Satisfying federal requirements that public schools provide students with disabilities with free and appropriate education

Satisfying federal requirements that public schools provide students with disabilities with free and appropriate education

Endrew F. V Douglas County School District RE-1, USCA, 10^thCircuit, Docket #14-1417

Federal law requires public schools to provide students with disabilities a free and appropriate education. If a school cannot meet the educational needs of a disabled student, the student’s parents can place the child in private school and seek reimbursement of tuition and related expenses.

Parents of an autistic child, believing that the child’s educational progress at the  Douglas County [Colorado] School District [District], was not meeting his needs, withdrew the student from the District and placed him with another facility, Firefly Autism House, a private school that specializes in educating autistic children. The parents then asked the District to reimburse them for tuition and related expenses in accordance with federal law.

The District denied their request and a hearing was held before an administrative law judge [ALJ].  The ALJ found that the parents were aware of their child’s progress and fully participated in his education and upheld the District’s decision denying reimbursement.

A federal district court subsequently sustained the administrative ruling, which decision was affirmed the Tenth Circuit Court of Appeals.

The circuit court explained that the record showed that the administrative law judge found that the student received some educational benefit while in the District’s care and that such a finding was “enough to satisfy the District’s obligation to provide a free appropriate public education” under federal law. In the words of the circuit court, “the District did not violate the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (IDEA), and is not required to reimburse the cost of the student’s private-school education.” Citing Florence Cty., 510 U.S. at 15, the circuit court noted that “Parents who take unilateral action, however, ‘do so at their own financial risk.’”

The decision is posted on the Internet at:

https://www.ca10.uscourts.gov/opinions/14/14-1417.pdf

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 29, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 29, 2015
Click on text highlighted in color to access the complete report

Public Financing of Elections urged by State Comptroller

New York State Comptroller Thomas P. DiNapoli’s op-ed, “New York Should Opt into Public Financing of Elections” was published in The Albany Times Union, urging the state Legislature to pass comprehensive campaign finance reform in New York, including public funding of elections for all state offices.

http://www.osc.state.ny.us/press/releases/aug15/082615.htm?utm_source=weeklynews20150830&utm_medium=email&utm_campaign=082615release

July 2015 State’s Cash Report issued by State Comptroller

Tax revenues through the first four months of the state’s fiscal year came in $17.7 million lower than the Division of the Budget’s latest projections but more than $1 billion higher than originally forecasted, according to the monthly state cash report issued by New York State Comptroller Thomas P. DiNapoli. The General Fund balance remains high compared to historical levels, with $9.6 billion at the end of July, $25.2 million higher than the latest projections.

http://www.osc.state.ny.us/press/releases/aug15/082715.htm?utm_source=weeklynews20150830&utm_medium=email&utm_campaign=082715release

State Contract report for the month of July 2015

State Comptroller Thomas P. DiNapoli announced his office approved 1,693 contracts valued at $1.1 billion and approved more than 1.8 million payments worth approximately $8 billion in July. His office also rejected 204 contracts and related transactions valued at $356 million and nearly 2,000 payments valued at approximately $3 million due to fraud, waste or other improprieties.

http://www.osc.state.ny.us/press/releases/aug15/082515.htm?utm_source=weeklynews20150830&utm_medium=email&utm_campaign=082515release

Employee disciplined for failure to follow employer's policy

Employee disciplined for failure to follow employer's policy

OATH Index No. 1051/15

An ultrasound technologist was charged with failing to properly identify a patient and performing an ultrasound test on the wrong on the patient.

OATH Administrative Law Judge Kevin F. Casey sustained the charges. Evidence showed that the technician did not follow hospital policy for identifying patients, which requires using two methods to verify a patient's identity, and as a result performed an ultrasound on the wrong patient.

The technician realized his mistake after the examination had been completed and reported it to his supervisor.

That no one was injured and the mistake was immediately reported was outweighed by the technician's record of poor performance.

The ALJ concluded that a hospital does not have to wait for a patient to be injured before taking disciplinary action and recommended the termination of the employee.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1051.pdf

_______________

The Discipline Book -- A 448 page e-book focusing on disciplinary actions involving State, municipal and school district officers and employees. 
For more information click on http://thedisciplinebook.blogspot.com/

________________

Advisory arbitration

Advisory arbitration

Hannon v Westbury Union Free Sch. Dist. Bd. of Educ., 2015 NY Slip Op 06668, Appellate Division, Second Department

“Advisory Arbitration”is typically viewed as a form of arbitration in which the decision of the arbitrator is in the nature of recommendations or advice and not binding on the parties.

As the Hannon decision demonstrates, although the opinion of the arbitrator in advisory arbitration is not binding on the parties, the parties may have obligated themselves “to consider the arbitrator’s opinion” in the course of the “decision making process” where the collective bargaining agreement [CBO] so requires and the failure to do so would constitute a “contract violation” of the CBO.

The Westbury Union Free School District Board of Education [Westbury] terminated Kevin Hannon from his position following an advisory arbitration proceeding in which the arbitrator considered Hannon's grievance. Hannon sued, contending Westbury violated the CBO in determining the disposition of his grievance. Supreme Court, Nassau County, agreed and granted Hannon’s Article 78 petition. The court directed Westbury to reinstate Hannon to his former position with back pay.  Westbury appealed the Supreme Court’s ruling.*

The Appellate Division sustained the lower court’s decision, explaining that Westbury’s determination to reject the advisory arbitration award was arbitrary and capricious as the relevant CBO between Westbury and the United Public Service Employees Union required the parties "to consider the opinion" of the arbitrator "in determining the final disposition of the grievance under review."

Citing Plainedge Federation. of Teachers v Plainedge Union Free School District, 58 NY2d 902,  the Appellate Division said that as there was no evidence in the record demonstrating that Westbury had, in fact, consider the opinion of the arbitrator when it made its decision to terminate Hannon’s employment, it was “in violation of the plain terms of the collective bargaining agreement.”

* Supreme Court had also awarded a second petitioner, Carlos Brugueras, back pay from the date that he was laid off from his position until his discharge from employment by Westbury.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06668.htm

Governor Andrew Cuomo amends Executive Order No. 8-147 relating to the deaths of civilians caused by law enforcement officers

Governor Andrew Cuomo amends Executive Order No. 8-147 relating to the deaths of civilians caused by law enforcement officers

On July 8, 2015 Governor Cuomo issued Executive Order No. 8-147 appointing the New York State Attorney General as a Special Prosecutor in matters relating to the deaths of unarmed civilians caused by law enforcement officers. The order also allows the Special Prosecutor to review cases where there is a question whether the civilian was armed and dangerous at the time of his or her death.

At the request of Attorney General Eric T. Schneiderman, Governor Andrew Cuomo has amended his Executive Order #8-147, dated July 8, 2015, to include an additional paragraph as the EO 8-147’s penultimate paragraph, to read as follows:

“FURTHER, the requirement imposed on the Special Prosecutor by this Executive Order shall include the investigation, and if warranted, prosecution:

“(a) of any and all unlawful acts or omissions or alleged unlawful acts or omissions by any law enforcement officer, as listed in subdivision 34 of §1.20 of the Criminal Procedure Law, arising out of, relating to or in any way connected with the death of Raynette Turner on July 27, 2015 while in the custody of the Mount Vernon Police Department.”

The text of the July 8, 2015 order is posted on the Internet at:
https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO147.pdf 

Free Speech Consequentialism – regulating harmful kinds of speech

Free Speech Consequentialism – regulating harmful kinds of speech

Source: the Adjunct LawProfs Law Blog [Posted by Judge Craig Estlinbaum, 130th Dist. Ct., Texas]

Erica Goldberg, Esq. (Harvard: Climenko Fellow) has posted "Free Speech Consequentialism” on Social Science Research Network.  The abstract reads:

Balancing the harms and benefits of speech — what I call “free speech consequentialism” — is pervasive and seemingly unavoidable. Under current doctrine, courts determine if speech can be regulated using various forms of free speech consequentialism, such as weighing whether a particular kind of speech causes harms that outweigh its benefits, or asking whether the government has especially strong reasons for regulating particular kinds of speech. Recent scholarship has increasingly argued for more free speech consequentialism. Scholars maintain that free speech jurisprudence does not properly account for the harms caused by speech, and that it should allow for more regulation of harmful kinds of speech. This article evaluates the various ways courts already employ free speech consequentialism. It then establishes and defends a principled basis for determining when speech’s harms greatly outweigh its virtues. I argue that courts should engage in free speech consequentialism sparingly, and should constrain themselves to considering only the harms caused by speech that can be analogized to harms caused by conduct. In this article, I develop a framework that recognizes the need to incorporate free speech consequentialism, and to constrain it, at various stages of First Amendment analysis, in connection with both tort and criminal law. I then apply this framework to timely and difficult speech issues, including campus hate speech, revenge porn, trigger warnings, and government speech — with the aim of rehabilitating core values of our First Amendment doctrine and practice.

Ms. Goldberg's article is forthcoming in Volume 116, Columbia Law Review and is currently posted on the internet at:

http://poseidon01.ssrn.com/delivery.php?ID=4880070670050801260940970910690921100580220490540580851080210880271040150

Arbitrator’s award baring disciplining an employee charged with sexual harassment while the employee was on “union leave” vacated as violative of public policy

Arbitrator’s award baring disciplining an employee charged with sexual harassment while the employee was on “union leave” vacated as violative of public policy

Matter of Phillips v Manhattan & Bronx Surface Tr. Operating Auth., 2015 NY Slip Op 06564, Appellate Division, First Department

A bus driver's employment was terminated by the Manhattanand Bronx Surface Transit Operating Authority (Authority) for alleged sexual harassment of a bus dispatcher. Although the bus operator did not contest the charges or the penalty, the Transport Workers Union of America, Local 100 [Union] challenged the Authority's power to impose the disciplinary penalty of termination against an employee who had been put on union-paid release time prior to the Authority imposing the disciplinary penalty. An arbitrator ruled that the Authority violated the CBA by seeking to impose discipline upon the employee while he was on approved union-paid release and Supreme Court granted the Union's Article 75 petition seeking to confirm the arbitration award.

The Authority appealed and the Appellate Division said that it had to resolve was whether it was a violation of public policy for the arbitrator to interpret the CBA's approved union-paid release time as a shield for an employee to prevent the Authority from fulfilling its obligation to prevent and sanction sexual harassment in the workplace.

The collective bargaining agreement [CBA] between the Authority and the Unionprovided for a multiple steps that culminate in final and binding arbitration. The Authority filed disciplinary charges against the employee alleging that he engaged in sexual harassment against the dispatcher and created a hostile work environment but the accused employee did not appear at the Step I Disciplinary Grievance Hearing. Indeed, said the court, the individual “never appeared [at any Step I hearing] because the Uniondisputed the Transit Authority's power to maintain a disciplinary grievance against an employee who was placed on union-paid release time.”  The Transit Authority found the employee guilty* and imposed the penalty of dismissal effective.

The Transit Authority denied the Union's appeal of the Step I disciplinary determination and the Unionfiled a Contract Interpretation Grievance, contending that the Authority could not discipline an employee who is on union-paid release time, arguing that the placement of the individual on union-paid release time created a "safe haven" for employee.  The Contract Arbitrator found that the Authority had "violated the [CBA] by seeking to impose discipline on [the employee] while he was on approved Union paid release time."

While the Union argued that, “under black-letter arbitration law,” the award should be enforced, because the "grievance arbitration provision was in the contract, the parties agreed to arbitrate the issues, and the arbitrator interpreted the contract and based his decision on actual provisions of the contract," the Authority contended by "preventing [it] from taking prompt action to address sexual harassment in the workplace," the award violated public policy and was subject to vacatur.

Noting that the Authority “has a very heavy burden” in this case, the Appellate Division said that both the Authority and the Unionhad bargained for the arbitrator's construction of the CBA, and they have granted him the authority to interpret the meaning of its language, including the interplay between the Contract Interpretation Grievance and Disciplinary Grievance provisions. As a result, said the court, in considering the issue before it must assume that the CBA itself calls for the remedy set forth in the Arbitrator's award; the question to be asked is whether the arbitrator's interpretation of the CBA — requiring reinstatement of the sexual harassment offender because the union-paid release time acts as a shield — runs counter to the identified public policy against sexual harassment in the workplace.”

The Appellate Division pointed out that the scope of the public policy exception to an arbitrator's power to resolve disputes is extremely narrow, and courts will only intervene in "cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator," citing New York City Tr. Auth. v Transport Workers Union of Am., Local 100, AFL—CIO, 99 NY2d 1. Thus, said the court, under this analysis a court must focus on the result only and can vacate the award if [1] it intrudes into areas reserved for others to resolve or [2] if, because of its reach, the award violates an explicit law of this State.

The Appellate Division then cited Cohoes City School Dist. v Cohoes Teachers Assn. (40 NY2d 774 as an example of the application of the first test. Cohoesinvolved a dispute between a teachers' union and a local school board concerning whether a board could cede to arbitration its power to determine a teacher's tenure after a probationary period. The Court of Appeals held that public policy precludes delegation of that issue, finding it "inescapably implicit" in the applicable statutes “that the issue be withheld from the arbitral process, whatever applicability arbitration may have for the realm in general.”

Similarly, said the court, some cases have qualified for judicial intervention under the second prong of the public policy exception citing City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, as an example. In Fire Officers the City’s Department of Investigations [DOI] was conducting an investigation into possible line of duty injury fraud within the Fire Department. The Court of Appeals deemed this to be a criminal investigation and thus the “expansive remedy sought by the UFOA, asking the arbitrator to order the DOI to conduct future criminal investigations only in accordance with the contract rules, would "impinge on DOI's ability to conduct a criminal investigation."

The Appellate Division said that this case “does not qualify for judicial intervention under the first prong of the public policy exception” noting that the parties conceded that these disciplinary and contract interpretation grievance proceedings were the proper subject of arbitration.

However, the court said it found it necessary to intervene under the second prong of the public policy exception because “the arbitrator construed the CBA and fashioned a remedy in a manner that conflicts with a well-defined and dominant public policy, explaining that the “public policy against sexual harassment in the workplace is well recognized,” citing Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination on the basis of sex (42 USC §2000e-2[a][1]) and harassment on the basis of sex is a violation of §703 of Title VII. Further, explained the Appellate Division, Title VII places upon an employer the responsibility to maintain a workplace environment free of sexual harassment.

In this disciplinary action the bus driver was accused by his coworker, a bus dispatcher, of serious harassment charges that "created an uncomfortable and hostile work environment for [the dispatcher] and other female employees . . . [and] adversely affected their ability to perform their jobs by making frequent unwelcome, and/or inappropriate comments of a sexual nature to them." These allegations, which the Transit Authority considered serious enough to require the bus driver’s termination, have gone unchallenged.

Rather than the bus driver appearing at the Disciplinary Grievance Hearing to confront his accuser and to refute the allegations, the Union appealed the disciplinary determination through the Contract Interpretation Grievance process which ultimately resulted in the arbitrator agreeing with the Union that the Transit Authority violated the CBA by seeking to impose discipline on the bus driver while he was on approved Union paid release time at the time the termination was imposed.

The Appellate Division said that it could not “turn a blind eye” to the fact that the arbitrator’s interpretation of the CBA and the concomitant remedy of reinstatement conflicts with the sexual harassment policy. As Title VII is designed to encourage the creation of anti-harassment policies and effective complaint mechanisms for reporting harassing conduct, an employer's investigation of a sexual harassment complaint is not a gratuitous or optional undertaking under federal law, and appropriate corrective action is required following such investigation.

If the Authority is forced to honor the arbitration award, the Authority will not be complying with Title VII and the New York Stateand New York City Human Rights Law, each of which requires that an employer impose appropriate discipline for proven cases of sexual harassment in order to ensure a safe work environment free of sexual harassment. Accordingly, said the Appellate Division “this is one of the relatively rare cases where a CBA award — reinstating a sexual harassment offender — runs counter to the strong public policy against sexual harassment in the workplace. If left to stand, the arbitration award will send the wrong message — that certain employees at the Transit Authority, mainly those who also performed union—related activities, may be free to create a sexually-charged atmosphere in the Transit Authority's workplaces because any complaints against them will be impeded by CBA protections.”

The Court said it was imperative that employers have the unfettered ability to discipline employees such as this bus driver in order to both punish the offender and to deter other employees from engaging in such behavior.

The Appellate Division then unanimously reversed the Supreme Court’s ruling “on the law” and vacated the arbitrator’s award.

* Presumably the Authority tried the employee in absentia.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06564.htm

________________

The Discipline Book - a 448 page e-book focusing on disciplinary actions involving State, municipal and school district public officers and employees. For more information click on http://thedisciplinebook.blogspot.com/

________________

 

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 22, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 22, 2015

[Click on text highlighted in color to access the full report]

DiNapoli: Former Le Roy Fire Dept Treasurer Sentenced For Gambling-Related Theft of $46,000

The former treasurer of the Le Roy Fire Department and the Le Roy Fireman’s Benevolent Association was sentenced today for stealing nearly $46,000 in public funds to pay for gambling at local casinos, according to New York State Comptroller Thomas P. DiNapoli. 

Dennis Snow, 62, was sentenced in Genesee County Court to five years probation, 30 days in jail and a final $16,200 restitution payment to the Le Roy Fire Department and the Firemen’s Benevolent Association. Snow pleaded guilty last year to grand larceny in the fourth degree and forgery in the second degree. He was ordered to pay full restitution for the thefts, which took place from 2007 to 2013.  

“Too much money was moved with too little scrutiny while Mr. Snow gambled on the public’s dime,” DiNapoli said. “The solution is often the same: oversight, oversight, oversight. I thank Genesee County District Attorney Lawrence Friedman and the Le Roy Police Department for partnering with my office on this case.” 

DiNapoli’s investigation and audits found that Snow used funds from department and association accounts to pay his credit card and cell phone bills and other expenses. Snow confessed to DiNapoli’s investigators that he was actively gambling during this time and used the money to cover his expenses.  

DiNapoli recommended that department and association officials improve their fiscal reviews, including approving disbursements and transfers prior to payment to comparing monthly bank statements and canceled check images with the treasurer’s records and paid invoices.

The Comptroller’s audit report of the Le Roy Fire 

Department, Inc. is posted on the Internet at:
http://www.osc.state.ny.us/localgov/audits/firedists/2014/leroy.pdf

The Comptroller’s audit report of the Association of the Village of Le Roy Firemen’s Benevolent is posted on the Internet at:
http://osc.state.ny.us/localgov/audits/firedists/2014/leroybenevolent.pdf

Comptroller DiNapoli Releases Municipal Audits

Town of Allegany – Financial Management (Cattaraugus County)
Overall, the board properly managed the town’s finances. However, the board did not review the budget-to-actual status reports the comptroller provided and has not developed a multiyear financial plan. 

Chili Public Library – Board Oversight (Monroe County)
The board provided adequate oversight of library finances. However, the board did not audit and approve claims from the private funds account prior to their payment. This increases the risk that errors or irregularities would not be detected and corrected. 

Clyde Fire Company, Inc. – Controls Over Financial Activity (Wayne County)
The treasurer controls all aspects of the cash receipts and disbursements processes without any oversight or mitigating controls, such as independent review of his work. In addition, the company’s audit committee has not adopted policies or procedures for financial operations such as conducting fundraising activities, purchasing goods and services, and processing claims. 

Village of Cohocton – Cash Receipts (Steuben County)
Prior to the commencement of the audit of the village, an audit of the town of Cohocton identified fraud linked to the former town clerk. During the audit of the town, village money was found deposited in a town account. The audit of the village revealed cash receipts were not properly safeguarded and accounted for in the treasurer’s office. 

Concord Industrial Development Agency (CIDA) – Agency Management (Erie County)
The board has not taken sufficient action to initiate new projects and encourage the creation or expansion of new business, significantly affecting CIDA’s viability. CIDA has not taken sufficient action to reduce expenditures. 

East Brentwood Fire District – Control Environment and Expenditures (Suffolk County)
The board did not ensure that the secretary included sufficient detail in the board’s meeting minutes, did not comply with town law relating to commissioner elections and did not properly document relevant payroll information. The district also has no policy regarding credit card usage. Auditors reviewed 177 food, travel and credit card expenditures totaling $86,337 and found that the board did not ensure that these expenditures were adequately supported and valid prior to approving them for payment.

Town of Essex – Internal Controls Over Selected Financial Operations (Essex County)
Auditors found that four employees in 2013 and six employees in 2014 did not receive the correct gross pay. These employees had combined overpayments totaling $4,759 and combined underpayments totaling $852. In addition, state and federal income taxes were not withheld in accordance with employees’ withholding allowance certificates and the proper amounts were not deducted for health insurance premiums from any of the employees’ gross pay during the audit period. 

Town of Exeter – Records and Reports (Otsego County)
Although the supervisor provided the board with accurate monthly budget-to-actual reports, the balance sheets included inaccurate account balances. Moreover, the last time the supervisor filed the annual financial report was for the 2010 fiscal year and the tax levy limit calculation has never been filed since the inception of the property tax cap law for the 2012 budget year. 

Town of Middlefield – Budgeting (Otsego County)
Although board members followed town procedures when developing budgets, they consistently adopted unrealistic budgets. The board relied on one-time revenues to fund operations and used budget estimates that did not reflect historical trends. Further, the town-wide general and the town-outside-village highway funds had operating deficits for four straight years totaling $45,200 and $127,400.

Village of Sag Harbor – Board Oversight and Justice Court Operations (Suffolk County)
The board allowed budget line items to be routinely over-expended and budget transfers to be made after the end of the fiscal year, rather than throughout the year when needed. The court clerk maintains up-to-date accounting records, however, the justices and village officials did not establish proper controls to ensure the court clerk properly accounted for all issued parking tickets. 

Town of Sand Lake – Justice Court (Rensselaer County)
The justices did not ensure that accurate monthly bank account reconciliations were being performed by the clerk, which should be part of their month-end accountability analysis. Furthermore, the justices did not deposit all collections in a timely manner. 

Town of Saugerties – Information Technology (Ulster County)
The board needs to improve internal controls to effectively protect the town’s computer system and data. Specifically, the board needs to review user access and restrict administrative rights to those who need such rights to perform their jobs. Furthermore, the board has not developed computer security and disaster recovery plans, and has not established a breach notification policy or a comprehensive inventory policy for all hardware and software. 

Schoharie County – Stream Restoration Project and Contract Process (2015M-87)
The board did not provide adequate oversight of the planning and execution of the stream restoration project. In addition, the board did not always ensure that county contracts were properly approved, monitored and paid. No procedures were taken to ensure the lowest possible cost was paid for 18 of 28 professional service contracts totaling $1.2 million. 

Smithfield Fire District – Controls Over Financial Activities (Madison County)
The board does not review cash receipts, bank statements, canceled checks or bank reconciliations while conducting the annual audit, causing the audit to be ineffective. Also, the treasurer has not submitted the required annual financial reports to the Office of State Comptroller for the 2010 through 2014 fiscal years. 

Town of Springport – Financial Management (Cayuga County)
The board did not provide adequate oversight and management of the town’s financial operations within the town-wide general fund. Also, town officials have not developed policies and procedures to govern budgeting practices and the level of fund balance to maintain and have not communicated long-term plans for the building reserve to taxpayers.

Village of St. Johnsville – Records and Reports (Montgomery County)
Numerous bank account balances did not reconcile to their corresponding cash balances in the accounting records and had total differences ranging from $4,437 to $6,514 per month. In addition, the village filed its annual financial reports to the Office of State Comptroller late for 2011-12 fiscal year and has not yet filed its reports for 2012-13 or 2013-14 fiscal years. 

Uniondale Public Library – Procurement (Nassau County)
Library officials did not always seek competition when procuring goods and services. For example, auditors found that officials paid a professional service provider and an insurance broker a total of $90,912 without soliciting competition. 

Town of Virgil – Justice Court Operations (Cortland County)
The town justice generally ensures controls are in place to safeguard moneys, however, the justice does not ensure the clerk is pursuing collections of unpaid traffic tickets. As a result, the court had 17 unpaid tickets during the audit period that represent $2,900 in uncollected fines and fees. 

Village of Washingtonville – Village Hall Building Project and Board Oversight (Orange County)
The board did not properly plan and provide sufficient oversight and management of the village hall building project. As a result, the second floor of the building is incomplete and unusable more than three years since the start of the project. In addition, the board needs to improve its oversight of village financial operations. Auditors found the former mayor increased his annual salary without the board’s formal authorization.

For access to state and local government spending and 50,000 state contracts, visit OpenBookNY. The easy-to-use website was created by Comptroller DiNapoli to promote openness in government and provide taxpayers with better access to the financial workings of government.

Employer has an obligation to provide information reasonably necessary for contract administration made in the context of disciplinary grievances

Employer has an obligation to provide information reasonably necessary for contract administration made in the context of disciplinary grievances

City of New York v New York State Nurses Assn., 2015 NY Slip Op 04437, Appellate Division, First Department

The Board of Collective Bargaining of the City of New York [Board] granted an improper practice petition to the extent of compelling the City of New York to disclose certain materials requested by the New York State Nurses Association in connection with employee disciplinary proceedings. 

The Appellate Division said that the question presented to this Court is not whether we agree with the administrative agency's determination that a union was entitled to obtain certain documents relevant to disciplinary proceedings against two of its members, but simply whether the determination was rationally based. 

The court said it found no basis to annul the Board’s determination, explaining that the Board’s decision is entitled to substantial deference as it engaged in a thorough analysis of its enabling statute, its own precedent, the underlying collective bargaining agreement, and relevant Appellate Division jurisprudence.

The Appellate Division also noted that in making its determination, the Board discussed several of its prior orders holding that the duty to furnish information pursuant to Administrative Code of the City of New York §12-306(c)(4) extends to information "relevant to and reasonably necessary for purposes of collective negotiations or contract administration," and that it also applies in the context of "processing grievances." 

Accordingly, said the court, the Board determined that although the agreement "does not explicitly obligate the parties to provide requested information in conjunction with the disciplinary process," the statutory "obligation to provide information reasonably necessary for contract administration applies to requests made in the context of disciplinary grievances, and that failure to provide such materials upon request" constitutes an improper practice.

Vacating the ruling of the Supreme Court annulling the Board’s determination, the Appellate Division reinstated the Board’s decision and dismissed this proceeding brought pursuant to CPLR Article 78.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04437.htm

Massachusetts adopts new disciplinary rules addressing lawyers maintaining confidentiality when using new technologies in the practice of law

Massachusettsadopts new disciplinary rules addressing lawyers maintaining confidentiality when using new technologies in the practice of law

Source: The Daily Record, Rochester, New York

Nicole Black, Esq., writing in the Daily Record, notes that technological change has increased dramatically in recent years, making it difficult for lawyers to keep abreast of new developments.

Ms. Black reports that on July 1, 2015 the revised Massachusetts Rules of Professional Conduct became effective. These new rules included revisions to sections addressing the obligation to maintain the confidentiality of client information when using new technologies and the duty to stay abreast of changes in technology.

In particular, Ms. Black notes that “Comment 8 to Rule 1.1, which addresses the duty of competence, was revised to require lawyers to stay abreast of changes in technology. It now states that ‘(t)o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, and engage in continuing study and education.’”

Ms. Black’s article is posted on the Internet at:

http://nylawblog.typepad.com/suigeneris/daily_recordlegal_currents_column/index.html

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 15, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 15, 2015

[Click on text highlighted in colorto access the full report]

Former Town Supervisor plead guilty to extortion and making false statements

Former Town of Halfmoon Supervisor Melinda Wormuth pled guilty to two felony counts charging her with extortion and making a false statement before Chief U.S. District Court Judge Gary L. Sharpe in federal court in Albany, announced by State Comptroller Thomas P. DiNapoli with United States Attorney Richard S. Hartunian and Andrew W. Vale, Special Agent in Charge of the Albany Division of the Federal Bureau of Investigation along with Attorney General Eric Schneiderman.

http://www.osc.state.ny.us/press/releases/aug15/081015a.htm?utm_source=weeklynews20150816&utm_medium=email&utm_campaign=081015arelease 

NYC Subway “on-time” performance deteriorating

Train delays have increased as the subway system’s on-time performance has steadily deteriorated and the Metropolitan Transportation Authority should do more to fix the underlying causes, many of which are controllable, according to an audit released by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/audits/allaudits/093015/14s56.pdf

NYS job growth in 2014 continued a four-year trend

New York reached its highest employment level ever of more than 9 million jobs in 2014, after adding 538,000 jobs since 2009, according to a report released by State Comptroller Thomas P. DiNapoli. The overall job growth in 2014 alone was 143,000 – the strongest growth since 2000 – and capped four years of steady gains.

http://www.osc.state.ny.us/reports/economic/employment_trends_nys_2015.pdf 

NYS Common Retirement Funds experienced a challenge during the first quarter of 2015
The New York State Common Retirement Fund’s overall return in the first quarter of the state fiscal year 2015-2016 was 0.52 percent for the three-month period ending June 30, 2015, with an estimated value of $182.5 billion, according to New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/aug15/081415.htm?utm_source=weeklynews20150816&utm_medium=email&utm_campaign=081415release

A court’s review of a decision of the Commissioner of Human Rights is not whether the court would have reached the same result but was the Commissioner's determination rational in light of the evidence presented

A court’s review of a decision of the Commissioner of Human Rights is not whether the court would have reached the same result but was the Commissioner's determination rational in light of the evidence presented
Rensselaer County Sheriff's Dept. v New York State Div. of Human Rights, 2015 NY Slip Op 06551, Appellate Division, Third Department

In this appeal to review a determination of the Commissioner of Human Rights [Commissioner] which, among other things, found Rensselaer County Sheriff’s Department [RCSD] guilty of an unlawful discriminatory practice based on gender, the Appellate Division said that when a court is reviewing a determination made by the Commissioner in a matter such as this one, the court’s purview is "extremely narrow" and must focus not on whether the court would have reached the same result as did the Commissioner, but instead on whether the Commissioner's determination was rational in light of the evidence presented.

An Administrative Law Judge, after holding a hearing, found that a woman employed [Employee] at the RCSD had shown that she was sexually harassed by male coworkers and recommended that the Department be ordered to pay the woman nearly $450,000 in economic damages and $300,000 in noneconomic damages. The Commissioner of Human Rights adjusted the amount of economic damages to approximately $315,000, but otherwise adopted the ALJ's recommendations in all pertinent respects.

RCSD appealed in an effort to have the court annul the Commissioner's final determination. 

The Appellate Division noted that "Where, as here, there is a finding of a hostile work environment as a result of sexual harassment, the evidence in the record must establish the pertinent elements, including proof that the discriminatory conduct occurred due to the complainant's gender."

Considering the evidence presented at the hearing, said the court, there is a rational basis for the determination that, but for Employee’s gender, she would not have suffered the harassment that she described and that such harassment altered the conditions of her employment so as to create an abusive work environment. Notably, said the court, the ALJ credited Employee’s testimony and the Appellate Division said that it would defer to that determination.

Relying on that credited testimony, the proof established that the persons harassing Employee were all male members of a group of friends and coworkers who were identified, as a group, by their gender.

The Appellate Division declined to reduce Employee's $300,000 award for noneconomic injuries, explaining that “[a]n award for noneconomic damages will be upheld where it is reasonably related to the wrongdoing, supported by substantial evidence and comparable to other awards for similar injuries.” Employee had testified that the male coworkers' harassment led to extensive psychological trauma that included "suicidal ideations" and required medication. Employee's psychiatrist confirmed such testimony and he testified that he had diagnosed Employee with post-traumatic stress disorder and major depressive disorder. The psychiatrist opined that the causes of such conditions were Employee’s frequent and recurring thoughts regarding the harassment that she suffered at the correctional facility.

Considering Employee's testimony and the medical proof elaborating on the severe effects that the discrimination had on her, the Appellate Division ruled that the award “is reasonably related to the wrongdoing, supported by substantial evidence and comparable to awards for similar injuries.”

Addressing another element in this appeal, the Appellate Division said that by its unambiguous terms, Workers' Compensation Law §29(1) grants a lien without any exception for when an award of damages has already been reduced in recognition of a workers' compensation award. However, said the court, it rejected “the notion that an award that would be subject to such a lien may be reduced at the outset, because such a scheme is inconsistent with Workers' Compensation Law §29(1). 

Accordingly, the Appellate Division found that the Commissioner erred as a matter of law by reducing Employee’s award for past lost wages by $88,200 and her award for future lost wages by $176,400 on the basis of workers' compensation benefits. 

Further, the court said it agreed with Employee that the damages should have properly reflected consideration of “the pension that she would have received absent the harassment,” given that any remedy should "make the victim whole for injuries suffered as a result of discriminatory employment practices," citing Beame v DeLeon, 87 NY2d 289. In Lamot v Gondek, 163 AD2d 678, the court said it had “unambiguously established” that such a remedy includes the consideration of "pension rights [that are] established with reasonable certainty" and ruled that the Commissioner's order that Employee “take steps to involve the Office of the State Comptroller and the New York State and Local Retirement System — presumably to have them provide an actual pension — was an abuse of discretion.” 

The court then remitted the matter for “the limited purpose of resolving the amount of damages that will make [Employee] whole to the extent that her pension has been diminished, in whole or in part."*

Finally, RCSD contended that Employee failed to mitigate damages relating to her pension to the extent that she failed to obtain a collateral offset in the form of disability retirement benefits. The court said that to the extent it is relevant here, RCSD and not Employee bore the burden of establishing its entitlement to a collateral offset* by clear and convincing evidence” that Employee was obligated to mitigate damages by obtaining a collateral offset and RCSD failed to meet its burden in that regard.

The Appellate Division then modified the Commissioner’s determination by (1) increasing the award for past lost wages from $107,558.51 to $195,758.51, (2) increasing the award for future lost wages from $208,837.02 to $385,237.02, and (3) remitting the matter to the New York State Division of Human Rights for a determination of damages related to Employee’s pension.

* The Appellate Division noted that in Weiss v New York State Human Rights Appeal Bd., 102 AD2d 471, the Weiss court had found that the “Commissioner erred in ordering [the] state employer to provide the promotion to a victim that the victim would have received absent age discrimination instead of providing a proper award of monetary damages.”

** A collateral source payment that particularly corresponds to a category of loss for which damages are awarded .

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06551.htm

NYS Comptroller DiNapoli releases state audits

NYS Comptroller DiNapoli releases state audits

Source: Office of the State Comptroller

On August 13, 2015 New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued [Click on text highlighted in color to access the full report]:

Development Authority of North Country [DNAC]

Auditors determined that DANC officials have provided appropriate oversight for procurements and the loan programs, having established policies and procedures and maintained sufficient monitoring systems. However, auditors did identify areas where DANC could improve its operations, specifically in terms of procurement reporting and determining reasonable cost.

http://osc.state.ny.us/audits/allaudits/093015/15s3.pdf

NYS Energy Research and Development Authority [NYSERDA]

Auditors found that although NYSERDA has policies and procedures governing the contract award process, certain policies and procedures were not always followed for 19 of the 69 contracts reviewed. NYSERDA did not effectively monitor contract expiration dates to ensure that successor contracts were in place prior to the expiration of the previously existing contracts for similar or related work. NYSERDA also did not adequately document the justification for allocating projects (related to four contracts) to certain contractors when there were nine additional contractors pre-qualified for the same work.

http://osc.state.ny.us/audits/allaudits/093015/15s35.pdf

Office of Temporary and Disability Assistance [OTDA]

Auditors found the OTDA’s internal control system appropriately addresses all five components of internal control. As a result, the office has multiple mechanisms in place for implementing and evaluating the effectiveness of its internal control system.

http://osc.state.ny.us/audits/allaudits/093015/14s49.pdf

State Education Department [SED] – Summit Educational Resources

For the fiscal year ended June 30, 2013, auditors identified $28,176 in other than personal service costs that did not comply with SED’s requirements for reimbursement. The disallowances included $26,754 for consultant services and $1,422 in various other costs that were ineligible for reimbursement. Auditors also questioned another $34,357 in costs for consultant services and information technology procurements that were not obtained through competitive bidding practices.

http://osc.state.ny.us/audits/allaudits/093015/14s49.pdf

State Education Department [SED] – Clinical Associates of the Finger Lakes

Auditors identified $72,401 in costs that did not comply with SED’s requirements for reimbursement. The disallowances included $54,751 in various other-than-personal-service costs, such as property related costs and vehicle expenses, and $17,650 in personal service costs.

http://osc.state.ny.us/audits/allaudits/093015/14s61.pdf

State Education Department – Hear 2 Learn, PLLC

For the fiscal year ended June 30, 2013, Hear 2 Learn charged $20,851 in costs that did not comply with SED’s requirements for reimbursement. The disallowances included $10,957 in other than personal service costs and $9,894 in personal service and associated fringe benefit costs that were either non-reimbursable, incorrectly reported, or not properly documented.

http://osc.state.ny.us/audits/allaudits/093015/14s74.pdf

Tuition Assistance Program, State Financial Aid at Barnard College

Auditors determined that Barnard was overpaid $106,333 because school officials incorrectly certified students as eligible for state financial aid awards. Incorrect certifications include 11 students who received awards but had not met the good academic standing requirements and six students who did not meet the full-time requirements. Additional incorrect certifications include two students who had not met matriculation requirements and one student who had not demonstrated the required academic preparedness.

http://osc.state.ny.us/audits/allaudits/093015/15t1.pdf

An appeal to the Commissioner of Education is not the proper forum to adjudicate issues of constitutional law or the constitutionality of a statute or regulation

An appeal to the Commissioner of Education is not the proper forum to adjudicate issues of constitutional law or the constitutionality of a statute or regulation

Appeal of N.C. on behalf of her son, C.C., Decisions of the Commissioner of Education, Decision #16,805

Among the issues raised in an appeal challenging the decision of the New York City Board of Education [NYC DOE] that a student, C.C., was not entitled to an exemption from the immunization requirements of Public Health Law was N.C.’s allegation that her constitutional rights were violated. N.C. further alleged that “the process by which NYC DOE processed her religious exemption application [was] fraudulent and violated her right to due process.”

The Commissioner said that “an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation,” explaining that “[a] novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction.”

Accordingly, the Commissioner declined to consider “such constitutional claims” but ultimately sustained N.C.’s appeal for other reasons.

Based on the record, the Commissioner concluded that the weight of the evidence supported the N.C.’s contentions that her opposition to the vaccine stems from sincerely held religious beliefs and “produced unrebutted evidence of a linkage to the only vaccine at issue.”

The Commissioner also found that NYC DOE failed to adequately explain its rejection of otherwise convincing evidence and admonished NYC DOE “to provide parents with appropriate written communications articulating the specific reasons for the denial of religious exemptions in accordance with the [Department of Education’s] guidance,” which guidance states that “a decision to deny a request for a religious exemption must be in writing” and “the written communication must address the specific reasons for the denial; merely stating that the request does not demonstrate a sincerely held religious belief is not sufficient articulation.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16805

Some proposed settlement agreements may require court or agency approval

Some proposed settlement agreements may require court or agency approval

Cheeks v Freeport Pancake House, Inc., USCA, 2^ndCircuit, Docket 14-299 CV

Dorian Cheeks sued Freeport Pancake House [FPH] seeking to recover overtime wages, liquidated damages and attorneys’ fees under both the Federal Fair Labor Standards Act [FLSA] and New York State’s Labor Law. He also alleged that he was demoted, and ultimately fired, for complaining about FPH’s failure to pay him and other employees the required overtime wage.

After appearing at an initial conference with the district court, the parties agreed on a private settlement of Cheeks’ action  and filed a joint  stipulation  and order  of dismissal with prejudice* pursuant to Federal Rule 41(a)(1)(A)(ii). The federal district court, however, refused to accept the stipulation as submitted, concluding that Cheeks could not agree to a private settlement of his FLSA claims without either the approval of the district court or the supervision of the United Stated Department of Labor [DOL].

The US Circuit Court of Appeals agreed with the district court's holding ruling that in the absence of such approval, parties cannot settle their FLSA claims through a private stipulated dismissal with prejudice and remanded for further proceedings.

Characterizing as “offering useful guidance,” the Second Circuit noted that other circuit courts of appeal have arrived at different results, citing Martin v Spring Break ‘83 Prods., L.L.C., 688  F.3d 247, a 5^th Circuit ruling in which the court concluded that a private settlement agreement containing a release of FLSA claims entered into between a union and an employer waived the employees’ FLSA claims, even without district court approval or DOL supervision, and, in contrast, Lynn’s Food Stores, Inc. v United States Dep’t of Labor, 679 F.2d 1350, an 11^th Circuit ruling in which that court held that there must be a court finding that the proposed settlement “is a fair and reasonable resolution of a bona fide dispute over FLSA provisions.”

However, said the Second Circuit, the question before it “asks whether the parties can enter into a private stipulated dismissal of FLSA claims with prejudice without the involvement of the district court or DOL that may later be enforceable?”

Explaining that requiring judicial or DOL approval of such settlements is consistent with what "both the Supreme Court and our Court have long recognized as the FLSA’s underlying purpose: to extend the frontiers of social progress by insuring to all our able-bodied working men and women a fair day’s pay for a fair day’s work,” the Second Circuit concluded that review of the proposed settlement by the district court or DOL was required.

* Dismissal with prejudice means it can never be filed again by the parties to the settlement.

The Cheeks decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/52d5a9a7-8d8f-41f8-be32-a006b7a4c96f/2/doc/14-299_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/52d5a9a7-8d8f-41f8-be32-a006b7a4c96f/2/hilite/