Selected Reports issued by the Office of the State Comptroller during the week ending October 31, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending October 31, 2015

Click on text highlighted in color to access the full report

Former Town Clerk falsified her own tax payments

Former DePeyster Town Clerk Michelle Sheppard was sentenced to five years probation and paid a total of $4,303 in restitution for falsifying her own tax payments for at least three years until her crimes were exposed in an audit and investigation by State Comptroller Thomas P. DiNapoli’s office.

http://www.osc.state.ny.us/localgov/audits/towns/2015/depeyster.htm?utm_source=weeklynews20151101&utm_medium=email&utm_campaign=102615release

New York receives 91 cents for each dollar sent to Washington, D.C.

For every dollar New York sends to Washington D.C., it receives about 91 cents back in federal spending — compared to a national average of nearly $1.22, according to a report released by State Comptroller Thomas P. DiNapoli.

http://osc.state.ny.us/reports/budget/2015/fed_budget_fy2013.pdf?utm_source=weeklynews20151101&utm_medium=email&utm_campaign=102715release

Individuals, government agencies, businesses and charitable organizations urged to check for unclaimed money held by State Comptroller

New York State Comptroller Thomas P. DiNapoli encourages individuals and other entities to search for unclaimed funds, also known as lost and forgotten money, now being held by the State Comptroller in the State’s Abandoned Property Fund pursuant to the Abandoned Property Law.The Abandoned Property Fund now holds over 14 Billion Dollars.

http://www.osc.state.ny.us/ouf/

Audits of State Agencies released

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued: the

Department of Health (Improper Payments to a Dentist - Follow-up); Workers’ Compensation Board; Tuition Assistance Program; and the

Department of Health (Medicaid Program: Appropriateness of Medicaid Eligibility Determined by the New York State of Health System).

Court annuls employee's unsatisfactory performance rating after finding that the rating lacked a rational basis and was arbitrary and capricious

Court annuls employee's unsatisfactory performance rating after finding that the rating lacked a rational basis and was arbitrary and capricious

Mendez v New York City Dept. of Educ., 2015 NY Slip Op 07599, Appellate Division, First Department

A tenured common branches teacher [Teacher] employed by the New York City Department of Education [DOE] who had received satisfactory ratings since February 2010, forfeited her tenure as a common branches teacher in order to obtain a position as a special education teacher. Appointed as a probationary special education teacher at a high school subject to the satisfactory completion of a two-year probationary period ending in September 2012, Teacher was given a satisfactory rating on her Annual Professional Performance Review for the 2010-2011 school year.

During the summer of 2011, Teacher was an “unsatisfactory rating” [U-rating] and was suspended without pay for four days based on an incident where she was found to have engaged in a loud argument with another teacher in front of students. Teacher appealed and the Chancellor's Committee held a hearing. During the course of the hearing the Superintendent Representative conceded that the four-day suspension was "inappropriate" under the terms of the relevant collective bargaining agreement and it was reversed because of the error.

After receiving a second U-rating,* Teacher was terminated from the position.

A majority of the Appellate Division, Judge Sweeny dissented in part, addressing Teacher’s U-rating for the summer of 2011, held that the U-rating “lacked a rational basis and was arbitrary and capricious.” The court said that accepting the testimony that Teacher had engaged in a loud argument with another teacher about sharing a room, there is no rational basis to find Teacher's conduct was unprofessional, insubordinate or unbecoming.

The majority, noting that the subject of the argument concerned whether Teacher's students with disabilities should share space with students that composed the art cluster or obtain a larger classroom, said that there was no evidence presented that the content of conversation itself was unprofessional. In the words of the court, “The simple conduct of an argument without more elaboration on how the subject and language of the conversation was unprofessional is insufficient to provide a rational basis for professional misconduct.”

Further, said the court, Teacher’s failure to admit that the conversation rose to the level of an argument is not evidence of insubordination.”

Turning to DOE’s termination of Teacher’s employment, the Appellate Division, citing Brown v City of New York, 280 AD2d 368, observed that it is well established that a "probationary employee may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."

Here, however, the court determined that Teacher had established a deficiency in the review process that resulted in Teacher’s termination that was "not merely technical, but undermined the integrity and fairness of the process" considering the fact that the record demonstrated  that Teacher had received satisfactory ratings since February 2010, “which established her professional conduct but for the alleged incident of a loud argument.”

The Appellate Division annulled Teacher's termination and the summer 2011 U-rating and then remanded the  matter to DOE for completion of its final review of the second U-rating for the 2011-2012 school year.

* Teacher’s challenge to the second U-rating for the 2011-2012 school year was premature as she had not exhausted her administrative remedies and a determination of her appeal of that rating had not yet been made at the time the petition was brought.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07599.htm

An educator's claim of tenure by estoppel may be defeated if the educator agrees to an extension of his or her probationary period

An educator's claim of tenure by estoppel may be defeated if the educator agrees to an extension of his or her probationary period

Slutsky-Nava v Yonkers City School Dist. Bd. of Educ., 2015 NY Slip Op 07670, Appellate Division, Second Department

A teacher may attain tenure by estoppel* when a school board accepts the continued services of a teacher but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term.

In this CPLR Article 78 action a teacher [Teacher] asked to court to review a determination of the Yonkers City School District Board of Education [Yonkers] terminating Teacher’s employment as an elementary school teacher. Supreme Court granted Yonkers’ motion to dismiss Teacher’s petition and Teacher appealed.

According to the decision, Teacher was appointed by Yonkers as an elementary school teacher subject to Teacher’s satisfactorily completing a three-year probationary period which was to run through September 2, 2011. Teacher, however, was laid off from her position, effective June 31, 2011. In August 2012, she was again offered a position as an elementary school teacher, starting September 1, 2012.**

Upon her reemployment Teacher was told that, as a result of having been laid off, her probationary period was being extended to November 4, 2012. She signed the offer of employment, which clearly stated that her "expected date of tenure [would] be on November 4, 2012." The petitioner's employment was terminated on October 17, 2012, after she received an unsatisfactory rating.

The Appellate Division said that Teacher’s “probationary period was properly extended to November 4, 2012 since she signed an offer of employment which specified that she would not become eligible for tenure until November 4, 2012.” As Yonkers terminated the Teacher’s employment prior to the expiration of her probationary period and she did not perform the duties of a teacher after November 4, 2012, Supreme Court properly determined that, even accepting the allegations in the Teacher’s petition as true, she could not have acquired tenure by estoppel.

The court also rejected Teacher’s claim that Education Law §2573(15),***which, among other things, describes certain factors to be considered in calculating service for the purposes of determining a teacher's probationary period, holding that §2573(15) did not apply to the facts of this case.

The Appellate Division then held that “[s]ince the allegations of the petition were insufficient to state a cause of action to review [Yonkers’] determination based on the theory of tenure by estoppel, the Supreme Court properly granted [its] motion to dismiss the petition and, in effect, dismissed the proceeding.” 

* Also sometimes referred to as tenure by acquisition, tenure by default or tenure by inaction.

** Presumably [1] Yonkers abolished a position in the elementary tenure area, [2] Teacher was the least senior employee in that tenure area and her name was placed on a preferred list and [3] Teacher was subsequently appointed from the preferred list.

*** §2573(15), which applies to city school districts of cities with one hundred twenty-five thousand inhabitants or more, provides as follows: “15. Notwithstanding any other provision of this section [2573] no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights of any of the persons hereinabove described.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07670.htm

__________________

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

__________________

Remanding a disciplinary penalty “to a new hearing officer” to determine a “lesser penalty”

Remanding a disciplinary penalty “to a new hearing officer” to determine a “lesser penalty”

Fox v New York City Dept. of Educ., 2015 NY Slip Op 07792, Appellate Division, First Department

The New York City Department of Education [DOE] appealed a decision by Supreme Court that [1] vacated the penalty of termination of a guidance counselor's employment imposed by DOE after a disciplinary hearing and [2] remanded the matter to DOE for a determination of a "lesser penalty” by a new hearing officer.  

The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and reinstated the penalty imposed on the educator by DOE, dismissal from the position.

The Appellate Division explained that the guidance counselor had engaged in a course of conduct over two years demonstrating "insubordination, professional unfitness, inability to handle a crisis situation, disclosure of confidential information, and inadequate record keeping."

Under the circumstances, said the court, "The termination of [the guidance counselor's] employment is not so disproportionate to this pattern of misconduct as to shock our sense of fairness," citing Lackow v Department of Education, 51 AD3d 563.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07792.htm

_________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://booklocker.com/books/7401.html

_________________

Grievances reasonably related to the general subject matter of the CBA typically involve matters of contract interpretation and application to be determined by an arbitrator

Grievances reasonably related to the general subject matter of a CBA typically involve matters of contract interpretation and application to be determined by an arbitrator

Village of Garden City v Local 1588, Professional Firefighters Assn., 2015 NY Slip Op 07672, Appellate Division, Second Department

Local 1588, Professional Firefighters Association [Association] filed a grievance after the Village of Garden City [Village] laid off of members of the bargaining unit members and assign bargaining unit work to nonbargaining unit volunteers.  In response to the Association’s demand to submit the grievance to arbitration, the Village sought a court order to permanently stay arbitration on the ground that it retained absolute management rights to lay off employees and assign work under the parties' Collective Bargaining Agreement [CBA]. The Association cross-moved compel arbitration, arguing that the CBA permitted arbitration of this dispute.

The Supreme Court denied the Village’s motion, finding that the parties had agreed in the CBA to arbitrate these issues, and that it was not against public policy to do so and granted the Association’s motion to compel arbitration. The Village appealed.

The Appellate Division sustained the Supreme Court’s ruling, explaining that the determination of whether a dispute between a public sector employer and employee is arbitrable is subject to a “two-prong test."

First the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If there is no such prohibition, the court must then examine the CBA and determined if the parties did, in fact, agree to arbitrate the particular dispute.

Although the Village argued that the arbitration of layoffs of unit member firefighters is prohibited by public policy, the Appellate Division, citing NYC Transit Authority v Transportation Workers Union of America, 88 AD3d 887, said a dispute is not arbitrable if a court can conclude “without engaging in any extended factfinding or legal analysis” that a law "prohibit[s], in an absolute sense, [the] particular matters [to be] decided by arbitration.” Here, said the court, the Village failed to point to any law or public policy that would prohibit arbitration of the grievance.

As to the Association's claim that the Village had improperly assigned bargaining unit work to nonunion volunteers, the court observed that “the very issue as to arbitrability has already been decided” by it. The Appellate Division cited Professional Firefighters Association Local 1588 v Village of Garden City, 119 AD2d 803, explaining that by confirming an arbitration award which directed the Village “to cease and desist from assigning bargaining unit work to volunteers” it had implicitly acknowledged the arbitrability of that specific issue.

Finding that the grievances were reasonably related to the general subject matter of the CBA and, therefore, the Village’s management rights granted under Article XVII of the CBA and "the question of the scope of the substantive provisions of the CBA [are] a matter of contract interpretation and application reserved for the arbitrator."

Accordingly, said the Appellate Division, the Supreme Court properly denied the petition to permanently stay arbitration and granted the Association's motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07672.htm

Absent the employer’s demonstrating its actions were motivated by legitimate business reasons, such actions may constitute an unfair labor practice

Absent the employer’s demonstrating its actions were motivated by legitimate business reasons, such actions may constitute an unfair labor practice

Hudson Val. Community Coll. v New York State Pub. Empl. Relations Bd., 2015 NY Slip Op 07731, Appellate Division, Third Department

In this action the Appellate Division reviewed a challenge to the Public Employment Relations Board’s [PERB] finding that Hudson Valley Community College [Hudson Valley] committed an improper employer practice.

Hudson Valley Community College Non-Instructional Employees Union (NIEU) representing certain classified service staff members employed by Hudson Valley claimed that Hudson Valley agreed to pay overtime at a rate of time and a half for work performed by NIEU members in "second jobs" outside the scope of their regular employment duties.

A dispute arose as to a particular overtime payment and NIEU and Hudson Valley engaged in collective bargaining concerning overtime compensation for second jobs. Unable to reach agreement, Hudson Valley's director of human resources issued a memorandum announcing that Hudson Valley would no longer hire NIEU members for any second jobs and would instead retain non-NIEU members, such as faculty members and temporary staff, for such positions.

NIEU filed an improper practice charge against Hudson Valley with PERB and, following a hearing, an Administrative Law Judge determined that Hudson Valley's decision not to hire NIEU members for second jobs constituted retaliation against NIEU for its advocacy in the underlying dispute in violation of Civil Service Law §209-a(1)(a) and (c). 

Ultimately PERB affirmed the administrative law judge’s decision and directed Hudson Valley, among other things, to rescind the director of human resources’ memorandum, restore NIEU members to the second jobs they had previously held and pay them back wages with interest. Hudson Valley appealed.

The Appellate Division said that in order to prove its claim that Hudson Valley had engaged in an improper practice, NIEU was required to establish that:

[1] NIEU was engaged in activities protected by the Taylor Law;

[2] Hudson Valley knew of these activities; and

[3] Hudson Valley took the challenged action because of such activities.

Further, explained the court, if the charging party proves a prima facie case of improper motivation, the burden of persuasion shifts to the party charged with the unfair labor practice to establish that its actions were motivated by legitimate business reasons.

Here the parties agreed that NIEU's advocacy on the overtime issue was a protected activity and that Hudson Valley was aware of NIEU's advocacy. Thus the issue to be determined was whether Hudson Valley's decision to stop hiring NIEU members for second jobs was improperly motivated.

Hudson Valley's director of human resources had testified that the parties became "fairly entrenched" in their positions on this and other disputed overtime issues. As a result Hudson Valley decided "to eliminate the problem by not having [second] jobs available." The director of human resources circulated a memorandum stating that "[b]ecause of the intransigence of NIEU leadership, [Hudson Valley] can no longer hire current classified staff members for any secondary functions, no matter how brief or infrequent, as this results in a demand for 'overtime' payment for any work beyond normal schedule." 

In his testimony the director of human resources said that his use of the word "intransigence" was not “anti-union animus” but, instead, he was attempting to ensure that Hudson Valley's supervisory staff did not blame the administration for the conflict.

The Appellate Division ruled that memorandum and the director of human resources' testimony constitute substantial evidence supporting PERB's determination that Hudson Valley made its decision to stop hiring NIEU members for second jobs because of NIEU's advocacy, shifting the burden to Hudson Valley to establish that it had valid economic reasons for its actions.

Considering economic reasons identified to support Hudson Valley’s decision, the Appellate Division said that there were specific examples of higher overtime rates being paid to employ NIEU members for some services provided. However, said the court, there was also testimony that non-NIEU members who replaced NIEU members in certain second jobs — such as faculty members who were hired to proctor examinations — were paid at a higher hourly rate than the overtime compensation that would have been paid to NIEU members and that the director of human resources acknowledged that non-NIEU members were hired even in instances when doing so was more expensive. *

The Appellate Division ruled that substantial evidence in the record supported PERB's determination that Hudson Valley did not meet its burden to establish that its actions were motivated by valid economic concerns and found that Hudson Valley had stopped hiring NIEU members for second jobs in retaliation for NIEU's advocacy on the overtime issue.

In response to Hudson Valley’s claim that PERB’s order could not be reasonably applied because some of the second jobs in question no longer existed and some NIEU members who previously held second jobs were now retired or had left Hudson Valley's employment, the court said that it could not consider this aspect of Hudson Valley’s argument as this was not part of the administrative record before PERB when it crafted its remedial order.

Accordingly the Appellate Division remitted the matter to PERB for a determination as to which NIEU members, if any, [1] can be reinstated to second jobs that they previously held and, or, [2]  receive back pay.

* At least one NIEU member who had been employed in a second job was paid a flat annual stipend that was unaffected by overtime rates, but nevertheless lost the position as a result of Hudson Valley’s decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07731.htm

Governor Cuomo announces new administrative appointments

Governor Cuomo announces new administrative appointments

Source: Office of the Governor

On October 26, 2015 Governor Andrew M. Cuomo announced the following appointments and recommendations for appointment to the entities indicated.

Benjamin W. Lawsky has been recommended to the City of New Yorkfor appointment as Director of the Trust for Governor’s Island. Mr. Lawsky is currently the Chief Executive Officer of The Lawsky Group, a firm that specializes in helping companies, boards, and individuals manage their most complex, emergent and dynamic challenges. From 2011-2015, Mr. Lawsky was New York State’s Superintendent of Financial Services. Prior to serving as Superintendent of Financial Services, Mr. Lawsky was Governor Cuomo’s Chief of Staff, and before that a senior aide in the New York State Attorney General’s Office. Previously, Mr. Lawsky spent more than five years as an Assistant United States Attorney in the Southern District of New York. He began his career as Chief Counsel to Senator Charles Schumer on the Senate Judiciary Committee and as a Trial Attorney in the Civil Division of the Department of Justice. Mr. Lawsky is a graduate of Columbia Collegeand Columbia Law School.

Josh Vlasto has been appointed as the Governor’s designee to the Cornell University Board of Trustees. Mr. Vlasto is currently a vice president at MacAndrews & Forbes Incorporated. Mr. Vlasto previously served as Chief of Staff to Governor Cuomo and prior to that Deputy Communications Director. From 2004 to 2010, Mr. Vlasto worked for U.S. Senator Charles E. Schumer, first as Legislative Aide for transportation and homeland security and then Press Secretary 2007 to 2010. Mr. Vlasto graduated from the Cornell University School of Industrial and Labor Relations in 2004.

Matthew Wing has been recommended to Empire State Development Corporation for appointment as Director of the Brooklyn Bridge Park Development Corporation. Mr. Wing is currently the Northeast Communications Lead for Uber where he runs communications for its New Jersey, New York and Connecticut Markets. Prior to joining Uber, Wing served as Governor Cuomo's Press Secretary in his first term and as communications director for his re-election campaign in 2014. Prior to that he served as Communications Director and Deputy Advocate for Communications to then Public Advocate Bill de Blasio. He also briefly worked in the City Council, for the national labor federation Change to Win in support of Barack Obama's 2008 campaign, in the New York Attorney General's Office under then Attorney General Andrew Cuomo and was a Roth Fellow in the New York State Senate. He has a B.A. from Bard College.

Mark Colón has been appointed President and Deputy Commissioner of the Office of Housing Preservation at New York State Homes and Community Renewal (HCR), after having served as HCR's Deputy Counsel since 2008. Previously, Mr. Colon practiced law as an Associate at Dechert LLP and at Simpson Thacher & Bartlett LLP. Mr. Colon has also clerked for the Honorable Julio M. Fuentes, Third Circuit, U.S. Court of Appeals. He holds a B.A. from Hunter Collegeand a J.D. from Yale Law School, where he was the Managing Editor of the Yale Law and Policy Review.

Nora Yates has been appointed Assistant Deputy Secretary for Human Services. Previously, Ms. Yates served as the Director of the Community, Opportunity & Reinvestment (“CORe”) initiative, which was launched by Governor Cuomo in his 2013 State of the State agenda to enhance the well-being of communities and ensure that all New Yorkers have the opportunity to thrive in a safe and stable community, from a supported childhood to a productive adulthood. Ms. Yates joined the administration as an Empire State Fellow in the Executive Chamber and before the Fellowship, she served as Executive Director of the Pride Centerof the Capital Region and Field Director for the Empire State Pride Agenda, in Albany. Ms. Yates earned an M.S. in Public Administration from Sage Graduate School, and an M.A. and B.A. from the University at Albany.

Benjamin Voce-Gardner has been appointed Assistant Secretary for Public Safety for the Executive Chamber. Previously, Mr. Voce-Gardner served as a Litigation Associate at Zuckerman Spaeder LLP and as an Appellate Prosecutor in the United States Navy's Judge Advocate General's Corps. While in the Navy, he also held positions as Law Clerk for the Navy-Marine Corps Court of Criminal Appeals, and as a Trial Defense Attorney in San Diego. In 2008 he deployed to Baghdad, Iraqin support of Operation Iraqi Freedom. Mr. Voce-Gardner holds a J.D. from Boston College Law Schooland a B.A. from Connecticut College.

Colin Brennan has been appointed Press Officer for the Executive Chamber. Mr. Brennan previously worked as a Public Information Officer at the New York State Department of Health and Communications Manager at the New York State Thruway Authority. Mr. Brennan has a B.A. from the University at Albany.

Camonghne Felix has been appointed Speechwriter for the Executive Chamber. Ms. Felix has written for Teen Vogue since March 2015 and has been published by Huffington Post, Poetry Magazine and other publications. She's served as a mentor and facilitator for Urban World NYC since November 2014. Her previous experience includes work as a curriculum specialist with the Harlem Children’s Zone, work as a Campaign Lead at DoSomething.org, and as a research associate and speechwriter for the campaign of Assemblyman Michael Blake. Ms. Felix is pursuing an M.A. in Arts Politics from New York University.

Standards used by courts in evaluating the denial of a Freedom of Information request for public records

Standards used by courts in evaluating the denial of a Freedom of Information request for public records

Hearst Corp. v New York State Police, 2015 NY Slip Op 07729, Appellate Division, Third Department

The Hearst Corporation, publisher the Albany Times Union and one of its reporters,  Brendon Lyons, [Hearst] submitted a request to the NYS Division of State Police [DSP] pursuant to the Freedom of Information Law [FOIL] for the disclosure of all records relating to an alleged hit-and-run incident committed by an off-duty State Trooper.

  

DSP denied the request and after Hearst had exhausted its administrative remedies it filed a CPLR Article 78 proceeding seeking a judgment directing DSP to turn over the requested records, as well as costs and counsel fees.

Following the resolution of some procedural issues Supreme Court held a hearing at which DSP’s FOIL officer, by affidavit, set out the categories of records pertaining to the alleged incident, all of which, according to him, were collected or produced in an internal investigation by DSP pursuant to 9 NYCRR 479, Disciplinary Action.

Supreme Court did not review these records in camera* but found that all of the identified records were exempt from disclosure pursuant to Civil Rights Law §50-a (1) and dismissed the petition on that basis. Hearst appealed the Supreme Court’s ruling.

The Appellate Division set out the following standards regarding a public agency’s response to a FOIL request:

1. "[P]ursuant to FOIL's general mission, which is to promote open government and public accountability, a government agency must make its records available to the public unless an exemption expressly provides otherwise."**

2. "[E]xemptions are to be narrowly interpreted so that the public is granted maximum access to the records of government" and, thus, the party opposing disclosure bears the burden of establishing that the requested information "fall[s] squarely within a statutory exemption."

Noting that Civil Rights Law §50-a (1) exempts from disclosure the "personnel records" of police officers that are "used to evaluate performance toward continued employment or promotion," the Appellate Division rejected Hearst’s contention that information created or collected pursuant to a misconduct investigation is not protected by Civil Rights Law §50-a(1) unless agency can establish that it was thereafter actually relied on in a decision-making process related to the relevant officer's continued employment or promotion and “[p]roof that information was generated for the purpose of assessing an employee's alleged misconduct brings that information within the protection of Civil Rights Law §50-a(1).”

However, the Appellate Division continued, because uncontested evidence established that DSP’s investigation of the Trooper continued after he had resigned as an employee of DSP, the court said it agreed with Hearst that police departments who investigate persons who are no longer their employees are not conducting investigations of "personnel" within the meaning of Civil Rights Law §50-a(1).

The plain meaning of the word personnel identifies individuals with some current employment relationship with an organization, as confirmed by Civil Rights Law §50-a(1) as individuals who are not current employees cannot be considered for either "continued employment or promotion." The Appellate Division found that “Supreme Court erred in finding that [DSP met its burden of establishing that the materials resulting from its investigation after [the Trooper] had resigned were for the purpose of assessing his continued employment or promotion and that, as a result, Civil Rights Law §50-a(1) provided confidentiality to such materials.”

However, said the court, it was unable to address DSP’s alternative arguments for affirmance of the Supreme Court’s granting its motion to dismiss based on “additional exceptions to FOIL respectively apply to some or all of the requested information” as those materials are not within the record for the Appellate Division’s in camera review.

Accordingly, the Appellate Division remitted the matter to Supreme Court for its consideration of such arguments after an in camera review of the materials identified by DSP related to Hearst’sFOIL request.

* The term “in camera” refers to a closed and private session of a court or some other tribunal. As used here, it refers to the review of the documents in question by the court in his or her chambers, the public being excluded from that proceeding.

** An individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. Examples of New York statutes barring the release of a public record: Education Law, §1127 - Confidentiality of records and §33.13, Mental Hygiene Law - Clinical records; confidentiality of.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07729.htm

Selected Reports issued by the Office of the State Comptroller during the week ending October 24, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending October 24, 2015

Click on text highlighted in color to access the full report

Municipal Audits released:
 

Forestburgh Fire District – Financial activities

http://www.osc.state.ny.us/localgov/audits/firedists/2015/forestburgh.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115release

City of Glen Cove – Budget review

http://www.osc.state.ny.us/localgov/audits/cities/2015/glencove_br.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115release

Spencer Volunteer Fire Company – Apparent misappropriation of funds

http://www.osc.state.ny.us/localgov/audits/firedists/2015/spencervolunteer.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115release

Watervliet Housing Authority – Time and leave keeping records

http://www.osc.state.ny.us/localgov/audits/publicauth/2015/watervliethousing.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115release

School Audits released:

Capital Region BOCES– Claims auditing

http://www.osc.state.ny.us/localgov/audits/schools/2015/capitalregionboces.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115arelease

Skaneateles Central School District – Records and reports

http://www.osc.state.ny.us/localgov/audits/schools/2015/skaneateles.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115arelease

Tuckahoe Union Free School District– Financial condition and information technology 

http://www.osc.state.ny.us/localgov/audits/schools/2015/tuckahoe.pdf?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102115arelease

Non-profit executive involved in six-year theft scheme convicted

Comptroller Thomas P. DiNapoli, Attorney General Eric T. Schneiderman and New York City Department of Investigation (NYC DOI) Commissioner Mark Peters announced the conviction of a nonprofit executive accused of pocketing taxpayer dollars intended for public services and capital improvements in New York City. A multi-agency joint investigation, including NYC DOI and two federal agencies, exposed the theft of approximately $300,000 in public funds provided by New York state, the New York City Council, and federal earmark grants. A jury convicted Dorothy Ogundu on 29 counts, including Grand Larceny in the Second Degree, and she faces up to 15 years in prison.
http://www.osc.state.ny.us/press/releases/oct15/102315a.htm?utm_source=weeklynews20151025&utm_medium=email&utm_campaign=102315arelease

Complying with the notice requirements set out in Civil Service Law §75-b, the so-called Whistleblower Statute

Complying with the notice requirements set out in Civil Service Law §75-b, the so-called Whistleblower Statute

Tipaldo v Lynn, 2015 NY Slip Op 07698, Court of Appeals

In this "whistleblower" action, the first issue to be resolved by the Court of Appeals is whether plaintiff John Tipaldo [Tipaldo] made a good faith effort to comply with the reporting requirements of Civil Service Law §75-b(2)(b).* The court held that Tipaldo had, under the circumstances, made a good faith effort to comply with the statute.

The genesis of Tipaldo's whistleblower action was his reporting of an alleged scheme by his superiors, defendants Christopher Lynn, then-Commissioner of the New York City Department of Transportation [DOT], and Richard Malchow, then-First Deputy Commissioner of the DOT, [the Defendants] to award a signage contract to Lynn's acquaintance in violation of New York City's public bidding rules. Tipaldo was  serving as DOT's Acting Assistant Commissioner for Planning and Engineering at the time.

On November 6, 1996, a number of DOT employees, including Tipaldo, were told that certain signs had been purchased from Commissioner Lynn’s friend. Tipaldo contended that he and other employees questioned the legality of the process and the DOT employees whose signatures were required to authorize the purchase refused to sign the authorization. On November 8, the Defendants solicited bids from the public. After the delivery and installation of the signs, DOT received several lower bids compared to the $6,000 paid to Commissioner Lynn's acquaintance. The Defendants then allegedly created a backdated memorandum stating that the need for the signs was "urgent" and that the order must be placed immediately rather than go through the competitive bidding process.

Tipaldo told his immediate supervisors about the Defendants' alleged misconduct and one or two business days later Tipaldo reported the Defendants' alleged actions to the Office of the Inspector General for the DOT and requested an investigation.

Tipaldo claimed that shortly after filing his report with the Inspector General, the Defendants retaliated against him by excluding him from meetings, removing him from supervising and managing several projects, and publicly making negative comments about him. Subsequently Tipaldo was removed from his then position of Acting Assistant Commissioner for Planning and Engineering and demoted. He initiated this action in 1997 pursuant to Civil Service Law §75-b, alleging that he was retaliated against for reporting improper governmental activity. He sought “a permanent injunction, reinstatement, all lost compensation, punitive damages, attorney's fees, and costs.”

The Defendants moved for summary judgment dismissing the complaint, arguing that Tipaldo had not complied with requirements of  Civil Service Law §75-b by not reporting the allegedly wrongful actions to the appointing authority before contacting the Inspector General's office. Tipaldo cross-moved for summary judgment. **

Supreme Court granted the Defendants' motion for summary judgment, agreeing with the Defendants that Tipaldo failed to state a cause of action by not reporting the Defendants' alleged misconduct to an appointing authority. 

Tipaldo appealed and the Appellate Division reversed the lower court’s ruling and granted Tipaldo's motion for summary judgment, stating, "[t]here is no dispute that retaliatory actions were taken against plaintiff, and although a cause of action pursuant to the subject statute requires plaintiff to have first reported the alleged violation to the internal [DOT] 'appointing authority,' here, that was defendants." The court determined that "plaintiff's good faith efforts in the manner and filing of his reporting, first informally to his immediate supervisors, and then soon thereafter to the [DOI], satisfactorily met the requirements of Civil Service Law §75-b (2)."

Ultimately the Court of Appeals affirmed the Appellate Division’s ruling, explaining that as the appointing authorities were Lynn and Malchow, Tipaldo “understandably did not report their alleged misconduct to them.” The court commented that the “scheme in which Lynn and Malchow purportedly engaged was quite deliberate. After entering into a contract with Lynn's acquaintance for the signs, they allegedly attempted to cover their tracks by publishing a notice seeking public bids and later releasing a memorandum stating that an immediate need for the signs required bypassing the normal bidding process. Thus, Lynn and Malchow would not likely have been receptive to plaintiff's complaints or reported themselves to the Department of Investigation.”*** 

The decision continues: “Under these particular circumstances, strict compliance with the reporting requirements of Civil Service Law § 75-b would not serve the purpose of the statute. Rather, courts should use their discretion in determining whether the overall actions of the plaintiff constitute a good faith effort to report the misconduct. In cases such as this — where the appointing authority is the one engaging in the alleged misconduct — an employee's good faith effort to report the misconduct should be evaluated with attention to the employee's practical inability to report to the appointing authority. The 'good faith' provision in the statute affords courts the discretion to determine whether a plaintiff has met its requirements and appears to adequately account for situations like the one presented here.”

The Court of Appeals held that:

[1] Tipaldo complied with the statutory reporting requirement by informing his immediate supervisors of the misconduct and thereafter reporting the misconduct to the DOT Inspector General;

[2] Whistleblowing is encouraged to prevent employer misconduct and provide appropriate remedies when it occurs; and

[3] Employees in situations like Tipaldo's should not be required to report to the appointing authority where such a report would prove impractical and possibly impede prompt resolution of the matter.

Finally, the court observed that “In view of the requirement, set forth in both New York City Mayoral Executive Order No. 16[3][d] and the DOT employee handbook, that employees such as Tipaldo disclose misconduct to the DOT Inspector General directly and without undue haste or face possible termination of their employment, we cannot say that Tipaldo lacked 'good faith' in reporting to his immediate supervisors only one or two business days before he reported his allegations to the DOT Inspector General.”

Affirming the Appellate Division's ruling, Court of Appeals said that given the conditions Tipaldo was facing, an overall view of his actions demonstrates good faith compliance with Civil Service Law §75-b..

* A second issued considered by the Court of Appeals: is prejudgment interest is available under Civil Service Law §75-b and Labor Law §740 (5)? The court held that prejudgment interest is available in actions of this kind.

** In the course of this litigation the Inspector General issued his determination, following an investigation, concluding that Tipaldo "suffered an adverse personnel action taken in retaliation for his having reported to the [DOI] information concerning conduct which he knew or reasonably believed to involve an abuse of authority on the part of another City official." The report recommended that Tipaldo be reinstated to his former position or a comparable position. Defendants initially declined to reinstate Tipaldo, but later issued an order of compromise offering to reinstate him to a comparable position with back pay and benefits, which offer Tipaldo rejected.

*** The Defendants conceded that there was no duly designated individual to whom Tipaldo could have reported his allegations.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07698.htm

Abolishing a position in the public service and the Doctrine of Legislative Equivalency

Abolishing a position in the public service and the Doctrine of Legislative Equivalency

Colabella v Town of Eastchester, 2015 NY Slip Op 07656, Appellate Division, Second Department

Citing Wipfler v Klebes, 284 NY 248, the Appellate Division said that “a public employer may abolish a civil service position when the ‘discontinuance of the position would promote efficiency and economy,’ provided that the employer acts in good faith.”*

In contrast, a public employer may not abolish a position as a subterfuge to avoid statutory or contractual protection afforded civil servants before they are discharged. However, in the event a public employer has abolished a position, an employee challenging that determination has the burden of proving that the employer engaged in a bad faith effort to circumvent the Civil Service Law.

In this action the petitioner, Antonietta Colabellachallenged a determination of the Town Board of the Town of Eastchester [Town] abolishing her full-time civil service position as a parking enforcement officer. It was undisputed that in 2011 the Town appointed four new part-time parking enforcement officers. The decisions states that these part-time employees, presumably appointed to positions jurisdictionally classified as positions in the noncompetitive class, were not represented by an employee organization. Colabella’sposition was abolished on January 1, 2012.

The Appellate Division said that “it is undisputed that four new part-time parking enforcement officers were hired in 2011; one of those employees was hired in October 2011” only a month before Colabellawas informed that her position would likely be abolished. 

The decision indicates that the Town failed to submit any evidence as to whether the decision to abolish Colabella’s position was made by Town Board resolution, or by some other means.

Applying the Doctrine of Legislative Equivalency, the Appellate Division said that a  position "created by a legislative act can only be abolished by a correlative legislative act," citing Torre v County of Nassau, 86 NY2d 421. In this instance the court found that the record did not indicate the specific mechanism by which Colabella’s position was abolished and while the Town submitted some evidence showing that it undertook various cost-cutting measures in connection with its 2012 budget, “the record contains no evidence as to any legislative or other deliberations underlying the determination at issue here” -- the abolishment of the position encumbered by Colabells.

Under these circumstances, the Appellate Division held that [1] the evidence raised issues of fact warranting a hearing as to whether Colabella’s position was abolished in a bad faith effort to circumvent the Civil Service Law, and [2] whether her position was abolished in conformity with the Doctrine of Legislative Equivalency."

On another point, the Town contended that Colabella could not “properly raise claims regarding alleged violations of the Taylor Law or as to certain job classification determinations made by the Westchester County Department of Human Resources.” However, said the court, Colabella did not make any such claims in her petition and thus "was not required to exhaust administrative remedies prior to bringing this proceeding, as this case does not involve a matter within the scope of the grievance provisions of the applicable collective bargaining agreement.”

* The Attorney General has opined that there must be an actual abolishment of the position in question in contrast to merely “creating a vacancy as the result of a layoff” in order to trigger the relevant statutory layoff procedures [1976 Opinions of the Attorney General 7].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07656.htm

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After recommending the termination of the employee the Hearing Officer urges the appointing authority to consider imposing a penalty less drastic than termination

After recommending the termination of the employee the Hearing Officer urges the appointing authority to consider imposing a penalty less drastic than termination

Department of Sanitation v Anonymous, OATH Index No. 1853/15

A New York City sanitation worker admitted that he refused to submit to a drug test. As The worker had tested positive in 2003 and again in 2004, but did not violate the policy again until 2014.  However, as this was the worker's third violation, the Department asked that the penalty to be imposed be termination from service.

At the penalty hearing, the individual testified and presented testimony from a supervisor and the director of the Employment Assistance Unit [EAU]. Significantly, the director of EAU recommended that the worker remain with the Department under EAU observation, given the long gap between the second and third violations.

Although OATH Administrative Law Judge Faye Lewis recommended termination of employment, she urged the Department to agree to a less drastic penalty requiring drug and alcohol testing for the rest of the worker's career, explaining that she had found the sanitation worker's testimony to be sincere and the opinion of the EAU head to be worthy of considerable weight.

In the words of the ALJ, “… the charge is sustained. Considering the options available under the Administrative Code, I recommend termination of respondent’s employment. However, based upon the mitigating evidence presented at trial, I urge the Department to consider an alternative penalty involving a period of suspension, substance abuse testing for the duration of respondent’s employment with the Department, compliance with EAU treatment referrals, and any other conditions the Department feels are appropriate.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1853.pdf