success” initiatives, also known as Social Impact Bonds. The program will attract private funding for preventative programming with repayment to investors made only if performance standards are achieved and savings exceed program costs.

Mental Hygiene: Proposed actions for the Mental Hygiene agencies include reforming and restructuring state and local programs and administrative practices, establishing regional centers of excellence for state-operated inpatient psychiatric facilities, enhancing community mental health services, utilizing less costly and more effective in-state community residences, placing aggressive cost controls on agency operations, and maximizing payments from third-party payers. The Executive Budget invests $10 million to ensure that individuals receiving court-ordered services and those being discharged from State psychiatric hospitals have access to services in the community to ensure continuity of care.

Public Safety: The Executive Budget helps to implement the NY SAFE Act, including creating a database for gun permits to allow the state to identify those with a firearms license who no longer legally qualify to possess a firearm. The Budget proposes that an existing $11.4 million in funding for Alternatives to Incarceration be restructured as a competitive grant program targeting the highest risk offenders. The Budget includes legislation to reform the traffic adjudication process will help improve public safety and help reduce the loss of $58 million annually in state revenue that is caused by the existing process.

Revenue Action and Tax Reform: There are no new taxes or fees in the Executive Budget. The Budget proposes to strengthen the state’s already robust tax enforcement efforts to ensure all individuals pay their fair share. These provisions, as well as the extension of existing revenue sources, would generate an additional $403 million in collections on an All Funds basis.

Transportation: The Executive Budget includes $300 million of new transportation capital funding under the NY Works program. In addition, the Budget provides operating support totaling $4.7 billion to mass transit systems. The MTA will receive over $4.2 billion, an increase of more than $358 million from 2012-13, and other transit systems will receive over $454 million, which reflects an increase of $23.5 million. The Budget includes $307 million in General Fund support for the MTA to fully offset the revenue impact of the reform of the MTA payroll tax that the Governor signed into law in 2011.

The Executive Budget includes approximately $85 million in funding assistance for the Thruway Authority, including the state takeover of costs of the Division of State Police Troop T, that helped eliminate the need for a substantial commercial toll increase.

Apply the public policy exception in considering confirming an arbitration award in situations where the alleged misconduct might constitute a felony

Apply the public policy exception in considering confirming an arbitration award in situations where the alleged misconduct might constitute a felony
United Univ. Professions v State of New York, 2013 NY Slip Op 50084(U), Supreme Court, Albany County

A faculty member in the collective bargaining unit represented by United University Professions (UUP) employed by a unit of the State University of New York [SUNY] was suspended without pay pending the resolution of certain charges of misconduct filed against him. The arbitrator determined that the faculty member was guilty of some, but not all, of the charges. 

Under the circumstances, the arbitrator decided that suspension rather than dismissal was the appropriate penalty to be imposed and directed that the faculty member be reinstated to his former position.*

When SUNY failed to reinstate the faculty member, UUP filed a petition in Supreme Court pursuant to CPLR Article 75 seeking to confirm the Arbitration Award. SUNY cross moved to dismiss the petition and vacate the Award.

Supreme Court, noting that a court may vacate an arbitration award only upon one of the grounds set forth in CPLR 7511(b)[1], said that in support of its motion do vacate the award SUNY contended that the arbitrator exceeded her power. 

This ground, said the court, may be invoked "where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

SUNY had argued that the arbitrator "exceeded [her] power" because her decision to suspend rather than dismiss the faculty member violated a "strong public policy." In support of its contention that the award violates public policy SUNY cited Penal Law Article 155, noting that the arbitrator had determined that the faculty member committed certain acts that "fit the definition" of larceny and "at the dollar level involved ($78,600.00 or $149,994.00) it would constitute Grand Larceny in the 2nd Degree a Class C Felony..."

Supreme Court said that the arbitrator determined that the faculty member had “inappropriately used the State's facilities and resources for the benefit of his private entity, assigned State employees to perform services for the private entity, and inappropriately directed employees to charge costs related to the private entity to a State grant contract” and other offences. The court, however, decided that SUNY had not demonstrated that the public policy exception applied here, noting that the faculty member was neither charged criminally nor adjudged to be guilty of any crime.

Finding that the arbitrator's determination to suspend the faculty member did not violate any express statute, rule or regulation prohibiting reinstatement under similar circumstances, the Court said that it was unable to conclude that the Award is "prohibit[ed], in an absolute sense." Further, the court said before deciding that the faculty member should be returned to work, the arbitrator considered certain mitigating factors, including [1] the faculty member did not intend to profit personally from his conduct and [2] that the arbitrator apparently concluded that the faculty member believed that his work  would benefit SUNY and provide financial support for his work on behalf of the University.

Another aspect of the case: concerned the arbitrator’s refusal to consider certain e-mails was sent and received via the faculty member’s personal e-mail account and extracted from a State-owned laptop computer.

Supreme Court ruled that SUNY had failed to demonstrate that the requested documents were pertinent and material to the issues presented, explaining that “It is well settled that ‘[a]n arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be,’" citing Perilli v NYS Dept. of Correctional Services, 80 AD3d 617.

The court said that the arbitrator, “after considering all the evidence, such as counsels' characterizations as to the content of the documents and testimony from the State's witness that his opinion with regard to [the faculty member’s] intent was not based solely on the content of the e-mail, declined to accept the documents. SUNY had not established any basis to question the arbitrator's judgment and the record before the Court did not support SUNY's view that her determination constituted misconduct.

Supreme Court granted UUP’s petition to confirm the arbitrator’s award in its entirely.

* The arbitrator determined (1) that SUNY had just cause to immediately suspend the faculty member pending resolution of the disciplinary charges; (2) that the faculty member was guilty of thirty of the alleged acts of misconduct; (3) that the faculty member was not guilty of the 23 remaining alleged acts of misconduct; (4) that the penalty of termination was "not appropriate under the totality of circumstances"; and (5) that the appropriate penalty was suspension from the effective date of his termination to the date of the award

The decision is posted on the Internet at:

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 of January 14 – 20, 2013 [Click on the caption to access the full report]

DiNapoli: $265 Million In Hurricane Relief Contracts and Payments Expedited in 2012

The State Comptroller’s office processed nearly $265 million in contracts and spending in November and December 2012 related to Hurricane Sandy recovery and has posted the details online so the public can access it in real time, Comptroller Thomas P. DiNapoli reported Wednesday.

DiNapoli: Slow Growth In Aid To New York’s Local Governments Over Last Decade

Local governments across New York are increasingly turning to local tax revenue to make up for sluggish growth in federal and state aid, according to a report issued Wednesday by State Comptroller Thomas P. DiNapoli. The report is the latest in a series of reports DiNapoli will issue to highlight the causes of fiscal stress in New York’s local governments.

DiNapoli: SUNY Downstate Medical Center Faces Insolvency

The State University of New York Downstate Medical Center, which includes the University Hospital of Brooklyn, faces insolvency as early as May if immediate actions are not taken, according to an audit assessing the hospital’s financial condition released Thursday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Freezes Pension Fund Investments in Commercial Firearm Manufacturers

New York State Comptroller Thomas P. DiNapoli announced Tuesday that the New York State Common Retirement Fund will freeze its investments in publicly–traded commercial firearm manufacturers.

DiNapoli: KeyCorp Agrees To Disclose Political Spending

KeyCorp has agreed to disclose all of its corporate political spending, lobbying and employee–sponsored political contributions in a comprehensive agreement announced Wednesday by New York State Comptroller Thomas P. DiNapoli on behalf of the New York State Common Retirement Fund.

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of:

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed an audit of

the Poughkeepsie City School District.


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed 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.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. 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 posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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