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

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

Issued during the week ending March 31, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Best Buy and Bed Bath & Beyond Agree to Promote Sustainable Business Practices With Suppliers

New York State Comptroller Thomas P. DiNapoli Friday announced agreements with Best Buy and Bed Bath & Beyond to encourage their suppliers to report on workplace safety, human and worker rights and environmental compliance.

DiNapoli: Rensselaer County Employee Stole $200,000

Poor financial controls allowed a county employee to bilk Rensselaer County out of $208,597 over a six–year period, according to an audit released Tuesday by State Comptroller Thomas P. DiNapoli. The former employee was charged in July with grand larceny, falsifying business records and defrauding the government. The extent of her fraud, however, was not determined until county officials contacted DiNapoli’s office requesting a full audit.

State Pension Fund Invests $3.4 Million in Auburn Armature

New York State Comptroller Thomas P. DiNapoli announced Thursday that DeltaPoint Capital Management has acquired a majority stake in Auburn Armature, Inc., an electrical products distributor, manufacturer, and service company in Cayuga County. The New York State Common Retirement Fund is an investor in DeltaPoint through the In–State Private Equity Program.

DiNapoli: State Contractor Underpaid Workers More Than $82,000; CUNY Failed to Monitor Vendor

A vendor with blanket approval to sell audio visual equipment to public entities admitted underpaying its employees at least $82,000 by ignoring prevailing wage laws, according to an audit released Monday by State Comptroller Thomas P. DiNapoli.

ORDA’s Ongoing Fiscal Challenges Prompt DiNapoli Audit

State Comptroller Thomas P. DiNapoli will launch a full financial audit of the Olympic Regional Development Authority after a report by his office found that financial issues persist at a time when its operations have been expanded to include the Catskills–based Belleayre Mountain Ski Center.


Comptroller DiNapoli Releases School Audits

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

the East Moriches Union Free School District;

the Liberty Central School District;

he Rotterdam–Mohonasen Central School District; and,

the Wayne Central School District.

Audits published by New York State's Comptroller Thomas P. DiNapoli

Audits published by New York State's Comptroller Thomas P. DiNapoli 

Issued during the week ending March 29, 2013 [Click on the caption to access the full report]

Department of Health, Medicaid Claims Submitted by Accordis Inc. on Behalf of HHC (2011-S-29)
Healthcare providers submit Medicaid claims to the Department of Health’s eMedNY claims processing system for payment of their services. For various reasons, eMedNY denies payment of many claims. Claims that are denied can be modified and resubmitted to eMedNY for payment. In March 2005, HHC hired Accordis to provide billing services for HHC-affiliated providers. For the three-year period ended Dec. 31, 2010, Accordis submitted 192,296 claims totaling more than $26.2 million on behalf of HHC providers. Auditors found eMedNY does not provide a mechanism for associating a paid claim to its previously denied claim. As a result, auditors could not determine whether changes made by Accordis to previously denied claims were appropriate.

Department of Health, Medicaid Overpayments for Non-Emergency Out-of-State Inpatient Services (Follow-Up) (2012-F-25)
In an initial report, auditors found that for the period May 1, 2002 through April 30, 2009, Medicaid made potential overpayments totaling $9.2 million to out-of-state hospitals. Auditors further identified $10.8 million in claim payments for which DOH had not granted the required prior approvals. In a follow up report, auditors found DOH made progress in addressing those issues.

Office of the Attorney General, Accounts Receivable Collections (2011-S-25)
Auditors determined OAG’s Civil Recoveries Bureau was generally effective in its collection of accounts receivable referred by state agencies. Auditors recommended the bureau enhance its collection actions through computer matches with state and New York City payrolls to locate debtors.

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities:

State University of New York, The College of Fredonia - Selected Employee Travel Expenses (2012-S-138)
Two of these employees worked at the College at Fredonia and had travel costs totaling $689,762. Auditors also examined other travel expenses including three employees with outliers in air and train fares that totaled $148,505. The travel expenses for the five employees were documented and adhered to state travel rules and regulations.

State University of New York, College at Geneseo - Selected Employee Travel Expenses (2012-S-139)
Three of these employees worked at SUNY Geneseo and had travel costs totaling $252,042. The travel expenses for the three college employees selected for audit were documented and adhered to state travel rules and regulations.

State University of New York, Institute of Technology at Utica/Rome - Selected Employee Travel Expenses (2012-S-146)
One of these employees worked at the State University of New York Institute of Technology (SUNYIT) and had travel costs totaling $101,605. Auditors found that the travel expenses for the SUNYIT employee selected for audit were documented and adhered to state travel rules and regulations.

State University of New York, College at Brockport - Selected Employee Travel Expenses (2012-S-150)
One of these employees worked at the College at Brockport (college) and had travel expenses totaling $143,258.  Auditors found that the employee’s travel expenses were documented and adhered to state travel rules and regulations.

Religious holidays provision in Taylor Law agreement held unconstitutional

Religious holidays provision in Taylor Law agreement held unconstitutional

Board of Education of the Mineola UFSD v Mineola Teachers Assn., 2013 NY Slip Op 02070, Appellate Division, Second Department

The Mineola Teachers Association appealed an order of the Supreme Court, Nassau County that granted the School District’s petition seeking to permanently stay the arbitration of a grievance alleging that the School District breached the “religious holiday” provision set out in the collective bargaining agreement [CBA] between the School District and the Association.

The CBA clause in question provided that “members of the Association” could receive up to five of the religious holidays “designated by the New York State Commissioner of Education” as paid days off, “two of which would not be charged to any other leave.” Although the New York State Commissioner of Education had discontinued designating “religious holidays,” the religious holidays provision in the CBA was not amended and the School District continued to permit Association members who requested time off for religious observance to avail themselves of the religious holidays provision.

In October 2010, the School District advised the Association that it would no longer abide by the religious holidays provision because it was unconstitutional. The Association filed a grievance, which was denied. The Association then demanded that the grievance be submitted to arbitration.

The Appellate Division said that the first issue to be resolved when determining whether a dispute is subject to public sector employment arbitration is "whether the subject of the claim sought to be arbitrated is the type authorized by the Taylor Law” citing Matter of Blackburne, 87 NY2d 660. The court explained that "If a statute, decisional law or public policy precludes the governmental employer and employee from referring the dispute to arbitration, then the answer to this inquiry is no and the claim is not arbitrable."

Noting that "There is no firmer or more settled principle of Establishment Clause jurisprudence than that prohibiting the use of the State's power to force one to profess a religious belief," the Appellate Division said that the clear wording of the religious holidays provision in the CBA rewarded members of the Association who claimed to be religiously observant with more paid days off than those afforded to agnostics, atheists, and members who were less observant.

Similarly, in Port Washington Union Free School Dist. v Port Washington Teachers Assn., 268 AD2d 523, the Appellate Division ruled that a CBA provision that allowed a teacher to be absent with pay on "any of the religious holidays designated by the New York State Commissioner of Education" without charging his or her absence to leave credits violated the Establishment Clause of the First Amendment of the United States Constitution.

In contrast to the language of the provision included in the Port Washington CBA, the Port Washington court noted that many Taylor Law collective bargaining agreements provide for absences with pay charged to "personal leave," which leave may be used for any "personal business" including the observation of religious holidays. Presumably such provisions would pass the “Constitutional test” as they neither favor the "religiously observant" nor penalize "agnostics, atheists, and members who were less observant."

The Appellate Division ruled that Supreme Court properly granted the School District's petition to permanently stay arbitration and denied the Association's motion to compel arbitration.

The Mineola decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02070.htm

Individuals interested in being considered for the Empire State Fellows Class of 2013-2015 must file their application by April 12, 2013

Individuals interested in being considered for the Empire State Fellows Class of 2013-2015 must file their application by April 12, 2013

Source: New York State Department of State

The 2011-2013 class of the Empire State Fellows -- the inaugural class of a program created by Governor Andrew M. Cuomo to prepare a new generation of leaders for policy-making roles in New York State government -- has already made an impact on the administration. From promoting economic development programs to devising strategies to assist needy New Yorkers, the 2011-2013 Empire State Fellows are working closely with officials in the administration and participating in making key policy decisions.

Applications for the next class of Empire State Fellows (2013-2015) are due by Friday, April 12, 2013 at 11:59 p.m. 

To apply, candidates must email a cover letter, resume, personal statement, and two letters of recommendation to fellows@exec.ny.gov. 

Additional information about the 2013-2015 program and the application process is available at http://www.dos.ny.gov/newnyleaders/fellows_app.html.

During the first six months of the program, the Empire State Fellows met and worked with top-level administration officials and participated in intensive government and policy courses at the Rockefeller Institute in Albany. These  Fellows are currently working on challenging and important issues facing New York State and using their knowledge and background to make positive contributions.

Examples of the work the current Fellows have undertaken in the last six months include:

*        Development of financing options for the New York State Environmental Facilities Corporation

*         Minority and Women-Owned Business procurement

*        New York Wine and Beer Summit to promote New York business

*        Superstorm Sandy recovery efforts and New York State Long-Term Disaster Preparedness Initiative

*        New York State Homeownership Repair and Rebuilding Fund

*         Regional Economic Development Councils Opportunity Agenda initiative

To learn more about the current Empire State Fellows class, go to http://www.dos.ny.gov/newnyleaders/fellows.html

Governor Cuomo and Legislative Leaders outline agreement on 2013 -2014 Budget

Governor Cuomo and Legislative Leaders outline agreement on 2013 -2014 Budget

On March 27, 2013 Governor Andrew M. Cuomo, Senate Majority Coalition Co Leaders Dean Skelos and Jeff Klein, and Assembly Speaker Sheldon Silver outlined the agreement on the 2013 -14 Budget.

A summary of the agreement is posted on the Internet at:

http://d2srrmjar534jf.cloudfront.net/6/0a/d/3912/GOVERNOR_CUOMO_AND_LEGISLATIVE_LEADERS_OUTLINE_AGREEMENT_ON_2013.pdf

Establishment of positions in the Classified Service by a political subdivision of the State

Establishment of positions in the Classified Service by a political subdivision of the State

In deciding this Article 78 action, the Appellate Division addressed a number of significant public personnel law issues including the establishment of positions in the Classified Service by a political subdivision of the State, jurisdictional classification of positions in the Classified Service and the impact of a Taylor Law agreement in the event there is layoff of employees in the Labor Class.

According to the decision, the Village of Spring Valley appointed three individuals [petitioners] to classified service positions of “Laborer” in the Labor Class in its Department of Public Works* and that these three individuals had “completed their probationary periods" prior to August 10, 2010.

On August 10, 2010, however, the County of Rockland Department of Personnel, the municipal civil service commission [Commission] having jurisdiction over the Village, advised Spring Valley that it had "no record of employment" for the three petitioners, citing Civil Service Law §22 [Certification for positions] and §97 [Reports of appointing officers; official rosters].

The Commission’s reference to Civil Service Law §22, Certification for positions, suggests that these were new position or existing positions in a jurisdictional class other than the Labor Class in that Section 22 provides that: “Before any new position in the service of a civil division shall be created or any existing position in such service shall be reclassified, the proposal therefor, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such commission shall furnish a certificate stating the appropriate civil service title for the proposed position or the position to be reclassified. Any such new position shall be created or any such existing position reclassified only with the title approved and certified by the commission.

Significantly, Civil Service Law §44 provides that all positions in the Classified Service are in the competitive class unless placed in a different jurisdictional classification. The Appellate Division's decision, however, makes no reference to these three laborer positions having been placed in the Labor Class by amendment of the Commission's Rules, which rules are subject to the approval of the State Civil Service Commission in accordance with the provisions of Civil Service Law §20.

Accordingly, appears that the three petitioners at the time of their respective “appointment” were provisionally appointed to three “new positions in the competitive class,” and that these appointments should have been so reported to the Commission with Village’s request that the Commission amend its rules to “jurisdictional classify the three positions in the Labor Class.”

The Commission’s August 10, 2010 notification also advised the Village that the "[petitioners] without approval from this office to work must be terminated immediately unless there is a resolution to the situation."

That same day, the Village Board adopted Resolution No. 519 of 2010, unanimously resolving that the individual petitioners "shall be immediately removed” from the Village payroll and informed that they are not employees of the Village.The three individuals then filed a petition pursuant to CPLR Article 78 seeking to annul the Village’s resolution removing them from the Village payroll, to compel the Village to comply with its ministerial duty under the Civil Service Law by submitting the required paperwork to the Commission, and to reinstate them with back pay.

The petitioners also submitted evidence that another employee in the labor class with less seniority had been retained by the Village after their removal from the payroll, an action they alleged violated their “seniority rights under the governing collective bargaining agreement.”**

In response, the Village contended that in the months preceding its adoption of the resolution terminating the three petitioners it had conducted a comprehensive review of its operations and determined that the Department of Public Works "would operate more economically and efficiently by creating three new positions with the title of assistant maintenance mechanic and eliminating all positions in the labor class by attrition and/or layoffs."

In rebuttal, the petitioners submitted evidence that the new title “Assistant Maintenance Mechanic” was proposed on July 27, 2010 and notice of three vacancies in the new class was posted on that date. Accordingly the petitioners contended that the Village had not properly abolished the individual petitioner's positions on August 10, 2010, but had terminated their employment "in violation of the collective bargaining agreement and the Civil Service Law."

The Supreme Court denied the petition and dismissed the proceeding, holding that the Village had properly abolished the individual petitioners' positions for the purpose of economy or efficiency and that the petitioners had failed to allege or establish that the Village had acted in bad faith in abolishing their positions.

The Appellate Division reversed the lower court’s ruling, explaining that the Doctrine of "Legislative equivalency requires that a position created by a legislative act can only be abolished by a correlative legislative act," citing Torre v County of Nassau, 86 NY2d 42.

Here, said the court, it is undisputed that each of the individual petitioners' positions was created by resolution of the Village Board, and thus, another resolution of the Village Board was required to abolish each of those positions. Contrary to the Village's contention, the Appellate Division ruled that three positions in question were not abolished by the Village's Resolution No. 519 of 2010.

The Appellate Division explained that “The misconception of the Village Board that the positions did not exist was premised upon the Village's own failure to comply with the filing requirements of the Civil Service Law pursuant to the notification by the municipal civil service commission." The Village Board had “unanimously resolved to ‘immediately remove[ ]’ the individual petitioners from the Village payroll and to inform them that they ‘are not employees of the Village,’ rather than to remedy their filing and certification violations under the Civil Service Law.” Further, said the court, the plain language of the subject resolution “refutes the [Village's] contention that the Village Board was abolishing positions then in existence.”

Moreover, said the Appellate Division, the record supports the petitioners' contention that although the resolution “immediately removed the individual petitioners from the payroll,” the Village continued to employ another laborer with less seniority. The Appellate Division held that the petitioners established that the positions of the individual petitioners were not abolished and they were laid off in violation of the seniority provisions of the collective bargaining agreement. The court explained that the Village's action in removing the individual petitioners from the payroll was not justified by its proper creation of a new class of employees, with the intention of eliminating the labor class by attrition or layoff.

Clearly "A public employer may abolish civil service positions for the purpose of economy or efficiency, as long as the position is not abolished as a subterfuge to avoid statutory protection afforded civil servants before they are discharged."Here, however, the Appellate Division ruled that “although the evidence supported the Village’s contention that it intended to abolish the laborer positions after it had created the new class of assistant maintenance mechanic,” the evidence does not support its contention that the Village actually abolished the individual petitioners' positions in the resolution dated August 10, 2010 [emphasis in the decision].

In any event, said the court, even if the August 10 resolution could be construed to abolish the individual petitioners' positions effective August 10, 2010, the immediate termination of their employment pursuant to that resolution violated a provision in the collective bargaining agreement requiring two weeks notice prior to terminating an employee whose position has been abolished, and thus constituted improper abolishment of a civil service position "to avoid the statutory [in this instance better read “a contractual”] protection afforded civil servants before they are discharged."

The Appellate Division reversed the Supreme Court’s decision, annulled the Village’s August 10 resolution and remitted the case to the Supreme Court, Rockland County for further proceedings “including a calculation of the individual petitioners' pay retroactive to August 10, 2010.”

* The Classified Service consists of four jurisdictional classes: the Competitive Class, the Non-competitive Class; the Exempt Class and the Labor Class.

** N.B. Employees in the Labor Class are not within the ambit of either §80 or §80-a of the Civil Service Law [which sections of law provide certain rights to employees in the competitive and non-competitive classes in the event of a layoff] but employees in the Labor Class may be accorded layoff rights based on “seniority” pursuant to a Taylor Law agreement provided that any such contract right does not adversely affect the statutory layoff rights of other employees [see City of Plattsburgh v Local 788, 108 AD2d 1045].  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01826.htm

Employee terminated for having submitted a false application for a mortgage

Employee terminated for having submitted a false application for a mortgage
Kim v Kelly, 2013 NY Slip Op 01905, Appellate Division, First Department

The Appellate Division affirmed the termination of a New York City police officer by the Police Commissioner after the officer was found to have submitted a false mortgage application.

Finding that there was substantial evidence showing that the officer had “falsely listed a company that [the officer] did not work for as his sole source of income, and falsely listed a New Jersey address as his primary residence,” the court said there was no basis to disturb the credibility determinations of the Hearing Officer.

As to the penalty imposed, dismissal from his position, the court, citing Kelly v Safir, 96 NY2d, 32, said that termination did not shock its sense of fairness as the Commissioner "is accountable to the public for the integrity of the Department."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01905.htm

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

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

Issued during the week of March 18-24, 2013 [Click on the caption to access the full report]

DiNapoli: PepsiCo to Disclose Lobbying and Trade Association Ties

PepsiCo, a global food and beverage company with annual revenues of $60 billion, has agreed to fully disclose all of its direct lobbying and contributions made to trade associations as well as funds paid to grassroots lobbying and tax-exempt organizations that write and endorse model legislation, according to New York State Comptroller Thomas P. DiNapoli. In response to the agreement, DiNapoli withdrew a shareholder resolution calling for disclosure of shareholder money spent on lobbying and other political spending.

SEC Action Puts Caterpillar Resolution on Sudan up for Shareholder Vote

The New York State Common Retirement Fund’s shareholder resolution calling upon Caterpillar Inc. to take steps to ensure that the company’s foreign subsidiaries are not doing business with the government of Sudan will go before shareholders on June 12, New York State Comptroller Thomas P. DiNapoli announced Thursday. Caterpillar had attempted to block the resolution from appearing on its shareholder proxy statement to be voted upon at its annual meeting by petitioningthe Securities and Exchange Commission to allow its exclusion from the meeting agenda.

DiNapoli: Tax Collections Declined in February; Budget Must Reflect Realistic Revenue Expectations

Total tax collections trailed the latest projections in the amended Executive Budget Financial Plan released last month, according to the February cash reportreleased Wednesday by State Comptroller Thomas P. DiNapoli. Tax collections through February totaled $59.9 billion, 2.6 percent higher than the same period a year ago although collections in the month of February were 5.6 percent lower than collections for the same period last year.

Comptroller DiNapoli Releases Municipal Audits

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

the Town of Deerfield;

the Town of Newstead; and,

the Town of Stratford.

A party is permitted to introduce updated records as evidence upon the resumption of an administrative hearing if an opportunity to respond to such records is provided

A party is permitted to introduce updated records as evidence upon the resumption of an administrative hearing if an opportunity to respond to such records is provided

Coleman v Rhea, 2013 NY Slip Op 01783, Appellate Division, First Department

In resolving this Article 78 petition one of the issues considered by the Appellate Division was whether there was “substantial evidence” to support an administrative determination made after a hearing.

The petitioner, Wanda Coleman, claimed that her right to due process was violated when the hearing officer permitted the New York City Housing Authority [NYCHA] to submit an updated ledger into evidence when an administrative hearing was resumed.

The Appellate Division disagreed, explaining that Coleman was free to testify regarding the updated ledger and the hearing officer kept the hearing record open post-hearing to give Coleman a full opportunity to respond to the updated information.

Indeed, said the court, Coleman had availed herself of this opportunity by submitting documentary evidence. Further, the court ruled that the hearing officer had not violated NYCHA's relevant internal administrative procedures in so doing.

A second issue concerned a procedural matter.

The Appellate Division noted that Supreme Court had denied Coleman’s Article 78 petition seeking to annul NYCHA’s administrative determination. The Appellate Division, however, “unanimously reversed” Supreme Court’s ruling on the law and treated the petition as one transferred to it for a de novo review.

Coleman’s petition, said the court, raised an issue of substantial evidence, and thus, the proceeding should have been transferred to this Court pursuant to CPLR §7804(g). Accordingly, the Appellate Division considered the substantial evidence issue de novo and decided all issues presented as if the proceeding had been properly transferred to it by Supreme Court in the first instance.

The Appellate Division then confirmed NYCHA’s administrative determination as supported by substantial evidence and denied Coleman’s petition, dismissing the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01783.htm

If a past practice involving a mandatory subject of negotiation is established the Taylor Law bars the employer from unilaterally discontinuing that practice

If a past practice involving a mandatory subject of negotiation is established the Taylor Law bars the employer from unilaterally discontinuing that practice

Town of Islip v New York State Pub. Empl. Relations Bd., 2013 NY Slip Op 01562, Appellate Division, Second Department

The Public Employment Relations Board [PERB] affirmed a decision of its administrative law judge that found, after a hearing, that an improper practice charge filed by Local 237, International Brotherhood of Teamsters and United Public Service Employees Union, violated Civil Service Law §209-a(1)(d).

The genesis of Local 237 filing an improper practice charge with PERB was the Town’s unilaterally discontinued an alleged past practice involving the use of Town vehicles by certain unit members to commute. PERB directed the Town to reinstate the practice and to "make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the vehicle assignments, if any, together with interest at the maximum legal rate."

The Town had contended that the practice violated its Code of Ethics and Financial Disclosure Law which, in pertinent part, provided that "[n]o officer or employee shall request or permit the use of Town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business. In addition, the Town had a written policy concerning the use of Town vehicles.

According to the decision “For at least 15 years prior to 2007, the policy was frequently ignored with respect to assignments of Town vehicles for permanent use. In late 2007, the Town and a union representing certain Town employees were negotiating two new collective bargaining agreements. In the course of negotiations the Town proposed a provision concerning employee use of Town vehicles, but then withdrew its proposal, contending that the permanent use of Town-owned vehicles was not a mandatory subject of collective bargaining.

When negotiations were at an impasse in early 2008 on various issues, the Town Board passed a resolution limiting the assignment of "take-home" vehicles. As a result of this action approximately 45 unit members lost their assignments of Town vehicles for their permanent use.

The two unions then representing the affected employees filed an improper practice charge with the PERB contending that the long-extant practice of assigning Town vehicles for permanent use to persons who did not qualify for them under the Town's written policy had given rise to a "past practice" as an economic benefit. Thus, argued the unions, “Any change in that practice … was a 'mandatory' subject of collective bargaining, and the Town's change in policy constituted an improper employment practice."

A PERB administrative law judge determined that the longstanding practice of assigning Town vehicles to employees for permanent use constituted a past practice regarding the terms and conditions of employment, notwithstanding that those permanent assignments were in conflict with the Town's written policy. The Town was directed to restore the vehicles to the employees and compensate the employees for the period during which they were without the vehicles. PERB, in its final determination, affirmed the administrative law judge's decision.

The Appellate Division sustained PERB’s decision, explaining that under the Taylor Law a public employer is obligated to negotiate in good faith with the bargaining representative of its current employees regarding the "terms and conditions of employment" and the failure to do so constitutes an improper employment practice.

Further, said the court, pursuant to this duty to negotiate, where a past practice between a public employer and its current employees is established involving a mandatory subject of negotiation, the Taylor Law bars the employer from discontinuing that practice without prior negotiation, citing Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326.

As PERB's determination was "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law," the Appellate Division said that it must determine whether PERB's decision was supported by "substantial evidence." In addition, in light of certain of the Town's contentions,* the Court said that it must also inquire whether the determination "was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

The Appellate Division’s conclusions:

1. The PERB's determination was not affected by an error of law, as the Town could be required to collectively bargain over the issue. The court explained that the Town government was responsible for administering the Ethics Code and for managing its vehicle fleet. Yet, as substantial evidence in the record established, the Town frequently and openly ignored that Code and its policy for managing its vehicle fleet, only to contend later that the Code allowed it to act unilaterally in taking the vehicles away from the employees who had been permanently provided with them. PERB, said the court, was not required to give more effect to the Town Ethics Code than the Town itself gave to it.

2. For similar reasons, the Appellate Division ruled that it cannot be said as a matter of law that it is unreasonable for employees to rely on the administering authority's interpretation and implementation of its policy and Ethics Code. Consequently, the PERB's determination was not affected by an error of law, was not arbitrary and capricious, did not constitute an abuse of discretion.

In the words of the court, “The evidence in the record supported the PERB's determination that the assignment of Town vehicles to the affected employees for permanent use was unequivocal and continued uninterrupted for a period of time which, under the circumstances, created a reasonable expectation among the affected unit employees that the practice would continue.

“The assignment of Town vehicles by Town officials to nonqualifying employees was done openly and without any indication to the employees that it was other than legitimate. The payroll office was notified to deduct a certain amount from the employees' paychecks to account for the value of the benefit. Moreover, the practice continued unabated for many years.

“Consequently, the Appellate Division ruled that PERB properly determined that the assignment of vehicles to the affected employees for permanent use constituted a past practice as to a term or condition of employment, and that the Town engaged in an improper practice by refusing to engage in collective bargaining as to a change to that term or condition.”

* The Town claimed that as its Ethics Code forbids the use of Town vehicles in violation of Town policy, the Town could not be forced to engage in collective bargaining over the issue. In addition, the Town argued that, as a matter of law, the employees could not have a reasonable expectation that the assignment of Town vehicles for permanent use would continue, because such an assignment of vehicles violated the Town Ethics Code. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01562.htm

Petition seeking to remove a public office from his or her position pursuant to Public Officers Law §36 must be served in accordance with the rules of the Appellate Division having jurisdiction

Petition seeking to remove a public office from his or her position pursuant to Public Officers Law §36 must be served in accordance with the rules of the Appellate Division having jurisdiction
Nielsen v Hafner, 2013 NY Slip Op 01555, Appellate Division, Second Department

§36 of the Public Officers Law provides for the removal of a town, village, improvement district or fire district officer, other than a justice of the peace, for misconduct, maladministration, malfeasance or malversation in office.

Any citizen resident in the jurisdiction, or the appropriate district attorney, may file a §36 applicationseeking the removal of such an officer with the Appellate Division in the appropriate judicial department. §36 provides that a copy of the application and the charges upon which the application will be made must be served on the officer at least 8 days prior to such filing.

Karen Nielsen initiated an action seeking a court order to remove Bruce Hafner from public office in Cold Spring Harbor, Town of Huntington, Suffolk County, pursuant to Public Officers Law §36 with the Appellate Division.

Nielsen also filed a petition pursuant to Article 78 of the Civil Practice Law and Rules with the Appellate Division seeking an order to compel Hafner to resign as Fire Commissioner of the Cold Spring Harbor Fire District.

Hafner asked the Appellate Division to dismiss Nielsen’s petition filed pursuant to Public Officers Law §36 on the ground that it was not properly served upon him. The court agreed and granted Hafner’s motion to the extent that it sought relief pursuant to Public Officers Law §36, indicating that the petition was not properly served in accordance with the Court’s rules as set out in 22 NYCRR 670.18.*

Turning to Nielsen’s Article 78 petition seeking a court order compelling Hafner to resign from his office of Fire Commissioner, the Appellate Division dismissed this branch of the action as well, explaining it did not have subject matter jurisdiction to consider the Article 78 petition filed by Nielsen.

* The rules of the Appellate Division, Second Department provide that a special proceeding pursuant to Public Officers Law §36 “shall be commenced by the filing of a petition in the office of the clerk … pursuant to CPLR 304. Service of the petition with a notice of petition or order to show cause shall be made in accordance with CPLR 306-b on at least 20 days' notice to the respondent.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01555.htm

Employer’s rejection of an individual’s claim for GML §207-c disability benefits does not necessarily bar his or her becoming eligible for such benefits at a later date

Employer’s rejection of an individual’s claim for GML §207-c disability benefits does not necessarily bar his or her becoming eligible for such benefits at a later date

Zembiec v County of Monroe, 2013 NY Slip Op 01736, Appellate Division, Fourth Department

A Monroe County Sheriff's Department (MCSD) employee challenged the Department’s decision that he was not entitled to General Municipal Law §207-c benefits available to law enforcement personnel injured in the line of duty.

Supreme Court concluded that the MCSD’s determination was arbitrary and capricious and granted awarding the individual disability benefits retroactive to December 4, 2009, the date of the employee's request for those benefits. The Appellate Division affirmed the Supreme Court’s ruling.

The court took note of an earlier action involving the same parties [see Zembiec v County of Monroe [Appeal No. 2], 87 AD3d 1358] in which the employee sought disability benefits for the period August 12, 2008 through June 15, 2009 as well as his regular pay from June 15, 2009 through March 25, 2010. The Appellate Division denied that part of the employee’s petition seeking an award of regular pay from June 15, 2009 through March 25, 2010, explaining that the employee was required to report to a modified duty assignment on June 15, 2009, but did not do so

Among the arguments advanced by MCSD was that the employee’s claim in this proceeding was precluded by the doctrine of res judicata.* The Appellate Division rejected this claim, stating that the employees current claim for benefits was based on a December 2, 2009 status report prepared by an MCSD physician, in which the physician determined that he was not fit to return to work. The court explained that the employee’s introduction of this status report in the prior proceeding did not establish the claims being asserted in this proceeding and in the prior proceeding arose out of the same transaction or series of transactions.

Although the proceedings both involve claims concerning the employee's entitlement to disability benefits and are arguably related in time inasmuch as certain events relevant to this appeal, i.e., the issuance of the status report and petitioner's second request for disability benefits, occurred while the prior proceeding was pending, the proceedings are based upon two different transactions — MCSD’s June 15, 2009 decision denying the §207-c benefits and its July 19, 2010 decision denying the §207-c benefits being sought by the employee.

In the prior proceeding the court was concerned only with the issue whether MCSD’s June 15, 2009 determination was "arbitrary and capricious" and the court's "review of [the] administrative determination [in the prior proceeding was] limited to the facts and record adduced before the agency.'" Thus the court could not rely on post-determination submissions, such as the December 2, 2009 status report, in evaluating MCSD’s determination.

The Appellate also rejected MCSD’s alternative argument that the Doctrine of Collateral Estoppel** bared the employee’s instant claim, concluding that the issues concerning employee's ability to return to work and his eligibility for disability benefits in December 2009 had not been decided in the prior proceeding. The court explained that although it determined that Supreme Court erred in awarding the employee regular pay from June 15, 2009 through March 25, 2010, in the earlier proceeding, that determination had not foreclosed the possibility that employee might, at some point after June 15, 2009, again become eligible for disability benefits

* Res Judicata: Latin for a matter already decided or judged by a tribunal.

** The Doctrine of Collateral Estoppel bars issues that have been litigated from being litigated again by the same parties.

The instant decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01736.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

Health Care Reform Webinar for Public Employers Now Available Online

Health Care Reform Webinar for Public Employers Now Available Online
 
The NYMUNIBLOG Editorial Team has posted the Harris Beach webinar, “Health Care Reform’s Impact on Public Entities: Don’t Get Caught Waiting for 2014 – What You Need to be Doing Now,” on the Internet. 

It is is now available for downloading and streaming for those unable to attend on March 14, 2013 presentation at http://nymuniblog.com/?p=3120

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

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

Issued during the week ending March 17, 2013 [Click on the caption to access the full report]

DiNapoli: General Electric Agrees to Examine Risks from New PCB Hotspots in Hudson

General Electric Corp. has agreed to prepare an analysis of the actions required to remove recently discovered polychlorinated biphenyl contamination contaminated sediments from the Hudson River and report its findings to shareholders, New York State Comptroller Thomas P. DiNapoli announced Monday. The analysis will be completed by the end of 2013. In response to the agreement, DiNapoli withdrew a shareholder resolution calling on the company to do such an evaluation.

DiNapoli and Saratoga DA Murphy: Former Fire District Treasurer Pleads Guilty to Stealing Taxpayer Funds

The former treasurer of the Charlton Fire District has admitted to embezzling $500,000 in public funds as the result of an audit and investigation by State Comptroller Thomas P. DiNapoli and further investigation by Saratoga County District Attorney James A. Murphy, III and the New York State Police.

DiNapoli: Challenges Remain For New York City Budget

New York City’s budget is balanced in the current fiscal year and Mayor Bloomberg has presented a balanced preliminary budget for fiscal year 2014, but a number of issues pose significant budget risks in the years ahead, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Nassau County Needs to Improve Contract Process

While Nassau County is following established guidelines for approving contracts, the authorization process often misses approval deadlines, according to an audit issued Thursday by State Comptroller Thomas P. DiNapoli. Auditors found that because of the lengthy review process vendors began working on half the contracts an average of seven weeks prior to the contract being signed by the county.

Comptroller DiNapoli Releases Municipal Audits

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

the Town of Columbus;

the Town of Hamlin;

the Village of Lyndonville;

the Town of Mansfield;

the Town of Otselic; and,

the Town of Pittstown.

Comptroller DiNapoli Releases School Audits

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

the Niskayuna Central School District;

the Patchogue–Medford Union Free School District;

the Pine Bush Central School District; and,

the South Glens Falls Central School District.

New York State Comptroller Thomas P. DiNapoli’s audit of Mill Neck Manor reports the facility overcharged the State more than $280,000

New York State Comptroller Thomas P. DiNapoli’s audit of Mill Neck Manor reports the facility overcharged the State more than $280,000

An audit report released by New York State Comptroller Thomas P. DiNapoli on March 14, 2013 reports that the Mill Neck Manor School for the Deaf, a Nassau County provider of special education services for children with hearing disabilities, overcharged the State Department of Education* [SDE] more than $280,000, including charges for extra salary and benefits for the school’s Executive Director.

Mill Neck, part of the larger Mill Neck Family of Organizations, claimed $64,817 from the State for salary paid to its Executive Director, Mark Prowatzke, that should have come from elsewhere in the organization.  Auditors also identified $7,688 in vacation costs that were claimed for reimbursement, but were not paid by the school to its employees.

DiNapoli recommendations included that:

 
1. SDE review the inappropriate and unsupported expenses and take action to recover such reimbursed expenses; and

2. Mill Neck School should not charge costs to the program that are not in compliance with the State Education Department’s Reimbursable Cost Manual (Manual).

3. Explain Manual requirements to staff involved in preparing the Consolidated Fiscal Reports and the cost reimbursement processes.

A copy of the audit report is posted on the Internet at:
http://www.osc.state.ny.us/audits/allaudits/093013/11s40.pdf

DiNapoli has identified other fraud and improper use of funds in a recent series of audits of special education providers. There have been several criminal referrals, felony arrests, criminal convictions and hundreds of thousands of dollars in restitution made as a result of the audits. In total, 30 special education contractors have been or are being audited.

The Comptroller's recent audit of SED’s fiscal and program oversight of special education providers found that the agency has not conducted any on-site provider audits since 2007. A summary of key findings in this audit report, which was issued on December 18, 2012, is posted on the Internet at:http://osc.state.ny.us/audits/allaudits/093013/12s103.htm. The link to the full text of the December 2012 audit report, which is posted on the Internet, is: Link to full audit report (2012-S-103)

* SDE oversees special education programs for students with disabilities between the ages of 3 and 21. In addition to services provided by local school districts, these programs include services delivered to about 75,000 students by more than 300 for-profit and not-for-profit entities at an annual state cost of $1.3 billion.

Additional duties to incumbents of certain positions may serve as a rational basis for their allocation to different salary grades despite some overlap of duties

Additional duties to incumbents of certain positions may serve as a rational basis for their allocation to different salary grades despite some overlap of duties

Cribbin v New York State Unified Ct. Sys., 2013 NY Slip Op 01548, Appellate Division, Second Department

Patrick Cribbin file an Article 78 petition seeking an order compelling the Chief Administrative Judge of the Courts of the State of New York to reclassify an certain New York State Court Officer-Major I (Judicial Grade-26) employees to the title of New York State Court Officer-Major II (Judicial Grade-28).

The Appellate Division reversed a Supreme Court ruling that granted the petition [as amended] and remitted the matter to the Chief Administrative Judge of the Courts of the State of New York for further proceedings.

The court said that when a position classification decision is made "[t]he courts have the power to reverse or modify a particular classification . . . [only] if it is wholly arbitrary or without any rational basis," citing Association of Secretaries to Justices of Supreme and Surrogate's Courts in the City of New York. v Office of Court Administration of the State of New York., 75 NY2d 460 and other decisions.

The Appellate Division explained that “So long as the classification determination has a rational basis, a court may not disturb it even if there are legitimate grounds for a difference of opinion.” 

As the record established a rational basis for the distinction between the positions of  Major I and Major II, even though there was some overlap in duties, the court concluded  that the additional managerial duties assigned incumbents of Major II positions provided a rational basis for distinguishing between the two positions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01548.htm

The failure of a witness to respond to a subpoena issued by the hearing officer not necessarily fatal to the administrative decision if good cause for such failure is shown

The failure of a witness to respond to a subpoena issued by the hearing officer not necessarily fatal to the administrative decision if good cause for such failure is shown

The Appellate Division affirmed a Supreme Court’s denial of an Article 78 petition seeking to annul the determination of Waterfront Commission of New York.

Among the addressed by the Appellate Division concerning the admission of hearsay statements in the course of the proceeding and petitioner’s inability to cross-examine a witness alleged to have made statements to the detriment of the petitioner.

As to the issue concerning hearsay evidence, the Appellate Division ruled that “The admission of hearsay statements at the administrative hearing did not violate petitioner's due process rights to a fair hearing or cross-examination.” The court explained that “It is well established that ‘[h]earsay evidence can be the basis of an administrative determination,’" citing Gray v Adduci, 73 NY2d 741.

The court also noted that in addition to the challenged hearsay testimony, the Commission presented testimony that corroborated the hearsay testimony.

With respect to the issue concerning the petitioner’s inability to cross-examine an individual who made statements implicating him because the individual ignored a subpoena issued by the Administrative Law Judge, the Appellate Division said that this did not require a different result. In the words of the court: “The fact that the subpoena may have been ignored was not the fault of [Commission] or the [Administrative Law Judge…” as the target of the subpoena was incarcerated at the time.

The court noted that the petitioner was able to cross-examine the live witnesses, and good cause was established for the failure to produce the subpoenaed witness at the hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01496.htm

A town council member may not simultaneously serve as the town's financial operations manager

A town council member may not simultaneously serve as the town's financial operations manager

Informal Opinions of the Attorney General 2013-01

A town asked for the Attorney General’s opinion as to whether the positions of town council member and town financial operations manager or, alternatively, director of finance, can be held by the same person.

The Attorney General concluded that such positions may not be held by the same individual, explaining that  because of the town board's responsibility to oversee the Town's fiscal operations, a council member should not simultaneously hold the position of financial operations manager or director of finance.

The opinion notes that the Attorney General has repeatedly expressed the view that one person cannot serve as both a member of a local government's governing body and in a subordinate second position for the same local government.

The fundamental concept regarding such incompatibility: one person cannot be both the supervisor and the supervised [see People ex rel. Ryan v. Green, 58 N.Y. 295, 304 (1874)]

The Informal Opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-1_pw.pdf

Former town clerk alleged to have used town’s credit card to pay personal debts

Former town clerk alleged to have used town’s credit card to pay personal debts

State Comptroller Thomas P. DiNapoli reported that a former clerk of the Town of Argyle, Washington County, used a town credit card to pay for more than $8,000 of personal expenses.

DiNapoli’s auditors found that from January 2009 through December 2012, the former clerk made four separate purchases totaling $8,347 that were not for town business. In addition, late fees and finance charges totaling $2,013 were accumulated. The town supervisor alerted auditors to the misuse.

The former clerk paid off the debt and admitted to improperly using the town’s credit card. The town did not pay for any of the unauthorized purchases, late fees or finance charges incurred. Charges were not filed because the clerk repaid the town.

DiNapoli’s recommendations for the town to avoid such situations in the future included:

1. The board should ensure that all town-issued credit cards are used for business purposes only and the monthly credit card statements are included with the monthly claims to be audited prior to payment;

2. The board and town clerk should assess the credit limit on the Clerk’s credit card account and reduce it to an appropriate level for the needs of the office;

3. The clerk should deposit all moneys intact and in a timely manner; and

4. The clerk should remit moneys collected to the town supervisor and other agencies in a timely manner.

Town officials agreed with several findings in the audit. Their comments are included in the audit report.

For a copy of the report, it is available on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2013/argyle.pdf

Disqualification of applicant unable to meet Civil Service Commission’s hearing requirements not unlawful discrimination under the State’s Human Rights Law

Disqualification of applicant unable to meet Civil Service Commission’s hearing requirements not unlawful discrimination under the State’s Human Rights Law

A candidate for the position of a Nassau County police officer filed an Article 78 petition challenging the Nassau County Civil Service Commission’s decision disqualifying him for the position.

Although Supreme Court granted the candidates petition and annulled the Commission’s determination, the Appellate Division reversed the lower court’s ruling and dismissed the candidate’s petition “on the merits.”

The Commission had appealed two rulings by Supreme Court:

The first was procedural: was the candidates Article 78 petition timely. The Commission contended that it was untimely, arguing that the Article 78 action was commenced more that four months after its determination disqualifying the candidate.

The Appellate Division disagreed with the Commission, holding that the candidate’s petition was timely. Noting that CPLR 217(1) specifies that the limitations period begins to run when "the determination to be reviewed becomes final and binding upon the petitioner," the court explained that "An administrative determination becomes final and binding when the petitioner seeking review has been aggrieved by it."

Here, said the Appellate Division, the candidate “was not aggrieved until he was notified that he was disqualified from further consideration” for failing to meet its hearing requirements.

The second issue concerned the Commission’s exercise of its discretion when it adopted a more stringent audio logy standard than that established by the State’s Municipal Police Training Commission.

The Appellate Division ruled that the Commission had acted within the scope of its discretionary power when it adopted a resolution which modified the Municipal Police Training Commission standards and did not contravene the procedure for the adoption of "rules" in doing so.

As the appointing authority has wide discretion in determining the fitness of candidates, the disqualification of the petitioner for failing to meet those modified audiological, the court concluded that the modified standard was not arbitrary and capricious.

In addition court noted that the Commission’s determination that the candidate failed to meet the modified Municipal Police Training Commission hearing standards constituted an individualized finding that his disability prevents him from performing the functions of a police officer in a reasonable manner “such that his disqualification did not constitute unlawful discrimination under the State’s Human Rights Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01404.htm

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

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

Issued during the week ending March 10, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Dunkin’ Donuts Agrees to Run on Sustainable Palm Oil

New York State Comptroller Thomas P. DiNapoli announced Thursday that Dunkin’ Brands Group, owner of Dunkin’ Donuts, has agreed to set a date for sourcing 100 percent of the palm oil used to make its products from sustainable sources.

DiNapoli: State and Local Public Authority Debt Nears $250 Billion

Public authority debt increased to nearly a quarter of a trillion dollars in the latest reported fiscal year, according to a reportreleased Tuesday by State Comptroller Thomas P. DiNapoli. New York relies on authorities to undertake most borrowing on its behalf, and routinely uses authority resources to plug state budget gaps.

MTA’s East Side Access Project 10 Years Late and $4.4 Billion Over Budget

The Metropolitan Transportation Authority’s (MTA’s) East Side Access project, which will bring Long Island Rail Road service to Grand Central Terminal for the first time, is expected to cost nearly $9 billion when finished in 2019, more than twice the MTA’s initial cost estimate and a decade later than expected, according to a reportreleased Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Announces Results of General Obligation Bond Sale: $566,560,000 Awarded

State Comptroller Thomas P. DiNapoli Thursday awarded three series of New York State General Obligation Bonds, totaling $566,560,000, through a competitive sale. Specifically, the sales were $348,065,000 of Series 2013A Tax–Exempt Bonds, $47,810,000 of Series 2013B Taxable Bonds and $170,685,000 of Series 2013C Tax–Exempt Refunding Bonds. The bonds are scheduled to be delivered on March 19, 2013.

DiNapoli Urges Caution as Budget Progresses

The amendments to the Executive Budget for state fiscal year 2013–14 curtailed some risks contained in the originally proposed budget, but the impact from federal sequester cuts represent a risk to the Financial Plan according to a reportreleased by Comptroller Thomas P. DiNapoli.

DiNapoli: Rochester Faces Serious Fiscal and Demographic Challenges

The city of Rochester, hampered by increasing budget gaps and the highest percentage of families living in poverty of any city in New York, is expected to face heightened fiscal stress in coming years, according to a reportreleased Monday by State Comptroller Thomas P. DiNapoli. The city’s revenues have grown at a higher rate than other cities, giving it some flexibility that other cities do not have. The report is the latest in a series of fiscal profiles DiNapoli will issue on cities across the state.

Comptroller DiNapoli Releases Municipal Audits

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

the Town of Prattsville;

the Town of Riverhead; and,

the City of Rome.