Monday, November 30, 2015

Arbitrator directs the reinstatement of employees laid off in violation of the “meet and confer” provision mandated by the collective bargaining agreement


Arbitrator directs the reinstatement of employees laid off in violation of the “meet and confer” provision mandated by the collective bargaining agreement
Matter of Certain Controversies Between Social Serv. Empls. Union, Local 371 v City of New York, 2015 NY Slip Op 08658, Appellate Division, First Department

Underlying this case is an arbitration award that ordered the City of New York[City] to reinstate laid-off employees with back pay.

The arbitrator found that the City had failed to comply with the "meet-and-confer" requirement of the relevant collective bargaining agreement [CBA]. This provision required that,  prior to any layoffs, the City meet and confer with the designated representatives of the appropriate employee organization or organizations, here Social Service Employees Union, Local 371 [Union], with the objective of considering feasible alternatives to all or part of the projected layoffs.

The Union filed a petition pursuant to CPLR Article 75 seeking to confirm the arbitration award compelling the City to reinstate the employees to there former positions with back salary and benefits. The City, on the other hand, filed a petition seeking to vacate the award. Supreme Court confirmed the award, and the City appeal from that order to the Appellate Division. The Appellate Division found that the arbitration award “merely compels the City to follow the procedure delineated in the citywide collective bargaining agreement” and was therefore properly confirmed the Supreme Court.

The court explained that the citywide CBA outlined various requirements the City must meet before laying off employees including providing the appropriate union or unions with notice of layoffs "not less than thirty days (30) before the effective dates of projected layoffs" and then the "designated representatives of the City” were to “meet and confer with the designated representatives of the appropriate union” to consider "feasible alternatives to all or part of such scheduled layoffs."

The Appellate Division said that this mandatory "meet-and-confer" provision was not a mere formality but set out a non-exhaustive list of potential "feasible alternatives" including:

"i. the transfer of employees to other agencies with retraining, if necessary, consistent with Civil Service law but without regard to the Civil Service title,

"ii. the use of Federal and State funds whenever possible to retain or re-employ employees scheduled for layoff,

"iii. the elimination or reduction of the amount of work contracted out to independent contractors, and

"iv. encouragement of early retirement and the expediting of the processing of retirement applications."

Significantly, the citywide CBA provides for dispute resolution by “final and binding” arbitration, whereby the arbitrator may direct "such relief as the arbitrator deems necessary and proper,” subject to "certain limitations and any applicable limitations of law."

Although it was conceded that City gave proper notice to the Union about the layoffs, the Unioncommenced arbitration in the City's Office of Collective Bargaining, alleging that the City terminated certain employees without satisfying the citywide CBA's meet-and-confer requirement. Although there actually was a meeting, the Appellate Division said that crux of the disagreement was that at the “meet and confer” meeting the City [1] did not offer any alternatives for the 18 employees to be laid off, [2] there were no discussions about other alternatives to layoffs, and [3] the Unionwas not asked to submit proposals to avoid the layoffs.

The arbitrator analyzed the record of the meeting and determined that meeting did not satisfy the meet-and-confer requirement, because "feasible alternatives" to layoffs were not properly discussed. As a remedy, the arbitrator ordered the reinstatement of the laid off employees to their former position with full back pay.

The Appellate Division said that it was “well settled” that courts review arbitration awards with a high level of deference and will not vacate and arbitration award unless it finds that "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further, said the court, an arbitrator's award will not be vacated when there is "some basis in the record for each of the arbitrator's findings," citing Branciforte v Levey, 222 AD2d 276.

The Appellate Division found that the arbitrator's determination had a basis in the record and that the arbitrator noted that some the employees received layoff letters the day after the meeting. This “suggested that the City had already made up its mind about the layoffs before the meeting.” The court concluded that “this evidence constitutes a rational basis for the arbitrator's determination that the ... meeting did not fulfill the meet-and-confer requirement.”

The City’s argued that “the remedy of reinstatement with back pay violated a strong public policy by infringing upon the ‘managerial prerogative’ reserved to the City and Administrative Code of the City of NY §12-307(b), which ‘specifically and clearly removes from collective bargaining considerations the right of the public employer to retire its employees from duty because of lack of work or for other legitimate reason.”

The Appellate Division said essentially City contended that the directive to reinstate the employees that had been laid off infringed on the discretion of the City to make firing decisions. The directive, said the court, “does no such thing.” In the works of the court, “Nothing in the arbitrator's award precludes the City from following the citywide CBA procedure to which it agreed and ultimately laying off the [employees]. There is no managerial prerogative to violate the contract. As a proper meet-and-confer must precede any layoff, the arbitrator's remedy simply restored the status quo pending a proper meet-and-confer.”

Thus, the court concluded that the arbitrator's award "merely returned [the employees laid off] to the status they would have occupied had they not been wrongfully dismissed." By ordering the reinstatement of the employees that had been laid off the arbitrator made it possible for the contract to be executed as intended.

Accordingly, said the Appellate Division, “the judgment of the Supreme Court … confirming the arbitration award … should be affirmed, without costs.”

The decision is posted on the Internet at:

Friday, November 27, 2015

Another "Black Friday" opportunity – New York State to auction two seized luxury cars at December 1, 2015 vehicle and equipment auction in Albany


Another "Black Friday" opportunity – New York State to auction two seized luxury cars at December 1, 2015 vehicle and equipment auction in Albany
Source: NYS Office of General Services

The New York State Office of General Services has added a 2013 Mercedes-Benz G63 AMG and a 2012 Audi A7 Prestige Quattro to the list of items the public can bid on at a surplus vehicle, highway equipment, and miscellaneous property auction scheduled to start at 9:30 a.m. Tuesday, December 1 at the Harriman State Office Building Campus in Albany. Items being sold will be available for inspection starting at 8:30 a.m. on the day of the auction.

The Mercedes, with approximately 721 miles on its odometer, and the Audi, with approximately 14,426 miles on it, were seized by the Attorney General’s Office in 2013 following an investigation into a $3.2 million Medicaid fraud case in Brooklyn. Proceeds from the sale of the two cars will be transferred to the Attorney General’s Medicaid Fraud Unit.

This isn’t the first time OGS has sold seized items. In the summer of 2014, several pieces of men’s jewelry, including a Rolex watch, were sold on the NYSStore.com eBay site after they were confiscated from a suspected drug trafficker on Staten Island. Later that year, a 1971 Camaro that was reported stolen in 1976 and was seized by New York Statewas among vehicles sold at a state surplus vehicle auction in Poughkeepsie.

For a listing of New York Stateauctions to be held in the future, go to: https://www.nysstore.com/. For information on specific items and terms of sale, email state.surplus@ogs.ny.gov, or call (518) 457-6335.

Thursday, November 26, 2015

Handbooks focusing on New York State and Municipal Public Personnel Law


Handbooks focusing on New York State and Municipal Public Personnel Law

The Discipline Book- A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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/5216.html

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions addressing disability and similar leaves absence. For more information click on http://booklocker.com/3916.html

Wednesday, November 25, 2015

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]


Summaries of recent decisions posted on the Internet by the New York CityOffice of Administrative Trials and Hearings [OATH] 
Source: NYC Office of Administrative Trials and Hearings
Click on text highlighted in color to access the text of the decision. 


OATH Administrative Law Judge denies employer’s motion to strike the testimony of two witnesses called by the accused
NYC Department of Corrections v Williams, OATH Index No. 2223/15

In this hearing conducted pursuant to Civil Service Law §75, OATH Administrative Law Judge John B. Spooner denied a motion made by counsel for the NYC Department of Corrections to strike the testimony of two of the employees witnesses on the grounds that there was an indication of collusion.

The attorney said that the two witnesses worked in the same facility and were supervised by the employee and were jointly interviewed by the employee's counsel.

The employee’s counsel, on the other hand, described the pre-trial meeting as consisting of a five-minute conversation in which counsel informed the witnesses about why they were present and asked them to simply testify as to what they remembered about the incident.

Under the circumstances, Judge Spooner explained, there was virtually no possibility that the witnesses would alter their testimony to match one another as they testified about different stages of the charged incident. Further, said Judge Spooner, the witnesses’ working relationship with the employee who was the target of the disciplinary action, while a proper issue to consider when assessing credibility, did not warrant precluding their testimony entirely.

The decision is posted on the Internet at:


Computer specialist charged with misconduct, including answering his phone “in a robotic voice” 
OATH Index No. 2231/15


OATH Administrative Law Judge Ingrid M. Addison found that Ronald Dillon,* a computer specialist assigned to the IT Help Desk, answered the phone in a robotic voice on two occasions, created and abandoned service desk requests, failed to timely resolve tickets, misdirected callers, inaccurately re-classified a ticket and failed to respond to supervisor inquiries.

Dillon was also alleged to have” force-closed the employer’s acceptable use policy” on many occasions, thereby circumventing the acceptance of the agreement.

Judge Addison found the Department's proposed penalty, termination of Dillion’s employment, to be excessive and she recommended a thirty day suspension without pay.

Posted on the Internet at:

* See, also, Dep’t of Health & Mental Hygiene v. Dillon, OATH Index No. 108/14, posted on the Internet at http://archive.citylaw.org/oath/11_Cases/14-108.pdf, involving similar charges of misconduct filed against Dillon.


An employee who refused to report to her new work location found guilty of being absent without leave [AWOL]
OATH Index No. 1512/15

A New York City Sanitation Enforcement Agent (SEA) was charged with being AWOL when she refused to report to a new work location. The Department introduced a plan to reassign SEAs as an anti-corruption effort. SEAs were required to list three different work locations on a form or they could request an interview for personal hardship consideration.

The SEA, who was assigned in Brooklyn, did neither. When she was ordered to report to her new location in the Bronxshe refused to do so. At hearing the SEA argued that her seniority status entitled her to the work assignment she wanted in Brooklyn.

OATH Administrative Law Judge Susan J. Pogoda disagreed and sustained the AWOL charge filed against the employee. The assignment of personnel is within the employer's discretion and the SEA did not show that the transfer would present an imminent threat to her health or to her safety.

Taking into consideration the SEA's prior disciplinary record, Judge Pogoda recommended termination of her employment with the Department.   

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1512.pdf

 ________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/books/7401.html
 ________________


Tuesday, November 24, 2015

If §75 charges of misconduct "would, if proved in a court of law constitute a crime,” the 18-month statute of limitations for bringing such charges does not apply



If §75 charges of misconduct "would, if proved in a court of law constitute a crime,” the 18-month statute of limitations for bringing such charges does not apply
Hanlon v New York State Police, 2015 NY Slip Op 08315, Appellate Division, Fourth Department

Christian Hanlon was served with disciplinary charges pursuant to Civil Service Law §75. Found guilty following an administrative disciplinary hearing held pursuant to Civil Service Law §75, the appointing authority imposed the penalty of dismissal of Hanlon’s  employment as a State Trooper.

Hanlon then commenced a CPLR Article 78 proceeding seeking a court order annulling  the determination finding him guilty of the disciplinary charges and terminating his employment, contending that “certain charges were time-barred pursuant to Civil Service Law §75(4).”

The Appellate Division disagreed, explaining that while a §75 disciplinary action must be commenced within 18 months of the occurrence of the "alleged incompetency or misconduct complained of," if the misconduct charged "would, if proved in a court of appropriate jurisdiction, constitute a crime," the 18-month limitation does not apply.*

Here, said the court, the charges alleged conduct that would, if proved in a court of law, constitute the crime of official misconduct and thus they are not time-barred.**

The court also found that appointing authority’s determination was supported by substantial evidence and the penalty imposed by the appointing authority, dismissal, was not shocking to one's sense of fairness.

* In the case of a state employee who is designated managerial or confidential pursuant to Article 14 of Civil Service Law charges of incompetency or misconduct must be brought within one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, unless the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.

** §195.00 of the Penal Law provides that "a public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit: [1] He [or she] commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions, knowing that such act is unauthorized; or [2] He [or she] knowingly refrains from performing a duty which is imposed upon him [or her] by law or is clearly inherent in the nature of [his or her] office. Official misconduct is a class A misdemeanor."

The decision is posted on the Internet at:

________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
________________


Monday, November 23, 2015

Taxpayers born before July 1, 1945 may be required to take distributions from their IRA and similar plans no later than December 31, 2015 to avoid penalties


Taxpayers born before July 1, 1945may be required to take distributions from their IRA and similar plans no later than December 31, 2015 to avoid penalties

The Internal Revenue Service has posted a reminder indicating that taxpayers born before July 1, 1945 generally must receive payments from their IRA and similar deferred compensation plans at least equal to their “required minimum distribution" (RMD) from IRAs and workplace retirement plans by Dec. 31, 2015. Failure to do so may have tax consequences.

Employees of public schools and certain tax-exempt organizations participating in a §403(b) plan, for example employees of the State University of New York, the community colleges and the Board of Higher Education of the City of New York participating in a “Special Annuity Plan” pursuant to Article 8-C of the Education Law, having accruals before 1987 should check with their employer, plan administrator or provider to see how to treat these accruals.

The IRS advisory is posted on the Internet at:

Appeal to the Commissioner of Education dismissed for a number of procedural omissions


Appeal to the Commissioner of Education dismissed for a number of procedural omissions
Appeal of Michael Nelson, regarding a district policy and application for the removal of the Board of Education of the Cherry Valley - Springfield Central School District, Decisions of the Commissioner of Education, Decision No. 16,845

In this appeal to the Commissioner of Education Michael Nelson alleged that Cherry Valley - Springfield Central School District [1] permitted the district’s superintendent to use a district vehicle for personal use in violation of district policy; [2] failed to hold the superintendent accountable for his alleged violation of district policy; and [3] failed to properly investigate the matter. 

Nelson also asked the Commissioner to order the school district “to reimburse taxpayers for the reasonable expense resulting from the superintendent’s alleged improper use of a district vehicle;” investigate the alleged unauthorized use of district property; and order “the removal of members of the board.”

The Commissioner did not address the merit of Nelson’s appeal, ruling that the appeal “must be dismissed and the application denied” for a number of procedural reasons, including the following:

1. Nelson sought to bring this proceeding on behalf of other taxpayers but an appeal may only be maintained on behalf of a class only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class and the petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class. The Commissioner found that Nelson’s “pleadings are entirely devoid of any allegations addressing these criteria” and denied class status.

2. An appeal to the Commissioner must be dismissed and the application denied for failure to join necessary parties, i.e. a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.” In this instance, said the Commissioner, Nelson did not serve the individual board members he sought to have removed from office nor did he serve the superintendent, thus he failed to join necessary parties. The record indicates that Nelson served only the district, by personally serving its clerk.  There is no indication that any individual board members or the superintendent were served with a copy of the notice of petition and petition.  

3. The Commissioner said Nelson’s appeal must also be dismissed with respect to his demand that the Commissioner investigate the alleged unauthorized use of district property as appeal to the Commissioner is appellate in nature and does not provide for investigations.

4. As to Nelson’s seeking an award of monetary damages, costs or reimbursement of expenses in prosecuting his appeal, the Commissioner said that she “has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume55/d16845

Saturday, November 21, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending November 20, 2015


Selected Reports issued by the Office of the State Comptroller during the week ending November 20, 2015
Click on text highlighted in color to access the full report


Son left father’s body in morgue in order to collect his retirement benefits
Christopher Bunn of Queens sentenced for concealing his father’s death to collect his pension and Social Security payments.


Former town clerk alleged to have stolen public funds
The former town clerk of the town of Alexandria was arrested for grand larceny related to the missing $36,742 in public funds and allegedly pocketing cash paid by residents for fines, fees and surcharges.
 



State and municipal audits

Albany Port District Commission: Financial Management Practices
Auditors found the commission’s capital planning and delinquent accounts receivable collection practices to be generally in compliance with commission procedures and laws and regulations, but also noted some minor improvements that can be made in each area.

NYC Department of Education: Compliance with State Art Education requirements
An initial audit report issued in February 2014, examined whether DoE students completed an arts education curriculum that complied with State Education Department (SED) regulations. Auditors found that 46 to 64 percent of the students sampled did not meet one or more of the SED requirements. In a follow-up report, auditors determined the DoE has made significant progress in addressing the issues identified in the initial report.

State Education Department – Finger Lakes United Cerebral Palsy: Compliance with the Reimbursable Cost Manual
For the fiscal year ended June 30, 2013, auditors identified $15,454 in costs charged to the state that did not comply with SED’s requirements for reimbursement. These costs included $13,570 in other than personal service costs and $1,884 in personal service costs that were either ineligible expenses, not reasonable or necessary, not properly documented, or incorrectly reported.

State Education Department – Unity House of Troy: Compliance with the Reimbursable Cost Manual
For the calendar year ended Dec. 31, 2012, Unity claimed $404,952 in ineligible costs for its rate-based preschool special education programs. The ineligible costs included $322,258 in personal service costs, including $312,543 in salary and fringe benefits and $9,715 in severance pay. Unity also incorrectly charged $82,694 in other than personal service costs, which included $46,878 in costs that were incorrectly calculated, $13,653 in costs that were not related to state programs, $11,143 in gifts, $5,132 in food, $3,698 in fundraising, and $2,190 in other non-reimbursable costs.

State Education Department – Upstate Cerebral Palsy: Compliance with theReimbursable Cost Manual
For the calendar year ended Dec. 31, 2012, UCP claimed $97,781 in non-allowable costs for the year covered by our audit. These costs included $83,905 in personal service costs consisting of ineligible bonuses, executive compensation above the regional median allowable salary, and non-program-related costs.  Auditors also found $13,876 in non-personal service costs that were either non-program related, not allowable, or unsupported by proper documentation.
http://osc.state.ny.us/audits/allaudits/093016/14s71.pdf


Town of Ellicott – Justice Court


Geneva Housing Authority – Cash receipts

Town of Hadley- Claims auditing

High Falls Water District – Water fees

Town of Leicester – Budgeting and fiscal oversight

City of Newburgh – Budgeting

Niagara County Court and Trust – Financial controls

Village of Scottsville – Budget practices and fiscal controls

Town of Ulster – Fire protection services


School audits

Bainbridge-Guilford Central School District – School lunch operations

Greenburgh Eleven Union Free School District – Financial condition

Niagara Falls City School District – Fuel accountability

Rocky Point Union Free School District– Financial Condition



Friday, November 20, 2015

Court finds procedures followed that resulted in an employee’s unsatisfactory performance rating “undermined the integrity and fairness of the process”


Court finds procedures followed that resulted in an employee’s unsatisfactory performance rating “undermined the integrity and fairness of the process”
St. Vil v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2015 NY Slip Op 08085, Appellate Division, First Department

In this action Jean St. Vil, a school teacher employed by the New York City Department of Education, challenged the unsatisfactory rating [U-rating] he was given for the school year. Supreme Court sustained St. Vil’s U-rating and he appealed.

The Appellate Division unanimously reversed the Supreme Court’s ruling on the law and vacated St. Vil’s U-rating for the school year, explaining that his rating was “not merely technical but undermined the integrity and fairness of the process.”

The court said that record demonstrates the deficiencies in the performance review process resulting in St. Vil’s unsatisfactory rating, which was based primarily on the principal's alleged personal observations as a rating officer. However, St. Vil never received any post-observation reports by the rating officer until the U-rating appeal hearing and the principal did not claim to have spoken with St. Vil following the alleged observations nor were comments critical of St. Vil's performance placed in his file.

Further, said the Appellate Division, there is no evidence that St. Vil was notified before the end of the school year that his work was considered unsatisfactory and the “mere fact that he had the assistance of a guidance counselor and literary coach at some time during the school year did not constitute warning that he was at risk of an unsatisfactory rating since [St. Vil] was never told that he was not improving in the areas of concern despite this assistance.”

The Appellate Division then remanded the matter to the Department of Education for further proceedings.

The decision is posted on the Internet at:

Thursday, November 19, 2015

Failure of the custodian of a public record sought pursuant to a Freedom of Information Law request to respond to the request within the relevant time limit deemed a denial of the request


Failure of the custodian of a public record sought pursuant to a Freedom of Information Law request to respond to the request within the relevant time limit deemed a denial of the request
Kohler-Hausmann v New York City Police Dept., 2015 NY Slip Op 08084, Appellate Division, First Department

Issa Kohler-Hausmann [Kohler-Hausmann] submitted a Freedom of Information [FOIL] request to the New York City Police Department [NYPD]. Although NYPD extended its deadline to respond to Kohler-Hausmann’s FOIL request pursuant to Public Officers Law §89(3)(a), it failed to respond for months after that deadline.

Subsequently Kohler-Hausmann, representing herself, initiated litigation seeking attorney's fees or litigation costs. Supreme Court denied her application. Kohler-Hausmann appealed, contending that she was entitled to such fees or costs as the prevailing party notwithstanding NYPD's eventual voluntary disclosure of the subject of her FOIL request.

The Appellate Division noted that by failing to respond within the deadline, “NYPD constructively denied Kohler-Hausmann FOIL request” and such a “constructive denial” satisfied the requirement that she exhaust her administrative remedies. Citing NYS Defenders Association v New York State Police, 87 AD3d 193, the court observed that NYPD's voluntary disclosure of the material sought by Kohler-Hausmann notwithstanding, her claim for attorney's fees and other litigation costs was not moot, as "the voluntariness of ... disclosure is irrelevant to the issue of whether [a] petitioner substantially prevailed in [a FOIL] proceeding," since "to allow a respondent to automatically forestall an award of counsel fees simply by releasing the requested documents before asserting a defense would contravene the very purposes of FOIL's fee-shifting provision."

Further, the court said that the “attorney petitioner's self-representation” does not preclude an award of attorneys' fees as other “similarly worded statutes have been interpreted to authorize an award of attorneys' fees to a prevailing litigant who represented himself or herself or had the benefit of free legal services.”

The Appellate Division held that:

[1] Kohler-Hausmann met the statutory requirements for seeking "other litigation costs reasonably incurred" by her in pursuit of her Freedom of Information [FOIL] request;

[2] that she "substantially prevailed;" and 

[3] NYPD "failed to respond to [her request] ... within the statutory time."

Accordingly, the court remanded the matter to Supreme Court for consideration of herrequest for attorneys' fees or litigation costs.

The decision is posted on the Internet at:

Wednesday, November 18, 2015

Workers' Compensation Board’s granting an award for a work-related injury does not, "by operation of collateral estoppel,” automatically entitle the claimant to General Municipal Law §207-c benefits


Workers' Compensation Board’s granting an award for a work-related injury does not, "by operation of collateral estoppel,” automatically entitle the claimant to General Municipal Law §207-c benefits
Jackson v Barber, 2015 NY Slip Op 08025, Appellate Division, Third Department

Lawrence Jackson, diagnosed with plantar fasciitis* in his left foot while working as a correction officer for the Cortland County Sheriff's Department, filed an application for workers' compensation benefits.
Jackson’s claim was granted and the Workers' Compensation Board confirmed the award.

Jackson also applied for disability benefits pursuant to General Municipal Law §207-c. Annette Barber, Cortland County’s Personnel Officer denied Jackson’s application on the merits upon her determination that petitioner's condition was idiopathic, i.e., without a specific cause.

Jackson appealed and Barber upheld her initial determination based on the Hearing Officer's recommendation to do so and Jackson initiated an CPLR Article 78 action challenging Barber’s decision.

Jackson argued that a determination by the Workers' Compensation Board that an injury is work-related by operation of collateral estoppel, automatically entitle an injured employee to General Municipal Law §207-c benefits." The Appellate Division disagreed and citing Balcerak v County of Nassau, 94 NY2d 253, explained that the Board's determination did not collaterally estop Barber from denying Jackson's application for General Municipal Law § 207-c benefits.

The Appellate Division also commented that substantial evidence supports the determination denying [Jackson] benefits noting that §207-c entitled correction officers to benefits when they are injured "in the performance of [their] duties" if they can establish the existence of a "'direct causal relationship between job duties and the resulting illness or injury.

An orthopaedic surgeon reviewed Jackson's medical records and conducted an independent medical examination of Jackson. The orthopaedic surgeon opined that, “to a reasonable degree of medical certainty, [Jackson']s plantar fasciitis was idiopathic.” Although Jackson introduced “contrary expert evidence,” the Appellate Division said that  the Hearing Officer "was entitled to weigh the conflicting medical opinions and determine which expert to credit."

The court held that as the orthopaedic surgeon "articulate[d] a rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records," the Hearing Officer's reliance on such evidence was reasonable and, therefore, Jackson's application for §207-c benefits was properly denied.

* Plantar fasciitis, also known as plantar fasciosis or jogger's heel, is a disorder that results in pain in the heel and bottom of the foot.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_08025.htm

_________________

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions addressing disability and similar leaves absence. For more information click on http://booklocker.com/books/3916.html
_________________ 
  

Tuesday, November 17, 2015

Volunteer fire association chief alleged to have taken fire association fuel for his personal use


Volunteer fire association chief alleged to have taken fire association fuel for his personal use
Source: Office of the State Comptroller
Click on text highlighted in color to access the audit report

Pennellville Volunteer Fireman’s Association (VFA) Fire Chief Duane Royal was charged with grand larceny Sunday, November 26, 2015, for allegedly stealing gas from the fire association for his private use according to an auditand investigation by State Comptroller Thomas P. DiNapoli.

Royal admitted to DiNapoli’s staff and the New York State Police that he gassed up at the VFA pump and used the VFA chief’s truck for his personal business as a process server.  He was charged with grand larceny in the fourth degree, a class E felony. DiNapoli’s staff also found that Royal was suspended for a month after selling the VFA truck for $3,000 without informing his colleagues.

The Comptroller’s auditconcluded that the Pennellville VFA failed to account for cash disbursements, that the treasurer lacked cash receipts for 261 deposits totaling $134,882, and that board members could not say whether music event-fundraisers benefited the VFA due to the lack of treasurer reports for four such events.

DiNapoli made 16 recommendations to the VFA board and Treasurer, including:


1. Strengthen internal controls with specific guidance for cash receipts and disbursements;

2. Train the treasurer to adequately perform his or her duties and require monthly reports on financial transactions;

3. Strengthen fuel purchase controls; and

4. Maintain detailed financial records related to cash transactions, fundraising events and loans to members.

VFA officials agreed with the Comptroller’s audit findings and stated that most have been implemented. Their response is included in the final audit report, which can be viewed on the Internet at: http://www.osc.state.ny.us/localgov/audits/firedists/2015/pennellville.pdf  

DiNapoli reported that his audits and investigations have led to more than 100 arrests and $20 million in money recovered since 2011. Since taking office in 2007, DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Prior case reports may be viewed on the Internet at: http://www.osc.state.ny.us/investigations/index.htm
 

A Freedom of Information request for records concerning law enforcement operations may be denied


A Freedom of Information request for records concerning law enforcement operations may be denied
Madeiros v New York State Educ. Dept., 2015 NY Slip Op 08028, Appellate Division, Third Department

Pamela A. Madeiros submitted a Freedom of Information Law [FOIL] request seeking the audit guidelines issued by the New York State Department of Education [SDE] and any communications that it had with municipalities or school districts "relating to the standards and procedures for, or relating to past, current or future fiscal audits of services or programs."

SDE denied the request in its entirety, stating that the documents were exempt from FOIL as records compiled for law enforcement purposes.* Ultimately SDE provided Madeiros  with 55 pages of redacted documents as a response to her FOIL request, maintaining that the redacted portions were exempt from disclosure pursuant to Public Officers Law §87(2)(e) and (g). 

Supreme Court rejected SDE efforts to invoke Public Officers Law §87(2)(g) with regard to two of the pages, but held that the undisclosed portions of the remaining documents were compiled for law enforcement purposes and were exempt from disclosure under Public Officers Law §87(2)(e)(i).

Madeiros’ appealed of the Supreme Court’s ruling but the Appellate Division, explaining that "FOIL is based on a presumption of access to the records, and an agency . . . carries the burden of demonstrating that the exemption applies to the FOIL request,." sustained the Supreme Court's ruling. In this instance, said the court, DOE had relied upon Public Officers Law §87(2)(e) with respect to providing redacted records a provision that exempts records from disclosure that "are compiled for law enforcement purposes and which, if disclosed, would . . . interfere with law enforcement investigations or judicial proceedings."**

Noting that Madeiros had obtained unredacted copies of almost 20 of the produced pages from another source, rendering academic a good portion of the relief she seeks, certain records, including an internal control questionnaire, the Appellate Division said that the redacted portions of the documents demanded by Madeiros to be supplied by DOE would, indeed, reveal to “unscrupulous [providers] the path that an audit is likely to take and alert them to items to which investigators are instructed to pay particular attention,” agreeing with Supreme Court that such documents  constituted "compilations of investigative techniques exempt from disclosure."

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, 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.

** DOE had contended that the redactions were necessary because disclosure of the unredacted documents would reveal auditing techniques that would enable the providers of preschool special education programs to conceal their financial misdeeds more effectively.

The decision is posted on the Internet at:

Monday, November 16, 2015

Employees of Suffolk County Community College held ineligible to participate in the County’s Deferred Compensation Plan


Employees of Suffolk County Community College held ineligible to participate in the County’s Deferred Compensation Plan
Suffolk County Assn. of Mun. Empls., Inc. v Levy, 2015 NY Slip Op 08180, Appellate Division, Second Department
Suffolk County Assn. of Mun. Empls., Inc. v Levy, 2015 NY Slip Op 08181, Appellate Division, Second Department

A number of individuals employed by the Suffolk Community College represented by Suffolk County Association of Municipal Employees [SCAME], an employee organization representing employees of Suffolk County including those at the College, had been permitted to participate in the Suffolk County Public Employees Deferred Compensation Plan [County Plan].

The County Planis administered by the Suffolk County Deferred Compensation Board [County Board] and in 2009 the County and the College entered into a Sponsor Service Agreement and a Memorandum of Understanding of Procedures that provided that the College and the County are independent entities and that neither entity's employees are to be deemed employees of the other entity.

The County Board then asked New York State Deferred Compensation Board [State Board] if the College's employees were eligible to continue to participate in the County Plan in view of the terms of the 2009 Memorandum of Understanding deeming them to be employed by an entity other than the County. The State Board determined, primarily based upon the terms of the New Operating Agreement, that the County and the College were separate and distinct employers and, therefore, the College's employees could no longer participate in the County Plan.*

The County Board adopted the State Board's determination and, in a letter dated March 29, 2010, informed the College's employees that they could no longer participate in the County Plan.

SCAMEchallenged the County Board's determination that the County and the College were separate employers and, thus, the College's employees could no longer participate in the County Plan. Supreme Court dismissed SCAME's CPLR Article 78 petition and the employee organization appealed.

The Appellate Division sustained the Supreme Court’s ruling. The Appellate Division explained that “contrary to [SCAME’s] contentions, the challenged determination that the County and the College are separate employers and, therefore, the College's employees could no longer participate in the County Plan, had a rational basis and was not arbitrary and capricious or an abuse of discretion. Accordingly, said the court, the Supreme Court properly denied the petition and dismissed the proceeding.

* The State Board cited §457 of the Internal Revenue Code as the authority for establishing the Suffolk County Public Employees Deferred Compensation Plan. It should be noted, however, that Article 8-C of the Education Law [§§398-399-A], SPECIAL ANNUITY, also referred to as a “tax-deferred annuity plan,” permits an individual employed by “the state university, the board of higher education of the city of New York, or a community college established and operated under article one hundred twenty-six of this chapter to participate in a tax-deferred annuity plan as permitted under §403(b) of the United States Internal Revenue Code” should such an entity “elect to establish by resolution special annuity and custodial account programs which shall provide for the purchase of contracts or establishment of custodial accounts providing retirement and death benefits for or on behalf of employees electing to enter into an agreement with such employer providing for a reduction of annual salary for the purpose of purchasing such contracts or for making contributions to such custodial accounts.”

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

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

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

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