Wednesday, November 26, 2014

Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege


Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege
OATH Index No. 2614/14

A supervisor was served with disciplinary charges alleging she had included confidential information about agency clients in an email to supervisors that she had “e-mail copied” to her attorney.

Acknowledging that she had sent the email contained confidential information, she argued that she had not redacted the confidential information in the copy of her communication sent to her attorney because she considered her communications with her attorney to be privileged and confidential.

Oath Administrative Law Judge Ingrid M. Addison explained that the attorney-client privilege “enables one seeking legal advice to communicate with counsel ... secure in the knowledge that the contents of the exchange will not be revealed against the client’s wishes and that the communication over which privilege is asserted must have been made for the purpose of obtaining legal services and advice in the course of a professional relationship.

Judge Addison ruled that the e-mail the accused employee sent to her attorney was not privileged because it was directed to her supervisors, not her attorney, and was not an attempt to solicit legal advice of her attorney nor could it be interpreted as such. 

The ALJ found the supervisor was insubordinate when she walked out of a meeting with supervisors after being warned not to.

However Judge Addison dismissed a second charge alleging insubordination involving the supervisor's walking out of a meeting with her superior when another supervisor was called in to what was to be a “one-on-one” meeting with the superior.

The ALJ recommended that the supervisor be suspended without pay for 23 day, consisting of a 3-day suspension without for with respect to charges of insubordination related to her walking out of the meeting with a group of supervisors and a 20-day without pay for "wanton disregard" of the employer’s rules when she a copy of an e-mail to other supervisors that contained confidential agency information to her attorney.

The decision is posted on the Internet at:

Tuesday, November 25, 2014

Failing to report for a medical examination


Failing to report for a medical examination
OATH Index No. 1402/14

A food service manager was found to have failed to report for scheduled medical examinations, that he was ordered to attend pursuant to §2568 of the Education Law, on three occasions.

Further, Administrative Law Judge Faye Lewis found that the manager had not been at work for more than two years.

After having had his disciplinary hearing postponed, the manager did not appear at his hearing scheduled for July 23, 2014.

On the day before the rescheduled trial date, his attorney requested another adjournment of the trial because the manager was in Ohio caring for his ailing mother and was unable to make other care taking arrangements.

The adjournment request was denied for lack of good cause when the manager declined to avail himself of the opportunity to participate at the hearing via telephone.

Other cases involving disciplinary action following an employee’s failure to report for a medical examination include Santiago v. Koehler, 155 A.D.2d 24, O'Neill v City of Schenectady, 194 AD2d 1044, and Decisions of the Commissioner of Education, Decision #13005.

Judge Lewis recommended termination of the food service manager’s employment.  

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1402.pdf
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Monday, November 24, 2014

Appealing the denial of an application for General Municipal Law §207-c disability benefits


Appealing the denial of an application for General Municipal Law §207-c disability benefits
Lowther v County of Rockland, 2014 NY Slip Op 08018, Appellate Division, Second Department

The Rockland County Sheriff denied Deputy Sheriff Charles Lowther’s application for disability benefits pursuant to General Municipal Law §207-c. A hearing officer confirmed the Sheriff’s determination and Lowther appealed the arbitrator’s ruling.

The Appellate Division sustained the arbitrator’s decision and dismissed Lowther ’s appeal “on the merits.”

As a procedural matter, the court first explained that it would treat this appeal as one that had been transferred here by the Supreme Court and would review the administrative determination de novo *

The standard of review in an administrative determination made after a hearing is limited to the Appellate Division's considering whether the determination was supported by substantial evidence. The test of whether an administrative determination is supported by substantial evidence is whether, on the record, a reasonable person might have made the findings and conclusions made by the administrative agency.

The Appellate Division then observed that in order to be eligible for disability benefits pursuant to General Municipal Law §207-c, a covered municipal employee must prove a direct causal relationship between his or her job duties and the resulting alleged illness or injury. In this instance the court found that the arbitrator's determination that Lowther was not entitled to benefits pursuant to General Municipal Law §207-c was supported by substantial evidence in the record.

In contrast, where an administrative body renders a determination without holding a hearing, the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis, which questions are to be initially addressed in Supreme Court.

* When a petition raises a question of whether an administrative determination made after a hearing is supported by substantial evidence, the proceeding should be transferred from the Supreme Court to the Appellate Division to address that issue.

The decision is posted on the Internet at:

________________________


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Friday, November 21, 2014

Tenured teachers and school administrators facing disciplinary action typically have the right to elect the Education Law §3020-a.disciplinary procedure in lieu of a contract disciplinary procedure


Tenured teachers and school administrators facing disciplinary action typically have the right to elect the Education Law §3020-a.disciplinary procedure in lieu of a contract disciplinary procedure
Kilduff v Rochester City Sch. Dist., 2014 NY Slip Op 08056, Court of Appeals

The Rochester City School District notified Roseann Kilduff, a tenured school social worker,that she was to be suspended for 30 days without pay for certain alleged misconduct. In response to Kilduff’s written request for a hearing pursuant to Education Law §3020-a., the School District advised her that she was not entitled to have this disciplinary action processed pursuant to §3020-a  but could challenge the School District’s disciplinary determination by availing herself of the disciplinary grievance procedures set out in the collective bargaining agreement (CBA) between the School District and the Rochester Teachers Association.

The CBA provided, in relevant part, that "Except as provided elsewhere in this Section, any disciplinary action imposed upon any eligible teacher may be processed as a grievance and arbitration procedure.”*

The Court of Appeals, affirming a ruling by the Appellate Division, said that §3020(1)** of the Education Law, as amended, requires that all CBAs becoming effective on or after September 1, 1994, permit eligible employees facing discipline the right to elect the disciplinary review process provided by Education Law §3020-a.notwithstanding a provision in the CBA to the contrary. 

The Appellate Division had explained that inasmuch as the controlling CBA took effect in 2006, Kilduff, “in the court's view,” had the right pursuant to Education Law §3020(1) to choose the §3020-a disciplinary procedure in lieu any alternative grievance procedure contained in the CBA. Accordingly, said the Appellate Division, Rochester's failure to honor Kilduff’s request, it was required by law to respect, mandated the annulment of the disciplinary action taken against her.

In the words of the Court of Appeals, “the statute unambiguously provides that when a CBA is altered by renegotiation or takes effect on or after September 1, 1994, it must permit tenured employees to elect §3020-a's discipline review procedures, notwithstanding the availability of alternative, CBA-prescribed procedures.”

The court said that while the statute would trump a CBA provision effective on or after September 1, 1994 that relegated a tenured employee exclusively to a non-statutory discipline procedure, “we perceive no reason to conclude that the present CBA in fact does that. It provides merely that a disciplinary action ‘may,’ not that it ‘must,’ be processed in accordance with the agreement's grievance and arbitration provisions which were retained unaltered in the parties' subsequent CBAs.”

Further, in a footnote the majority observed that while the CBA required the §3020-a process where the discharge of a tenured employee was sought, this does not mean, as the School District contended, that it precludes a tenured employee from electing such process where less serious discipline was at issue, in this instance a 30-day suspension without pay.

Accordingly, the court in this 4 to 3 ruling, Judge Smith dissenting in an opinion in which Judges Read and Pigott concur, held that the order of the Appellate Division should be affirmed, with costs.

It should be noted that with respect to eligible employees in the classified service, §76.4 of the Civil Service Law, in pertinent part, provides that §§75 and 76 of the Civil Service Law “… may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter [emphasis supplied]. Where such sections are so supplemented, modified or replaced, any employee against whom charges have been preferred prior to the effective date of such supplementation, modification or replacement shall continue to be subject to the provisions of such sections as in effect on the date such charges were preferred”.

* The Court of Appeals noted that a subsequent subsection of the CBA provided that “no eligible teacher may be discharged without the process prescribed in Education Law §§3020 and 3020-a..”

** The portion of Education Law §3020(1) relevant to the issues raised in this action states: "No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that was effective on or before September first, nineteen hundred ninety-four and has been unaltered by renegotiation, or in accordance with alternative disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that becomes effective on or after September first, nineteen hundred ninety-four; provided, however, that any such alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September first, nineteen hundred ninety-four, must provide for the written election by the employee of either the procedures specified in such section three thousand twenty-a or the alternative disciplinary procedures contained in the collective bargaining agreement" (emphasis by the Court).

The decision is posted on the Internet at:

 __________________________ 

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
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Thursday, November 20, 2014

An individual serving in a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e) is ineligible for unemployment insurance benefits


An individual serving in a major nontenured policymaking or advisory position within the meaning of Labor Law §565(2)(e) is ineligible for unemployment insurance benefits
Matter of Birnbaum (Commissioner of Labor), 2014 NY Slip Op 07719, Appellate Division, Third Department

Julian R. Birnbaumserved as the Deputy Commissioner for Division Initiated Investigations and Complaints with the New York State Division of Human Rights (DHR) in a “nontenured position classified as management/confidential and served at the discretion of the Commissioner of Human Rights as well as the Governor.

When Birnbaum’s employment ended, he applied for unemployment insurance benefits.

The Department of Labor issued an initial determination finding that Birnbaum was not entitled to receive benefits because his base period employment was in a major nontenured policymaking or advisory position that was excluded under Labor Law §565(2)(e).

An Administrative Law Judge, however, overruled the initial determination and found that Birnbaumwas entitled to receive benefits. On appeal, the Unemployment Insurance Appeal Board rescinded the ALJ's decision and remanded the matter for another hearing to further develop the record. The resulted in the ALJ‘s sustaining the Department of Labor’s initial determination, which determination was subsequently upheld by the Board Birnbaum appealed the Board’s ruling.

The Appellate Division sustained the Board’s decision, explaining that for purposes of determining a claimant's eligibility for unemployment insurance benefits, Labor Law §565(2)(e) excludes from employment "services rendered for a governmental entity by . . . a person in a major nontenured policymaking or advisory position." Whether this exclusion applies typically presents a mixed question of law and fact, and the Board's determination in this regard will be upheld if it has a rational basis.

According to the decision, Birnbaum’s position had three primary functions: (1) to investigate patterns of discrimination involving violations of the Human Rights Law appropriate for filing an administrative complaint by DHR, (2) to oversee the prosecution of complaints brought on behalf of individuals, and (3) to evaluate DHR's issuance of exemptions for certain housing providers and, in addition, participated in other agency functions.

The Appellate Division noted that Birnbaum reported directly to the Commissioner, had meetings with the Commissioner on a variety of matters and made recommendations on the implementation of agency policies. Although Birnbaum did not independently establish agency policy, he was involved in the process and his advice was solicited by the Commissioner.

Under these circumstances, said the court, there is a rational basis for the Board's decision that Birnbaum held a major nontenured policymaking or advisory position excluded under Labor Law §565(2)(e).

The decision is posted on the Internet at:


Wednesday, November 19, 2014

New York State Comptroller Thomas P. DiNapoli releases municipal audits


New York State Comptroller Thomas P. DiNapoli releases municipal audits
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the municipalities listed below. Cick on text highlighted in color  to access the full report

Town of Berkshire – Town Clerk (Tioga County)
The town clerk did not properly safeguard taxpayer funds. As a result, auditors could not determine if the clerk is receiving, recording, depositing, disbursing and reporting all the money owed to the town and/or paid to her. In addition, the clerk and code enforcement officer failed to compare the money received for building permits with the permits actually issued.


Bethlehem Public Library – Selected Cash Receipts (Albany County)
The board has established adequate internal controls for processing over-the-counter cash receipts to ensure that all cash collections are properly accounted for and deposited timely and intact. These controls include policies and procedures that provide guidance to the library staff involved in the cash collection process. The procedures also adequately segregate duties within the cash collection process to ensure that no one individual controls all phases of a transaction.


Town of Cherry Valley – Budget Review (Otsego County)
The significant revenue and expenditure projections in the preliminary budget are reasonable, except for the estimated revenues from Federal Emergency Management Agency reimbursements. Although the budget does slightly raise taxes for all funds, town officials did not include a contingency amount in the budget, which would provide for anticipated events and could help to improve the town’s financial position. The town has adopted a local law to override the tax levy limit in 2015.


City of Cohoes – Purchasing (Albany County)
Because city officials did not consistently seek appropriate competition for purchases, they cannot assure taxpayers that they are obtaining the best price possible, as well as the desired quality and quantity, for goods and services. Auditors found the city made purchases totaling $145,759 from three vendors without using competitive bidding or state contract pricing, as required by law.


Town of Deerpark – Budget Review (Orange County)
The revenue and expenditure projections in the proposed budget are reasonable. The town’s preliminary budget complies with the property tax levy limit.


Town of Deposit – Budget Review (Broome County)
The significant revenue and expenditure projections in the proposed budget are reasonable. Additionally, town officials have increased the real property tax levy for the general fund and implemented cost saving measures in the highway funds to help address the town’s declining financial condition. The town has adopted a local law to override the tax levy limit in 2015.


East Aurora Volunteer Fire Department, Inc. – Controls Over Financial Activities (Erie County)
The treasurer did not prepare adequate monthly reports. Auditors found the treasurer’s monthly financial reports consisted of a listing of department bank account balances. However, the department bylaws require the treasurer to keep a complete record of all funds received and disbursed and furnish a report showing this activity at the department’s regular meetings.


Town of East Hampton – Budget Review (Suffolk County)
The significant revenue and expenditure projections in the tentative budget are reasonable. The town’s 2015 tentative budget complies with the property tax cap levy limit.


Town of Edinburg – Justice Court Operations (Saratoga County)
The town justice did not maintain complete and accurate accounting records. Bank reconciliations, month-end accountabilities and reports submitted to the state Justice Court Fund were not accurate. Also, the justice did not maintain adequate case files and did not take appropriate action to ensure that fines and fees were collected in a timely manner.


Village of Fort Ann – Financial Condition (Washington County)
The village board consistently appropriated excessive amounts of fund balance in the general fund to finance operations which caused this fund to be in fiscal stress at the end of the 2013-14 fiscal year. The board also overestimated expenditures for the water and sewer funds with the intention of increasing the levels of fund balance to guard against unforeseen repairs and finance future capital costs.


Town of Islip Industrial Development Agency – Controls Over Payments in Lieu of Taxes (PILOTs) (Suffolk County)
The agency’s process for billing, collecting and recording of PILOTs was efficient and payments were accurately billed and collected. However, PILOT payments were not always distributed to affected taxing jurisdictions within 30 days, as required by law.


Town of Laurens – Budget Review (Otsego County)
The significant revenue and expenditure projections in the tentative budget are reasonable. To address fiscal concerns, the board has proposed real property tax levy increases in the general and highway town-wide funds. However, these increases alone may not fully address the town’s potential for fiscal stress. The town’s tentative budget complies with the property tax levy limit.


Volunteer Firemen’s Benevolent Association of North Tonawanda – Foreign Fire Insurance Tax Moneys (Niagara County)
The board did not ensure that foreign fire insurance tax moneys were spent in accordance with the special act that created the association. Although the 106 payments made during 2013 totaling $49,545 were supported with itemized claims, it is unclear if they were all proper because the association bylaws were not adequately detailed regarding allowable expenditures.


Town of Ogden – Financial Management and Justice Court (Monroe County)
Town officials have not developed adequate policies, procedures or financial plans to govern budgeting practices and the amount of unexpended surplus funds to maintain. The board has repeatedly adopted budgets with unrealistic estimates of revenues, expenditures and the amount of fund balance that would be used. Therefore, the town has levied more real property taxes than necessary and accumulated a significant amount of unexpended surplus funds.


Town of Otsego – Financial Condition (Otsego County)
The budgets for the town’s four operating funds varied significantly from the actual results each year. Over a four-year period, auditors found each of the funds’ estimates generally varied from actual results. For example, the general town-wide and highway part-town funds overestimated revenues and expenditures; the general part-town fund underestimated revenues and overestimated expenditures; and the highway town-wide fund underestimated both revenues and expenditures.


Town of Sardinia – Tax Relief Rebate Program (Erie County)
Auditors reviewed the local law adopted by the town board establishing a tax relief rebate program and a sample of tax rebates issued during the 2013 fiscal year. Because the State Constitution prohibits towns from loaning or giving money to any private corporation or person, including property owners and residents, the town lacked authority to issue the tax refunds to property owners without a special act from the State Legislature.


Village of Schuylerville – Procurement (Saratoga County)
Village officials did not always use competitive procedures for the procurement of goods and services as required by law. Auditors found a contract for public work for $51,150 and two equipment purchase contracts for $50,000 and $109,970 that were not competitively bid. As a result, the village may have incurred higher costs than necessary.


Town of Sidney – Budget Review (Delaware County)
The significant revenue and expenditure projections in the preliminary budget are reasonable. However, the town’s projections for rental income in the hospital fund were not based on amounts expected to be received according to current lease agreements. The town’s preliminary budget complies with the property tax levy limit.


Sidney Fire Department and Related Fire Companies – Financial Activities (Delaware County)
The board did not ensure that cash disbursements and receipts were properly accounted for because it did not implement proper internal controls over the department and the three companies. Auditors found that 134 of the department’s and companies’ expenditures totaling $47,093 lacked sufficient support and/or board approval to verify that they were appropriate.


Slingerlands Fire District – Professional Services (Albany County)
District officials did not obtain quotes or requests for proposals for most professional services during the audit period. The district made payments to eight professional service vendors totaling $153,238 for six types of services. In 2013, the cost of these services consisted of $84,584 for insurance coverage, $11,086 for legal services, $10,675 for physician services, $7,800 for investment management services, $5,000 for external audit services and $650 for engineering services.


Town of Stony Point – Claims Processing and Purchasing (Rockland County)
The town’s claims processing policies and procedures are adequate. Board members approve the payment of claims against the town each month by reviewing and signing an abstract listing current claims for goods and services provided.

A public entity may have liability for damages resulting from an accident if it has a “special relationship” with the injured party


A public entity may have liability for damages resulting from an accident if it has a “special relationship” with the injured party
Delanoy v City of White Plains, 2014 NY Slip Op 07615, Appellate Division, Second Department

Joseph J. Delanoy, Jr sued the City of White Plains seeking to recover damages for personal injuries.

The jury issued a verdict on the issue of liability finding White Plains 58% at fault in the happening of the accident. The City appealed the jury’s finding that there was a “special relationship” and asked the Appellate Division to set aside the verdict on the issue of liability or, in the alternative, to set aside the jury verdict as contrary to the weight of the evidence.

The Appellate Division denied the City’s appeal.

The court held that there a “special relationship” between the City of White Plains and Delanoy was created when the City's plumbing inspector directed Delanoy to perform a clearly unsafe air pressure test.

The Appellate Division explained that the Court of Appeals has recognized three situations in which a duty may arise by way of a special relationship between a public entity and a plaintiff:

"(1) the plaintiff belonged to a class for whose benefit a statute was enacted;

“(2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or

“(3) the municipality took positive control of a known and dangerous safety condition"

In this instance only the third situation was at issue, i.e.: Did the City take positive control of a known and dangerous safety condition?

Notwithstanding the City’s arguments to the contrary, the Appellate Division ruled that the jury's determination that the City and its inspector took positive control of a known and dangerous safety condition which gave rise to Delanoy’s injuries was supported by a fair interpretation of the evidence and, thus, was not contrary to the weight of the evidence.

Neither, said the court, was the jury's determination that the inspector was performing ministerial acts rather than discretionary acts contrary to the weight of the evidence.

The decision is posted on the Internet at:

Tuesday, November 18, 2014

New York State Comptroller Thomas P. DiNapoli releases school audits


New York State Comptroller Thomas P. DiNapoli releases school audits
Source: Office of the State Comptroller

On November 18, 2014, New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the school districts listed below.
Click on text highlighted in color  to access the audit report for the school district.

Brewster Central School District – Financial Condition (Putnam County)
District officials have taken appropriate action to manage the district’s financial condition. Officials provided for effective financial planning and management by ensuring unrestricted unappropriated fund balance levels are in accordance with statutory requirements, and budget estimates and reserve balance levels are reasonable.


General Brown Central School District – Financial Condition (Jefferson County)
The board has balanced recent budgets with appropriations of fund balance and reserves while limiting tax increases, resulting in a deficit unrestricted fund balance of $435,655 at the end of fiscal year 2012-13. District expenditures, specifically those related to employee benefits, increased by more than $1.2 million since the 2008-09 fiscal year despite the elimination of 46 positions over the last four fiscal years.


Onondaga Central School District – Non-payroll Disbursements (Onondaga County)
District officials need to improve internal controls over non-payroll disbursements. The accounts payable clerk performed all non-payroll disbursement processes for the general fund with little oversight or any other compensating controls. The clerk is responsible for recording all general fund non-payroll disbursement transactions, initiating check printing, receiving printed checks and distributing checks.


Spencer-Van Etten Central School District – Financial Condition (Tioga County)
Over the last three fiscal years, the district developed budgets that were reasonable and based on historical or known expenditures. District officials have also implemented multiple cost-savings measures in an effort to minimize expenses. For example, due to anticipated increases in health insurance premiums, the district switched to lower cost health insurance coverage during the 2011-12 fiscal year and achieved savings of approximately $850,000 in the first year of the change.


Watervliet City School District – Fiscal Stress (Albany County)
The board did not adopt realistic, structurally balanced general fund budgets or adequately monitor the financial activity of capital projects to ensure fiscal stability. The board also did not adopt a policy regarding establishing an adequate level of unrestricted fund balance to maintain. As a result, the general fund’s financial condition has diminished in recent years. In addition, the district spent $741,000 more than the total amounts authorized for two projects causing a fund balance deficit in the capital projects fund in that amount.


White Plains City School District – Procurement of Professional Services (Westchester County)
District officials did not always seek competition for professional services and did not have documentation to support why contract providers were chosen for all professional service contracts. The district did not have adequate documentation to support the payment of certain claims made to professional service providers. 

Establishing seniority rights in the course of collective bargaining


Establishing seniority rights in the course of collective bargaining
Bregman v East Ramapo Cent. Sch. Dist., 2014 NY Slip Op 07610, Appellate Division, Second Department

The Appellate Division held that Steven Bregman and the other plaintiffs [Bregman] in this action had waived their right to seniority credit through their teacher association's collective bargaining agreement with the Board of Education for the East Ramapo Central School District. To this end the court said that Supreme Court should have entered a judgment declaring that the relevant provision of the collective bargaining agreement governing seniority rights and the determination to deny Bregman seniority credit pursuant thereto was not illegal and invalid.

The court noted that such a waiver was not against public policy, as the Board of Education was allowed to establish a separate tenure area for administrators apart from the teaching tenure areas enumerated in 8 NYCRR 30-1.4.and Bregman did not establish that the positions in question constituted "instructional support services" as defined in 8 NYCRR 30-1.1(j).

However, certain “seniority provisions” in a collective bargaining agreement may not be lawful and thus unenforceable as the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045, demonstrates. The decision addressed the application of a Taylor Law contract provision dealing with seniority of employees in the classified service in the event of a layoff.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date to be used to determine an individual's service for seniority purposes for layoff under State law.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1. Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But both §§80 and 80-a of the Civil Service Law provide that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and thus, in accordance with law, B would have greater seniority than A.

When the City laid off A rather than B, notwithstanding the fact that A had been employed by the City for a longer period than B because B had received his permanent appointment before A was permanently appointed, the Union grieved.

The Union contended that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A, rather than B, had to be laid off first. Plattsburgh obtained a court prohibiting submitting the grievance to arbitration.

In the appeal that followed the Appellate Division sustained the City's decision and explained that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

The decision is posted on the Internet at:
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Monday, November 17, 2014

Some limitations to obtaining information pursuant to New York State's Freedom of Information Law


Some limitations to obtaining information pursuant to New York State's Freedom of Information Law
Miller v New York State Div. of Human Rights, 2014 NY Slip Op 07742, Appellate Division, First Department

The Appellate Division sustained a Supreme Court ruling that the New York State Division of Human Rights did not violate the State’s Freedom of Information Law [FOIL] when it denied Jerald Miller’sFOIL request for certain documents.

Initially addressing a procedural issue, the Appellate Division said that although Supreme Court reviewed the Division’s determination using the "arbitrary and capricious" standard instead of determining whether the denial "was affected by an error of law", the matter need not be remanded since Division correctly determined that FOIL did not require disclosure of the materials sought by Miller.*

As to the merits of Miller’s appeal, the Appellate Division explained that the Division properly withheld the four legal opinions he had requested pursuant to the "intra-agency materials" exemption set out in Public Officers Law § 89[2][g] as these documents were essentially "predecisional memoranda” prepared to assist the Division in its decision-making process and were not final agency determinations or policy. Rejecting Miller’s argument to the contrary, the court said that the opinions neither fell under the exceptions to this exemption set out in Public Officers Law §89[2][g][i]), which is applicable with respect to “statistical or factual tabulations or data” nor Public Officers Law § 89[2][g][ii], which is applicable with respect to “instructions to staff that affect the public."

Citing Short v Board of Mgrs. of Nassau County Med. Ctr., 57 NY2d 399, the Appellate Division said that three of the four opinions are "specifically exempted from disclosure by state . . . statute" whereby Executive Law §297(8) prohibits the Division from making public information contained in reports obtained by it with respect to a particular person without that individual's consent.

As to Miller’s request for the Division’s "Case Management System Legal Resources Notebook," the court ruled that this was not a record within the meaning of FOIL. The “Notebook,” said the Appellate Division, is not "information" but rather a software application providing the means of accessing information in the Division’s electronic file system. Further, said the court, the Division also properly withheld the user's manual for that application as its disclosure "would jeopardize [the Division’s] capacity . . . to guarantee the security of its . . . electronic information systems."

Finally, the Appellate Division ruled that as Miller “has not substantially prevailed, he is not entitled to attorney's fees and costs pursuant to Public Officers Law §89(4)(c).”

* Where an administrative body renders a determination without holding a hearing, the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis.See CPLR 7803[3]

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_07742.htm
.

Saturday, November 15, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 14, 2014


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 14, 2014
Click on text highlighted in color  to access the full report

The department performed approximately 6,000 inspections at almost 1,400 locations in calendar year 2013. Despite staffing shortages, the department does not have a backlog of safety inspections; all mandated inspections had been completed for 2013. However, the staffing shortfalls have required it to cut back on other activities or goals it also considers important to quality control and safety such as delivery vehicle inspections, plant raw and pasteurized milk sampling, and butterfat testing.


Department of Health: Unnecessary Medicaid Payments for Children at Voluntary Agencies (Follow-Up) (2014-F-5)
An initial audit report issued in September 2012 found that DOH could save millions of Medicaid dollars annually by assessing and modifying certain policies and practices that drive the costs of medical care provided to children placed at voluntary agencies. In a follow-up report, auditors found DOH has made progress in implementing the recommendations made in the initial audit report. Of the report’s five audit recommendations, three were implemented, one was partially implemented and one was not implemented.


Department of Health: Medicaid Program: Overpayments to Managed Care Organizations and Hospitals for Low Birth Weight Newborns (2013-S-57)
Medicaid made $12,378,309 in overpayments for low birth weight payments that did not meet the necessary requirements. For example, Medicaid paid one managed care organization $99,044 for a low birth weight payment based on a reported newborn birth weight of 215 grams. However, the newborn’s actual birth weight was 3,215 grams. Medicaid should have only paid the MCO $3,232. There was an additional $949,681 in potential overpayments for similar claims at high risk of not meeting the billing requirements for supplemental low birth weight claims. Medicaid paid $548,404 in duplicate fee-for-service and managed care low birth weight newborn claims. At the time the audit fieldwork concluded, auditors recovered more than $7 million of the overpayments identified.


Department of Labor: Amusement Park and Fair Ride Safety (2014-S-47)
Auditors conducted site visits at 53 locations across the state covering almost 1,000 rides and found each of the rides being operated at all of the 53 locations had been inspected and permitted as required.


Department of Motor Vehicles (DMV): Driver Responsibility Assessment Program (2013-S-53)
DMV accurately assessed all program fees and either collected these fees or suspended the licenses or the privilege to obtain a license of drivers who did not pay. However, the DMV needs to improve its internal controls over manual adjustments made to the program database by ITS staff.


Metropolitan Transportation Authority: MTA-NYC Transit Medical Assessment Centers (2013-S-33)
On a unit cost basis, auditors determined that Medical Assessment Centers (MAC) run by the MTA to gauge drivers’ health and ability to do their jobs were not more costly than using a contractor that previously performed the work. Auditors also concluded that there are opportunities to attain further efficiencies in the MAC program.


New York City Department of Buildings: Outstanding Violations (Follow-Up) (2014-F-13)
An initial report, issued in December 2011, found that New York City Department of Buildings managers did not have effective systems in place to ensure hazardous violations were resolved quickly. In a follow-up, auditors found the department has made progress in addressing the issues identified in the initial report. Of the four prior recommendations, two have been implemented and two have been partially implemented.


New York State Health Insurance Program: Empire BlueCross BlueShield – Selected Payments for Special Items for the Period April 1, 2011 Through June 30, 2011 (Follow-Up) (2014-F-6)
In an initial report, auditors determined Empire did not have adequate controls to ensure special items were paid according to contract limitations. As a result, Empire made a net overpayment of $119,141 on 33 claims. In a follow-up report, auditors found Empire officials made considerable progress in implementing the recommendations made in the initial audit report. Of the three prior recommendations, two were implemented and one was partially implemented. Empire recovered the overpayments from hospitals, implemented controls to ensure payments for special items are made in accordance with hospital agreements, and made significant progress to ensure that future agreements with hospitals contain language limiting the reimbursement of special items.


Port Authority of New York and New Jersey: Vehicle and Heavy Equipment Purchase Program (Follow-Up) (2014-F-2)
An initial report issued in December 2010 found that the Port Authority generally did not follow required procedures to ensure that the acquisition of vehicles and heavy equipment was justified. In a random sample of 75 items that were purchased for $8.2 million, the Port Authority provided documentation for only two items for $192,279. In addition, the Port Authority included funds for vehicle and equipment rentals in its annual Purchase Program. Auditors also found that the car service contract amounts were excessive compared to the amount the Port Authority actually spent. In a follow-up, auditors found the Port Authority has made some progress in addressing the issues identified earlier. Of the eight prior recommendations, two were implemented, and three were partially implemented and three were not implemented.
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Thursday, November 13, 2014

Deleting e-mails sent by the supervisor


Deleting e-mails sent by the supervisor
OATH Index No. 2553/14

The appointing authority filed disciplinary charges against an employee charging the individual with having deleted 27 of the 29 of the e-mails sent by her supervisor without having read them and disobeying an order not to delete e-mails transmitted by the supervisor.

Testimony presented at the hearing included a statement by the employee’s supervisor that he had “received via e-mail notices that [the employee] had deleted without reading … e-mails on which he had copied [the individual].

OATH Administrative Law Judge Astrid B. Gloade found that misconduct was not proven and recommended dismissal of the charges as the evidence in the record did not establish that the employee was given an order to retain the e-mails. Further, explained the ALJ, the appointing authority “failed to prove that even if [the employee] had deleted the e-mails it would have constituted misconduct. Misconduct may be premised on carelessness or negligence, as well as willful or intentional conduct.”

In the words of the Administrative Law Judge: “I find that [the employer] failed to establish by a preponderance of the evidence that [employee] committed misconduct and recommend that the charges be dismissed.”

Among Judge Gloade's finding: 27 of the 29 of the emails were deleted on a Sunday morning and that the appointing authority failed to present any evidence that the employee was at work, or had remotely accessed her e-mail account, at that time.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2553.pdf
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Wednesday, November 12, 2014

New York State's Veterans Employment Act .


New York State's Veterans Employment Act
Source: NYS Department of Civil Service

The New York State Department of Civil Service has distributed General Information Bulletin No. 14-04 to State Department and Agency Directors of Personnel and Affirmative Action Officers.  Bulletin 14-04 states advises::

“On January 20, 2014 the Executive Law was amended to add Chapter 17-A, also known as the Veterans Employment Act. Pursuant to Section 369 of the Executive Law, it will be the policy of the state to use eligible discharged veterans for temporary appointments in state agencies rather than utilizing temporary employment service companies.

“To this end, it will be the responsibility of the Department of Civil Service to create and maintain a veteran temporary hiring list. The law requires a state agency to select a veteran from the veteran temporary hiring list when making a temporary appointment, provided that the veteran possesses the applicable skills needed for the temporary assignment.”

Veteran Eligibility

“In order to be eligible to participate in the Veterans Temporary Hiring Program an individual must have served on active duty in the United States Army, Navy, Marine Corps, Air Force, Coast Guard or the Reserve Components of the Armed Forces of the United States or served in active military service of the United States as a member of the Army National Guard, Air National Guard, New York Guard or New York Naval Militia, and have been released from such service otherwise than by dishonorable discharge after September 11, 2001.

“We expect that jobseekers will upload their federal form DD-214 (Military Service Record) in the portal and agencies will use this information to verify their eligibility for participation in the program.”

Temporary Appointments

“A state agency must select a qualified veteran from the Veteran Temporary Hiring Program portal when making a temporary appointment to a temporary-hourly budgeted position, provided the veteran possesses the applicable skills needed for the temporary assignment. A qualified veteran willing to accept the position must be selected prior to making an appointment of a non-veteran.”

Additional information is posted on the Internet at:
http://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB14-04.cfm
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Friday, November 07, 2014

Recent ruling by the Appellate Division concerning alleged unlawful discrimination


Recent ruling by the Appellate Division concerning alleged unlawful discrimination
Browne v Board of Educ, 2014 NY Slip Op 07465, Appellate Division, Second Department
Matter of Katz (Commissioner of Labor), 2014 NY Slip Op 07556, Appellate Division, Third Department

The Browne decision:

This decision by the Appellate Division illustrates the shifting of a party’s “burden of going forward” in litigating a complaint alleging unlawful discrimination.

Robert Browne attempted to recover damages for alleged employment discrimination on the basis of gender in violation of Executive Law §296.

The New York City Board of Education [Department] appalled so much of an order of the Supreme Court that denied its motion for summary judgment dismissing the cause of action in which Browne alleged employment discrimination based on gender.

The Appellate Division affirmed the lower court’s ruling explaining that Browne, in opposing the Board’s “prima facie showing that there was a legitimate, raised a triable issue of fact as to whether the Department’s explanation was false, misleading, or incomplete, and thus, a pretext for discrimination.

Accordingly, said the court, the Supreme Court properly denied that branch of the Department’s motion for summary judgment dismissing Browne’s first cause of action, which alleged employment discrimination based on gender.

The Appellate Division also noted that the Department, by failing to raise collateral estoppel as an affirmative defense to Browne’s cause of action alleging employment discrimination either in its pre-answer motion to dismiss or in its answer, waived it, citing CPLR §3211[a][5],[e].


The Katz decision:

The Katz decision by the Appellate Division demonstrates a difficulty that resulted from an individual submitting his or her resignation from the position based on what the court characterized as the employee's “perceived  religious harassment” without first giving the employer an opportunity to investigate the matter.

Roberta B. Katzbegan working for an organization that provides vocational services for persons with disabilities and was being trained to assume the position of director of accounting.

Prior to accepting the job, Katz received the employer's assurance that her religious practices would be accommodated permitting her to leave work at 2:45 p.m. on Friday, December 7, 2012. Her trainer scheduled a meeting on that date from 2:00 p.m. until 3:00 p.m., but told claimant that she could leave at 2:45 p.m. At 2:40 p.m. the trainer told Katz that she needed her to prepare a computer-generated report.

Katz told the trainer she could not complete the report within five minutes and the trainer agreed to prepare it herself. The trainer then asked Katz to log on to her computer to get a password the trainer needed to do the report. At 2:50 p.m. the trainer told Katz to leave.

Katz did not report to work the following Monday, but resigned from her position due to what she perceived was religious harassment.

Katz applied for unemployment insurance benefits and ultimately the Unemployment Insurance Appeal Board ruled that she was disqualified from receiving such benefits because she had voluntarily left her employment without good cause. Katz appealed the Board's ruling.

The Appellate Division affirmed the Board’s determination explaining regardless of the  “inappropriateness of the trainer's actions,” Katz resigned from her position without affording the employer an opportunity to investigate the matter or take corrective action.

Noting that Katz had emailed the employer announcing her resignation the Sunday after the incident and before she even discussed it with the employer's human resources manager, the court ruled that under these circumstances substantial evidence supported the Board's finding that Katz had voluntarily left her employment without good cause.

The Browne decision is posted on the Internet at:

The Katz decision is posted on the Internet at:


Thursday, November 06, 2014

The Unemployment Insurance Appeal Board is bound by the disciplinary arbitrator's factual findings regarding the employee’s misconduct


The Unemployment Insurance Appeal Board held bound by the disciplinary arbitrator's factual findings regarding the employee’s misconduct 
2014 NY Slip Op 07414, Appellate Division, Third Department

A NYC Transit Authority [Authority] train operator [Operator] was served with disciplinary charges. Following a full evidentiary arbitration hearing conducted under the collective bargaining agreement, Operator was terminated.

Operator applied for unemployment insurance benefits and the Unemployment Insurance Appeal Board, noting that it was bound by the factual findings of the arbitrator, conducted an "independent evaluation” as to whether Operator’s behavior constituted disqualifying misconduct for the purposes of unemployment insurance.

The Board, however, found that Operator’s behavior leading to the Authority’s filing disciplinary charges did not constitute “disqualifying misconduct” within the meaning of the Unemployment Insurance Law and approved his claim for unemployment insurance benefits.

The Appellate Division reversed the Board’s determination.

The court explained that "While the Board was free to make 'independent additional factual findings' and draw its own independent conclusion as to whether [Operator’s] behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the [arbitrator's] 'factual findings regarding [Operator’s] conduct and [her] conclusion' that claimant had" committed serious violations of safety rules.

In this instance the arbitrator found that Operator had committed “grave violations of the employer's policies that had endangered the safety of his passengers, violations that were rendered even more egregious by the fact that he had previously been disciplined for similar conduct.”

In contrast, said the court, the Board “inexplicably found that [Operator] had ‘substantially complied with’ the [Authority’s] policies and made no effort to consider [Operator’s] behavior within the context of his prior disciplinary history."

Accordingly the Appellate Division ruled that the Board improperly contradicted factual findings of the arbitrator and remitted the matter to the Board for it to "reconsider upon appropriate findings."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_07414.htm
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Wednesday, November 05, 2014

If a settlement or award includes a payment only the part constituting reimbursement for lost wages is included in determining the employee’s retirement allowance


If a settlement or award includes a payment only the part constituting reimbursement for lost wages is included in determining the employee’s retirement allowance
2014 NY Slip Op 07412, Appellate Division, Third Department

In 2006 a grievance brought by the union on behalf of a teacher [Teacher] who was not selected for a coaching position was settled with the school district. The settlement included a payment in the amount of $9,500 for “lost wages” as the result of Teacher not being given a coaching position.

This 2006 settlement award was included in the calculation of Teacher's final average salary for retirement purposes by the New York State Teachers' Retirement System [TRS].

Teacher was not appointed to a coaching position for either of the next two school years.  The union again filed a grievance on behalf of Teacher and again the matter was settled. A 2011 settlement “memorandum of understanding [MOU]” provided for an awarded of $11,220.* This amount constituted the stipends that Teacher would have been paid had he been appointed to a coaching position for both school years.

Teacher then asked TRS to recalculate his three-year final average salary to include the 2011 settlement payment provided by the MOU and to adjust his retirement allowance accordingly. TRS determined that because the payment provided pursuant to the 2011 MOU was not part of Teacher‘s regular compensation it could not be included in the final computation of his retirement benefit.

Teacher sued TRS seeking a court order annulling its decision, arguing that TRS’s decision was arbitrary and capricious in light of its previous inclusion of the 2006 settlement payment in its computation of his final average salary.

Supreme Court dismissed Teacher’s petition and he appealed that ruling to the Appellate Division.

The Appellate Division noted that a TRS member's final average salary is based on his or her highest average annual regular salary that was earned over any three consecutive years of service prior to retirement but shall exclude, among other things, "payments which are not part of the salary base."

TRS had explained that it had included the payment made to Teacher pursuant to the 2006 stipulation as the MOU reflected an acknowledgment by the school district that it had violated an existing collective bargaining agreement when it denied Teacher's coaching application on the ground that he was unqualified and gave the positions to teachers with less seniority. In addition, the 2006 settlement confirm that Teacher was indeed eligible to assume the coaching positions.

However, TRS pointed out that the 2011 MOU settling Teacher's subsequent grievances “did not concede, in any manner, that the denial of Teacher ‘s coaching applications for the 2005-2006 and 2006-2007 school years had resulted in any contractual violations….” In fact, said TRS, the 2011 MOU reiterated the school district's assertion that Teacher "was unqualified for the coaching position at issue."

The Appellate Division said that the fact that the school district opted to pay Teacher in exchange for a complete settlement of his claims against it does not create a basis to find that Teacher was eligible for the coaching appointments. Accordingly, the court found that the MOU settlement payment did not constituted compensation that Teacher would have earned and thus TRS was correct in excluding the 2011 settlement payment in its calculation of Teacher’s final average salary.

Finding that TRS’s determination, which was rendered without a hearing, was rational and not arbitrary and capricious, the Appellate Division declined to disturbed it.

* The Appellate Division observed that “Although the MOU states that the $11,220 settlement amount constitutes the stipends of $5,605 that Teacher would have been paid if appointed to a coaching position during each of the two school years for which he applied, the annual stipend amounts actually total $11,210.”

The decision is posted on the Internet at:
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Monday, November 03, 2014

Removal of a public officer from his or her office


Removal of a public officer from his or her office
Kalodukas v Berentsen, 2014 NY Slip Op 07406, Appellate Division, Third Department

Glenda Kalodukas and other citizen residents of the Village of Bloomingburg in Sullivan County [Kalodukas], filed a petition in the Appellate Division pursuant to Public Officers Law §36* seeking to have the Appellate Division remove Mark Berentsen from his position of Mayor of the Village, alleging, among other things, that he violated General Municipal Law Article 18.**

Berentsen asked the court to dismiss the petition arguing, among other things, that the proceeding was moot in view of the fact that he was unsuccessful in his bid for reelection and no longer held the office of Mayor. The Appellate Division agreed and dismissed Kalodukas’ petition.

The court explained §36 of the Public Officers Law provides, as relevant in this action, that a village officer may be removed from office for "misconduct, maladministration, malfeasance or malversation in office." As Berentsen had lost his bid for reelection and no longer helds the public office from which Kalodukas sought to have him removed, the Appellate Division said that “the proceeding is undoubtedly moot.” 

In addition, the court addressed Kalodukas’ argument that the petition was not moot because Berentsen’s removal would prevent him from holding public office in the future. The Appellate Division, in a footnote, said that findings against an official in a removal proceeding pursuant to §36 of the Public Officers Law would not a bar his or her subsequent election to public office.***

* Such an application for removal may be made to the appellate division by any citizen resident of such town, village, improvement district or fire district, or by the district attorney of the county, in which such town, village or district is located. The officer is to given at least eight days notice and a copy of the charge[s] upon which the application will be made must be served with such notice.

** Article 18 is captioned Conflicts of Interest of Municipal Officers and Employees”

*** In contrast, the court noted that Article VI, § 22 [h] of the State Constitution “A judge or justice removed by the [C]ourt of [A]ppeals shall be ineligible to hold other judicial office."

The decision is posted on the Internet at:

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