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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.
August 31, 2013
On the first Monday in September each year, we gather to honor the contributions that American workers have made to our country’s economic strength, cultural vitality and democratic way of life. The tradition of celebrating Labor Day began in New York City in 1882 and quickly spread throughout the country; the U.S. Congress passed a law establishing Labor Day as a federal holiday in 1894. Then as now, people marked the occasion with parades and picnics, savoring the last days of summer in the company of friends and family.
As we pause from our own labors this September 2nd, we have an opportunity to reflect on all that working men and women have achieved through the generations in building this nation we love. I wish you all a joyful and refreshing Labor Day.
August 30, 2013
August 29, 2013
The new policy, which comes in response to a June Supreme Court ruling that overturned a key portion of the Defense of Marriage Act, allows same-sex spouses to file tax returns as married couples regardless of whether they live in jurisdictions that recognize gay unions.
Read more at:
Correction officers disciplined after being found guilty of using unnecessary force against an inmate
August 28, 2013
August 27, 2013
On August 27, 2013, Comptroller Thomas P. DiNapoli reported that employer contribution rates for the New York State and Local Retirement System will decline slightly in Fiscal Year 2014-15.
The average contribution rate for the Employee Retirement System (ERS) will decrease by 0.8 percent of payroll, from 20.9 percent to 20.1 percent. The average contribution rate for the Police and Fire Retirement System (PFRS) will decrease by 1.3 percent of payroll, from 28.9 percent to 27.6 percent.
“The New York State Common Retirement Fund’s strong gains over the last four years have mitigated some of the impact of the financial market collapse of 2008-2009,” DiNapoli said. “Strong investment performance, along with a revision in actuarial smoothing, has lowered the employer contribution rate for 2014-15.”
Employer rates are determined based on actuarial assumptions recommended by the Retirement System’s actuary and approved by DiNapoli.
The Retirement System’s actuary recommended a change based on a recommendation from Buck Consultants, LLC, as part of an independent actuarial review which is performed every five years. The previous method separated assets into equities and non-equities, while the new method expects the entire fund to earn the assumed rate of return and smoothes any unexpected gains or losses. According to Buck, the new method is generally used by the majority of public pension systems nationwide.
In 2012, DiNapoli directed the Retirement System to give employers access to a full projection of their annual pension bill by September 1, six weeks earlier than in previous years. Employers use this projection for preparation of their local budgets and calculation of tax levies subject to the property tax cap effective for fiscal years that begin in 2014.
Projections of required contributions will vary by employer depending on factors such as retirement plans, salaries and the distribution of their employees among the six retirement tiers. The employer contribution rates announced today will apply to each employer’s salary base during the period of April 1, 2014 through March 31, 2015. Payments based on those rates are due by February 1, 2015, but may be pre-paid on December 15, 2014.
N.B. The property tax cap generally limits the amount a government entity can increase its annual tax levy to two percent or the rate of inflation, whichever is less. The cost of pensions above a change in the average contribution rate by more than two percentage points is excluded from the tax cap. Since the ERS and PFRS rates have declined, there will not be any exclusion for this period.
August 24, 2013
DiNapoli, NYBDC Announce $3.2 Million Loan to Nirvana Water
New York State Comptroller Thomas P. DiNapoli and New York Business Development Corporation CEO Pat MacKrell announced a $3.2 million loan to Nirvana Water, based in Boonville in Oneida County on August 21, 2013 . The loan marks a milestone of 1,000 loans granted to small businesses in New York using funds from the New York State Common Retirement Fund.
DiNapoli Announces Two SoftBank Capital Investments In New York City Tech Market
Two New York City–based technology companies, RebelMouse and Coopkanics, received venture funding from SoftBank Capital, an investment partner of the New York State Common Retirement Fund, through the In–State Private Equity Program, New York State Comptroller Thomas P. DiNapoli announced August 20, 2013.
DiNapoli: New York’s Job Count Up, Though Growth Slows
For the first time in six years, national job growth rates have exceeded those in New York State, according to a new report on economic trends released August 23, 2013 by New York State Comptroller Thomas P. DiNapoli.
Comptroller DiNapoli Releases Municipal Audits
New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of
New York State Fair
Comptroller DiNapoli will be at the New York State Fair in Syracuse on Monday, August 26th. During his visit, the Comptroller and staff from the Division of Unclaimed Funds will present unclaimed funds checks to Central New York owners.
August 23, 2013
August 22, 2013
New York State’s Student Internship Program Offers Hundreds Of Internships
Source: New York State Department of Civil Service
Civil Service Commissioner Jerry Boone recently announced that New York State has hundreds of internships available, and reminded college students to apply for Fall semester internships before the application deadline on September 3, 2013.
New York State created a one-stop website at http://nysinternships.com/nnyl/ that allows students to view and apply for internship opportunities across an array of state agencies both downstate and upstate.
The website is one component of Governor Andrew M. Cuomo’s New New York Leaders initiative, which is focused on attracting new talent to state government through both a fellowship program and an internship program. With the internship website, applicants can view job descriptions, create profiles, specify interests, and upload resumes, writing samples and letters of recommendation. Students can apply for multiple internships at the same time.
“The internship program is designed to attract and mentor a new generation of talented leaders for New York State,” said Governor Andrew M. Cuomo. “I continue to encourage talented college students to consider devoting time to public service while acquiring valuable skills and marketable work experience.”
“New York State continues to offer a wide variety of opportunities across numerous professional occupations,” said Civil Service Commissioner Jerry Boone. “Governor Cuomo’s internship program offers opportunities for hands on experience in finance, engineering, public relations, information technology and health care, as well as a host of other professional disciplines.”
The program is open to resident graduate and undergraduate students as well as students who attend schools in other states, but reside in New York. Opportunities include both paid and unpaid positions. Internships may include academic credit depending on the policy of the educational institution.
To apply, visit http://nysinternships.com/nnyl/ .
According to a February 2012 report by the National Association of State Retirement Administrators (NASRA), “on the average, pension costs for state and municipal governments are just shy of 3% of total spending.”
August 21, 2013
Retraining and progressive discipline deemed inappropriate penalties where correction officer was found guilty of using excessive force against an inmate
Steven v McCall,**
August 20, 2013
Free speech related to job action by teachers trumps initiating disciplinary action where there is no threat to a school's effective operation
Also, the State Comptroller has advised that a municipality may adopt a resolution requiring employees who are sent to schools for specialized training at the municipality’s expense in order to qualify for a promotion to reimburse the municipality for the cost of such training if they resign from their position within a specified period of time (Op. St. Comp. 82-4).
Pointing out that it is well established that, generally, the law is to be applied as it exists at the time a decision is rendered, even if the law has been altered since the commencement of the action or proceeding, the Appellate Division, citing citing Gager v White, 53 NY2d 475, 483 , cert denied 454 US 1086, said that this rule applies to administrative and judicial proceedings alike.
August 19, 2013
School district must offer its Medicare-eligible retirees the same health insurance benefits the district offers to its active employees
The Moreland Commission recently established by Governor Cuomo to investigate corruption in the public service issues its first subpoenas
Additional information on the scope of investigations undertaken by a Moreland Commission is posted on the Harris Beach Legal Alert website at “Insights into the history and intricacies of a Moreland Commission investigation.”
August 18, 2013
New York state was able to recover $46 million in overpayments to nursing homes after an audit by State Comptroller Thomas P. DiNapoli found the Department of Health’s computer system failed to deduct payments some nursing home residents are required to pay for their care, according to a follow–up reportissued August 17, 2013 by DiNapoli. The new report, however, notes that deficiencies in the computer system still exist.
Contractor Charged in Federal Court for Defrauding NYS Health Department of Over $700,000
State Comptroller Thomas P. DiNapoli and United States Attorney for the Southern District of New York Preet Bharara Wednesday announced chargesagainst JOSEPH L. JUNKOVIC for allegedly engaging in a scheme to defraud the New York State Department of Health (NYSDOH) out of more than $700,000 dedicated to providing cancer screening services to low–income New Yorkers. JUNKOVIC allegedly used a not–for–profit corporation that he controlled, Cancer Service Network, Inc. to obtain more than $25 million in federal and state funding to administer cancer screening services, and then billed the NYSDOH for thousands of hours that he did not in fact work. He was arrested at his Bronx home Wednesday morning and presented in Manhattan federal court before U.S. Magistrate Judge Ronald L. Ellis.
DiNapoli: State Fiscal Picture Stable
Tax collections were $18 million below updated projections during July, but receipts since the start of the fiscal year were 13.3 percent higher than last year because of strong personal income tax (PIT) receipts in April, according to the July cash report released Friday by New York State Comptroller Thomas P. DiNapoli. July tax collections were 5.2 percent higher than last year, largely from an additional collection day for PIT withholding this month.
DiNapoli: New Medicaid Reimbursement Method Leads to $31 Million in Overpayments
The state Department of Health made as much as $31 million in excessive Medicaid payments for patients who died within 24 hours of being admitted to a hospital after a new method of calculating hospital payments went into effect, according to an auditreleased August 16, 2013 by New York State Comptroller Thomas P. DiNapoli.
DiNapoli: Long Island Pharmacy Swindled State Out Of $235,000
A Long Island pharmacy improperly collected at least $235,000 from Medicaid and the New York State Health Insurance Program over a four–year period, primarily through payments for phony prescriptions that were never delivered to patients, according to audits released Tuesday by New York State Comptroller Thomas P. DiNapoli.
Audit Finds New York City Property Owners Underreported $20 Million in Billboard Income
Hundreds of New York City property owners failed to report an estimated $20 million of taxable income from billboards according to an auditreleased Thursday by New York State Comptroller Thomas P. DiNapoli which was coordinated with New York City Comptroller John C. Liu. Auditors found the New York City Department of Finance failed to follow up on whether property owners were reporting income and did not impose penalties for late or inaccurate information.
NYS Common Retirement Fund Announces First Quarter Results
The New York State Common Retirement Fund’s (Fund) overall rate of return for the first quarter ending June 30, 2013, was 0.29 percent, according to New York State Comptroller Thomas P. DiNapoli. The Fund’s estimated value at the end of the first quarter of its fiscal year was $158.7 billion.
August 17, 2013
Department of Agriculture and Markets, Uncollected Penalties (2012-S-69)
Auditors found outstanding accounts routinely have no collection activity for two years or more and are often eventually deemed uncollectible. Between April 2007 and October 2012, more than 6,000 penalized establishments went out of business resulting in the withdrawal and write off of more than $3.5 million of accounts receivable. Critical but incompatible duties associated with collection are all assigned to one employee. An absence of management oversight has increased the risk that errors, omissions and even irregularities can occur and not be detected.
Department of Motor Vehicles, Oversight and Collection of Snowmobile Registration Fees (2011-S-54)
DMV practices have allowed snowmobile registration discounts to registrants who are ineligible for them, resulting in less revenue to the trail fund for trail services. As a result, 31 of the 50 discounted registrations (62 percent) auditors sampled were for registrants for whom neither DMV nor the New York State Snowmobile Association could confirm eligibility. Given the weaknesses identified, auditors estimate lost revenues to the trail fund may be significant.
Metropolitan Transportation Authority, Selected Aspects of Bus Fleet Maintenance Report (2013-F-8)
An initial audit report in 2010 examined whether the MTA has standards and procedures for the maintenance of its bus fleet, performs bus maintenance in compliance with these standards and procedures, and has a comprehensive maintenance plan for its bus fleet. Auditors found that a number of improvements were needed. In a follow-up report, auditors found the MTA made significant progress in correcting the problems identified.
Also, 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 System Administration Office, Selected Employee Travel Expenses (2012-S-100)
Auditors selected to audit one State University of New York System Administration Office employee whose expenses ranked among the highest in the state in the area of lodging. In total, they examined $188,074 in travel costs associated with this employee. Most of the expenses examined were appropriate. However, the employee selected for audit had charges totaling $5,021 that were either for non-reimbursable expenses ($200 hotel room smoking charge) or lacked adequate assurance that the charges were for the most reasonable and economical method of travel ($4,821 in car service charges).
State University of New York College at Buffalo, Selected Employee Travel Expenses (2012-S-136)
Auditors were only able to examine two years and nine months of the three years of travel expenditures totaling $127,095 because the college was not required to and did not maintain records prior to July 1, 2008. The travel expenses for the one employee selected for audit were documented and adhered to state travel rules and regulations. This employee was an athletic coach who was responsible for team travel expenses. This coach also incurred expenses for recruiting trips.
State University of New York at Stony Brook, Selected Employee Travel Expenses (2012-S-102)
Auditors examined the travel costs of eight university employees whose expenses exceeded $100,000 or had outliers in the area of train fare. In total, auditors examined $1,313,845 in travel costs associated with these eight employees. Most of the expenses auditors examined were appropriate. However, two employees had charges totaling $2,529 that were either not for legitimate business purposes or lacked adequate assurance the charge was solely for legitimate business purposes.
August 16, 2013
Hearsay evidence coupled with nonhearsay evidence held to constitute substantial evidence sufficient to support the appointing authority’s disciplinary decision
The appointing authority terminated the employee [Petitioner] following a Civil Service Law §75 disciplinary hearing. Petitioner was found guilty of “misconduct and/or incompetence” and was terminated from her position. Petitioner appealed.
August 15, 2013
Court holds that termination of an employee after 19 years of employment because of an isolated incident of misconduct shocking to one's sense of fairness”
In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.
August 14, 2013
Reminder from the Internal Revenue Service to register for its “Rehired Annuitants” online presentation for government employers
August 15, 2013 at 2 p.m. Eastern Time
Unsatisfactory performance rating vacated because of the lack of documentation in the employee’s personnel record
The Appellate Division reversed a Supreme Court's ruling that dismissed a petition challenging a teacher’s annual unsatisfactory performance rating and annulled the unsatisfactory rating given the educator.
Designating a Civil Service Law §75 disciplinary hearing officer and making a final disciplinary determination
The court then considered Civil Service Law Section 75(2), which states, in pertinent part, "...The hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred or by a deputy or other person designated by such officer or body in writing for that purpose."
The Civil Service Employees Association, Inc. [CSEA] sued the Public Employment Relations Board [PERB], challenging a PERB determination designating eight New York State Dormitory Authority [DASNY] employees as managerial within the meaning of Civil Service Law §201(7)(a), the Taylor Law.*
The Appellate Division stated that the scope of its review was limited to determining if PERB’s determination was arbitrary and capricious. It then pointed out that in Lippman v Public Empl. Relations Bd., 263 AD2d 891, it had ruled that courts may defer to PERB's exposition of the terms "management" and "confidential" as they are employed in Civil Service Law §201(7)(a).
A PERB decision clarified the meaning of the phrase "formulated policy."** That ruling indicated that the phrase “formulated policy” must be "sufficiently broad" to include "persons who regularly participate in and influence a process by which the employer makes decisions regarding its mission and the means by which those policy goals and objectives can be best achieved."
The Appellate Division concluded that in this instance PERB's determination designating the eight employees as managerial was neither unreasonable nor arbitrary, noting that all of the job titles at issue were within the Office of Construction, one of the five main divisions headed by managing directors that report directly to the Authority’s executive officers and board.
Consistent with PERB's conclusion that "the organizational structure of DASNY promotes participation in the decision-making process that is more than mere technical advice to single decision-makers," the Appellate Division ruled that although "exclusions for managerial . . . employees are an exception to the Taylor Law's strong policy of extending coverage to all public employees," given the evidence presented PERB's classification of the employees as managerial was neither arbitrary nor capricious.
* Employees designated as either managerial or confidential are excluded from the definition of "public employees" and, as such, are not afforded various benefits provided under the Taylor Law (see Civil Service Law §200 et seq.) with respect to representation for the purposes of collective bargaining. Civil Service Law §201(7)(a) provides: "Employees may be designated as managerial only if they are persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment."
August 13, 2013
The State Comptroller audits local governments to assist them in improving their financial management practices. [Click on text highlighted in bold to access the full report.]
Town of Alexandria – Non-Payroll Cash Disbursements and Fuel Inventory (Jefferson County)
The town’s non-payroll cash disbursements were not always properly authorized, adequately supported or in compliance with statutory requirements. The former supervisor improperly paid 20 claims totaling $19,919 without the audit and approval of the board. Auditors also found internal controls over fuel inventories need to be improved. Records show from June 2011 through December 2011 nearly 4,500 gallons of fuel valued at about $14,600 were not accounted for.
Village of Bolivar – Financial Condition of Water and Sewer Funds (Allegany County)
The village board has not adequately monitored the financial condition of the water and sewer funds. The water and sewer funds do not presently have sufficient resources to repay interfund loans owed to the village general fund without affecting their operations. This lack of available funds resulted from village officials not monitoring and adjusting water and sewer rates to ensure resources were adequate to repay the loans.
Town of Coldspring – Town Clerk Operations (Cattaraugus County)
The town clerk did not issue press-numbered duplicate receipts for cash collected, accurately record all transactions, remit moneys due to the town supervisor and other entities in a timely manner, or deposit cash receipts intact or in a timely manner. Auditors found a shortage in the clerk’s account totaling $1,400 which is primarily due to money owed to the town supervisor, unrecorded checks, and unpaid liabilities.
City of Glens Falls – Financial Condition (Warren County)
The city council adopts realistic budgets, and along with the mayor and city controller, continually monitors the budgets throughout the year and will initiate and approve any necessary budget amendments. Although the city is not considered to be in fiscal stress at this time, low levels of unexpended surplus funds in the general fund and declining balances in the water and sewer funds are concerning. City officials indicate they are carefully monitoring the funds.
Grahamsville Fire District – Internal Controls Over Financial Operations (Sullivan County)
The district board has not properly developed annual budgets. From 2009 through 2011, actual expenditures exceeded budget estimates each year by an average of 22 percent. In addition, the district has not formally established reserve funds and has not adopted formal policies on how they are to be funded and how they will be used.
Town of Kendall – Justice Court (Orleans County)
Auditors found significant control deficiencies with the justice court’s operations. Justices did not ensure that all court fines, fees, and surcharges were properly accounted for. Although monthly reports were submitted to the justice court fund in a timely manner, they were not always complete and accurate. Further, the justices did not ensure that cases were properly reported to the state Department of Motor Vehicles.
Mastic-Moriches-Shirley Community Library – Claims Processing (Suffolk County)
Library officials have established adequate controls over the claims processing function that allow claims to be audited in a timely manner and ensure the claims are properly supported. The account clerk and/or director reviews invoices for department head approvals before printing checks and a schedule of claims to present to the board, which then audits the claims before signing the checks. Finally, the claims auditor performs a post-audit of the claims paid.
Roosevelt Fire District – Financial Operations and Information Technology (Nassau County)
The district board needs to improve its oversight of financial operations. Auditors found the treasurer submits monthly financial reports to the board that contain incomplete information, and the district’s financial records have not been audited by an independent public accountant since the 2010 fiscal year. In addition, internal controls over information technology are not appropriately designed or operating effectively.
Schuyler County Sheriff’s Department – Payroll, Civil Fees and Bail (2013M-120)
The county entered into an improper contract for security services with Watkins Glen International (WGI), a private entity. Over the last two years, the county has paid 351 individuals $233,840 for providing law enforcement services to WGI in connection with events at the Watkins Glen racetrack. In these cases, the county improperly pays these individuals as if they were independent contractors by check based on completed vouchers and issues them an IRS 1099 form at the end of the year. As a result, no taxes are reported or withheld, and no information is reported to the state retirement systems.
Steuben County Soil and Water Conservation District – Internal Controls Over Cash Receipts and Disbursements (2013M-97)
The conservation district board has not adopted policies and procedures for cash receipts and disbursements to ensure that cash is properly safeguarded. Auditors found 116 receipts totaling $47,443 were not deposited on a timely basis, 14 disbursements totaling $23,943 never appeared on a warrant for board approval, and 151 disbursements totaling $532,322 cleared the bank prior to the board’s audit and approval for payment.
Public Personnel Law E-books
The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on http://booklocker.com/books/5215.html
A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on
The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on
SELECTED REFERENCES and BLOGS
- A Handbook addressing disciplining public employees
- A Handbook focusing on imposing reasonable disciplinary penalties
- A Handbook focusing on layoff and reinstatement
- A Handbook on Disability Benefits for public employees
- A sample personnel handbook
- Blogging Civil Rights Law
- Blogging Constitutional Law
- Blogging Disability Law
- Blogging Education Law
- Blogging Human Rights Law
- Blogging Legal Information
- Blogging Military Law
- Blogging public libraries
- Challenging Adverse Personnel Decisions
- COVID-19 - New York State maps and data
- Delaware Employment Law Blog
- Gotham schools newsroom - A NYC school news blog
- New York City ERS blog - by John Murphy
- NY Municipalities - NYMUNIBLOG
- St. Lawrence County Civil Service Web Site
Subsequent court and administrative rulings, or additions or amendments to laws, rules and regulations may have modified or clarified or vacated or reversed or otherwise have had an impact on the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, REMEMBER THAT CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG.
THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher, editor, contributors or members of the staff are not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.