Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 31, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 16, 2015

Click on text highlighted in color  to access the full report 

Office of Children and Family Services; 

Department of Environmental Conservation; 

Department of Health; 

Metropolitan Transportation Authority; 

New York State Health Insurance Program; 

Office of Parks, Recreation and Historic Preservation (Administration of Concession Services at Riverbank State Park); 

Office of Parks, Recreation and Historic Preservation (Preservation of Safety Infrastructure – Follow-Up); 

Town of Goshen; 

Town of Hague; and 

Seaford Fire District.

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New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System reports 90 schoold districts experiencing fiscal stress

New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System reports 90 schoold districts experiencing fiscal stress

Source: Office of the State Comptroller

Ninety school districts, more than 13 percent of districts statewide, have been designated as fiscally stressed under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. DiNapoli’s office evaluated 672 school districts with fiscal years ending on June 30, 2014.

This is the second year DiNapoli’s office has assessed and scored the financial stability of school districts. The second round of scoring designated 10 school districts in “significant fiscal stress,” 27 in “moderate fiscal stress” and 53 as “susceptible to fiscal stress.” Last year, a total of 87 districts were listed in fiscal stress.

Using financial indicators that include year-end fund balance, short-term borrowing and patterns of operating deficits, the monitoring system creates an overall fiscal stress score which classifies whether a district is in “significant fiscal stress,” in “moderate fiscal stress,” is “susceptible to fiscal stress,” or has “no designation.”

The ten school districts that were classified in “significant stress” were: Wyandanch Union Free School District (Suffolk County); Niagara-Wheatfield Central School District (Niagara); East Ramapo Central School District (Rockland); Lawrence Union Free School District (Nassau); Watervliet City School District (Albany); Copiague Union Free School District (Suffolk); Lewiston-Porter Central School District (Niagara); West Seneca Central School District (Erie); Hempstead Union Free School District (Nassau); and the Peekskill City School District (Westchester).

The announcement did not include scores for the dependent school districts in the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers. Information for these districts will be incorporated into the scoring for their respective cities later this year

According to a research report issued January 29, 2015, concerning school districts with the fiscal stress scores, school districts found to be in fiscal stress share a number of common characteristics. Most are operating with low fund balance, a pattern of operating deficits and limited cash on hand. In addition, DiNapoli’s office found high-need urban/suburban school districts were four times more likely to be in fiscal stress than low-need districts.

The report also noted a number of significant improvements among certain school districts. For example, the Kiryas Joel Village Union Free School District in Orange County experienced a 50 percent decrease in its fiscal stress score. Eleven other districts saw a drop of 25 percentage points or more, including: the Elmira City School District (Chemung County), Gananda Central School District (Wayne), General Brown Central School District (Jefferson), Hudson City School District (Columbia), Maine-Endwell Central School District (Broome) and the Tupper Lake Central School District (Franklin).

DiNapoli’s report also highlighted:

1. Regions with the highest number of stressed school districts were Long Island (19 districts);the Capital District (12); Western New York (12); the Southern Tier (11) and Central New York (11);

2. More than 80 percent of school districts statewide were not in a fiscal stress category in either 2013 or 2014;

3. Four districts dissolved and two were newly created in 2014. These districts were not evaluated;

4. 5igh-need rural districts in fiscal stress increased by nearly 3 percentage points; and

5. Operating deficit was the indicator with the largest year-to-year change. This year, 28 percent of districts received a lower score on this indicator (showing less fiscal stress), while 19 percent scored higher (indicating increasing fiscal stress).

For a list of school districts in fiscal stress, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/schools/2015_SchoolStressList.pdf

For the complete list of school district fiscal stress scores, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/schools/2015_SchoolSummaryList.pdf

For a copy of the fiscal stress commonalities report, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/2015_SummaryResultsSchoolDistricts.pdf

Employee deemed to have voluntarily resigned from her position found eligible for unemployment insurance benefits under the circumstances

Employee deemed to have voluntarily resigned from her position found eligible for unemployment insurance benefits under the circumstances

Matter of Bowman (City of Niagara Falls--Commissioner of Labor), 2015 NY Slip Op 00425, Appellate Division, Third Department

An individual may have but one domicile at time, i.e., his or her permanent place of abode, which continues until he or she has acquired a new one and any party alleging a change in an individual’s domicile “has the burden to prove the change by clear and convincing evidence."

In contrast, an individual may have multiple places of residence simultaneously, i.e., two or more residences in the same or at different geographical locations -- an apartment in New York City, a cottage at Cape Cod, a flat in London, England -- in which he or she may, from time to time, live, but only one such residence is his or her domicile.

The City of Niagara Falls’ local law requiring its employees to be residents of the City. The local law defined residency as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any" (Local Law No. 3 [1996] of City of Niagara Falls).

Sandra M. Bowman, who had been employed by the City from 1986 to 2011, was terminated after being deemed to have voluntarily resigned from her position in the Community Development Department for allegedly violating the City's local law requiring its employees to be residents.

Bowman applied for unemployment insurance benefits and also initiated an Article 78 action in Supreme Court, Niagara County, seeking reinstatement to her former position with the City. Supreme Court granted her petition, ruling that the City acted arbitrarily and capriciously in finding that Bowman did not reside in the City.

Subsequently, an Unemployment Insuance Administrative Law Judge ( ALJ) concluded that Bowman did not voluntarily leave her employment without good cause nor did she commit disqualifying misconduct for purposes of receiving unemployment insurance benefits, noting that she had provided her driver's license, a lease agreement, a rent check, her vehicle and voter registration, as well as other documentation showing her address to be within the City, and found that she slept at that address. The ALJ ruled that because "claimant met multiple indicators to establish that her Niagara Falls residence was her actual principal residence under the law, . . . claimant did not violate the law; as established during the [CPLR] [a]rticle 78 proceeding, which resulted in the annulment of the claimant's termination." The Unemployment Insurance Appeal Board affirmed, adopting the ALJ's findings of fact and opinion.

Shortly thereafter the Appellate Division, Fourth Department reversed the Supreme Court judgment holding that “the evidence that petitioner produced "was not so overwhelming . . . under the extremely deferential standard applied in reviewing administrative determinations" to support Supreme Court’s granting Bowman’s petition.

Niagara Falls then appealed the Unemployment Insurance Board’s determination to the Appellate Division, Third Department, contending that the Board's determination lacked a rational basis because it improperly relied upon the subsequently-reversed judgment of Supreme Court in Niagara County.

The Third Department sustained the Board’s decision, explaining that the Fourth Department did not hold that the City had established that Bowman actually resided and normally slept at a residence outside the City but rather the Fourth Department concluded that, under the extremely deferential standard that was applicable upon review — whether the City's initial determination was arbitrary and capricious or an abuse of discretion, it could not conclude that there was "no rational basis" for that determination (see Matter of Bowman v City of Niagara Falls, 107 AD3d at 1418).

In addition, the Third Department rejected the City's claim that the Board heavily relied upon the decision of Supreme Court in making its determination. The court said that “a fair reading of the ALJ's decision demonstrates that the Board made its own factual findings” as to whether Bowman violated the City’s residency requirement, and substantial evidence supports the determination that Bowman “did not engage in disqualifying misconduct or voluntarily separate from her employment.”

The decision is posted on the Internet at:
www.nycourts.gov/reporter/3dseries/2015/2015_00425.htm
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United States Supreme Court distinguishes a law from a regulation for the purposes the federal whistle blower statute

United States Supreme Court distinguishes a law from a regulation for the purposes the federal whistle blower statute

Department of Homeland Security v MacLean, USSC #13-984

A federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain flights.

He was subsequently dismissed from his position for disclosing sensitive security information without authorization in violation of TSA regulations, which action was sustained by the Merit Systems Protection Board. The Board found that MacLean was not entitled to whistle blower protection for the disclosures he made, finding that such statements were specifically prohibited by TSA's regulation.

The TSA regulation at issue, 67 Fed. Reg. 8351, prohibited the unauthorized disclosure of “sensitive security information” which included "[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations."

The USCA, Federal Circuit, vacated the Board’s determination.

The Supreme Court affirmed the Federal Circuit’s ruling, explaining that Congress had used phrase "specifically prohibited by law" rather than a more general phrase such as “law, rule or regulation” in creating exceptions to the protections of the federal whistle blower statute [5 U.S.C. 2302(b)(8)(A)].

TSA's regulations, said the court, do not qualify as "law" for the purposes of 5 USC 2302(b)(8)(A) and thus such regulations do not satisfy the requirement that the provision constitute an “exception prohibited by law.”

For the purposes of “Whistle Law” protection, New York courts have distinguished between disclosures concerning of matters of public interest, which are subject to such protection and disclosures concerning matters of a personal nature or personal interest, which disclosures are not protected by the State’s Whistle Blower laws [Civil Service Law §75-b and Labor Law §740.(2)] or New York City’s Administrative Code §12-113.

 

The MacLean decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/14pdf/13-894_e2qg.pdf

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Determining if there is a special relationship between a municipal employer and a municipal employee

Determining if there is a special relationship between a municipal employer and a municipal employee
2015 NY Slip Op 00526, Appellate Division, Second Department

Sometimes there is a "special relationship" between a municipal employer and a municipal employee.

Citing Pelaez v Seide, 2 NY3d 186, the Appellate Division explained that a special relationship of a municipality to an individual can be formed in three ways: 

(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; 

(2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or 

(3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation."

A New York City school teacher sued the City’s Department of Education seeking damages for personal injuries she alleged she had suffered as the result of an assault by a student while at school. The teacher contended that the Department “breached a duty of care” by failing to remove the student from classes at the school and by failing to protect her from the student.

The Department contended that there was no special relationship between it and the teacher and therefore, it did not owe her a duty of care.

Supreme Court granted the District’s motion for summary judgement and the teacher appealed.

The Appellate Division affirmed the Supreme Court’s ruling noting that the District had established, prima facie, its entitlement to judgment as a matter of law by demonstrating that it had not voluntarily assume a duty toward the teacher.

The court held that the teacher “failed to raise a triable issue of fact as to whether a special relationship was formed by the Department’s voluntary assumption of a duty that generated her “justifiable reliance.” In addition, said the Appellate Division, the teacher did not allege that a special relationship was formed because the Department of Education had violated any statutory duty or “assumed positive direction and control in the face of a known, blatant, and dangerous safety violation.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00526.htm

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An individual may be the victim of discriminatory animus that is directed to a third person with whom the individual associates

An individual may be the victim of discriminatory animus that is directed to a third person with whom the individual associates

2015 NY Slip Op 00326, Appellate Division, Second Department

In this action, which the court characterized as a “case of first impression for this Court,” one of the issues concerned whether a plaintiff alleging discrimination in employment on the basis of religion in violation of New York State’s Executive Law §296 can establish a prima facie case by alleging that he was discriminated against because of the religion of his spouse.

The Second Department’s answer in a word, yes.

The court noted that although there is no authority addressing this issue under the State’s Human Rights Law, several federal courts have construed Title VII to protect individuals "who are the victims of discriminatory animus towards third persons with whom the individuals associate," citing Tetro v Elliott Popham Pontiac, Oldmobile, Buick, and GMC Trucks, Inc., 173 F3d 988, [6th Cir].

The individual had alleged that he was the victim of unlawful discrimination in employment and a hostile work environment in violation of §296. Supreme Court, however, granted the employer’s motion for summary judgment, thereby dismissing the individual’s cause of action for unlawful discrimination and his cause of action for hostile work environment.”

The Appellate Division explained that “To establish liability under the State Human Rights Law arising from the termination of employment, a plaintiff has the initial burden of establishing a prima facie case of discrimination by a preponderance of the evidence.” In addition, said the court, “To establish a prima facie case of discrimination under the State Human Rights Law, a plaintiff who has been terminated from employment must demonstrate (1) that he or she is a member of the class protected by the statute, (2) that he or she was actively or constructively discharged, (3) that he or she was qualified to hold the position from which he or she was terminated, and (4) that the discharge occurred under circumstances giving rise to an inference of discrimination.”\

In order to prevail in its motion for summary judgement the employer must make "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact."

The individual said the Appellate Division, had demonstrated his membership in a protected class by virtue of the employer’s alleged discriminatory conduct stemming from his wife’s religion, noting that discrimination against an individual based on his or her association with a member of a protected class also constitutes an infringement upon that individual's First Amendment right to intimate association, which receives protection as a fundamental element of personal liberty.

Nevertheless, the court held that the employer “established, prima facie, that the [individual] was not terminated from his employment under circumstances giving rise to an inference of discrimination” by demonstrating that he was terminated for legitimate, nondiscriminatory reasons—specifically, the issues litigated and decided during the disciplinary hearing.

However, in opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law, the individual raised a triable issue of fact as “Verbal comments can serve as evidence of discriminatory motivation when a plaintiff shows a nexus between the discriminatory remarks and the employment action at issue.” The decision notes that “Even stray remarks in the workplace by persons who are not involved in the pertinent decision-making process may suffice to present a prima facie case [of unlawful discrimination], provided those remarks evidence invidious discrimination.

In consideration of this, the Appellate Division modified Supreme Court’s order, on the law, by deleting the Supreme Court's provision granting that branch of the employer’s motion “which was for summary judgment dismissing the cause of action alleging discrimination on the basis of religion in violation of the State Human Rights Law, and substituting therefor a provision denying that branch of the [employer’s] motion;" and as so modified, affirmed the order.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_00326.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 24, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 24, 2015

Click on text highlighted in color  to access the full report

DiNapoli and Schneiderman Announce Guilty Plea in $120K Fraud of State Pension Benefits State Comptroller Thomas P. DiNapoli and Attorney General Eric Schneiderman Wednesday announced that Graycelia Cizik, 64, a resident of Polk County, Florida, pleaded guilty to a one-count indictment charging her with grand larceny in the second degree, a class C felony, before Supreme Court Judge Roger D. McDonough in Albany County Court. Cizik will be sentenced to 2 to 6 years in state prison on March 13, 2015

Comptroller DiNapoli Releases School Audits

On January 22, 2015 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of the:

Groton Central School District,

Herricks Union Free School District, and the

Stockbridge Valley Central School District.

Comptroller DiNapoli Releases Municipal AuditsOn January 22, 2015 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of the: 
Allegany Engine Company, Inc., 
Columbia County, and the 
Town of Tuxedo.

Proposed changes to the Education Law §3020-a disciplinary procedures

Proposed changes to the Education Law §3020-a disciplinary procedures

Source: Office of the Governor

On January 21, 2015 Governor Andrew M. Cuomo presented his “2015 Opportunity Agenda” in course of delivering his "State of the State Message."

The Governor said that ”The current teacher discipline and termination system, commonly known as 3020-a hearings, is broken. The hearings are costly and time-consuming for districts, and allow arbitrators to overrule administrators’ determinations of competency and of appropriate remedies. Administrators take on protracted battles that they may or may not win, at great cost to themselves and their school communities, in attempting to eliminate ineffective and incompetent educators in their buildings.Below is the Governor’s proposal to “Make it easier, fairer and faster to remove ineffective teachers from the classroom” 

Proposal #43: Make it easier, fairer and faster to remove ineffective teachers from the classroom
 
The Governor had proposed the following reforms to Education Law §3020-a hearings “to streamline the hearing process, shift the presumptions, and strengthen evidentiary standards,” including:

1. In the case of a teacher accused of physical or sexual abuse of a child, there will be an expedited hearing with a decision rendered within 60 days.

2. Easing the legal burden on school districts seeking to remove a teacher that has been rated ineffective two years in a row.

3. Elimination of the current legal requirement that administrators must attempt to “rehabilitate” teachers who are incompetent or engage in misconduct.

4. Removal of the requirement that children must testify in person and will allow them to testify via sworn written or video statements.

5. Clarification of the existing law with respect to the dismissal of a non-tenured teacher.

The Governor’s full “2015 Opportunity Agenda” policy book is available here, and the corresponding presentation is available here.

Arbitrator rules that retired employees entitled to certain benefits available to active employee as though their service “was not interrupted”

Arbitrator rules that retired employees entitled to certain benefits available to active employee as though their service “was not interrupted”
Matter of Port Auth. of N.Y. & N.J. v Port Auth. Police Lieutenants Benevolent Assn., 2015 NY Slip Op 00459, Appellate Division, First Department [See, also, Matter of Port Auth. of N.Y. & N.J. v Port Auth. Police Sergeants Benevolent Assn., 2015 NY Slip Op 00460 and Matter of Port Auth. of N.Y. & N.J. v Port Auth. Police Sergeants Benevolent Assn. 2015 NY Slip Op 00326 handed down on the same day by the the First Department]

Supreme Court confirmed an arbitration award that held that the Port Authority of New York and New Jersey violated the parties' governing collective bargaining agreement when the Authority discontinued “free "E-Z Pass" privileges for retired police lieutenants.

The Appellate Division unanimously affirmed the lower court’s ruling, explaining that the relevant “Memorandum of Agreement” [MOA] expressly incorporated the terms of a 1973 Port Authority Administrative Instruction, PAI 40-1.01, that provides that retired employees "receive the same allowance to which they would be entitled if their Port Authority service was not interrupted."

The court held that this language vests retired members of the Authority with a lifetime interest in the EZ-Pass privileges they enjoyed while employed did not exceed the arbitrator's authority since it is not "completely irrational."

The court also commented that Supreme Court stated in its ruling that the arbitrator noted that "it will take a new Collective Bargaining Agreement and MOA to end free passes for [the Authority's] members, past and present."

The Appellate Division observed that the court's remark regarding "a new collective bargaining agreement" is dictum and that the statement of the arbitrator, that the court paraphrased, was also dictum. 

"Dictum" is Latin for "remark," and is used to describe a comment by a judge or other tribunal in a decision or ruling that is not required to reach the decision and which does not have the full force of a precedent.

New York State's Public Administration Traineeship Transition Program (PATT)

New York State's Public Administration Traineeship Transition Program (PATT)

Source: NYS Department of Civil Service’s Division of Staffing Services General Information Bulletin, #15-01

The New York State Department of Civil Service’s Division of Staffing Services has issued a General Information Bulletin, Bulletin #15-01. The Bulletin describes the Public Administration Traineeship Transition Program (PATT) and provides information addressing appointments from PATT eligible list #00-271, including:

Minimum Qualifications for appointment from the PATT List;

How a PATT Appointment could affect a candidate's eligibility for other appointments from the list;

Advanced Placement from PATT Lists;

Transfers and other PATT Appointments; and

Foreign Degrees and Coursework 

The text of Bulletin 15-01 is posted on the Internet at:

http://www.cs.ny.gov/ssd/pdf/GIB15-01.pdf

Elements considered by courts in evaluating the results of an arbitration

Elements considered by courts in evaluating the results of an arbitration

2015 NY Slip Op 00444, Appellate Division, First Department

In response to a challenge to an arbitration award where the penalty imposed was termination, Supreme Court denied the Article 75 petition seeking to vacate and arbitration award

The Appellate Division affirmed the Supreme Court’s ruling, noting the following elements concerning the arbitration:

1. The selection of the Hearing Officer comported with the law, in this instance Education Law §3020-a[3][b][ii]).

2. The record showed that the individual “had an adequate opportunity to prepare for the hearing” in that he was sent the notice of charges and specifications approximately a month before the hearing and had “retained counsel over a week before the hearing.”

3. The specifications sufficiently apprised the individual of the charges against him, including the bases for the charges and listed specific dates that corresponded to numerous observation reports and letters in the individual’s personnel file.

4. The individual was able to mount a defense, called witnesses and his counsel had the opportunity to examine or cross-examine every witness.

5. There was no basis to disturb the Hearing Officer's credibility findings in favor of the Department of Education's witnesses

6. The Hearing Officer's determination was in accord with due process, rational, and supported by adequate evidence

________________

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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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 16, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 16, 2015

Click on text highlighted in color  to access the full report
New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of the:

Clark Mills Fire District,

Village of Clinton,

Elba Fire Department,

Village of Ellenville,

Village of Harriman,

Hughsonville Fire Company,

Village of Livonia,

Plattekill #1 Fire District, and the

Town of Schroeppel.

Journalists who cover the law may apply for Loyola Law School’s four-day Civil Justice Fellowship Program

Journalists who cover the law may apply for Loyola Law School’s four-day Civil Justice Fellowship Program

The Civil Justice Program at Loyola Law School, Los Angeles will host its 10th-annual Journalist Law School from Wednesday, May 27 through Saturday, May 30, 2015 on its Frank Gehry-designed campus in downtown Los Angeles. 

There is no cost to journalists to attend the Fellowship program. Instruction, lodging and most meals are included. The Journalist Law School will also cover half of travel expenses up to $300. Fellows will be housed at the nearby Hilton Checkers Los Angeles.  

The Fellowship program condenses core law-school subjects and break-out topics into a long weekend filled with courses taught by Loyola Law School faculty, practicing attorneys and judges. Journalists with at least three years of experience who cover the law in some fashion are encouraged to apply. Journalist fellows, who are competitively selected, receive a certificate of completion at the end of the four-day program. JLS alumni include almost 350 reporters, editors and producers from a wide range of local, national and international news organizations.

The application deadline is Monday, Feb. 16. The application and details are available at www.journalistlawschool.org.

Questions about the program may be directed to Brian Costello, Esq.at brian.costello@lls.edu or 213-736-1444.

Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding

Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding
Rea v City of Kingston, 2014 NY Slip Op 09079, Appellate Division, Third Department

Supreme Court, Ulster County, directed the City of Kingston to reinstate Christopher Rea to his position as Assistant Fire Chief for respondent City of Kingston with an award of retroactive back pay. The City appealed.

As indicated in a prior decision in this matter (Matter of Rea v City of Kingston, 110 AD3d 1227 [2013]), Rea was promoted from Assistant Fire Chief to Fire Chief of the City of Kingston Fire Department in January 2012. His appointment was rescinded and he was suspended without pay pending disciplinary charges. Disciplinary charges were eventually served on Rea alleging multiple specifications of misconduct, most of which pertained to time and leave issues, in August 2012.

The Appellate Division held that, consistent with the provisions of Civil Service Law §75(3),* Rea was "presumptively entitled to receive his regular compensation as Assistant Fire Chief" pending resolution of the disciplinary charges lodged against him” but that "the issue of compensation [could not] be definitively resolved on [the existing] record as [the City] contend[ed] that some [of the] delays [incurred] were either attributable solely to [Rea] or reflect[ed] periods waived by{REA]" and the matter was remitted the matter to Supreme Court "for further development of the record as to the issue of retroactive pay."

Supreme Court directed that the City conduct the disciplinary hearing within 30 days of the court's order to that effect and, notwithstanding certain unresolved factual issues, ordered the City to reinstate Rea to his position as Assistant Fire Chief with full pay and benefits, and without any offset, retroactive to March 10, 2012. Supreme Court also directed that, to the extent that City wished to pursue its claim for an offset, it could do so in the context of a separate action for recoupment.

In response the City’s appeal, the Appellate Division reversed so much the Supreme Court’s order that awarded Rea immediate back pay and benefits retroactive to March 10, 2012 and directed that City pursue any claim for an offset in a separate action, explaining that because the issue of retroactive pay could be resolved independently of Rea's disciplinary proceeding, "it should not serve as a basis for any further delay in holding the [subject] disciplinary hearing".

The decision also noted that Counsel for the City, in the course of oral argument, stated that the underlying disciplinary hearing was completed and that “the appointing authority, in turn, found [Rea] guilty of numerous specifications of misconduct and recommended that he be terminated from his employment.” Absent an appeal from this adverse disciplinary determination, presumably the only unresolved issue is the amount of back pay and benefits due Rea.

* Civil Service Law §75(3) provides for suspension pending determination of disciplinary charges and, in pertinent part, provides that “Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days.”

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2014/2014_09079.htm

The two-prong test used by the court to determine "whether a grievance is arbitrable"

The two-prong test used by the court to determine "whether a grievance is arbitrable"

In the Matter of arbitration between County of Herkimer v Civil Serv. Employees Assn., Inc., 2015 NY Slip Op 00125, Appellate Division, Fourth Department

A probation officer employed by Herkimer County, John Hight, applied for a promotion to the position of probation supervisor. The position of probation officer was included in the relevant collective bargaining agreement (CBA) but the position of probation supervisor was not so included. Herkimer promoted another, less senior, employee, although Hight scored higher on the promotional examination than the employee selected for the promotion.

CSEA filed a grievance objecting the promotion of the less senior employee selected. Herkimer denied the grievance on the ground that the position to which Hight sought to be promoted “was not encompassed by the CBA” and CSEA demanded that the matter be submitted to arbitration.

Herkimer then filed a petition pursuant to CPLR Article 75 seeking a court order staying arbitration. Supreme Court granted Herkimer’s petition and denied CSEA’s motion to compel arbitration. CSEA appealed.

The Appellate Division said that resolution of the issue before it was governed by two-prong test set by the Court of Appeals to be used to determine "whether a grievance is arbitrable" in Matter of City of Johnstown [Johnstown Police Benevolent Assn., 99 NY2d 273.*

The first prong of the test, frequently referred to as "the may-they-arbitrate' prong," concerns whether there is any statutory, constitutional or public policy prohibition against the arbitration of the grievance. If the court determines that arbitration is not so prohibited, it then applies the second prong of the test: does the CBA indicate that the parties have agreed to arbitrate the dispute at issue," -- the so-called “did-they-agree-to-arbitrate' prong."

As Herkimer did not contend that there was any statutory, constitutional or public policy prohibition against the arbitration of the grievance at issue, the Appellate Division said that it was concerned only with the application of the second prong of the Johnstown test.

The Appellate Division held that Supreme Court erred in concluding that the parties did not agree to arbitrate the subject matter giving rise to the grievance, explaining that "Where, as here, there is a broad arbitration clause and a reasonable relationship' between the subject matter of the dispute and the general subject matter of the parties' collective bargaining agreement, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them."

Finding that such a reasonable relationship exists between the subject matter of the grievance, i.e., promotion procedures, and the general subject matter of the CBA, the Appellate Division ruled that "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

Should the arbitrator determine that the parties agreed to arbitrate the subject matter giving rise to the grievance, he or she will then proceed to consider the merits of the contentions of the parties.

* See also and in the Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00125.htm

Additional Staffing changes announced by New York State’s Governor Andrew M. Cuomo

Additional staffing changes announced by New York State’s Governor Andrew M. Cuomo

Source: Office of the Governor

The Governor will nominate the following eight individuals for appointments requiring Senate confirmation:  

William Thompson to serve as Chair of the New York State Housing Finance Agency (HFA) and the State of New York Mortgage Agency (SONYMA). Mr. Thompson served as New York City Comptroller from 2002 to 2009. He then ran for Mayor of New York City in both 2009 and again in 2013. From 2010 to 2012, he chaired the Battery Park City Authority and, also in 2010, he joined Siebert Brandford Shank, the nation’s MWBE municipal bond underwriting firm, which he left when he ran for Mayor in 2013 but returned following the elections. He has a bachelor’s degree from Tufts University. 

 Dennis Rosen, Esq., to serve as Medicaid Inspector General. Mr. Rosen is currently Chairman of the New York State Liquor Authority, a position he has held since 2009. Prior to that, he was an Assistant Attorney General in the Real Estate Financing Bureau (1982-1983) and the Consumer Frauds Bureau (1983-2009) of the NYS Attorney General’s Office. Previously, he was an attorney with the NYC Legal Aid Society’s Juvenile Rights and Criminal Defense divisions. Mr. Rosen has a B.A. from Brooklyn College and a J.D. from Harvard Law School. 

Howard Zucker, Esq. to serve as Commissioner of the State Department of Health. Previously, he served as Acting Commissioner of the Department of Health as well as First Deputy Commissioner. Prior to that, he was a professor of Clinical Anesthesiology at Albert Einstein College of Medicine of Yeshiva University and a pediatric cardiac anesthesiologist at Montefiore Medical Center in the Bronx. He was also an adjunct professor at Georgetown University Law School, where he taught biosecurity law. His public policy experience began as a White House Fellow under then-Health and Human Services Secretary Tommy Thompson. He then became the Deputy Assistant Secretary of Health where he developed the nation's Medical Reserve Corps. Dr. Zucker has also served as an Assistant Director-General of the World Health Organization and as an Institute of Politics Fellow at Harvard Kennedy School. He is a pediatrician, anesthesiologist, intensive care specialist and pediatric cardiologist trained at Johns Hopkins, University of Pennsylvania and Harvard, respectively and has held faculty appointments at Yale, Columbia and NIH. Dr. Zucker has a B.S. from McGill University, an M.D. from George Washington University, a J.D. from Fordham University Law School, an LL.M from Columbia Law School, and a postgraduate diploma in global health policy from the London School of Hygiene and Tropical Medicine.


John Melville to serve as Commissioner of New York State Division of Homeland Security and Emergency Services. He is currently serving as Acting Commissioner. Mr. Melville previously served as Chief Investigator at the Orange County District Attorney’s Office from 2012 to 2014. Prior to that, he spent 31 years a sworn member of The New York State Police, holding a number of positions including most recently Deputy Superintendent of Field Commander and Superintendent. Mr. Melville has a B.S. from SUNY Cortland and an M.S. in Criminal Justice from SUNY Albany.


Roberto Velez, Esq. to serve as Commissioner of the Office of Children and Family Services. He is currently serving as Acting Commissioner. Mr. Velez previously served as Vice President for Corporate Compliance and Counsel for Acacia Network, Inc. and was a key legal advisor to the Acacia Board of Directors. Prior to that, he was the Chief Judge to the New York City Office of Administrative Trials and Hearings and held several leadership positions at the New York City Departments of Probation and Juvenile Justice. Mr. Velez has a B.A. from Columbia College and a J.D. from New York University School of Law.


Anthony J. Picente, Jr. to serve as a Trustee of the New York Power Authority (NYPA). Mr. Picente currently serves as Oneida County Executive, a position he was unanimously appointed to in 2006, was elected to a full four-year term in 2007 and was re-elected in 2011. He was named Regional Director of the Empire State Development Corporation in 2001 and, two years later, he was promoted to Vice President of ESDC, a position he held until 2006. Mr. Picente has an Associate’s degree from Mohawk Valley Community College and a bachelor’s degree from Utica College.


Floyd Flake to serve as a member of the Public Service Commission. Rev. Flake is the senior pastor of The Greater Allen African Methodist Episcopal Cathedral of New York in Jamaica, Queens. A former Senior fellow at the Manhattan Institute for Policy Research, he was President of Wilberforce University, his alma mater, from 2002 to 2008. In 1986, he was elected to the U.S. House of Representatives where he served the 6th Congressional District in Queens until 1997 when he resigned in order to return to full-time ministry at his church. Rev. Flake earned a Doctor of Ministry Degree from the United Theological Seminary and holds a B.A. from Wilberforce University.


Bethaida Gonzalez to serve as a member of the Board of the State of New York Mortgage Agency (SONYMA). Ms. Gonzalez is the Dean of University College at Syracuse University, a position she has held since 2007, and has held a number of positions at the University since 1984. She has a B.S. from State University of New York at Binghamton and a Certificate in Public Administration and M.A. from Syracuse University’s Maxwell School of Citizenship and Public Affairs.
The Governor made the following four appointments to the Executive Chamber:


Adam Spence has been appointed Assistant Secretary for Economic Development and Innovation, responsible for the implementation of Governor Cuomo’s economic development efforts through the State’s economic development agencies as well as the coordination and promotion of innovation acceleration across state government. Prior to joining the Executive Chamber, Mr. Spence served as Senior Vice President for START-UP NY in Empire State Development. Prior to joining ESD, Mr. Spence was a Managing Director and Co-Head of Sponsor Finance at American Capital, Ltd. Early in his career, Mr. Spence was with was with Lend Lease Real Estate Investments and Berkshire Capital Corporation. Mr. Spence received an A.B. in History from Harvard College.


Tamara Dews has been appointed Senior Policy Advisor for Economic Development. Ms. Dews previously worked in the Executive Chamber with the Lieutenant Governor’s Office and the Office for People with Developmental Disabilities (OPWDD) as the Acting Director for the MWBE Program Unit and Project Manager for the agency’s Front Door Initiative. Prior to joining New York State government through the Empire State Fellows program, Ms. Dews was a Manager in the Business & Legal Affairs division of Sony Music Entertainment. Tamara is currently completing her Executive M.B.A. at NYU Stern. In addition, she holds an Intellectual Property Law Certification from NYU’s School of Professional & Continuing Studies and a B.A. in History and Politics from Mount Holyoke College.


Kara Allen has been appointed to the role of Assistant Secretary for Energy. Ms. Allen previously served as Executive Director of the Sustainable Energy and Environment Coalition, a caucus of 57 members in the U.S. House of Representatives led by Reps. Paul Tonko (NY-20), Steve Israel (NY-03), and Gerry Connolly (VA-11). Prior to that, she was the Assistant Director of Federal Affairs for Vanderbilt University, and the energy and environmental aide to Rep. Jim Cooper (TN-05.) Ms. Allen received her M.S. from Johns Hopkins University and B.S. from Vanderbilt University.


Peter Walke has been appointed Assistant Secretary for the Environment. Prior to joining state government through the Empire Fellowship program, he served for nine years as an intelligence officer in the U.S. Navy from 2004-2013. Peter deployed twice in support of operations in Iraq and Afghanistan. He has a B.A. in Political Science from Williams College and a M.A. in Applied Geography from the University of Colorado at Colorado Springs.
The Governor made the following 13 appointments to State agencies: 

Empire State Development

Lourdes Zapata has been appointed Executive Director of the Division of Minority and Women’s Business Development, having previously served as Senior Vice President of Community & Economic Development for the South Bronx Overall Economic Development Corporation. Prior to that, she was Director of the Department of Planning & Development for the City of Newburgh, NY. Ms. Zapata has a B.A. from Hood College and an M.P.A. from New York University’s Robert F. Wagner Graduate School of Public Service.

Nicole Stent, has been appointed Deputy Director of Minority- and Women-Owned Business Enterprises, having previously served as District Manager of Bronx Community Board 8 and was Director of the NYC Health & Hospitals Corporation, Division of Corporate Planning, Community Health & Intergovernmental Affairs. She has a B.A. from Dartmouth College and a J.D. from Howard University School of Law.


Carey Gabay, Esq., has been appointed First Deputy Counsel, having previously served as Assistant Counsel to the Governor since 2011, a banking and finance associate at Jones Day from 2007 to 2009, and a structure products associate at Schulte Roth & Zabel LLP from 2002 to 2007. Mr. Gabay has a B.A. from Harvard College and a J.D. from Harvard Law School.


Jackie Snyder has been appointed Special Advisor for Infrastructure, having previously served as Executive Director of the Public Design Commission of the City of New York from 2004 to 2014, an advisor to the Deputy Mayor for Administration under Mayor Bloomberg and was the Acting President of the Mayor’s Fund to Advance New York City from 2002 to 2003. Ms. Snyder has a B.A. from Brown University. 

Linda Sun has been appointed Global New York Trade Manager, handling global business development, and will continue to serve in her role as Asian Outreach Director for the Office of the Governor. Ms. Sun previously served as Queens Regional Representative, Director of Operations for Congresswoman Grace Meng's 2012 congressional campaign, Chief of Staff to New York State Assemblymember Grace Meng, and Campaign Manager for Grace Meng for New York State Assembly. She has a B.A. from Barnard College, Columbia University and a M.A. from Teachers College of Columbia University. 


Office of Children and Family Services

Suzanne Miles, Esq., has been appointed Deputy Commissioner for Legal Affairs and General Counsel, having previously served as Senior Associate Counsel of Strategic Initiatives at the New York City Department of Education. Prior to that, she was an Associate at Baker Botts, LLP and LeBoeuf, Lamb, Greene & MacRae, LLP. Ms. Miles has a B.A. from SUNY Buffalo and a J.D. from Fordham University School of Law, and served as a judicial clerk to the Honorable Eric L. Clay of the United States Court of Appeals for the Sixth Circuit.


New York State Office of Homes and Community Renewal

Catie Marshall has been appointed Deputy Commissioner for Policy and Communications, having previously served as Vice President of Communications at the New York City Housing Development Corporation and Assistant Commissioner of the New York City Department of Housing Preservation and Development from 2008 to 2014. In addition to her extensive experience in city and state government, she has worked in the private and not-for-profit sectors creating and implementing internal and external communications programs and plans. Ms. Marshall has an A.B. in Biology from Brown University.


Office of Temporary and Disability Assistance

Sharon Devine has been appointed Executive Deputy Commissioner, having previously served as the Deputy Commissioner for Administration, and most recently the President for the Office of Professional Services at New York State Homes and Community Renewal. Ms. Devine has a B.A. from University of California and an M.P.A. from Atlanta University.


Division of Homeland Security and Emergency Services

Kevin Wisely has been appointed Deputy Director Office of Emergency Management for Field Operations, having previously served as Onondaga County Department of Emergency Management Commissioner and has 30 years of emergency services experience. Mr. Wisely has a B.S. from Oswego State University and a M.B.A. from Lemoyne College. He is currently enrolled in the in the Associate of Applied Science Emergency Management degree program at Fredrick Community College. 

Frank Hoare, Esq., has been appointed General Counsel, having previously served as Deputy Attorney General for Regional Affairs and Deputy Counsel to the Attorney General. He has a B.A. from SUNY Albany and a J.D. from Albany Law School of Union University. 

Thruway Authority

Matthew Howard has been appointed Chief Financial Officer, having previously served as Secretary to the State Assembly Ways and Means Committee. He has a B.S. from Springfield College and an M.P.A. from Cornell University.


Environmental Facilities Corporation

Suzanne Beddoe, Esq., has been appointed Senior Vice President and General Counsel, having previously served as Executive Director and then Commissioner of the New York City Office of Administrative Trials and Hearings since 2008. She has a B.A. and M.A. from Yale University and a J.D. from Columbia University School of Law. 

Department of Labor

Melissa R. Quesada, Esq., has been appointed Director of Outreach, Governor’s Unemployment Strike Force, having previously served as a Special Associate for the New York City Law Department. She has a B.A. from Binghamton University and a J.D. from Hofstra University School of Law.