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Of the 753,295 visits to the 3403 items posted on this LawBlog as of December 31, 2013, listed below are the five that have been viewed most often and the initial date of its posting.

Entry
Essentials of the "Pickering Balancing Test”
The legal distinction between domicile and residen...
Any administrative action in the nature of discipl...
Employee's inability to provide the necessary urin...
Two different complaints; two different forums

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If a disinterested party could concluded the appointing authority had adjudged the matter in advance of hearing it, remanding the matter to a qualified and impartial individual is required

If a disinterested party could concluded the appointing authority had adjudged the matter in advance of hearing it, remanding the matter to a qualified and impartial individual is required
2013 NY Slip Op 08575, Appellate Division, Third Department

A fire inspector [Inspector] employed by the Village also served as the president of its firefighters union. Inspector was served with disciplinary charges and specifications Civil Service Law §75 alleging misconduct. The charges alleged that Inspector had engaged in an oral altercation with the Fire Chief concerning a directive issued by the Chief, during which he made two statements that resulted in disciplinary charges being filed.

Inspector filed an improper practice charge with the Public Employment Relations Board (PERB) shortly after being served with the disciplinary charges alleging that the Village’s decision to discipline him amounted to anti-union animus.

At the hearing on the disciplinary charges Inspector acknowledged that he had made the one statement but denied making the second statement alleged in the charges filed against him. Crediting the testimony of witnesses to the encounter to the effect that Inspector had, in fact, made the second statement, the Hearing Officer found Inspector guilty of the charges and recommended a period of unpaid suspension. The Village’s Mayor sustained the findings of guilt but modified the penalty to be imposed on Inspector.*

During the PERB hearing, held shortly after the Mayor had sustained the findings in the disciplinary hearing, Inspector again testified that he did not make the second statement.

This resulted in Inspector being served with new disciplinary charges alleging misconduct amounting to perjury and making a false official statement, as well as incompetence for failure to be truthful based on his testimony at the PERB hearing and his testimony at the disciplinary hearing.

This second §75 disciplinary hearing resulted in Inspector being found guilty of the charges and the Hearing Officer recommending that his employment be terminated. The Mayor adopted the findings and penalty of the Hearing Officer, whereupon Inspector filed an Article 78 petition seeking an order vacating the Mayor’s action. Supreme Court dismissed the petition and Inspector appealed.

The Appellate Division first noted that “Where a witness testifies falsely under oath, he or she may properly be subject to additional proceedings and sanctions, noting that the United States Supreme Court has held “…under circumstances indistinguishable from those present here … that ‘a [g]overnment agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct’,” citing Lachance v Erickson, 522 US 262.

Notwithstanding this, the Appellate Division said that “Reversal is required,” explaining that the Mayor was disqualified from reviewing the Hearing Officer's recommendations. Although an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges, in this instance the Appellate Division found that there was evidence indicating that the administrative decision maker may have prejudged the matter at issue. Thus, the court concluded, “disqualification is required.”

The Appellate Division noted that in his decision in the first disciplinary proceeding, the Mayor not only agreed with the Hearing Officer's report, but also stated his own opinion that "I do not believe [Inspector 's] account of what was said."

Further, said the court, his affidavit submitted in Inspector's CPLR article 78 proceeding challenging the first disciplinary determination, “the Mayor went one step further.” In explaining the portion of his decision addressing Inspector's version of the second statement, the Mayor said that he found that version "incredible."

Although the falsity of Inspector 's account of the second statement was not at issue in the second disciplinary proceeding, as that issue was conclusively determined in the first disciplinary proceeding, the central issue in the second disciplinary proceeding was whether Inspector's false testimony was given knowingly and willingly. Thus, after concluding that he did not believe Inspector's account of what was said and that Inspector’s version was "incredible," the Mayor put himself in the position of determining whether the statement that Inspector did in fact make was made knowingly and willfully.

The problem, said the court, was that these questions were inextricably intertwined, and the Mayor's statements regarding Inspector's testimony in the first proceeding were such that "a disinterested observer may conclude that [the Mayor] ha[d] in some measure adjudged the facts" surrounding the knowing and willful question "in advance of hearing it."

Accordingly, the Appellate Division ruled that the Mayor should have recused himself and because he did not, his determination was affected by an error of law.

The proper remedy, said the court, Judge Egan dissenting in part, was to remit the matter for a de novo review of the present record and the Hearing Officer's recommendations by a qualified and impartial individual

* Inspector commenced a CPLR article 78 proceeding challenging the determination, and Supreme Court dismissed the petition. Inspector did not appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08575.htm
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Although an employee organization and the employer are able to retroactively bind each other to the terms of a collective bargaining agreement, they unable to bind third parties to the agreement under color of the Taylor Law

Although an employee organization and the employer are able to retroactively bind each other to the terms of a collective bargaining agreement, they unable to bind third parties to the agreement under color of the Taylor Law

Buffalo Niagara Airport Firefighters Assn. v DiNapoli, 2013 NY Slip Op 07227, Appellate Division, Third Department

In 2009, in response to an "unprecedented" fiscal crisis,* the State Legislature revamped the State's Employee’s Retirement System and created a new Tier 5 requiring all newly hired firefighters, among others, to contribute a portion of their salary to the retirement system.

The legislation was made effective January 9, 2010 but it provided for an exception whereby eligible employees could join a noncontributory special retirement plan available to them pursuant to a collectively bargained agreement that was "in effect on the effective date of this act", i.e., on January 9, 2010.

The Buffalo Niagara Airport Firefighters Association [Association] and the Niagara Frontier Transportation Authority [NFTA] had entered into a collective bargaining agreement [CBA] that covered the period April 1, 2008 through March 31, 2009  [the 2008 Agreement] and subsequently executed a successor CBA in August 2010 that retroactively covered the period from April 1, 2009 through March 31, 2013 [the 2009 Agreement]. 

Both the 2008 Agreement and the 2009 Agreement permitted NFTA firefighters to participate in a noncontributory special retirement plan.

The Comptroller, however, determined that certain NFTA's newly hired firefighters were not eligible for the statutory exception and thus were unable to enroll in the noncontributory plan because no CBA was in effect on January 9, 2010. 

The Association challenged the Comptroller’s determination, contending that the “newly hired firefighters” were entitled to participate in the noncontributory plan provided for in the CBAs because either [1] the expired 2008-2009 CBA continued to be "in effect" on January 9, 2010 pursuant to the Triborough Amendment** or, in the alternative, [2] the 2009-2013 CBA was retroactively "in effect" on that date.

Supreme Court sustained the Comptroller's determination and the Association appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that the Association’s “reliance on the continued effect of the terms of the 2008-2009 CBA is unavailing in light of the recent decisions of the Court of Appeals expressly rejecting the application of the Triborough Amendment to the Tier 5 retirement legislation.”***

Thus, said the court, “the expired 2008-2009 CBA cannot be considered to have been ‘in effect’ on January 9, 2010 for the purpose of permitting the new hires to qualify for the statutory exception.”

Further, the Appellate Division ruled that 2009 Agreement could not be retroactively "in effect" on January 9, 2010, as it was not executed until seven months later in August 2010. 

The court concluded that in August 2010 newly hired firefighters were required by law to contribute to the retirement system and, as a result, “the Union and NFTA were prohibited from agreeing to a noncontributory retirement plan”, citing Civil Service Law §201[4]**** and Retirement and Social Security Law §470.

The Appellate Division explained that although “the Union and NFTA were able to retroactively bind each other to the terms of the 2009-2013 CBA, they were unable to bind third parties such as the Comptroller.” [See, also, Matter of Council of School Supervisors & Adm'rs, Local 1 v New York City Dept. of Educ., 87 AD3d 883, an entity not a party to a collective bargaining agreement negotiated pursuant to the Taylor Law may not be bound by its terms.]

* See Governor’s Program Bill Mem, Bill Jacket, Chapter 504 of the Laws of, 2009

** Civil Service Law § 209-a [1] [e]

*** Matter of City of Oswego, 21 NY3d 880; Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, 20 NY3d 651

**** Civil Service Law §201[4] provides that “The term "terms and conditions of employment" means salaries, wages, hours and other terms and conditions of employment provided,  however, that such term shall not include any benefits provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees, or payment to retirees or their beneficiaries. No such retirement benefits shall be negotiated  pursuant to this article, and any benefits so negotiated shall be void." while §470 of the Retirement and Social Security Law, captioned “Temporary suspension of retirement negotiations,” provides that “Changes negotiated between any public employer and public employee, as such terms are defined in section two hundred one of the civil service law, with respect to any benefit provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees or payment to retirees or their beneficiaries, shall be prohibited."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07227.htm
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Governor Cuomo releases 2013 year-end report

Governor Cuomo releases 2013 year-end report

Source: Office of the Governor

Governor Andrew Cuomo assumed office as the 56th Governor of the State of New York three years ago. On December 27, 2013 Governor Cuomo office issued the Governor’s 3rd annual year-end report, detailing New York’s progress in 2013.

The complete 54 page report can be found here. 
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Information for individual considering retirement available at the Securities and Exchange Commission’s website

Information for individual considering retirement available at the Securities and Exchange Commission’s website

Source: United States Securities and Exchange Commission

The United States Securities and Exchange Commission has posted a number of aids to assist individuals interested in planning for retirement on the Internet.

Click on http://www.investor.gov/tools#.Ur2cq_uab-Iaccess the information and the various tools provided by the Commission that it believes will assist an individual in evaluating his or her financial situation. Commission observes that “Once you know your current financial situation, you'll be in a better position to plan for the future.”

Listed below are some of the tools provided by the Commission:

401(k) and IRA Required Minimum Distribution Calculator: After age 70½, you are generally required to start withdrawing money from your IRAs and 401(k)s. Find out the minimum amount you'll need to withdraw, depending on your age and the value of your accounts.

Compound Interest Calculator: Find out how much your money can grow, using the power of compound interest.

Social Security Retirement Estimator: Get personalized benefit estimates to help you plan for retirement.

Worksheet for Determining Your Net Worth: Use this worksheet to list your assets and debts.

Worksheet for Tracking Your Income and Expenses: Keeping track of your income and expenses will help you stay on track with your financial goals.

Among others aids included are the following:

A mutual fund analyzer at: http://www.investor.gov/tools/calculators/mutual-fund-analyzerand

A variety of free investment professional background check tools at:

http://www.investor.gov/researching-managing-investments/researching-investments/ask-check

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Procedures followed in Educator’s probationary evaluations found to have undermined “the integrity and fairness of the entire review process”

Procedures followed in Educator’s probationary evaluations found to have undermined “the integrity and fairness of the entire review process”
2013 NY Slip Op 07275, Appellate Division, First Department

The New York City Department of Education [DOE] terminated a probationary teacher’s [Educator] employment. Educator challenged her termination during her probationary period and her unsatisfactory [U-rating] evaluation as a probationary employee.

Supreme Court denied Educator’s Article 78 petition seeking to annul DOE’s decision to terminate Educator’s probationary employment and affirmed Educator’s U-rating. The Appellate Division modified the Supreme Court’s ruling on the law, granting Educator’s petition to the extent of annulling the U-rating.

The Appellate Division indicated that Educator’s Article 78 petition appealing DOE’s termination of her probationary employment was filed “well after the expiration of the four-month statute of limitations period.”

In contrast, the court found that Educator’s appeal of her U-rating was timely.

Considering the merits of Educator’s appeal of her U-rating, the Appellate Division noted that Educator had invoked DOE's administrative procedures to appeal the U-rating and the Chancellor's Committee held a hearing and sustain Educator's appeal and recommended that the U-rating be reversed.

DOE, however, did not issue a final decision for more than year, whereby its final determination affirmed the U-rating and in doing so, DOE declined to adopt the recommendation of the Chancellor's Committee to reverse Educator’s U-rating.

Under the circumstances presented, said the court, “we find that the U-rating should be annulled.” The court explained that the record showed that upon timely receipt of her initial written report, Educator implemented its recommendations, and the deficiency set out there in was not noted in the subsequent formal observations.

The decision then reports that Educator’s principal failed to provide Educator with the written evaluation of Educator’s next formal observation for more than three months, and it was given to Educator at the end of the school year when there was little time to implement the multiple suggestions it set out.

Educator’s next formal observation came only nine days after her receiving the report of the previous observation and, said the court, “not surprisingly, the report indicated that she had not implemented the suggestions” set out in the previous report.

The Appellate Division’s conclusion: “In view of the foregoing, we find that the deficiencies in the rating of [Educator] were not merely technical, but undermined the integrity and fairness of the entire review process” and sustained Educators’ appeal of her U-rating.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07275.htm

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Amendment to New York State’s Constitution regarding additional veteran credits available to disabled veterans

Amendment to New York State’s Constitution regarding additional veteran credits available to disabled veterans

New York State Constitution, Article 5, §6

Scott DeFruscio, Assistant Director of Staffing Services, New York State Department of Civil Service, has distributed a General Information Bulletin to New York State departments and agencies addressing a recent amendment to the State's Constitution providing certain benefit to disabled veterans. The amendment takes effect January 1, 2014.

Click on text highlighted in color toaccess additional information and forms.

The Bulletin is set out below:

GENERAL INFORMATION BULLETIN No. 13-01

TO: Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers

FROM: Scott DeFruscio, Assistant Director of Staffing Services

SUBJECT: Amendment to the New York State Constitution re Eligibility for Disabled Veteran Credits on New York State Examinations

DATE: December 26, 2013

Article 5, Section 6, of the New York State Constitution was amended to entitle veterans who have used veteran credits for a Civil Service appointment or promotion and who were/are subsequently certified as being a disabled veteran by the United States Department of Veterans Affairs, to additional credits for a subsequent appointment or promotion.

This Constitutional amendment, which is effective January 1, 2014, provides additional veteran credits to a veteran who:

1. Used non-disabled veteran credits to obtain a civil service appointment or promotion with New York State or a local government, and,

2. Subsequent to such appointment is determined by the United States Department of Veterans Affairs to be a qualified disabled veteran, as defined in the New York State Civil Service Law.

Such candidate is entitled to 10 additional credits on civil service examinations, minus the number of credits already used for the prior appointment.

Eligible lists established on or after January 1, 2014 will include the additional disabled veteran credits in the scores of candidates who meet the above two conditions and provide the necessary documentation to establish eligibility to the Department of Civil Service (DCS) or other state agency establishing a decentralized eligible list.

DCS is taking steps to revise both the online and paper NYS-APP to provide candidates the ability to claim these additional credits. This will require modifying current systems to automate the capture and processing of veteran credit eligibility information. We are working as expeditiously as possible on these modifications.

In the meantime, DCS has established the following process to notify potentially eligible candidates and provide them a means to claim the additional veteran credits:

1. All candidates for examinations for which eligible lists will be established on or after January 1, 2014 will receive notification (attached) of the Constitutional amendment and its effect. The notice will provide the candidate with eligibility information and direct the candidate to this website: www.cs.ny.gov/vetcredits. On the website the candidate will answer questions to assist in determining eligibility and will be able to submit a claim for the additional disabled veteran credits.

2. The candidates will have approximately 10 days from receipt of the notice to submit the required information. Candidates may not claim the credits after an eligible list has been established.

3. DCS will add the additional credits to scores of candidates who submit a claim and will send these candidates two forms, T-252 and T-252A The candidate will use these forms to request required eligibility verification information from the U. S. Department of Veterans Affairs and the candidate’s previous public sector employer. These forms must be returned to DCS and will be used to verify eligibility for the use of the claimed credit at the time of appointment along with the S-203 Disposition of Veterans Credits documentation. Any candidate who claimed additional disabled veteran credits and has either not provided this Department with needed verification documentation in a timely manner, or who is found to be ineligible, will have the claimed credits removed and their score on the eligible list revised accordingly.

Additional information regarding the affects of the Constitutional amendment, including frequently asked questions, can be found on our website, www.cs.ny.gov/vetcredits.

Decentralized Examinations

Once the DCS revisions of the online and paper NYS-APP are finalized, any special applications for decentralized examinations must be revised in a similar manner. Until such time, agencies must not establish any eligible lists nor add eligibles to continuous recruitment eligible lists resulting from decentralized examinations without first notifying candidates of the ability to claim additional disabled veteran credits, as provided by the Constitutional Amendment. Agency personnel who establish and maintain eligible lists should be informed accordingly. Agencies that administer decentralized examinations should adopt procedures similar to those described above to accept and verify claims for additional disabled veteran credits. The notification to candidates used by DCS may be modified for agency use. The additional veteran credits may only be added to a candidate’s score prior to list establishment. The scores of current list eligibles may not be changed.

Questions may be directed to your Staffing Services Representative.

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Misconduct in another jurisdiction may be a basis for disciplinary action in New York State

Misconduct in another jurisdiction may be a basis for disciplinary action in New York State

Bueno v. Ambach, 82 A.D.2d 935, Appeal Dismissed, 54 N.Y.2d 1024

The Appellate Division concluded that the Commissioner of Education properly revoked a physician’s license to practice medicine in New York State on the basis of his record in other jurisdictions.

Holding that “it is clear that misconduct in other jurisdictions can be the basis for a disciplinary action in New York...and also that the transcripts of the hearings were properly...in evidence,” the Appellate Division  dismissed Bueno’s appeal.
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A tribunal’s lack of jurisdiction to render a judgment or determination may be asserted at any time

A tribunal’s lack of jurisdiction to render a judgment or determination may be asserted at any time
2013 NY Slip Op 08481, Appellate Division, Third Department

In 1994 a New York City employee filed a Workers’ Compensation claim alleging that she had sustained a work-related injury.. The claim was controverted by the employer, who was “self-insured,” and in 1995 the employee's claim was marked closed due to a lack of prima facie medical evidence.

In 2011 the individual submitted a medical report documenting her injury. A Workers' Compensation Law Judge established the claim in a June 2011 decision, finding that the employer waived its defenses by failing to appear at a Workers' Compensation hearing. The Board found the employer's application for review of hearing officer's the decision untimely and the employer appealed its ruling.

The employer, conceding that its application for review was untimely, nevertheless contended that the Workers’ Compensation Board’s refusal to consider its claim that the Board lacked jurisdiction to reopen the matter pursuant to Workers' Compensation Law §123* constituted an abuse of discretion.”

The Appellate Division agreed, citing Doey v Howland Co., 224 NY 30. The court explained that "The general rule is that lack of jurisdiction to render a judgment or determination may be asserted at any time …" Although the Board has broad discretion to reject a late application for review, the court ruled that its refusal to consider an untimely challenge to its jurisdiction may constitute an abuse of discretion.

Given the age of the claim and the fact that it was marked closed in 1995, the Appellate Division said that the “employer plausibly argues that the Board lacked jurisdiction to reopen the present claim.” Thus the Board abused its discretion in refusing to consider the employer's admitted untimely application for review with respect to the Board’s jurisdiction under these circumstances.

The Appellate Division remanded the matter to the Board in order for it to “address the merits of [the employer's] application and determine if the [individual's] claim had been truly closed in 1995.”

* Workers' Compensation Law §123 provides for the continuing jurisdiction of the Board under certain circumstances.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08481.htm


 
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 21, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 21, 2013

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli on December 18, 2013 announced his office completed audits of

the New Suffolk Common School District,

the Quogue Union Free School District and

the Schoharie Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on December 18, 2013 announced his office completed audits of

County Reimbursement for Social Services Costs,

the Town of Dannemora, Village of Deposit and

the Kiantone Fire Department.

DiNapoli Announces Public Can Search State Payments on www.openbooknewyork.com

State Comptroller Thomas P. DiNapoli Tuesday announced that state payments to vendors, municipalities, school districts and others are now available at Open Book New York (www.openbooknewyork.com), a transparency website launched by DiNapoli in 2008. Data is updated daily to include approximately 10,000 new payments the Comptroller’s office processes each business day.

DiNapoli: State Public Authority Pay & Employee Perks Overs $7 Billion

New York’s state public authorities pay more than $7 billion in compensation and perks to more than 104,000 employees annually, with nearly $1.8 billion going to employees who earn $100,000 or more, according to a reportreleased Wednesday by State Comptroller Thomas P. DiNapoli.
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Video tape exonerates employee accused of vandalism of employer’s property

Video tape exonerates employee accused of vandalism of employer’s property

OATH Index No.1572/13

Tapes created by surveillance video cameras have been used as evidence against employees in disciplinary procedures.

In this disciplinary action, a videotape introduced by the employee in his defense persuaded the hearing officer that the department had not proven the disciplinary charges filed against him.

A New York City a sanitation worker was served with disciplinary charges alleging that he had vandalized a garbage truck parked in a Department garage. The New York City Department of Sanitation attempted to prove these charges by introducing evidence that alleged that the employee vandalized a Department truck at about 3:15 a.m.

The evidence relied upon by the Department consisted of the testimony of two investigators who were watching a Department parking lot at night from the rooftop of an adjacent building and who had made a video recording of the lot from their observation point.

OATH Administrative Law Judge Kevin F. Casey found that the sound of broken glass could be heard on the video made by the investigators but no one was visible on the tape because it was too dark.

The employee denied that he had vandalized the Department’s equipment and introduced into evidence a video surveillance camera tape taken at a nearby 7-Eleven store and “[a]ccording to the time stamp on the recording, the [employee] entered the 7-Eleven at 3:12 a.m. and he left at 3:22 a.m., after using the restroom and purchasing food and coffee.”

Finding that the Department failed to rebut employee’s alibi evidence, including the video tape showing that he was at a 7-Eleven at the alleged time of the incident, OATH Administrative Law Judge recommended that the disciplinary charges filed against the employee be dismissed.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/98_Cases/13-1572.pdf
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Six Agency and Authority Audits Find Overlapping Work Time, Potential Safety Issues Regarding Consecutive Hours Worked

Six Agency and Authority Audits Find Overlapping Work Time, Potential Safety Issues Regarding Consecutive Hours Worked

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

The State Comptroller reports that a review of six state agencies and authorities found a pattern of abuse and poor oversight of employees that hold two or more public jobs, including fraudulently claiming to be working at two places at the same time, New York State Comptroller Thomas P. DiNapoli announced on Friday, December 20, 2013.

Earnings by all workers with two or more state jobs exceed $500 million annually. If even only a small percentage of these payments are not earned, the cumulative cost to taxpayers could easily be several million dollars annually.

Of 345 employees examined, auditors found 75 employees that regularly violated time and attendance policies, costing taxpayers $413,277 for 4,803 hours not worked. This amount represented almost 4.5 percent of the employees’ salaries. Auditors also found employees falsified timesheets, abused sick leave and misrepresented travel time from one job to another.

The Comptroller said: “Dozens of public employees working for more than one public employer have managed to take advantage of lax oversight and take credit for hours they didn’t work,” DiNapoli said. “Our audits found supervisors were lax and often complicit in allowing employees to game the system. This is costing taxpayers too much and could jeopardize public safety. It has got to stop. While the Executive should address this issue with all state agencies, I commend the agencies we audited for taking swift action, and recognizing that changes are needed.”

DiNapoli’s auditors examined the issue of dual employment after identifying red flags in previous audits.  The Metropolitan Transportation Authority (MTA), the Office for People with Developmental Disabilities (OPWDD), the Department of Corrections and Community Supervision (DOCCS), the Office of Mental Health (OMH), the Unified Court System (UCS) and the Office of Children and Family Services (OCFS) were selected for audit.  

Dual employment is most prevalent at colleges, prisons, health facilities and the courts. The most common secondary positions are as adjuncts, correction officers, and school hourly staff.

In additional findings, DiNapoli’s auditors found 69 employees who claimed to have worked 3,536 hours at two jobs at the same time (overlapping hours). Another 22 employees did not accurately reflect travel time from one job to another, and 16 improperly charged 511 hours of sick leave at one job, even though they were working at a second job.

Specific examples include:

·        An MTA track equipment maintainer who also worked for the New York City Department of Environmental Protection (NYCDEP) had work schedules that overlapped four hours each week. He told auditors that a supervisor had approved an alternate schedule seven years ago, which allowed him to report earlier to work at 6 a.m. instead of 8 a.m. in order to get to the NYCDEP on-time, even though his timesheets did not reflect this alternate schedule. During a site visit, auditors found that he arrived shortly before 8 a.m. instead of his earlier start time. This employee reported 193.5 overlapping hours at a cost of $8,232 over the course of a year;

·        A UCS employee who also taught at two CUNY schools was teaching classes during the hours that he was supposed to be at UCS. He was paid by UCS for 344 hours that he spent either traveling to or teaching CUNY classes;

·        A psychiatric nurse employed by OMH, who also worked as a public health nurse at P.S. 205 in the Bronx, submitted time records reporting the same end and start time for both jobs. She was paid for 205 hours not worked over twenty-two months at a cost of at least $1,607;

·        An OPWDD developmental aide charged 64 hours of unscheduled sick leave even though he was actually attending out-of-state basketball games associated with his SUNY employment. He was paid for 64 hours of sick leave at $1,187.20 and was paid as much as $689.43 for time not worked; and

·        There were 16 MTA employees who, because of their dual employment, were violating time limits for consecutive hours worked within a 24-hour period and were potentially putting public transportation users at risk.

Each of the six entities is performing its own internal investigation of employees identified in the audits.  At OCFS, two employees were fired, while a third resigned. The Comptroller’s office has also instructed the agencies to adjust calculations for any unearned pension credits given to the cited employees.

DiNapoli’s auditors recommended that agencies develop more comprehensive regulations to protect public health and safety, when permitted by labor contracts. Agencies should also consult with the Department of Civil Service and public employee unions to articulate more realistic time and attendance policies that reflect legally permissible practices, maximize productivity, and ensure adequate staff coverage.

The agencies and authorities generally agreed with the audit findings and to provide training on time and attendance policies, and recover overpayments for time not worked. The Comptroller’s office will also start providing agencies with data to allow payroll offices to better monitor employees with two or more jobs.

For a copy of the dual employment roll-up report visit: http://osc.state.ny.us/reports/dual_employment_roll_up.pdf

The individual audit for MTA can be found here: http://www.osc.state.ny.us/audits/allaudits/093014/11s46.pdf

The individual audit for OPWDD can be found here: http://www.osc.state.ny.us/audits/allaudits/093014/11s22.pdf

The individual audit for DOCCS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/12s129.pdf

The individual audit for OMH can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/11s47.pdf

The individual audit for OCFS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/11s48.pdf

The individual audit for UCS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/12s79.pdf

Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location

Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location

OATH Index No.1571/13

A sanitation worker was charged and found guilty of accepting a $40 gratuity from undercover investigators in exchange for disposing of approximately 12 black garbage bags containing trade waste.

While OATH Administrative Law Judge Faye Lewis found that the Department did not prove that the worker knew the bags contained construction debris, she held that he knew or should have known the bags did not likely contain household garbage. Thus, the worker violated the agency's trade waste directive by disposing of more than six bags of construction debris without supervisory approval.

Although “Termination has often been the penalty for trade waste violations, particularly when there is proof that a worker has accepted a gratuity” in so doing, Judge Lewis noted that in recent cases involving similar facts the appointing authority imposed a lesser penalty on employees found guilty of “trade waste violations.” Citing OATH Index No. 469/11, Judge Lewis said that although the OATH ALJ considering the matter recommended the termination of the employment of a long-term sanitation worker found to have accepted a gratuity in return for picking up yard debris in violation of the trade waste order, the appointing authority rejected the penalty recommended and instead decided that a 30-day suspension without pay, the loss of 80 vacation hours and a reassignment* to another word location as the penalty should be imposed.

Finding that in this instance the employee’s partner played the dominant role in the transaction and the employee played only a secondary role, Judge Lewis recommended imposing a penalty of a 30-day suspension without pay.

The Commissioner adopted Judge Lewis’ recommendation of a 30-day suspension without pay but modified it imposing an additional penalty -- reassigning the employee from his current  work location to another location for 5 years.

* Although judicial and quasi-judicial decisions occasionally uses the term "transfers" to describe the type of personnel change involved here, a "change of work station," the employee’s “change of location” was, in fact, a "reassignment." Transfers typically involve moving an individual under the jurisdiction of one appointing authority to the jurisdiction of a different appointing authority and usually requires the approval of the individual involved. In contrast, a reassignment is the placement of an individual under the jurisdiction of one appointing authority to another position under the jurisdiction of the same appointing authority -- and the approval of the individual is not required unless a collective bargaining agreement provides otherwise. See, for example, 4 NYCRR 1.2(b), which applies to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/10_Cases/13-1571.pdf

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Payments for accumulated leave credits to retiring employees

Payments for accumulated leave credits to retiring employees

Source: January 2014 edition of the FSLG Newsletter [Issue Number: 01-2014]

In its January 2014 edition of the FSLG Newsletter, the Internal Revenue Service states:

“Employees of local governments often have substantial accumulations of sick and vacation pay at the time they retire. In many cases, contractual agreements between the employer and employee call for a lump - sum payment of all accumulated sick and vacation pay, as of the date of retirement. Th e payments often leave local governments and employees with large, unexpected tax liabilities.

“Many times, local governments and employees negotiate a payment plan to lessen the tax burden for both parties.

“Generally, the agreements are executed to defer the tax liability into other years. However, under the constructive receipt rules, the full amount is generally taxable when the employee has the option to receive the full amount. An employee cannot decide when the tax will be paid.

“As we discussed in an article in our previous newsletter , the constructive receipt rules under Internal Revenue Code section 451 require that individuals recognize income as soon as they have effective  control over it; that is, when the funds are made available without substantial limitations. When an employee has an option to receive the income without restriction, it is recognized as income, regardless of whether the employee actually receives it at t hat time.

“Example:

“City Government A owes Employee Z $150,000 in accumulated sick and vacation pay as of the day of retirement. A month before Employee Z’s retirement date, City A reaches an agreement to pay Employee Z $50,000 a year. For  3 years. City A intends to treat each of the 3 payments as wages and subject the payment to Federal Income tax withholding, social security, and Medicare taxes in each year. This arrangement does not defer the tax due. City A may choose to make the payments over the 3 years, but because the entire $150,000 is available at retirement, it will be included in income, subject to income tax withholding and social security and Medicare taxes ,  as of the date the employee is entitled to the funds.

 

“There are two key considerations to remember when consider ing payments of accumulated sick and vacation pay. First, does the worker have a right to receive the money? The worker does not have to exercise that right; the simple existence of the right to receive the money is sufficient t o establish that a taxable event has occurred.

“Second, has the employee been given an option as to when to receive the funds? If the employee has an option, the n the  employee has constructively received the money. The right to receive the money or the opt ion to receive the money determines whether  the money has been constructively received. Once the money is deemed to have been constructively received, it is taxable at that point.”

For additional information and assistance, please discuss the liquidation of accrued leave credits with your attorney or tax advisor.

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Off-duty peace officer’s display of his weapon in the course of an altercation excused based on hearing officer’s finding that he feared for his safety

Off-duty peace officer’s display of his weapon in the course of an altercation excused based on hearing officer’s finding that he feared for his safety

OATH Index No. 825/13

An off-duty Bridge and Tunnel Officer was charged with misconduct for his role in a fight at a car wash, in course of which he displayed his firearm.

OATH Administrative Law Judge Kara J. Miller found that, given the individual’s peace officer status, he could be disciplined for initiating a physical altercation, even though he was off-duty.

However, Judge Miller recommended dismissal of a charge that the officer improperly displayed his weapon, finding that he objectively feared for his safety when the workers advanced on him. She credited the officer’s testimony that he did not place his finger on the trigger and that he re-holstered his weapon when the employees retreated.

The ALJ recommended that the Officer be suspended without pay for 30-day suspension.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/98_Cases/13-825.pdf

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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

Click on text highlighted in color to access the full report

DiNapoli Probe Prompts $15,000 Restitution

State Comptroller Thomas P. DiNapoli Wednesday announced that former Bombay Fire Company President Bridget Martin was sentenced to pay $15,000 in restitution after an auditand investigation by his office uncovered secret bank accounts and other misdeeds.


DiNapoli: DOT Needs To Improve Railroad Bridge Monitoring Program

The Department of Transportation does not adequately monitor whether railroads in New York state comply with bridge inspection and reporting requirements or fully carry out its own bridge inspection responsibilities, possibly putting the public at risk, according to an auditreleased December 10, 2013 by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases School Audits

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

the Cleveland Hill Union Free School District,

the West Buffalo Charter School, and

the West Valley Central School District.

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New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting

New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting

2013 NY Slip Op 08368, Appellate Division, First Department

New York City's Special Commissioner of Investigation for the New York City School District (SCI) is an arm of the City Department of Investigation. It has investigatory and subpoena power and reports the results of its investigations to the Department of Education (DOE), which has the power to initiate disciplinary actions against employees.

A mother complained to the police about alleged sexual harassment of her child, who attended a New York City school, by other students. This ultimately led to a report to, and an investigation by, the SCI as to whether certain DOE employees failed to act on the mother’s complaint.

The Special Commissioner subpoenaed a tenured assistant principal in the school to testify in the course of the investigation. The assistant principal appeared in compliance with the subpoena and “gave pedigree information,” but invoked her rights under Education Law §§3020(1) and 3020-a(3)(c)(i) not to testify further.

Supreme Court, New York County denied SCI’s petition to compel the assistant principal to comply with its subpoena ad testificandumand dismissed the proceeding. The Appellate Division affirmed the lower court’s determination.

The Appellate Division explained that forcing a tenured teacher or school administrator to testify in an SCI proceeding is tantamount to forcing that employee to testify in a New York City Department of Education disciplinary proceeding. To permit SCI to do so, said the court, would directly conflict with state law and “would eviscerate” relevant provisions set out in the Education Law §§3020(1) and 3020-a.

§§3020(1) and 3020-a govern disciplinary action taken against such tenured employees and establish procedures specifically designed to protect them at disciplinary proceedings. Indeed, noted the Appellate Division, Education Law §3020-a(3)(c)(i)(c) specifically provides that the tenured employee shall not be required to testify at any disciplinary hearing.

Citing Board of Education of City School District of City of New. York v Mills, 250 AD2d 122, leave to appeal denied 93 NY2d 803, the Appellate Division noted that “no local legislative body is empowered to enact laws or regulations which supersede State statutes, particularly with regard to the maintenance, support or administration of the educational system."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08368.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 14, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 14, 2013

Click on text highlighted in color  to access the full report

Audit reveals state contractor spent $20,000 legislative member item on herself and family

A Brooklyn contractor helped herself to state-funded equipment, including an iPad used by her granddaughter and a laptop her husband used for personal purposes, according to an audit released on December 13, 2013 by State Comptroller Thomas P. DiNapoli. The contractor, Homeowners Association, Inc., was paid by the state Office of Children and Family Services (OCFS) to train Brooklyn residents on ways to improve their financial situation.

The Comptroller sent his findings to the state Attorney General’s Civil Recoveries Bureau. He recommended that OCFS work with the Attorney General to make a full recovery of the $20,000.

"This vendor was supposed to help individuals achieve the American dream of homeownership. Instead, she fulfilled her own dreams and allowed her family to use state-funded equipment for homework assignments, iTunes downloads and other personal business,” DiNapoli said.  “OCFS needs to ensure that the public’s money is used appropriately. State agencies which administer grants must be held accountable for taxpayer money.”

Homeowners’ president, Carolyn Faulkner, received the grant through a state legislative member item to purchase equipment for workshops, seminars, meetings and newsletters on homeownership, credit worthiness and foreclosure preventions for residents of East New York, Brownsville and Canarsie in Brooklyn. Instead, DiNapoli’s auditors found, from 2010 to 2011, Faulkner spent all of the $20,000 on equipment that was used primarily for her family’s personal activities.

 

For a copy of the report visit: http://www.osc.state.ny.us/audits/allaudits/bseaudits/bse20131012.htm

Anyone with additional information on any matter involving public corruption or fraud is encouraged to contact the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; filing a complaint online at investigations@osc.state.ny.us; or mailing a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

On Thursday, December 12, 2013 New York State Comptroller Thomas P. DiNapoli announced the following audits had been issued:

Battery Park City Authority, Selected Aspects of Discretionary Spending (2012-S-158)
Auditors sampled 69 discretionary expenditures totaling $112,132 and questioned 53 totaling $100,700 because these transactions did not appear necessary, were not clearly related to the purpose of the authority, were not properly approved or were not adequately supported with documentation. Included in the questioned expenditures were payments totaling $61,800 for charitable contributions to various not-for-profit organizations. In these instances, the authority lacked documentation to show how it determined which organizations to select for donations, how contributing to such organization was related to or supported the authority's mission and why the donated amounts were appropriate. Our follow up showed that the authority made payments totaling $1.05 million for the audit period for charitable donations.

Office of General Services, State Agency Small-Dollar Purchases (Follow-Up) (2013-F-25)
In an initial report, issued in September 2010, auditors looked at the extent to which state agencies process small-dollar transactions using paper-based voucher processes instead of the State procurement card, and to identify potential cost savings and revenue enhancements achievable through better use of procurement cards. In a follow-up, auditors found OGS officials have made significant progress in addressing the issues identified in the initial audit. All three prior audit recommendations have been implemented.

Office for People With Developmental Disabilities, Fire Prevention, Safety and Control (2013-S-20)
Auditors found OPWDD is in compliance with applicable fire prevention, safety and control requirements that help ensure the safety of the vulnerable populations it serves and has significantly improved its fire safety procedures and practices since a 2009 fire in one of its residences that resulted in the death of four individuals.

Office of Alcoholism and Substance Abuse Services, Fire Prevention, Safety and Control (2013-S-40)
Auditors found OASAS is in compliance with applicable fire prevention, safety and control requirements that help ensure the safety of the vulnerable populations it serves.

Department of Civil Service, New York State Dental Program: Payments for Scaling and Root Planing Procedures (Follow-Up) (2013-F-20)
An initial audit report issued in July 2010 focused on Group Health Incorporated’s (GHI) controls over the payment of scaling and root planing procedures and to determine if GHI overpaid for scaling and root planing services. GHI officials have made progress in correcting the problems auditors identified in the initial report. However, improvements are still needed. Of the three prior audit recommendations, two have been implemented and one recommendation is no longer applicable.

Metropolitan Transportation Authority, Inspecting Highway Bridges and Repairing Defects (2012-S-32)
Generally, the MTA’s Long Island Rail Road its Bridges and Tunnels department perform bridge inspections and related repairs to correct flag deficiencies in a timely manner as required by state and federal regulations. However, there were a limited number of exceptions suggesting a need for further improvement.  From a sample of 116 flags, auditors found that nine B&T safety flags and two department safety flags on LIRR bridges remained unresolved for extended periods of time ranging from 12 to 45 months after being identified.  For three B&T Red Flags, the required re-inspections were performed from two to eleven days late.  Five LIRR bridges were being inspected by both the department and the LIRR.

Department of Health, Overpayments to Cabrini Medical Center - Follow-Up (2013-F-19)
An audit report issued in April 2012, identified $1.9 million in Medicaid overpayments to Cabrini Medical Center. The overpayments occurred because a billing company (hired by Cabrini) incorrectly altered information on Cabrini's claims and resubmitted the incorrect claims to Medicaid. In a follow-up, auditors found DOH officials made significant progress in addressing the problems identified in the initial audit. This included the recovery of improper payments totaling $1.46 million, in addition to $904,000 in payments prevented by the initial audit.  However, further actions are still needed. Of the six prior audit recommendations, three were implemented and three were partially implemented.

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Retirees had vested health insurance rights that could not be abrogated by successor collective bargaining agreement

Retirees had vested health insurance rights that could not be abrogated by successor collective bargaining agreement
Kolbe v Tibbetts, 22 NY3d 344

Four former non-instructional employees of the Newfane Central School District retired between 2003 and 2008. One of the employees retired while the 1999-2003 collective bargaining agreement [CBA] was in effect; the other three retired under the 2003-2007 CBA.* In January 2010, well after the four employees had retired, the CSEA and the District executed a successor CBA, which was retroactively effective to 2007 and set to expire in 2012. 

By letters dated December 30, 2009, the District informed the four retired employees that their co-pays would now be governed by the three-tier system under the terms of the 2007-2012 CBA, resulting in an increase from their previous co-pay charges.The retirees sued, alleging breach of contract in that by increasing their co-pays, Newfane had violated the terms of the CBAs in effect when they had retired.

In the words of the Court of Appeals, “This case calls on us to decide whether certain collective bargaining agreements conferred upon plaintiff-retirees a vested right to the same health insurance coverage they had when they retired and, if so, whether unilateral modifications to that coverage are nonetheless permissible under either the contract terms or the New York Insurance Moratorium Law.”

The court indicated that "As a general rule, contractual obligations do not survive beyond the termination of a collective bargaining agreement. However, '[r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement' , and we must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right. '[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms'. The language upon which plaintiffs base their claim reads as follows: '[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.' {citations omitted]" 

Essentially the court held that:

1. The collective bargaining agreements conferred upon plaintiff-retirees a vested right to the same health insurance coverage they had when they retired

2. Unilateral modifications to that coverage are not permissible under either the contract terms or the New York Insurance Moratorium Law.

3. Newfane's interpretation of the New York Insurance Moratorium Law relies on the erroneous conclusion that the Legislature's silence regarding contracted-for health coverage should be read as an intention to abrogate contractual rights.

4. Unions and employers are free to negotiate the terms of such provisions as they see fit and the terms of active employees' health insurance coverage during retirement are properly subjects for collective bargaining.*

The Court of Appeals' observed that "the Insurance Moratorium Law's [relied on by Newfane] primary purpose was to prevent school districts from eliminating or reducing retiree health insurance benefits that were voluntarily conferred as a matter of school district policy, not rights negotiated in the collective bargaining context.”

The court then noted that “The 1994 final report of the Temporary Task Force on Health Insurance for Retired Educational Employees, which originally recommended the legislation, proposed amending the then-temporary law to apply to contractually vested rights. Significantly, said the Court of Appeals, “the Legislature never adopted this proposal ….”

The court then remitted the case to Supreme Court, explaining that "Because an issue of fact remains as to whether the parties intended for the right to the "same coverage" to preclude any modifications to the benefits or their attendant costs, including prescription co-pays, it is necessary to remit the case to Supreme Court for a hearing on this issue" 

* The Court of Appeals, in a Footnote, stated “Despite the fact that the successor CBA was retroactively effective to 2007, it is undisputed that even those plaintiffs who retired in 2007 and 2008 effectively retired under the 2003-2007 CBA, since the subsequent CBA was not executed until 2010. This stipulation accords with the reality that these plaintiffs were not represented by the CSEA in the portion of the negotiations that took place after their retirement, and that the bargains struck in the 2007-2012 agreement would thus not be enforceable by them.”

** This implies that unions and employers are not free to negotiate the terms of such provisions with respect of the health insurance coverage then available to those already retired and such changes and modifications are not properly subjects for collective bargaining.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08290.htm
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