Monday, June 30, 2014
NYC not required to make “increased-take-home-pay" retirement contributions for police officers and firefighters appointed after June 30, 2009
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Friday, June 27, 2014
2014 NY Slip Op 04860, Appellate Division, First Department
Thursday, June 26, 2014
Wednesday, June 25, 2014
Arbitrator’s imposing a penalty of suspension without pay rather than termination did not violate public policy
Tuesday, June 24, 2014
Determining the existence of an employer-employee relationship for the purposes of eligibility of Unemployment Insurance benefits and the payment of required employer contributions
Monday, June 23, 2014
Special duty must be demonstrated in order to recover for an alleged negligent performance of a governmental function
Friday, June 20, 2014
Unblemished work record not sufficient to mitigate imposing termination as the disciplinary penalty for the employee’s misconduct under the circumstances
Thursday, June 19, 2014
Employer provided retirees with the health benefits to which they were entitled upon retirement under the collective bargaining agreement
Wednesday, June 18, 2014
New York State Comptroller Thomas P. DiNapoli announced today that his office has identified more than $5 million in unclaimed funds for local governments across the state.
It often requires a bit of imagination to find an entity as the names reported in Comptroller's listing may differ substantially from the agency's or organization's "official name" as the example for “Board of Education” listed 23 jurisdictions while Bd of Ed listed 13 districts and high school listed 29 names.
Using generic names such as the following produced the number of "hits" indicated:
Employee organizations reported by the Comptroller include the following
The initial collective bargaining agreements negotiated by the State as an employer and the Civil Service Employees Association with respect to employees in negotiating units represented by CSEA, provided that an individual in the negotiating unit served with administrative disciplinary charges could elect either the “contract disciplinary procedure,” whereby the charges would be heard by an arbitrator, or, in the alternative, elect to have the matter considered pursuant to the relevant statutory disciplinary procedure, in this instance Civil Service Law §75.
Tuesday, June 17, 2014
Requiring such a writing to validate an appointing authority's exercising its discretion to waive or truncate an employee's probationary period avoids the situation considered by the court in Snyder v Civil Service Commission, 72 NY2d 981, a case involving a temporary appointee's claim to contingent permanent appointment status pursuant to Civil Service Law Section 64.4. The court ruled that an individual must specifically appointed as a contingent permanent employee by the appointing authority, which status is granted solely at the discretion of the appointing authority. A writing would clearly demonstrate such an action on the part of the appointing authority.
In any event, it is good personnel practice to notify the probationary employee that he or she has successfully completed his or her probationary period even if not so required by rule or regulation.
Monday, June 16, 2014
Motion to dismiss a cause of action based on a defense of collateral estoppel and res judicata rejected
Friday, June 13, 2014
Injury suffered on the way to work not typically viewed as “arising out of and in the course of employment”
Thursday, June 12, 2014
California Superior Court Judge holds that California's teacher tenure laws are unconstitutional
Wednesday, June 11, 2014
Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment
* A GO-15 interview is one conducted "in connection with allegations of serious misconduct or corruption."
Tuesday, June 10, 2014
Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual
2014 NY Slip Op 04051, Appellate Division, First Department
Monday, June 09, 2014
Sunday, June 08, 2014
Disciplinary decision vacated as employer failed to cite any law or rule that classified the employee’s alleged actions as misconduct
2014 NY Slip Op 03958, Appellate Division, First Department
The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html
Saturday, June 07, 2014
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 7, 2014
Department of Corrections and Community Supervision, Corcraft's Textile Procurement Practices (2012-S-22)
Corcraft is a major component within the Department of Corrections and Community Supervision. Corcraft's mission is to employ offenders in real work situations to produce quality goods and services at competitive prices. Current procurement practices allow one person, the purchasing supervisor, to control almost all of the process for the procurement of textiles. The inadequate separation of incompatible duties and lack of compensating controls increases the risk of favoritism in the award process. Auditors found Corcraft officials awarded contracts without testing all of the required specifications and instead used their own discretion in deciding whether and which specifications were tested. As a result, they did not adequately ensure open competition, and there was limited assurance that contracts totaling $32.3 million went to the lowest responsive and responsible vendors.
Department of Health, Medicaid Program: Medicaid Payments Made Pursuant to Medicare Part C (2012-S-133)
During the audit period, auditors found Medicaid could have saved up to $69 million if it limited payments of Medicare Part C cost-sharing liabilities such that the total Medicare and Medicaid payment for a service did not exceed Medicaid's normal service fee. Other states already use this approach and New York uses this approach to limit payments for certain other Medicare cost-sharing liabilities. In addition, auditors determined Medicaid made $1.6 million in overpayments for Medicare Part C cost-sharing because recipients were not enrolled in Part C.
Department of Health, Medicaid Program: Medicaid Claims Processing Activity October 1, 2012 Through March 31, 2013 (2012-S-131)
Auditors identified about $13 million in inappropriate or questionable Medicaid payments, including:
Travel expenses totaling $466,301 for 14 of the 17 DOH employees selected for review were appropriate and adhered to state travel rules and regulations. However, for three employees, auditors identified numerous problems with travel practices and related expenses attributed to inadequate oversight. Of the $121,727 in travel expenses examined for the three employees, auditors found problems with costs totaling $14,870.
NYC Human Resources Administration (HRA) NYS Office of Temporary and Disability Assistance, Benefit Eligibility Assessment Process (2012-S-51)
Auditors found that HRA employees apply a comprehensive assessment process when determining a client's eligibility, and that process is in compliance with governing regulations and procedures. However, procedural revisions are necessary to reduce the number of hearings held, and to reduce the number of HRA determinations that are reversed at hearings.
Office of Information Technology Services, Procurement and Contracting Practices (Follow-Up) (2013-F-24)
In an initial audit report issued in February 2012, auditors found a culture at the Office of Information Technology Services (ITS), emanating from the highest levels of the agency, that disregarded the New York State Finance Law, the state's procurement guidelines and the agency's own procurement policies. This did not result in the best value for the taxpayers, but instead led to a waste of substantial public resources. Moreover, in several notable instances, transgressions appeared to have been motivated by personal gain and may have violated the ethics standards contained in the New York State Public Officers Law. In a follow up, auditors found ITS officials have made some progress and continue to make progress in addressing the problems identified in the initial audit. Of the eight prior audit recommendations, one was implemented and seven were partially implemented.
Auditors identified $125,302 in unsupported or inappropriate personal service expenses charged to the housing program. These charges included unsupported salary allocations and inappropriate overtime payments to management. Auditors also identified $295,321 in unsupported or inappropriate non-personal service expense items, including expenses associated with the unrelated program facilities, payments to a contractor to enhance his personal property and rental payments for unoccupied apartments. Sky Light officials cannot account for over $75,000 in contingency funds that were to be used specifically for client housing emergencies. Additionally, Sky Light officials did not make all required visits to client apartments. Auditors identified several potential safety issues, including the lack of smoke and carbon monoxide detectors.
Port Authority of New York and New Jersey, Inspecting Highway Bridges and Repairing Defects (2012-S-34)
Auditors found the authority conducted the required biennial inspection of its highway bridges, but does not follow New York state requirements for classifying, reporting and repairing bridge defects. Instead it follows its own method, but does not always satisfy state requirements. As a result, it did not perform 47 interim inspections for priority conditions open more than one year. The authority also did not inspect a highway bridge with an immediate safety concern for 332 days while it awaited repairs. Ten of the 17 safety concerns sampled were not repaired for more than two years, including three which were open for five years.
Expenses for nine of the 10 University employees selected for review were appropriate. For a track coach, however, officials did not enforce Office of State Comptroller and university guidelines limiting travel advance amounts and requiring unspent balances to be returned on a timely basis. The track coach routinely overestimated the amount of advance funds needed for athletic events. As a result, at one point he had over $87,000 in outstanding advances. Also, the coach consistently returned unused advance funds more than two months later than required by the university. University officials allowed this coach to pay back his travel advances in installments – similar to the payback of a loan. The track coach may have violated the Public Officers Law by employing his daughter as a volunteer coach and using state funds to pay for her travel with him and the team to local and national track events.
Medgar Evers was overpaid $3,398,205 over three academic years because school officials incorrectly certified students as eligible for Tuition Assistance Program (TAP) awards. Incorrect certifications include 29 students who received awards but did not meet the requirements for full-time status, 14 students who did not maintain good academic standing, four students whose accounts were not credited with the TAP payment, three students who were not properly matriculated, two students who enrolled in programs not approved by the State Education Department, one student who did not meet the citizenship requirement, and one student for whom auditors found insufficient proof that she satisfied the New York state residency requirement.
Auditors determined that Pratt's certification procedures substantially complied with the governing Law and Regulations during the audit period for the transactions tested. There is low risk that a significant number of students certified for TAP were not eligible for awards. Nonetheless, tests did disclose 26 awards totaling $38,236 that school officials certified in error. After reviewing the errors, Pratt officials decertified one award for $2,450 and sent another student a $50 refund check.
The state Department of Labor (DOL) doesn’t complete many of its wage theft investigations in a timely manner, allowing thousands of cases to remain unresolved for a year or more, according to an audit released June 6, 2014 by State Comptroller Thomas P. DiNapoli.
Wage theft is the illegal holding of wages or denial of benefits to a worker by an employer. Examples include failing to pay overtime, not giving workers their last paycheck after they leave a job or not paying for all the hours the employee worked.
DiNapoli’s auditors found that, as of August 26, 2013, DOL had more than 17,000 open cases, an increase of about 150 percent from the 7,000 cases on hand at the start of 2008. The current caseload consists of about 9,300 active investigations and more than 7,800 cases pending payment. Of these, almost 13,000, or 75 percent, were at least one year old from initial claim date.
The increasing backlog stems largely from system and process deficiencies that hinder timely investigations, coupled with a limited number of staff to perform the growing amount of work. As of August 2013, auditors estimate that DOL’s 98 investigators were responsible for an average of 95 active investigations each. According to the audit, resolving the inefficiencies in DOL’s procedures and its use of resources could significantly improve productivity.
DiNapoli’s auditors also found:
DiNapoli recommended DOL:
DOL officials responded to the audit’s recommendations and indicated the actions they are taking to address them. For a copy of the report, including DOL’s response, click on http://www.osc.state.ny.us/audits/allaudits/093014/13s38.pdf
Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:
The Discipline Book at http://thedisciplinebook.blogspot.com/
Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com
The Disability Benefits E-book: at http://section207.blogspot.com/
Layoff, Preferred Lists at http://nylayoff.blogspot.com/
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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