Saturday, August 30, 2014
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Wednesday, August 27, 2014
Tuesday, August 26, 2014
Employee alleges his termination was in violation of Civil Service Law §75-b, the so-called public employee Whistle Blower Law.
Monday, August 25, 2014
Friday, August 22, 2014
Weiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department*
Seeking to invalidate the petition designating Zephyr R. Teachout as a candidate for the office of governor, Harris Weiss alleged that Teachout did not meet the constitutional residency requirements for the office of governor.
* See, also, Jones v Blake, 2014 NY Slip Op 05919, Appellate Division, First Department, an appeal arising “out of a special proceeding in which petitioner sought to establish that respondent did not satisfy the residency requirements for the public office of Member of the Assembly.”
Thursday, August 21, 2014
Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation
The Commissioner then dismissed Mr. Goldberg's appeal.
** The test applied is whether 50% or more of the duties being performed by the incumbent of the newly created position were previously being performed by the incumbent of the position that had been abolished not whether 50% or more of the duties of the abolished position were being performed by the incumbent of the new position. For example, the incumbent of the new position could have assumed all of the duties of the abolished position yet those duties could be less than 50% of all of the duties assigned to the incumbent of the new position.
Wednesday, August 20, 2014
Limiting access to sensitive electronic databases
Concerned with access to sensitive materials contained in an electronic database, State Comptroller Thomas P. DiNapoli's auditors found that employees in six upstate New York school districts had inappropriate computer access to sensitive student data and were able to change student grades and attendance records without proper authorization.*
The Comptroller said that “Student academic and personal information must be protected by school districts. Each of the districts identified in this audit should take the simple and immediate steps necessary to improve their controls over personal, private and sensitive information. In the meantime, I have directed my audit division to expand the scope of this audit and begin examining school districts from every region of the state.”
The school districts reviewed were: Altmar-Parish-Williamstown Central School District, Indian River Central School District, Lowville Academy and Central School District, Madison Central School District, Poland Central School District and Westhill Central School District.
DiNapoli’s audit revealed that several school computer system users in each district had access to functions that were beyond their job duties or outside the scope of their responsibility. Auditors found that users in multiple school districts, including outside vendors, were able to make grade changes without proper documentation or authorization.
Auditors also found:
Four of the six districts had features within their computer system that allowed users to assume the identity or the account of other users as well as inherit increased rights or permissions;
Two districts continued to use accounts of former employees in order to make changes to more than 200 attendance records;
One district allowed generic users to view student individualized education programs; and
Only one district, Altmar-Parish-Williamstown, reviewed non-instructional staff user rights to ensure they were appropriate.
DiNapoli recommended each school district take immediate steps* to:
> Establish written policies and procedures for student information system administration including a formal authorization process to add, deactivate or change user accounts and rights and procedures for monitoring user access;
> Ensure that individuals are assigned only those access rights needed to perform their job duties;
> Evaluate user rights and permissions currently assigned to each student information system user, including outside employees and vendors, and ensure that rights are updated as needed to properly restrict access;
> Restrict the ability to make grade changes and ensure that documentation is retained to show who authorized the grade change and the reason for the change;
> Remove all unknown/generic or shared student information system accounts and deactivate the accounts of any users who are no longer employed; and
> Periodically review available audit logs for unusual or inappropriate activity.
The letters sent by the Comptroller’s office to each school district have been posted on the Internet at:
School district officials generally agreed with the audit, but some provided clarification on their policies and identified improvements they have already made. Their responses are included in the final report posted on the Internet at:
* See an audit released by New York State Comptroller Thomas P. DiNapoli.on August 19, 2014.
** These guidelines could be relevant and could be considered by other government departments and agencies in order to review their existing procedures and establishing a formal authorization process to add, deactivate or change user accounts and procedures for monitoring user access to agency computer systems electronically to the extent that they are not already in place.
Tuesday, August 19, 2014
Monday, August 18, 2014
Friday, August 15, 2014
“Under the rules promulgated by the Chief Judge, positions left temporarily vacant by the leave of absence of the permanent incumbent may be filled on a contingent permanent basis, (see 22 NYCRR 25.24[a],[d]). When the permanent incumbent's encumbrance on the position, i.e., his or her right to return to that position, expires due to the attainment by the permanent incumbent of nonprobationary, permanent status in a higher title (see 22 NYCRR 25.22[d], 25.24[b]), the position then held by the contingent permanent appointee becomes permanently vacant and subject to being permanently filled pursuant to the Rules of the Chief Judge (see 22 NYCRR 25.24[b], 25.31[a]). The Rules of the Chief Judge require that such a permanent vacancy be filled first by reference to an applicable preferred list (see 22 NYCRR 25.24[c], 25.31[a]). The Chief Administrator of the Courts is required to establish statewide preferred lists of the names of those persons who have been demoted or suspended, including those who were demoted or suspended by virtue of a workforce reduction in June 2011 (see 22 NYCRR 25.31[a]).”*
Under the Commission’s Rules, however, in the event the appointing authority affirmatively designates the appointment of an individual to a temporary vacancy as a “contingent permanent appointment,” this “special form of temporary appointment” provides the appointee with many of the benefits that flow from being permanently appointed to the position.
To effect a permanent contingent appointment, (1) the appointing authority must specifically act to provide for such a “contingent permanent” appointment*** and (2) the appointee must otherwise satisfy the mandates of §61 of the Civil Service Law with respect to permanent appointment to a position in the Classified Service of the State as the employer. Further, a tenured employee may not be reassigned to an encumbered position "unless the employee agrees, in writing, to accept a contingent permanent appointment to such position.” A CPE attains tenure in the title upon his or her being continued in the position beyond maximum period of probation for the title.
The New York State Department of Civil Service Career Mobility Office describes a contingent permanent appointment as follows: “A permanent appointment or promotion to a position left temporarily vacant by the leave of absence of the permanent incumbent of the position; such appointees have the same rights as permanent appointees; a contingent permanent employee may be displaced by the return of the permanent incumbent. (The term contingent permanent is not used in the Civil Service Law or Rules; rather, rule 4.11 refers to "permanent appointments to encumbered positions.") .”
Essentially the Commission’s Rules provide as follows with respect to the status of a CPE having tenure in the title:
* Section 25.24 Contingent permanent appointments of the Rules of the Chief Judge,. is set out on the Internet at http://www.nycourts.gov/rules/chiefjudge/25.shtml#24
Thursday, August 14, 2014
Wednesday, August 13, 2014
Governor Andrew M. Cuomo has signed legislation that prohibits an individual registered under the sex offender from being elected or appointed as a volunteer firefighter.
Tuesday, August 12, 2014
Chapter 337 of the Laws of 1964
Although the compensation SUNY component units offered was competitive and it offered significant opportunities for career development, candidates proved reluctant to accept appointment to a SUNY position as the State's public retirement systems then required an individual to complete ten years of member service to vest his or her retirement benefits. The reason for such reluctance: there was great mobility in higher education at the time. It was not unusual for faculty and other staff members to “moved-on” by accepting an appointment at another college or university after three or four years of employment at their college or university and they would lose potential retirement benefits if they were not "vested" when they left.
Significantly, §396.of the Education Law provides that “Neither the state, nor state university, nor any electing employer or its local sponsor shall be a party to any contract purchased in whole or in part with contributions made under the optional retirement program established and administered pursuant to this article. No retirement, death, or other benefits shall be payable by the state, or by state university, or by any electing employer or its local sponsor under such optional retirement program. Such benefits shall be paid to electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts.”
[iv]See Education Law §390.3
Monday, August 11, 2014
Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending August 9, 2014
Department of Health (DOH) – Inappropriate Medicaid Payments for Recipients with Multiple Identification Numbers and No Social Security Numbers (Follow-Up) (2014-F-1)
An initial audit report, issued in July 2012, identified $17.3 million in Medicaid overpayment because 9,848 recipients were enrolled into Medicaid with multiple identification numbers. In a follow-up, auditors found DOH officials have made progress in correcting the problems identified in the earlier report. This included the recovery of approximately $2.7 million in Medicaid overpayment for services provided to recipients with multiple identification numbers. Of the initial report's two recommendations, one was implemented and one was partially implemented.
Metropolitan Transportation Authority Time and Attendance Practices of Selected Employees (2011-S-45)
Auditors found significant discrepancies between the time and attendance records maintained by employees of Long Island Railroad’s Richmond Hill shop when compared with their work production records for the same periods. Auditors also identified several MTA employees who work and reside in New York City during their respective work weeks who are reporting that they reside outside the city and avoiding New York City income tax.
New York State Thruway Authority – Mission Statement and Performance Measures (2013-S-9)
The authority's 2011 and 2012 mission statement and measurement reports did not provide users of the highway and canal systems with complete and accurate information about what has been achieved on their behalf. The authority did not report on five of 15 performance measures and six of the 10 measures we reviewed were not accurately reported or did not fully disclose the results of the authority's operations. The authority has not set performance and accountability goals for 13 of the 15 performance measures in quantitative terms. The authority's board has not reviewed its mission statement and performance measures annually since April 2010, as required.
Office of the Medicaid Inspector General (OMIG) – Accuracy of Reported Cost Savings (2013-S-29)
Although the audit showed the majority of the reported cost savings examined were reasonable and adequately supported, auditors also estimate OMIG overstated savings from 27 of 35 activities examined by at least $1.2 billion as a result of flaws and/or inconsistencies in the methodologies used to estimate savings. OMIG officials indicate they have taken corrective action on the methodologies for many of these 27 activities. A lack of communication among the managers responsible for the various activities contributed to these problems.
State Education Department –Tuition Reimbursement Account for the Three Fiscal Years Ended March 31, 2013 (2014-S-17)
The audited financial statements present fairly, in all material respects, the respective financial position of the Tuition Reimbursement Account as of the three fiscal years ending March 31, 2013, and the respective changes in financial position for the years then ended, in accordance with generally accepted accounting principles.
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/
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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