Best Lawblog Contest for 2017 now being conducted by The Legal Institute

From now until
September 15th, 2017, Lawblog fans can nominate their favorite blogs and bloggers for inclusion in the voting round of 2017. As in previous years, the nomination process is competitive, meaning the more nominations a blog receives, the more likely it is to be included in the public voting stage of the contest.

To access the link to the nomination form, click on:

https://www.theexpertinstitute.com/blog-contest/?utm_source=email&utm_medium=email&utm_content=CTA&utm_campaign=blog-contest-8.14.2017-general

Friday, January 31, 2014

The 2014 Anderson Series Seminars scheduled


The 2014 Anderson Series Seminars scheduled
Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will present the 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program held at the Capitol during the Legislative Session.

The program features informative speakers to address legal aspects of current public policy issues facing the State of New York. Since it was established 22 years ago, the Anderson Series has been one of the most prestigious and anticipated events on the GLC’s calendar. The program continues to be offered free of charge, but space is limited.

The following presentations are schedule to be held on the dates indicated:

MUNICIPAL FINANCE - February 11  
INFRASTRUCTURE FUNDING - April 8  
CAMPAIGN FINANCE - April 29  
EDUCATION REFORM AND THE COMMON CORE - May 20  

All session are held from 8-9 a.m. on the dates indicated above in the Assembly Parlor, at the State Capitol, 3rd FL

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329. 
.

Thursday, January 30, 2014

Defending and indemnifying an educator sued in a civil action arising out of the exercise of his or her duties


Defending and indemnifying an educator sued in a civil action arising out of the exercise of his or her duties
2013 NY Slip Op 52173(U), Supreme Court, Cortland County [Not selected for publication in the Official Reports]

A lawsuit [Civil Action] was filed on behalf of a female student alleging five causes of the action: (1) a negligent supervision claim against the school district; (2) an assault claim against a teacher [Teacher]; (3) a battery claim against Teacher; (4) an intentional infliction of emotional distress claim against Teacher; and (5) a negligent infliction of emotional distress claim against Teacher.

Upon being served with the summons and complaint, Teacher, citing Education Law §3028*, asked the school district provide him with a defense and indemnification in the Civil Action. The school district notified Teacher that it would provide, through its liability insurer, a defense of the underlying action and indemnification for any damages that may be awarded against Teacher on the fifth cause of action — for negligent infliction of emotional distress — but that it would not provide indemnification for any damages that may be awarded for the intentional torts alleged in the second, third, or fourth causes of action.

In response to the school district's refusal to provide him with complete indemnification, Teacher filed an Article 78 petition seeking a court order directing the school district to so provide such indemnification. The school district moved, without answering Teacher’s petition, for summary judgment and dismissal of his petition as a matter of law.

Education Law §3811.1, in pertinent part, provides that in the event a superintendent, principal, member of the teaching or supervisory staff, member of a committee on special education or subcommittee thereof, surrogate parent as defined in the regulations of the commissioner of education, or any trustee or member of the board of education of a school district or non-instructional employee of any school district other than the city school district of the city of New York or any board of cooperative educational services shall defend any action or proceeding, other than a criminal prosecution or an action or proceeding brought against him by a school district or board of cooperative educational services hereafter brought against him, including proceedings before the commissioner of education, arising out of the exercise of his powers or the performance of his duties under this chapter,** all his reasonable costs and expenses, as well as all costs and damages adjudged against him … [emphasis supplied].

Addressing the school district’ motion to dismiss Teacher's claim for full indemnification in the Civil Action, Supreme Court said that it may properly consider the merits of Teacher’s petition “because the dispositive facts are undisputed and the parties had ample opportunity to present their respective arguments”, noting that such a motion to dismiss must be granted where the petition and supporting papers fail to allege facts sufficient to support the alleged claim.

The Education Law §3811(1), said the court, requires the school district defend Teacher in a civil actions arising out of the exercise of his duties and indemnify him from any resulting damages. The issue of whether the alleged conduct on which the Civil Action is based comes within the provisions of Education Law §3811(1) as having been within the discharge of Teacher's professional duties as an employee of the school district is for school district to decide in the first instance. The school district’s determination in this regard may be set aside only if it lacks a factual basis and, therefore, is arbitrary and capricious.

An employee's actions are within the scope of his or her employment only if the purpose of such acts is to further the employer's interest, or to carry out the duties owed to the employer. Here the school district concluded that Teacher's actions with respect to the fifth cause of action set out in the Civil Action was within the scope of his employment and, therefore, offered a defense of the entire Civil Action but limited its duty to indemnify Teacher with respect to the fifth cause of action.

In this regard, the court said that the fact that some of the alleged conduct may have arisen in Teacher's performance of his duties does not require that he be indemnified for damages based on conduct that exceeds the scope of his employment. With respect to the allegations on which the second, third and fourth causes of action are based the school district concluded that such conduct is not within the scope of Teacher's employment.

With respect to Causes of Actions 2, 3 and 5, Supreme Court held that there was no basis for concluding that Teacher's conduct, allegedly constituting an intentional tort, amounted to acting in good faith or that such conduct was merely the result of Teacher’s inartfully trying to fulfill his duties. Similarly, said the court, no reasonable argument may be made that such conduct either furthers the school district's legitimate interests or was required for Teacher to carry out his duties.

Finding that the school district had a rational basis for concluding that the conduct alleged in Causes of Action 2, 3 and 4 were not performed within the scope of Teacher's employment, the court ruled that the school district has no duty to indemnify Teacher with respect to those three causes of action. 

Supreme Court then “ordered that [the school district] provide Teacher with a defense of the underlying action and indemnity for damages arising from the fifth cause of action asserted therein” and dismissed the remainder of Teacher’s petition with prejudice.

* Teacher’s notice of petition and relief sought was deemed amended to conform to the proof (seeCPLR 3025[c]), by changing "3028" to "3811" on the representation that citing 3028 was a scrivener’s error.

** The court noted that the phrase utilized in Education Law § 3811 — "arising out of the exercise of his powers or the performance of his duties under this chapter" — is equivalent to the term "scope of employment," "scope of employment," "discharge of duties," "performance of duties," and similar phrases are interchangeable citing Segal-Cotler v Board of Education, 20 NY3d 671.

The decision is posted on the Internet at:

.

Wednesday, January 29, 2014

An administrative disciplinary penalty that is within the discretion of the reviewing agency to impose will not be disturbed by the court


An administrative disciplinary penalty that is within the discretion of the reviewing agency to impose will not be disturbed by the court
2014 NY Slip Op 00261, Appellate Division, Third Department

The Board of Regents suspended an individual’s [LPN] license to practice as a licensed practical nurse in New York for two years following her pleading guilty to petit larceny to satisfy charges against her for fraudulently obtaining unemployment insurance benefits.LPN was sentenced to three years of probation and ordered to pay restitution in the amount of $17,860.50.

The State Education Department's Office of Professional Discipline then sought to impose an administrative disciplinary penalty on LPN based on her criminal conviction.Following a hearing, the Office of Professional Discipline advocated for a revocation of LPN's license. 

However, the Regents Review Committee recommended that LPN's license be suspended for two years. The Board of Regents accepted the Review Committee's recommendation. LPN sued, challenging the “appropriateness of the penalty” imposed on her by the Board of Regents.

Applying the Pell Doctrine,**the Appellate Division said that an administrative penalty that is within the discretion of the reviewing agency to impose will not be disturbed unless it is so disproportionate to the offense as to shock one's sense of fairness. 

Here, said the court, notwithstanding the recommendation of the Office of Professional Discipline, the Board, considering mitigating circumstances: the lack of any direct relation between LPN's misconduct and her work as a licensed practical nurse, and LPN’s “genuine remorse,” determined that determined that a significant suspension of LPN’s license was warranted “based on the amount of money stolen over a 10-month period.”

LPN had argued that, in addition to these factors, the economic impact of the suspension on her family should be taken into consideration. However the Appellate Division said that the record indicates that the Board was aware of LPN’s financial situation.

Under the circumstances, including LPN's admitted breach of the standards of honesty and integrity expected of a professional, the court said that the penalty imposed by the Board of Regents was not so disproportionate to her offense as to shock one's sense of fairness and dismissed LPN’s appeal.

* Education Law §6509[5][a][i] indicates that “Being convicted of committing an act constituting a crime under: (i) New York State law” constitutes professional misconduct.

** Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:
.

Tuesday, January 28, 2014

Finding that Educator “lacked good moral character” results in revocation of her teaching license


Finding that Educator “lacked good moral character” results in revocation of her teaching license
2013 NY Slip Op 08318, Appellate Division, Third Department

After students complained that a high school teacher [Educator] was exhibiting favoritism towards certain male students and sending text messages to one male student, the school principal advise Educator about her behavior and that she should avoid even appearances of impropriety.

The following year, similar complaints led to an investigation and the superintendent placing Educator on administrative leave. Educator was allowed to return from leave after she agreed “to follow a teacher improvement plan that required, among other things, that she not meet alone with students.” The plan also suggested that she avoid exchanging communications of a personal nature or engaging in activities beyond the boundaries of an appropriate student/teacher relationship.

Because Educator did not reform her behavior, the district initiated dismissal proceedings whereupon Educator resigned from her position.

Ultimately the State Department of Education initiated an investigation into Educator 's moral character*and issued a notice of substantial question of moral character. Educator requested a hearing, following which the panel found that Educator lacked good moral character because she had engaged in inappropriate contact with a student and disregarded a directive from the superintendent. The majority of the panel recommended that Educator’s teaching certificate be revoked.

The Commissioner of Education agreed with the panel findings regarding Educator’s lack of good moral character and revoked her teaching certificate.**

Following Supreme Court’s dismissed Educator 's CPLR Article 78 petition seeking annulment of the Commissioner's determination, Educator appealed.

The Appellate Division said the finding that Educator lacked good moral character was not arbitrary or capricious. As an example of the information in the record, the Appellate Division noted that Educator's phone records and testimony from an Education Department investigator established that Educator had exchanged over 1,800 text messages with a particular male student between September and May, with 268 of them sent between the hours of 10:00 p.m. and 7:00 a.m. The court commented that “Although the content of the messages and calls is unknown, and [Educator] testified that none of it was inappropriate, the sheer volume of messages between a student and teacher raised red flags.”

The decision reports that “In her testimony, [Educator] acknowledged that her contact with students was not proper because it blurred the boundaries of the teacher/student relationship, but she used her testimony as an opportunity to justify her behavior or blame the students” and “Educator continued exchanging messages after being warned, disciplined and resigning her position for her nonprofessional contact with students, indicating that she did not truly understand or appreciate the improper nature of her extensive personal contact with students.”

The Appellate Division ruled that the Commissioner of Education did not abuse his discretion in imposing the penalty of revocation, as that penalty was not shocking or disproportionate to Educator's conduct.

* See 8 NYCRR 83.1, Determination of good moral character.

** Education Law §305.7 provides, in pertinent part, that “The commissioner may annul upon cause shown to his or her satisfaction any certificate of qualification granted to a teacher by any authority whatever….”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_08318.htm
.

Governor Cuomo to launch a citizen preparedness corps training program on February 1, 2014


Governor Cuomo to launch a citizen preparedness corps training program on February 1, 2014
Source: Office of the Governor

Governor Cuomo believes that more New Yorkers than ever need to be prepared and be trained to respond in the event of an emergency. His goal: Provide 100,000 citizens with the tools they need to be ready and able to help their families and neighbors during emergencies

To achieve this, on February 1, 2014 the Governor will launch the Citizen Preparedness Corps Training Program that will train some 100,000 New Yorkers in the proper preparation for emergencies or disasters by December 31, 2014. The Governor explained that the program seeks to provide citizens of the State with the tools and resources to prepare for emergencies and disasters and to be able to respond and attain, as quickly as possible, to pre-disaster conditions in the event New York experiences a natural disasters.

Citizen Preparedness Corps training will begin on Saturday, February 1st in Richmond and Suffolk Counties at:

Saturday, February 1st, 2014 - Richmond County
New Dorp High School, 10:00 a.m. - 12:00 p.m.
465 New Dorp Lane, Staten Island, NY 10306

Saturday, February 1st, 2014 - Suffolk County
Farmingdale State College, 12:00 p.m. - 2:00 p.m.
Roosevelt Hall, Multipurpose Room
2350 Broadhollow Road, Farmingdale, NY 11735

Space is limited, and those wishing to participate must register in advance. Pre-registration for the training session is available at: http://www.nyprepare.gov/aware-prepare/nysprepare/

Training sessions will be led by New York National Guard personnel, working with experts from the Division of Homeland Security and Emergency Services’ Office of Emergency Management and Office of Fire Prevention and Control. All training sessions will be coordinated with local county emergency management personnel.

A key component of this training effort is the distribution of Citizen Preparedness Corps Response Kits that contain key items to assist individuals in the immediate aftermath of a disaster.

Each training participant [limited to one kit per family] will receive a free Citizen Preparedness Corps Response Starter Kit. The Starter Kit includes a plastic drop cloth; light stick; a First Aid Kit; a face mask; safety goggles; an AM/FM pocket radio with batteries; six packs of drinking water; six food bars; a regular flashlight and two D batteries; an emergency blanket; duct tape; work gloves; and a water bottle. As part of the training, participants will receive information about the other supplies and personal information that they should add to their personal Response Kit.

Click here for a photo of the kit.
.

Monday, January 27, 2014

Highlights in New York State’s proposed Executive Budget 2014-2015 concerning the State's Workforce


Highlights in New York State’s proposed Executive Budget 2014-2015 concerning the State's Workforce

Source – Office of the Director of the Budget

Overview - the State’s Workforce -

The Executive Budget reflects collective bargaining agreements with 90 percent of the State workforce that has resulted in initial savings of $300 million and on-going health benefit savings of $230 million. The size of the State workforce is expected to be relatively stable in 2014-15, following a significant period of contraction.

State employees deliver services to the public and manage a range of facilities and provider networks.They oversee and administer billions of dollars in program funding and capital projects. There are 179,759 State employees employed in Executive agencies, the SUNY and CUNY systems and in the Offices of the Attorney General and State Comptroller. The number of positions in agencies directly controlled by the Executive will have declined by 8,239 (6.5percent) between the period December 2010 to the end of 2014-15, from 27,392 to 119,153.

Approximately 94 percent of the State workforce is unionized; there are 10 employee unions and 14 negotiating units. In addition, approximately 10,800 employees are considered Management/Confidential (M/C) and are not represented by a union. State employees receive an average compensation (salary and other pay) of $66,993 plus fringe benefits, totaling $104,60.

Maintaining a Cost-Effective State Workforce

The State has settled collective bargaining agreements with 90 percent of the entire workforce and nearly all of the workforce that is subject to direct Executive control. these agreements yielded significant wage and benefit savings, including:

No general salary increases for three years (2011-12 through 2013-14);

Two percent general salary increases in 2014-15, as well as in 2015-16 for CSEA, NYSCOPBA, Council 82, and UUP;

A two-year temporary reduction in employee compensation; and

Increases to employee/retiree health benefit premium shares, copays, out-of-network deductibles and coinsurance that save nearly $230 million annually.

In 2012-13, the State enacted Tier VI pension reform to help control increasing retirement costs for State government, local governments and school districts. As of April 1, 2012, all newly hired public employees belong to Tier VI. This new pension tier requires employees to contribute, depending upon annual salary, between 3 percent and 6 percent of their salary toward their pension; raises the retirement age for non-uniformed employees from 62 to 63; reduces the pension multiplier so that a 30-year employee, for example, will have a 55 percent pension benefit instead of a 60 percent benefit; extends the Final Average Salary period from 3 to 5 years; and places a $15,000 cap on overtime factored in the calculation of Final Average Salary. In addition, Tier VI provides new employees who do not belong to a bargaining unit and earn more than $75,000 per year the option of enrolling in a defined contribution plan. It is estimated this reform will significantly diminish long-term pension costs, saving the State, local governments and school districts more than $80 billion over the next 30 years.

Additionally, in calendar year 2013, the State commenced the provision of prescription drug coverage to its Medicare eligible retirees through a Part D Employer Group Waiver Plan (EGWP). This will facilitate the maximization of Federal Medicare reimbursement, thereby reducing the State's Other Post-Employment Benefits (OPEB) liabilities from $59 billion to $54 billion without reducing current benefit levels.

Finally, the State's employee and retiree health plan, the Empire Plan, is now entirely self-insured. The medical component of the Plan became self-insured on January 1, 2013, and the hospital, prescription drug and mental health components became self-insured on January 1, 2014. Previously, the State paid a set annual premium to its health insurance carriers to fund benefit claims.

Under the new arrangement, the State assumes full responsibility for the payment of benefit claims. This allows the State, local governments and public authorities (and their employees and retirees) to avoid paying annual New York State and certain Federal Affordable Care Act taxes, fees and assessments.

Proposed 2014-15 Budget Actions

Eliminate Reimbursement of Supplemental Medicare Part B Premiums for Higher Income State Retirees.

Annual spending growth in the area of employee and retiree health benefits is nearly 7 percent, or roughly $200 million. Retirees account for about 45 percent of such spending, or $90 million. Currently, to minimize the cost of retiree health benefits, upon turning 65 all retirees participating in the New York State Health Insurance Plan (NYSHIP) are required to enroll in Medicare Part B (Medical Insurance Coverage).

To further curtail retiree health benefit spending growth, the Executive Budget will eliminate State reimbursement of the additional monthly Federal Medicare Part B premium–the Income Related Medicare Adjustment Amounts (IRMAA) – whichhas been paid by higher-income retirees since 2007. The State will continue to reimburse the regular Federal premium of $104.90 per month in 2014. The additional IRMAA premiums are paid by single retirees who earn more than $85,000 per year and married retirees who earn more than $170,000 per year. This demographic consists of less than five percent of 145,000 State retirees and dependents with Medicare coverage. Depending upon income bracket, the additional IRMAA premiums range from $42.00 to $230.00 per month in 2014. This action will take effect on January 1, 2014, resulting in savings of $1.7 million in 2014-15, but will grow to over $7 million on a full annual basis in 2017-18.

Briefing Book – [By Section]
(Click on text highlighted in color to access the specific material listed.)

Table of Contents 

Director’s Message (PDF, 150KB)


2014-15 Executive Budget


Program Overview

Education and Arts (PDF, 119KB)
Health Care (PDF, 126KB)
Higher Education (PDF, 121KB)
Human Services (PDF, 122KB)
Local Government (PDF, 270KB)
Mental Hygiene (PDF, 185KB)
Public Safety (PDF, 197KB)
State Workforce (PDF, 114KB)
Transportation(PDF, 160KB)

The entire text of the Briefing Book is posted on the Internet at:
http://publications.budget.ny.gov/eBudget1415/fy1415littlebook/BriefingBook.pdf
.


Monetary penalty assessed against workers’ compensation benefit claimant’s attorney


Monetary penalty assessed against workers’ compensation benefit claimant’s attorney
2013 NY Slip Op 08495, Appellate Division, Third Department

This appeal challenged a decision of the Workers' Compensation Board that, among other things, assessed a monetary penalty counsel fees of $500 against a workers' compensation benefits applicant’s attorney pursuant to Workers' Compensation Law §114-a(3)(ii).*

An employee [Claimant] resides in the Bronx and was injured in the course of his duties as a correction officer at Rikers Island. His claim for workers' compensation benefits was not disputed.

Claimant, however, "request[ed]," on a form provided by his attorney, that all hearings in his case be conducted at a hearing site in the City of White Plains, Westchester County. The form asserting that his "request MUST BE GRANTED" pursuant to "Board Rule 10.01(1)(c)."

The Workers' Compensation Law Judge found no reasonable ground had been established for a change of venue, noting that "Board Rule 10.01" did not exist and that counsel for claimant had previously been warned that she would be sanctioned if she thereafter relied upon this purported rule as the basis for a change of venue application.

Ultimately the Workers’ Compensation Board found the award of counsel fees under §114-a(3)(ii) to be proper and increased the $250 assessment set by the Law Judge to $500.

The Appellate Division said that the sole issue in this appeal was whether the assessment of reasonable counsel fees against counsel for claimant was warranted. Affirming the Board decision, the court said that Workers' Compensation Law §114-a(3)(ii) permits the Board to assess reasonable counsel fees against counsel where a proceeding before it has "been instituted or commenced without reasonable ground."

The court noted that [1] counsel for claimant had previously been warned that seeking a change of venue based upon a nonexistent "Board Rule" would subject her to sanctions; [2] she elected to do so in this proceeding notwithstanding such earlier warning; [3] White Plains had no obvious connection to claimant or the accident that led to this claim; and [4] the Board found that counsel had not advanced any legitimate reason for a change of venue.

Finding that substantial evidence supported the Board's determination to assess reasonable counsel fees against counsel for claimant pursuant to Workers' Compensation Law §114-a(3)(ii), the Appellate Division sustained the Board ruling.

* The sole issue in this appeal is whether the assessment of counsel fees against claimant's attorney was warranted. As those fees were directly assessed against counsel, counsel is the party in interest pursuant to Workers' Compensation Law §23 and "should have filed the notice of appeal on her own behalf."  

The Wolfe decision is posted on the Internet at:
.

See, also, Banton v New York City Dept. of Corr. at: http://www.nycourts.gov/reporter/3dseries/2013/2013_08494.htmand
Toledo v Administration for Children Servs., at: http://www.nycourts.gov/reporter/3dseries/2013/2013_08500.htm
.

Sunday, January 26, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 25, 2014


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 25, 2014
Source: Office of the State Comptroller
 
Click on text highlighted in color  to access the full report

DiNapoli: DOT Efforts to Police Trucking Companies Falling Short

The state Department of Transportation is not adequately monitoring whether commercial carriers whose vehicles or drivers have been taken off the road because of violations are making needed repairs or corrections, potentially putting the public at risk, according to an auditreleased January 22, 2014 by State Comptroller Thomas P. DiNapoli.


DiNapoli: Binghamton City School Finances Progressing

Prudent budgeting and proactive financial planning by officials in the Binghamton City School District have helped to improve the district’s fiscal condition, according to an audit issued January 24, 2014 by State Comptroller Thomas P. DiNapoli.


DiNapoli Announces State Contract & Payment Actions for December

State Comptroller Thomas P. DiNapoli announced Thursday his office reviewed 2,193 contracts valued at $9.8 billion and approved more than 2.3 million payments worth $11 billion in December 2013. His office rejected 205 contract transactions valued at $358 million and 1,390 payments valued at $1.9 million due to fraud, waste and other improprieties.


Comptroller DiNapoli Releases School Audits

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








the True North Rochester Preparatory Charter School.
.

Saturday, January 25, 2014

New York State Offers New Exam For State Employment Opportunities

New York State Offers New Exam For State Employment Opportunities
Source: New York State Department of Civil Service
New York State’s Department of Civil Service has announced a new examination program for job seekers with Bachelor’s degrees.  The examination will be used to fill over one hundred entry-level professional titles in a range of disciplines.  College seniors expecting to earn a Bachelor’s degree by September 1, 2014 are also encouraged to apply.

The PCO exam qualifies job seekers for general administrative titles.  Job seekers can further establish their eligibility for select titles in areas such as health and human services, environmental conservation, science and finance by identifying concentrations of study or experience.

“The new application and questionnaire process expedites establishing minimum qualifications for a significant number of State employment opportunities,” said Civil Service Commissioner Jerry Boone.  “We have eliminated the need for numerous specific exams by creating one test that will qualify candidates for a host of general positions.  Candidates may also qualify for more specialized positions based on individual educational or work experience.”

After applying on-line, qualified job seekers will be scheduled to take the written PCO exam on either March 22nd or 23rd 2014.  Applications must be entered on-line by Wednesday, February 5th.  An application fee of $35 is required.  

To view the introductory video, questionnaire and application, visit www.cs.ny.gov and click on “Check out Professional Career Opportunities.”

Friday, January 24, 2014

The “Rule of Necessity” permits a tribunal, the members of which could be affected by the decision, to decide a case or controversy


The “Rule of Necessity” permits a tribunal, the members of which could be affected by the decision, to decide a case or controversy
Pines, et. al. v State of New York, 2014 NY Slip Op 00335, Appellate Division, Second Department

In deciding an action initiated by Emily Pines and other judges, Supreme Court that held that “the compensation of judges and justices of the Unified Court System of the State of New York was duly increased pursuant to the Laws of 2009, Chapter 51, §3, and that the [State] is obligated to pay the judges and justices of the Unified Court System of the State of New York in accordance therewith retroactive to April 1, 2009."

After conceding that “more than a decade had passed since the plaintiffs and their colleagues in the New York State judiciary had received a pay raise authorized by the Legislature,” and setting out the relevant history leading to Pines’ initiating this litigation, the Appellate Division recognized that “members of this Court have a pecuniary interest in this case and will be affected by the outcome of this appeal.”

The court then explained that "The participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions" and “in order to ensure the dignity of the judiciary and maintain the integrity of the administration of justice, [o]rdinarily, when a judge has an interest in litigation, recusal is warranted."

That said, the Appellate Division noted that "[t]he Rule of Necessity provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard." 

Here, said the court, "the self-interest implicated by the issues raised on appeal would provide grounds for disqualifying not only the justices of this Court, but any other judicial body which might replace it." As “the recusal of the members of this Court, and those of every other court in the Unified Court System, would leave the plaintiffs without a legal remedy, the ‘Rule of Necessity’ compels us to decide this appeal on the merits, notwithstanding our personal stake in the litigation.”

The Appellate Division then explained that, notwithstanding Supreme Court's conclusion to the contrary, “there is no language in the statute that adjusts the salary schedules of the various judges and justices of this state. As in prior years, the plain language of the statute merely directs that a certain sum necessary for adjusting judicial compensation be set aside—what has previously been recognized as a ‘dry appropriation.'"

Rejecting Pines’ position is that the statute must have adjusted the rates of judicial compensation because it referenced the purpose of the appropriation, the court concluded that this argument is not actually based on the plain language of the statute but rather “rests on an inference drawn from a reference to the appropriation's purpose.” In the words of the Appellate Division, … the plaintiffs' plain language argument would require us to interpret the statute in a manner that would render it unconstitutional.”

Further, the court noted that in deciding this appeal under the "Rule of Necessity," it is  “constrained to discern and apply the will of the elected members of the Legislature and not our own perceptions of what might be equitable,” quoting Alexander Hamilton writing in The Federalist, "[i]t can be of no weight to say that the courts . . . may substitute their own pleasure to the constitutional intentions of the legislature" (Hamilton, Federalist No. 78).”

Without addressing “the wisdom of the Legislature's decision or the manner in which it was carried out,” the Appellate Division concluded that the Legislature did not adjust judicial compensation through the enactment of the Laws of 2009, Chapter 51, §3” and reversed the Supreme Court’s ruling “on the law.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_00335.htm
.

Thursday, January 23, 2014

Returning to work following a voluntary absence due to illness or disability


Returning to work following a voluntary absence due to illness or disability
Source: New York State Department Of Civil Service, State Personnel Management Manual, Advisory Memorandum #14-01 dated January 22, 2014

Mark F. Worden, Associate Attorney, New York State Department of Civil Service, has distributed a memorandum, Advisory Memorandum #14-01, addressing “Return to Work Evaluations and Civil Service Law Section 72 Due Process Procedures.”

Mr. Worden explains that the New York State Court of Appeals decided two cases, Sheeran v. New York State Department of Transportation* and Birnbaum v. New York State Department of Labor (18 NY3d 61) in which it ruled that the procedural safeguards set out in Civil Service Law (CSL) §72 apply when an employee who is voluntarily on leave due to personal illness or a disability that is not work-related within the meaning of the Workers’ Compensation Law is prevented from returning to work by the appointing authority. Such a refusal to allow the employee to return to work converts his or her  voluntary leave into an involuntary leave. Accordingly, the appointing authority is then required to follow the procedures set out in CSL §72.1 or CSL §72.5, as the case may be, with respect to such an employee..

N.B. The Memorandum cautions that "It is essential that any employee denied a return to duty pending a hearing be provided with written notice that such action is being taken pursuant to CSL §72(5) and notified of the reasons for such action."

Mr. Worden also advises that “… all appointing authorities must review their return to work procedures to ensure that they are consistent with these Court of Appeals decisions” and follow the guidelines set out in Advisory Memorandum #14-01**

Although Mr. Worden’s memorandum is addressed to State Department and Agency “Personnel and Human Resources Directors,” and Sheeran and Birnbaum were employed by State Departments at the time they voluntarily placed themselves on leave, it is instructive to appointing authorities of political subdivisions of the State as well.

* NYPPL’s summary of the Sheeran and Birnbaum decisions is posted on the Internet at:

** Mr. Worden’s  memorandum Advisory Memorandum # 14-01 is posted on the Internet at: http://www.cs.ny.gov/ssd/Manuals/SPMM/2200SeparationsLeaves/Advisory%20Memo%2014-01.htm

================================

General Municipal Law §§207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://section207.blogspot.com/

================================ 
 .
.

Wednesday, January 22, 2014

Recent decisions reported by the New York City Office of Administrative Trials and Hearings



Recent decisions reported by the New York City Office of Administrative Trials and Hearings [OATH]
Issued during January 2014 [Click on text highlighted in color to access the text of the decision.]


OATH Administrative Law Judges making findings of fact and recommendations as to the disposition of the matter.
 
Correction officer was arrested as a result of a drug bust operation. After criminal charges against the officer were dismissed, Department of Correction (DOC) brought a disciplinary proceeding against the officer accusing him of knowingly driving a family friend to a drug transaction and subsequently possessing cocaine in his car. ALJ Kevin F. Casey found that DOC failed to prove that the officer knew he was driving a family friend to purchase drugs or that the officer knowingly possessed the drugs later found in his car. ALJ Casey recommended the dismissal of the charge.
OATH Index No. 265/14 [Comm’r Decision - pending] http://archive.citylaw.org/oath/13_Cases/14-265.pdf


Correction officer admitted to using excessive force by stomping on an inmate's head after the inmate had been subdued with his face to the floor and his hands cuffed behind his back. Respondent's actions caused the inmate to sustain lacerations to his chin and loss of a front tooth. As mitigation, respondent asserted that on his way to work, he learned that his best friend had been murdered, and that this news upset his equilibrium. Finding that neither disruptive behavior by the subdued inmate nor the murder of respondent's friend, if true, was mitigation for respondent's conduct, ALJ Ingrid M. Addison recommended termination of his employment.
OATH Index No. 156/14, Comm'r Decision - adopted, http://archive.citylaw.org/oath/13_Cases/14-156.pdf


The Department of Environmental Protection brought disciplinary charges against a project manager for working longer than his 7-hour shift, reporting late to a storehouse, and falsely stating that he made a vehicle damage report. ALJ John B. Spooner found that respondent worked longer than a 7-hour day and recommended a one-day suspension. ALJ Spooner dismissed the other charges, noting that petitioner’s counsel displayed some animus toward respondent and his efforts to defend himself. ALJ Spooner noted that discipline of one of respondent's witnesses for appearing early at the tribunal on the day of her testimony was “extraordinary” and may have been intended to punish the witness or to discourage her from testifying.
OATH Index No. 181/14, Comm’r Decision - rejected in part, (adopting sustained charge, rejecting dismissal of other charges, and increasing penalty to 30-day suspension without pay). http://archive.citylaw.org/oath/14_Cases/14-181.pdf
.

===================
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.
=======================

Apportioning liability for workers’ compensation benefits among the claimant’s various employers


Apportioning liability for workers’ compensation benefits among the claimant’s various employers
2013 NY Slip Op 07244, Appellate Division, Third Department

In some situations it becomes necessary for the Workers’ Compensation Board to consider the issue of apportionment of liability among a claimant's prior employers in accordance with Workers' Compensation Law §44.*.

The employee [Employee] began working for the Town in 2002. Prior to that, she had performed secretarial services for various employers, since 1966. In 2004 Employee sought medical treatment, complaining of pain in her hands and a weak grip, and she was diagnosed with carpal tunnel syndrome.

In 2007, Employee filed a claim for workers' compensation benefits. Her claim was initially established as an occupational disease of the left wrist, with a date of disablement of October 1, 2007 and was subsequently amended to include bilateral elbows and right carpal tunnel syndrome.

Employee was awarded a 25% schedule loss of use of the left hand in 2010 and the Town workers' compensation carrier sought apportionment of responsibility for liability of the claim with claimant's two most recent prior employers, covering the years between 1987 and 2002.

A Workers' Compensation Law Judge denied the carrier's request, finding no medical evidence that Employee had contracted her condition during her prior employment, and the Workers' Compensation Board affirmed upon administrative review. The Town and its carrier appealed.

The Appellate Division sustained the Board ruling, explaining that "In determining whether a claim should be apportioned between previous employers in the same field, the relevant focus is whether the claimant 'contracted an occupational disease while employed by that employer.'"

In support of the Board’s determination, the court said that Employee had testified that she had experienced some symptoms of pain in her wrists during her previous employments. but did not seek or receive medical treatment for her condition until 2004. Although an independent medical examiner opined that "there appears to be a cause for apportionment" and recommended that the claim should be apportioned 75% to the Town and 25% to Employee's previous employers, the medical examiner [1] “did not opine as to when [Employee] contracted her condition” and [2] “offered no objective medical proof in support of his findings.”

* §44. Liability of employer. The total compensation due shall be recoverable from the employer who last employed the employee in the employment to the nature of which the disease was due and in which it was contracted. If, however, such disease, except silicosis or other dust disease and compressed air illness or its sequelae [sic - any abnormal condition that follows], was contracted while such employee was in the employment of a prior employer, the employer who is made liable for the total compensation as provided by this section, may appeal to the board for an apportionment of such compensation among the several employers who since the contraction of such disease shall have employed such employee in the employment to the nature of which the disease was due. Such apportionment shall be proportioned to the time such employee was employed in the service of such employers, and shall be determined only after a hearing, notice of the time and place of which shall have been given to every employer alleged to be liable for any portion of such compensation. If the board finds that any portion of such compensation is payable by an employer prior to the employer who is made liable for the total compensation as provided by this section, it shall make an award accordingly in favor of the last employer, and such award may be enforced in the same manner as an award for compensation. 

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_07244.htm

Tuesday, January 21, 2014

An arbitration award can be vacated if the award or order does not resolve the controversy submitted to the arbitrator


An arbitration award can be vacated if the award or order does not resolve the controversy submitted to the arbitrator
Westchester County Corr. Officers Benevolent Assn., Inc. v Cheverko, 2013 NY Slip Op 08451, Appellate Division, Second Department

The Westchester County Corr. Officers Benevolent Assn., Inc.filed a CPLR Article 75 petition seeking to confirm three arbitration awards in which the arbitrator ruled that three individuals [Officers] were entitled to benefits pursuant to General Municipal Law §207-c.*

Westchester County Department of Corrections Commissioner Kevin M. Cheverko appealed Supreme Court denial of his motion to vacate those awards.

The Appellate Division granted the Commissioner Cheverko’s appeal challenging the Supreme Court’s decision, explaining that an arbitration award is indefinite or nonfinal for purposes of CPLR §7511 and subject to vacatur "only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy."

In this instance, explained the court, the arbitrator’s awards providing the three individuals with benefits pursuant to General Municipal Law §207-c were indefinite or nonfinal for purposes of CPLR§7511 “as they did not address whether each Officer sustained a disability.”

Reversing the order “insofar as appealed from,” the Appellate Division said that the matter was to be remitted to the arbitrator “for further proceedings and a determination as to whether each officer sustained a disability.”

* General Municipal Law §207-c provides for the payment of salary, wages, medical and hospital expenses of law enforcement personnel suffering injuries or illness incurred in the performance of their duties.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_08451.htm



 ================================

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html
================================


.

Saturday, January 18, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 18, 2014


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 18, 2014
Click on text highlighted in color to access the full report

DiNapoli: 87 School Districts in Fiscal Stress

Eighty–seven school districts, 13 percent of school districts statewide, have been designated as fiscally stressed under State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. DiNapoli’s office evaluated 674 school districts with fiscal years ending on June 30, 2013.


DiNapoli: Buffalo’s Financial Condition Improves

The city of Buffalo’s finances have stabilized in recent years because of careful budget planning, the oversight of a fiscal control board and increased state aid, according to a report issued Monday, January 13, 2014 by State Comptroller Thomas P. DiNapoli. The report is part of a series of fiscal profiles on municipalities across the state.


DiNapoli: School District Revenue Growth Slows

New York’s school districts have faced major fluctuations in their federal and state aid over the last decade and revenue growth was nearly flat the last three years, averaging only 1.3 percent, according to a reportissued Tuesday by State Comptroller Thomas P. DiNapoli. The report is part of DiNapoli’s fiscal stress initiative which is focusing greater attention on the issues that contribute to the financial pressures on local governments and school districts across the state.


DiNapoli and Investor Group Reach Shareholder Agreement with FirstEnergy

FirstEnergy, an Ohio–based energy producer, has agreed to produce a comprehensive report on the company’s plan to reduce greenhouse gas emissions, New York State Comptroller Thomas P. DiNapoli announced January 15, 2014. As a result, a shareholder resolutionco–filed by DiNapoli, Connecticut Treasurer Denise L. Nappier on behalf of the Connecticut Retirement Plans and Trust Funds, and investment group As You Sow has been withdrawn.


DiNapoli: Some Taxpayer Check–Off Donations Not Utilized for Worthy Causes

New Yorkers have contributed more than $51 million for worthy causes through check–offs on their personal income tax forms, but these funds often sit unused, according to a report issued January 15, 2014 by New York State Comptroller Thomas P. DiNapoli. More than $14 million has accumulated in six check–off funds, with nearly 90 percent of that for health–related causes including breast cancer, prostate cancer and Alzheimer’s disease.


DiNapoli: State Tax Receipts Below Projections Three Quarters Through Fiscal Year

State tax receipts for the first three quarters of the fiscal year were $534 million below the latest Financial Plan projections, according to a quarterly report on state finances released Friday by State Comptroller Thomas P. DiNapoli.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli on January 15, 2014 announced his office completed audits of






Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on January 15, 2014 announced his office completed audits of:








Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli announced on January 17, 2014 the following audits have been issued:






the Department of Health.

 ===========================

Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:


The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

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.

THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.

Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.



___________________



N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.

_____________________

.