Thursday, December 31, 2015

Record failed to support employee’s claims that the hearing officer refused to permit spouse testify and refused to receive a police report into evidence



Record failed to support employee’s claims that the hearing officer refused to permit spouse testify and refused to receive a police report into evidence
Matter of Pellicano (Department of Labor), 2015 NY Slip Op 09161, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled, among other things, that Stephen J. Pellicano, a teaching assistant, was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Following an incident in which Pellicano allegedly failed to appropriately handle a fight among students he was directed to attend a meeting with the school superintendent to discuss possible disciplinary sanctions. Pellicano did not attend the meeting and ultimately was terminated after a disciplinary hearing.

Pellicano appealed, contending that the ALJ improperly denied his request to have his wife testify at the hearing and did not receive the police report into evidence at the hearing.

The Appellate Division rejected his allegations concerning his request to have his spouse testify, noting that the record indicated that Pellicano stated at the onset of the hearing that he did not have any witnesses. As to Pellicano’s claim that the ALJ improperly refused to receive into evidence the police report of the student altercation, the court said that Pellicano [1] did not offer it and [2] it was not relevant to Pellicano’s termination from his position with the school district.

The Appellate Division sustained the Board’s determination and dismissed Pellicano’s appeal.

The decision is posted on the Internet at:

Wednesday, December 30, 2015

Improper, immoral and insubordinate behavior “on-the-job” may constitute disqualifying misconduct for the purposes an individual’s eligibility for unemployment insurance benefits


Improper, immoral and insubordinate behavior “on-the-job” may constitute disqualifying misconduct for the purposes an individual’s eligibility for unemployment insurance benefits
Matter of Brown (Commissioner of Labor), 2015 NY Slip Op 08679, Appellate Division, Third Department

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 20, 2014, which ruled that claimant was eligible to receive unemployment insurance benefits.

A teacher [Teacher] was placed on administrative leave in March 2012 and, shortly thereafter, was served with disciplinary charges pursuant to Education Law § 3020-a and proposed termination as the penalty to be imposed. The Hearing Officer found Teacher guilty of a number of the charge but rather than imposing dismissal as the penalty, directed that Teacher be suspended without pay for the second half of the school year.

Teacher then applied for, and obtained, unemployment insurance benefits during the suspension period without pay.

The appointing authority appealed and an Unemployment Insurance Administrative Law Judge [ALJ], acknowledging that the factual findings made by the Hearing Officer were entitled to collateral estoppel effect, nevertheless concluded that the conduct for which Teacher was disciplined, although "serious," did not rise to the level of disqualifying misconduct that would preclude him from receiving unemployment insurance benefits. The Unemployment Insurance Appeal Board [Board] affirmed the ALJ’s ruling and the appointing authority appealed.

With respect to the question of whether Teacher committed disqualifying misconduct, the Appellate Division noted that this "is a factual issue for the Board to resolve, and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of [disqualifying] misconduct."

That said, the Appellate Division said that Teacher was found to have committed numerous instances of improper, immoral and insubordinate behavior, as well as conduct unbecoming a teacher including making inappropriate, demeaning and sarcastic comments to students, and sending  unprofessional emails to staff and parents. Characterized as a “notable example” of Teacher’s “cavalier treatment of students” the court described an incident in which Teacher improperly confiscated a student's cell phone and impersonated that student in order to learn what another student thought of his teaching abilities.

In addition, said the Appellate Division, Teacher disregarded his employer's policy regarding the use of multimedia tools in the classroom, despite having previously discussed that policy with administrators, and elected to show a violent movie to his students without obtaining parental consent to do so.

The Appellate Division, noting that an employee’s actions that were contrary to established policies and that have a detrimental effect upon the employer's interests have been found by courts to constitute disqualifying misconduct, said that this includes insubordinate conduct and unprofessional behavior that is detrimental to the interests of the employer.

As the Hearing Officer had found that Teacher’s repeatedly engaged in such types of behavior and, under the circumstances presented by this case, the Appellate Division ruled that the Board’s holding that Teacher’s behavior reflected nothing more than "poor judgment . . . is erroneous and is not supported by substantial evidence.”

The Appellate Division reversed the Board's determination and remanded the matter to it "for further" proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

Tuesday, December 29, 2015

Although a Civil Service Commission is vested with the authority to establish minimum qualifications for job titles such determinations are not immune from oversight or review in an arbitration proceeding


Although a Civil Service Commission is vested with the authority to establish minimum qualifications for job titles such determinations are not immune from review in an arbitration proceeding
Matter of City of Lockport (Lockport Professional Firefighters Assn., Inc.), 2015 NY Slip Op 08581

The City of Lockport [Lockport] and Lockport Professional Firefighters Association, Inc., Local 963 [Association] are parties to a collective bargaining agreement [CBA] that defines grievance as including "all claimed violations of any contract existing between [Lockport] and the employees covered by" the CBA. After Lockport's Civil Service Commission [Commission] created a new position within the Lockport Fire Department, -- Municipal Training Officer [MTO] – the Association and Lockport negotiated the terms and conditions of employment and the job duties applicable to that position which resulted in a Memorandum of Agreement [MOA] that provided that employees in the position of MTO "shall only be eligible for future promotional consideration to a Line Officer's position pursuant to existing civil service rules, regulations, and procedure beginning with Fire Lieutenant."  

The Commission subsequently amended the job specifications for Fire Chief to make the MTO eligible for promotion to Fire Chief. The Association filed a grievance and a demand for arbitration based upon Lockport's alleged violation of the MOA, and Lockport commenced this proceeding seeking a permanent stay of arbitration. Supreme Court granting Lockport’s petition and the Association's appealed that court’s ruling. The Appellate Division unanimously reversed the lower court’s ruling and Lockport appealed.

Lockport, for first time, raised in its appeal the argument that arbitration of the instant dispute was contrary to the Civil Service Law and public policy. The Appellate Division said that while such a contention may be raised for the first time on appeal, it concluded that the argument lacked merit. The court explained that New York State has a strong public policy favoring arbitration of public sector labor disputes and, citing NYC Transit Authority v Transport Workers Union, 99 NY2d 1, observed that "judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships."

The court continued, holding that “The instant dispute does not fall within the narrow scope of that exception, inasmuch as the provision of the MOA at issue concerns promotion, a term or condition of employment that is a proper subject for negotiation and agreement between the parties.”

The Appellate Division also rejected Lockport's argument that granting the remedy sought by Association -- enforcement of the MOA -- would violate public policy and conflict with the Civil Service Law because it would interfere with the Commission's authority to establish the qualifications for appointment to the position of Fire Chief. The court, quoting from Matter of Ulster County Sheriff’s Employees Association, 100 AD3d 1237, said "While the [Commission] undoubtedly had the authority to establish minimum qualifications for job titles in [City] government (see Civil Service Law §§50, 52), it does not follow that such determinations are immune from oversight or review" in an arbitration proceeding.”

Further, the Appellate Division was not persuaded by Lockport's claim that the Association's dispute was with the Commission and the Commission “cannot be bound by an arbitration award,” said this argument goes to "the merits of the grievance [which] are not the court[']s concern."

The decision is posted on the Internet at:

Monday, December 28, 2015

Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges



Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges
Click on link in highlighted in color to access the text of the decision

New York City Correction Officer found guilty of off-duty misconduct
OATH Index No. 1349/15

Astrid B. Gloade, an OATH Administrative Law Judge, found that an off-duty New York City correction officer brandished his firearm while intoxicated during an altercation outside of a night club and failed to cooperate with the police during his arrest was guilty of misconduct.

Noting that in a disciplinary proceeding the charging party bears the burden of proving the alleged misconduct by a preponderance of the credible evidence, Judge Gloade found that the employer met its burden with respect to most of the charged violations.

The ALJ recommended that the appointing authority terminate the correction officer from his position.


Employee improperly modified New York City school bus routes
OATH Index No. 2135/15

A quality assurance specialist assigned to manage school bus routes was charged with incompetence and insubordination when, on multiple occasions, he improperly modified New York City school bus routes and failed to communicate changes to school and bus personnel.

The specialist's mistakes resulted in students missing a day of classes and in multiple routers working overtime to correct his errors.

OATH Administrative Law Judge John B. Spooner sustained all of the charges and recommended the termination of the specialist's employment.   
 ____________________


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

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Thursday, December 24, 2015

When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice


When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice
Matter of City of Rochester (Rochester Police Locust Club), 2015 NY Slip Op 08580, Appellate Division, Fourth Department

Supreme Court granted the City of Rochester’s [Rochester] CPLR Article 75 application to vacate an arbitration award in favor of the Rochester Police Locust Club [Union]. The Union appealed but the Appellate Division affirmed the Supreme Court’s ruling.

The genesis of the grievance leading to the arbitration was a determination by Rochester denying a police sergeant's request for a vehicle to use on the job and take home. The Unionfiled on behalf of the sergeant and ultimately the arbitrator issued an award directing Rochester to provide the sergeant with a vehicle. The arbitrator ruled that the arbitrator Rochestermust provide the sergeant with a take-home vehicle “based solely on the [Rochester’s] past practice, which included providing such a vehicle to the two predecessors in his position.”

In sustaining the Supreme Court’s decision vacating the arbitration award the Appellate Division noted that the provision in the collective bargaining agreement governing arbitration provided, in relevant part, that "[t]he authority of the arbitrator shall be limited to matters of interpretation or application of the express provisions of this Agreement and the arbitrator shall have no power or authority to alter, add to or subtract from or otherwise modify the terms of this Agreement as written."

Citing Buffalo Teachers Federation v Board of Education, 50 AD3 1503, the court observed that "It is well settled that an arbitration award may be vacated if it exceeds a specifically enumerated limitation on an arbitrator's power [and that] an arbitrator exceeds his or her authority by granting a benefit not recognized under a governing collective bargaining agreement."

In this instance the Appellate Division said that the controlling provision was contained in a memorandum of agreement between Rochesterand the Union. This provision required Rochester to provide a vehicle to police "investigator[s] who are assigned to the Major Crimes Unit."

There was no question that the sergeant who had requested the vehicle was not an investigator nor was he assigned to the Major Crimes Unit. Notwithstanding this, the arbitrator concluded that Rochester must provide him with a take-home vehicle based solely on Rochester’s past practice, which included providing such a vehicle to the two predecessors in the Sergeant’s position.

This, said the court, was error explaining that although past practices may be considered by an arbitrator when interpreting a specific contractual provision, an arbitrator may not rewrite a contract by adding a new clause based upon a past practice.

The decision is posted on the Internet at:

Wednesday, December 23, 2015

Tenured teacher dismissed after being found incompetent and ineffective following a disciplinary hearing held pursuant to Education Law §3020-a



Tenured teacher dismissed after being found incompetent and ineffective following a disciplinary hearing held pursuant to Education Law §3020-a
Reed v Department of Educ. of the City of N.Y., 2015 NY Slip Op 09193, Appellate Division, First Department

Supreme Court, New York County dismissed Lisa Reed's the petition seeking to vacate and, or, modify the opinion and award that resulted in the termination of Reed’s employment as a tenured teacher with the New York City Department of Education. The Department had served charges and specification pursuant to Education Law §3020-a on Reed alleging that she was “incompetent and ineffective during three school years.”

Reed appealed the Supreme Court’s ruling but the Appellate Division affirmed the lower court decision, noting that the charges filed against Reed were supported by adequate evidence showing that she had failed to plan and execute lessons, as observed on multiple enumerated dates.

The Appellate Division also said that ‘The evidence shows that [Reed] continually refused to accept responsibility for her failure to deliver effective instruction. In particular, she failed to implement the school administration's professional development recommendations with regard to lesson planning preparation and execution, proper pacing of lessons, ensuring students stay on task, and assessing students' progress, among other things.”

As to the penalty imposed on Reed by the Department, termination, the court said that dismissing Reed from her position “does not shock [its] sense of fairness.”

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
____________________
  

Union’s application to confirm an arbitration award granted but the Supreme Court’s sanction of attorney’s fees for the employer’s “frivolous conduct” subsequently vacated



Union’s application to confirm an arbitration award granted but the Supreme Court’s sanction of attorney’s fees for the employer’s “frivolous conduct” subsequently vacated
Matter of Civil Serv. Empls. Assn., Inc. (Board of Educ. of Syracuse City Sch. Dist.), 2015 NY Slip Op 08570, Appellate Division, Fourth Department

An arbitrator, following a hearing, determined that the Syracuse City School District [District] had violated the collective bargaining agreement between it and the Civil Service Employees’ Association [CSEA] when it terminated the employment of one of the employees in the negotiating unit represented by CSEA. The arbitrator directed the District to [1] reinstate the employee to his former position; [2] credit him with the seniority to which he would have been entitled had his employment not been wrongly terminated; and [3] pay him "back pay for the salary and other benefits [he] lost as a result of [his] improper termination," retroactive to 30 days before he filed his grievance.

CSEA initiated a CPLR Article 75 proceeding to confirm an arbitration award in its favor while the District cross motioned the court to vacate the award contending that the award is not final and definite, and thus subject to vacatur  because the arbitrator did not specify whether it was entitled to an offset based on funds the employee had received following his termination from unemployment insurance and other employment.

The Appellate Division rejected the District’s contention explaining that “An arbitration award is nonfinal or indefinite "only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy" and sustained the arbitration award.

In this instance, said the court, the award sufficiently defined the parties' rights and obligations notwithstanding its failure to address the offset issue. As to the District’s argument regarding the “offset” it claimed, the court said that there was no indication in the record that the District asked the arbitrator for such an offset at the hearing and, although the arbitrator retained jurisdiction "with respect to the remedy” for about six weeks after the award was rendered, the District did not seek clarification of the award regarding such an offset during that period.

On another issue -- Supreme Court’s awarding CSEA attorneys' fees as a sanction for the District’s “frivolous conduct” -- the Appellate Division said the Supreme Court had made the award without issuing a written decision setting out the “frivolous conduct” on which the award is based and the reasons why the court found such conduct to be "frivolous." Accordingly, the Appellate Division modified the Supreme Court’s order by vacating its award of attorneys' fees.

The decision is posted on the Internet at:

Tuesday, December 22, 2015

Tests applied by courts in determining if a public officer should be removed from his or her office pursuant to §36 of the Public Officers Law



Tests applied by courts in determining if a public officer should be removed from his or her office pursuant to §36 of the Public Officers Law
Hayes v Avitabile, 2015 NY Slip Op 08693, Appellate Division, Third Department

Gary R. Hayes initiated legal action pursuant to Public Officers Law §36 in an effort to have the Appellate Division remove Matthew A. Avitabile from the office of Mayor of the Village of Middleburgh.

Explaining the "Public Officers Law §36 was enacted to enable a town or village to rid itself of an unfaithful or dishonest public official" and that removal from office is a drastic remedy reserved for conduct "'plagued by self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust,” the Appellate Division concluded that Hayes’ allegations, if proved, did not constituted such action.

Hayes had alleged that Avitabile had abused the authority vested in him by the office of Mayor by simultaneously holding the position of Village Constable, appointing unqualified candidates to various positions in his administration, “published an email attempting to defame his character” and “improperly refused to reimburse him for sewer rent charges.”

Although Avitabile conceded that he assumed the duties of Village Constable upon his election to the position of Mayor, the decision notes that some five months later he “immediately ceased all duties as Village Constable when he was advised by the Village Attorney that holding both positions simultaneously could present a conflict of interest. The Appellate Division said that Avitabile’s initial decision to serve in that dual capacity may have been imprudent, it did not amount to “unscrupulous conduct or gross dereliction of duty or conduct that connotes a pattern of misconduct and abuse of authority.”

Addressing the allegedly defamatory email involving Hayes, the court said that such conduct cannot be deemed an abuse of official power since it occurred prior to Avitabile’s assumption of public office. As to Hayes’ other allegations, the Appellate Division held that they, at best, reflected "minor neglect of duties, administrative oversights and violations of law" that do not warrant removal from office.

Concluding that the alleged conduct did not rise to the level required for removal of a public officer from his or her office, the court said that Avitabile was “entitled to a summary determination dismissing [Hayes’] petition on the merits.”

The decision is posted on the Internet at:

Monday, December 21, 2015

On December 21, 2015, Governor Andrew M. Cuomo announced appointments to the executive chamber and various state departments and agencies


On December 21, 2015, Governor Andrew M. Cuomo announced appointments to the executive chamber and various state departments and agencies
Source: Office of the Governor

Below is the complete list of the appointees:
 
Melissa DeRosa has been appointed Chief of Staff. Since April 2013, Ms. DeRosa has served as Communications Director and more recently added 'Strategic Advisor' to her title. During her tenure, Ms. DeRosa has managed overall communications and press for the Executive Chamber and over 50 state agencies. In her new role, her portfolio will continue to include communications, and will add legislative affairs, politics, labor, and the administration's strategic approach to enacting policy. Before joining the Governor’s office, Ms. DeRosa worked in the Attorney General's Office as Deputy Chief of Staff and as Acting Chief of Staff. Ms. DeRosa led the office's effort to negotiate and pass the country’s most aggressive prescription drug reform package, I-STOP (Internet System for Tracking Over-Prescribing Act). Prior to working for the Attorney General, Ms. DeRosa served as New York State Director of Organizing for America, President Obama's national political action organization. Before joining OFA, Ms. DeRosa served as the Director of Communications and Legislation for Cordo and Company, an Albany based government affairs firm. She was also the Campaign Manager for Tracey Brooks for Congress, Deputy Press Secretary to Congresswoman Nydia Velazquez, and Deputy Press Secretary for the successful NY State Transportation Bond Act Campaign Vote Yes in 2005. She holds a Bachelor’s Degree in Industrial and Labor Relations and a Master’s Degree in Public Administration, both from Cornell University. She has served on the executive board of the Women’s Leadership Forum Network of the Democratic National Committee.
 
Robert F. Mujica Jr. has been appointed Budget Director for the New York State Division of the Budget. Previously, he was Chief of Staff to the Temporary President and Majority Leader of the Senate and concurrently serves as the Secretary to the Senate Finance Committee. For 19 years while serving under three Majority Leaders, Mr. Mujica has advised various elected and other government officials in New York on State budget, fiscal and policy issues. As Chief of Staff he was responsible for coordinating and activities among the Senate’s policy, counsel, and communications offices on behalf of the Senate leadership. In addition, as Secretary to the Senate Finance Committee, the Senate’s chief fiscal advisor, his responsibilities include leading a team of analysts and economists to examine and develop budgeting and fiscal/tax policy proposals for the Senate Majority. Mr. Mujica was the Senate’s chief staff liaison to the Governor’s office, state agencies and the state Assembly, and the lead negotiator responsible for all state budget and policy negotiations on behalf of the Senate leadership. He received his B.A. from Brooklyn College at the City University of New York, a Master's degree in Government Administration from the University of Pennsylvania and a J.D. from Albany Law School. Mr. Mujica replaces Mary Beth Labate, who is joining SUNY as a senior level policy and program advisor on the Chancellor's Executive Committee.
 
Jill DesRosiers has been appointed Deputy Secretary for Executive Operations and will oversee the offices of Intergovernmental Affairs, Scheduling and Operations,and Regional and Constituency Affairs. Ms. DesRosiers has worked in New York City and State level government and politics for 15 years. Since 2012, Ms. DesRosiers has been Director of Scheduling for Governor Cuomo, responsible for event logistics and strategic planning for the Governor, including events, press conferences and issue based summits. She also planned and coordinated issue based campaigns with Operations, Intergovernmental and Communications departments. After getting a degree from the University of Pennsylvania in Systems Engineering, Ms. DesRosiers worked in senior positions for the New York City Council for 12 years under both Speakers Gifford Miller and Christine Quinn, where her responsibilities included community outreach and member services. She created CouncilStat, the first computerized tracking system for citywide constituent issues. She has also served as campaign manager, field director and GOTV director for over a dozen campaigns in New York City.
 
James Allen has been appointed Communications Director. Previously, Mr. Allen was Vice President of Communications and Strategy at Mic, where he oversaw brand strategy, communications, and external affairs. Before joining Mic, Mr. Allen served as director of communications and chief spokesman for then-Newark Mayor Cory Booker. He has also served as campaign manager and a top advisor for U.S. Congressman John Carney, Democrat of Delaware, and has staff experience on numerous other political campaigns across the country, including Obama for America in 2008. Earlier in his career, he was a senior account executive at Weber Shandwick. He received his B.A. in rhetoric and communications from SUNY Albany.
 
Major Michael J. Cerrettofrom the New York State Police will be appointed Director of the Office of Counter Terrorism within the Division of Homeland Security and Emergency Services. As Director, Major Cerretto will lead the units within the Office of Counter Terrorism and will work in collaboration with the New York State Intelligence Center, the State Police, and local and federal law enforcement agencies. Major Cerretto most recently served as the Chair of one of the State’s sixteen Counter Terrorism Zones which coordinates information sharing and operational coordination among State and local law enforcement. The Major also sits on the Executive Committee on Counter Terrorism which works closely with the New York State Intelligence Center. Major Cerretto, a former Navy Veteran who has served twenty-eight years with the State Police, most recently was the Commander of Troop A in Batavia and oversaw operations in the eight counties of Western New York.
 
Daniel Fuller has been appointed Education Policy Advisor. Most recently, Mr. Fuller served as Vice President of Legislative Relations at Communities in Schools. Previously, he was the Director of Public Policy at the Association for Supervision and Curriculum Development, and prior to that, was the Director of Federal Programs at the National School Boards Association. Mr. Fuller holds a B.A. in English from SUNY Plattsburgh.
 
Kate Dineen has been appointed Assistant Secretary for the Environment. Ms. Dineen most recently served as Deputy Executive Director of the Governor’s Office of Storm Recovery, overseeing the implementation of recovery and resiliency projects in communities impacted by Hurricane Irene, Tropical Storm Lee, and Superstorm Sandy. Prior to joining state government, she was U.S. Senator Kirsten Gillibrand’s Policy Director, covering environmental, energy, and economic development issues. She also worked for the Australian federal government evaluating the world’s first national scheme to regulate the creation and trade of carbon credits, and for the BMW Guggenheim Lab, a mobile think tank on urban sustainability issues. Ms. Dineen graduated cum laude from Williams College with a B.A. in English and holds a Masters in City Planning from the Massachusetts Institute of Technology.
 
Barbara Williams has been appointed Deputy Policy Director for Governor Andrew M Cuomo. Prior to joining the administration, Barbara served for nine years at the U.S. Department of State. Most recently, she was Deputy Cultural Attaché at the U.S. Embassy in Mexico City. Prior to that she was an advisor to the Under Secretary of State for Political Affairs. She is fluent in Spanish and Portuguese. Barbara has a B.A. in Political Science and a Master of Arts in Regional Economic and Social Development from the University of Massachusetts at Lowell.
 
Josh Rousseau has been appointed Assistant Secretary for Legislative Affairs. Josh most recently served as a Special Assistant in the Governor’s Office of Legislative Affairs and prior, was a Special Assistant in the New York State Homes and Community Renewal Office of Intergovernmental Affairs. Before that, Mr. Rousseau was Chief of Staff and Legislative/Communications Director for New York State Assembly Assistant Speaker Rhoda S. Jacobs. Mr. Rousseau has a B.S. in Political Science from the State University of New York at Plattsburgh.
 
Quinn Staudt has been appointed Confidential Assistant to the Governor and Director of Public Engagement. Prior to his appointment, Mr. Staudt was a Political Consultant at the Smoot Tewes Group. Before that, he was a Political Operative with Greenberg, Quinlan, Rosner, Research (GQRR) and an Advisor to the Prime Minister of the Republic of Moldova. Mr. Staudt has also held multiple roles in the White House, including Deputy Director in the Office of Intergovernmental and Public Policy and Public Liaison at the Office of National Drug Control Policy. He has also served as a Public Affairs Program Specialist in the Office of the Secretary of the United States Department of Commerce. Additionally, Mr. Staudt was a Deputy Field Director for the Obama for America Campaign in Pennsylvania and held a number of roles in nearly a dozen states during the two-year campaign. He holds a B.S. in Government and Politics from the University of Maryland.
 
Laura Graham has been appointed Senior Vice President of Special Projects at the Empire State Development Corporation. Prior to her appointment, she was the Senior Advisor for Global Programs and the Chief Operating Officer of the Clinton Foundation. From 2001-2009, Ms. Graham held positions in the Office of Former President Bill Clinton, including: Chief of Staff and Director of Scheduling and Advance. Ms. Graham has a B.A. in Political Science from Wagner College.
 
Thomas Berkman has been appointed Deputy Commissioner and General Counsel for the Department of Environmental Conservation, where he currently serves as Deputy Counsel. Prior to his roles at the Department of Environmental Conservation, Mr. Berkman served as Assistant Attorney General in the Criminal Protections Bureau in the New York Attorney General’s Office where he prosecuted a wide array of criminal cases, including tax fraud, securities violations, environmental and insurance claims. Prior to that, Mr. Berkman was a Securities Staff Attorney at Wilmer Cutler Pickering Hale and Dorr, LLP and a Litigation Associate at McGuirewoods, LLP. He has also served as an Assistant District Attorney in the Queens County District Attorney’s Office. Mr. Berkman holds a J.D. from Boston College Law School and a B.A. from Tufts University.
 
Nikhil Natarajan has been appointed Deputy Director for Planning, Training and Exercise, and the REP Program at the Office of Emergency Management within the Division of Homeland Security and Emergency Services. Prior, he served multiple roles at the New York State Department of Health Office of Health Emergency Preparedness, Health Research Inc., including: Deputy Director, Associate Director, and Strategic National Stockpile Coordinator. Before working at the New York State Department of Health, Mr. Natarajan was the Paramedic Program Coordinator and Emergency Management Instructor at the State University of New York at Ulster. He has also spent many years serving as a volunteer firefighter and over a decade working as a Paramedic, including serving in various supervisory roles. He has a B.P.S. in Individual Studies and Health Services Administration from SUNY Empire State College and a National Preparedness Leadership Initiative Certification from the Harvard University Kennedy School of Government.
 
Abbey Fashouer has been appointed Deputy Press Secretary. Ms. Fashouer previously served as Press Secretary for State Senator Jeff Klein. Prior to that, she was a Director at Mercury, LLC. She was also a field organizer for the Sweeney, Burzichelli, and Riley Campaign and for the Quinn for New York Mayoral Campaign. She holds a B.A. from SUNY Albany.
 
Scott Wyner has been appointed General Counsel for the New York State Department of Agriculture and Markets. Prior, Mr. Wyner was Counsel at Storch Amini & Munves PC and Thelen, LLC. Before that, he was a partner at Winick & Rich PC and an associate at Demov, Morris, Levin and Hammerling and at Milbank, Tweed, Hadley and McCloy. Mr. Wyner been involved in virtually all facets of civil litigation, specializing in business, commercial, securities, intellectual property, technology and construction disputes before state and federal courts. Mr. Wyner also has extensive experience with alternative dispute resolution and has served as an arbitrator and commercial mediator. He is also an adjunct associate professor at CUNY's School of Professional Studies, where he has taught negotiation and dispute resolution. He holds a J.D. from Georgetown University Law School, an M.A. in Japanese Studies from the University of Michigan and a B.A. in both Political Science and Japanese Studies from Colgate University.
 
Sean Hennessey has been appointed Assistant Commissioner for Regional Operations at the Department of Transportation for Utica, Syracuse and Watertown. Mr. Hennessey most recently worked at the New York State Office of General Services as Regional Building Superintendent overseeing operations at State Office Buildings in Buffalo, Syracuse, Utica and Watertown. Prior, he was the Commissioner of the Jefferson County Board of Elections. Mr. Hennessey is a graduate of SUNY Canton where he studied Architectural Design and Construction Technologies. Mr Hennessey was recently honored as the 2015 recipient of the Northern Regional Center for Independent Living (NRCIL) "Boundary Buster" award for his advocacy for the disabled community. Mr. Hennessey is a community leader where he is the host and founder of the Echoes of Ireland Radio Show, a coach for the Tri-Village baseball league and an organizer for the North Country Goes Green Irish Festival.
 
Thomas L. McIntyre Jr. has been appointed Assistant Commissioner for Regional Operations at the Department of Transportation. Most recently, he worked at Sage Technical Services in Lexington in South Carolina, where he was an Administrator and a Commercial Driver’s License instructor. Prior, Mr. McIntyre was a Certified Transportation Layman at TMC Transportation in Des Moines, IA, before which he was a Corrections Officer for the South Carolina Department of Corrections. Mr. McIntyre has also served in the U.S. Army and held a number of positions within the Army, including Brigade Battle Staff  First Sergeant, United States Army Goodwill Ambassador and Ammunition and Equipment Operations Technician. He holds an Associate’s Degree in Applied Science from New River Community College.
 
Nathaniel Dorfman has been appointed Deputy Counsel at the Department of Financial Services. Previously, he was a partner at Whiteman Osterman and Hanna LLP. Prior to that, he was Assistant Counsel to the Governor where he also served as the ethics officer for the Executive Chamber. In addition, Mr. Dorfman has held multiple positions at the United States Department of Justice, including Assistant United States Attorney in the Northern District of New York and Trial Attorney in the Tax Division, Civil Trial Section. Mr. Dorfman has a J.D. from Harvard Law School and B.S. from Cornell University.
 
Jonathan S. Fishbein has been appointed General Counsel at the Division of Veteran’s Affairs. Most recently, Mr. Fishbein was an Appellate Attorney in private practice. A Past President of Mediation Matters, Inc., in Albany, he is a trained mediator and Court Certified Arbitrator. Mr. Fishbein has held multiple positions with the United States Figure Skating Association in Colorado, including Special Outside Counsel, Governing Counsel Delegate, and Grievance and Ethics Committee Member. Prior, Mr. Fishbein was a Senior Court Attorney at the New York State Court of Appeals. He has a J.D. from the Benjamin N. Cardozo School of Law and a B.S. in Accounting from Fairleigh Dickinson University.
 
Karen Geduldig has been appointed Director of Telecommunications at the New York State Department of Public Service. She currently serves as General Counsel and Ethics Officer at the New York State Office of Information and Technology Services, a position she has held since 2011. Prior to her appointment at the Office of Information and Technology Services, Ms. Geduldig held positions at the Internet Bureau of the New York State Office of the Attorney General, including Acting Bureau Chief (February 2010-January 2011) and Assistant Attorney General (January 2005-February 2010). Prior to her roles at the New York State Attorney General’s Office, Ms. Geduldig was an associate at McDermott Will and Emery, LLP. She has a J.D. from Hofstra University School of Law and a B.A. in Political Science from The George Washington University.
 
Freeman Klopott has been appointed Director of Communications and Marketing at the Dormitory Authority of the State of New York. Mr. Klopott most recently was a reporter at Bloomberg News. Prior, he was a reporter at the Washington Examiner and the Keene Sentinel. Mr. Klopott holds an M.A. from Northwestern University’s Medill School of Journalism and a B.A. in History and American Culture from Washington University in St. Louis.
 
Matthew Peluso has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance at the Department of Motor Vehicles. Prior, Mr. Peluso was the Assistant District Attorney for Albany County where he was a member of the Financial and Vehicular Crimes Bureaus. Before that, he was an Associate at Nixon Peabody LLP. Mr. Peluso has prosecuted cases involving DWI offenses, vehicular assaults, identity theft, tax fraud, and theft of various types of public assistance benefits. He also served as a police officer in the City of Rochester. He holds a J.D. from Albany Law School, a Certificate in Law Enforcement from Monroe Community College and a B.S. in Biology from Union College.
 
Eugene Sarfoh has been appointed Special Counsel to the Executive Director for Ethics, Risk and Compliance at the Justice Center. Most recently, he was the Managing Attorney of the Albany, New York office of McCabe, Collins, McGeough and Fowler, LLP. Prior, he spent 9 years as an Officer in the litigation firm, O’Connor, O’Connor, Bresee and First, P.C. Mr. Sarfoh also previously served as a Felony Trial Assistant in the Office of the Albany County District Attorney and as an Assistant Public Defender with the Albany County Public Defender’s QOffice. Mr. Sarfoh has a J.D. from the University of Michigan Law School and a B.A. in Political Science & Philosophy from the University of Rochester.
 
Melissa Greenberg has been appointed Chief Business Officer at the New York State Office of General Services. Ms. Greenberg most recently served as the Customer Care, Performance Management and Transition Lead in the Business Services Center at OGS. Prior, she was the Director of Budget Operations for the New York State Office of Parks, Recreation and Historic Preservation. Ms. Greenberg also held multiple positions at the New York State Statewide Financial System (SFS) including Business Transformation Lead and Chart of Accounts and General Ledger Lead. She was also a Senior Associate at KPMG. She has a M.S. in Accounting Information Systems from the University at Albany and a B.S. in Business, Management and Economics from SUNY Empire State College.
 
Simone-Marie L. Meeks has been appointed Assistant Commissioner at the Department of Homes and Community Renewal. Previously, she was a Principal at Lord Lipscomb Molloy PR Strategies, and held roles at the New York Academy of Medicine, including Director of Community and Legislative Outreach and Senior Policy Associate. Ms. Meeks was also an Adjunct Professor of Community Development at Queens College and a Communications and Policy Advisor at the Nassau County Department of Health. She has also held positions at the Office of the Bronx Borough President and in the Office of a New York State Assembly Member. She has a M.S. in Urban Policy Analysis & Management from the New School and a B.S. in English and Media Studies from Fordham University.
 
John Scicchitano has been appointed Director of Philanthropic Partnerships at NYSERDA. Mr. Scicchitano most recently held an appointment at the United States Department of Agriculture where led efforts to track global hunger in order to foster timely government response. Prior, he was the National Director of World Vision Chad. Mr. Scicchitano was also the Program Manager for FEWS NET at the United States Agency for International Development, and has held roles at the Office of U.S. Foreign Disaster Assistance in Senegal, World Relief in Burkina Faso, Rwanda, and Kenya, and the International Rescue Committee in Burundi. Mr. Schicchitano has an Executive Masters in Leadership from the Georgetown University McDonough School of Business and a B.S.E. in Civil Engineering and Operations Research from Princeton University. He is also recognized by the United Nations Roster of Experts for the following domains: participatory planning, community development, partnership among stakeholders and policies and strategies.
 
Barbara Lee Steigerwald has been appointed Assistant Commissioner for Special Projects at the Division of Homeland Security and Emergency Services. Most recently, Ms. Steigerwald was the Assistant Vice President for Government Relations at SUNY Albany, prior to which, she was a Government Relations Consultant at Ostroff Associates, Inc. Ms. Steigerwald has held a number of roles in public service, including Chief of Staff to New York State Senator Charles J. Fuschillo, Jr., Senior Health Care Analyst for the New York State Finance Committee and Assistant Counsel to New York State Senator Kenneth P. Lavalle. Ms. Steigerwald holds a J.D. from St. John’s University School of Law and a B.S. in Business Management from SUNY Binghamton.
 
Khurram Saeed has been appointed Director of Communications for the New NY Bridge. Since 2000, Mr. Saeed worked as a reporter for The Journal News, covering a broad range of transportation topics with a specialized focus on the Tappan Zee Bridge for the past decade. Prior to his time at The Journal News, Mr. Saeed was a City Hall reporter for The Bellingham Herald in Washington state. He also served as publisher and editor-in-chief at Aaj Magazine, which covered the South Asian community in Vancouver, BC, Canada. Mr. Saeed holds a B.A. in journalism from Pace University.
 
Raquel Gonzalez has been appointed Special Assistant at the Department of Agriculture and Markets. Ms. Gonzalez most recently served in various roles as an appointee in President Obama’s Administration, including Deputy Director of the White House Liaison Office at the U.S. Department of Agriculture, Special Assistant to the Director of Peace Corps, Economics Director for Presidential Personnel at the White House, Confidential Assistant in the Office of Innovation and Improvement at the U.S. Department of Education, and Special Assistant to the Director of the Office of Science at the Department of Energy. Ms. Gonzalez has also worked for the AFL-CIO of Washington, the 2013 Presidential Inaugural Committee, Organizing for America in Ohio, and Obama for America in Indiana. Ms. Gonzalez holds a M.A. from the University of Malta and a M.S. and B.A. from George Mason University.
 
Alexandra M. Greene has been appointed Senior Policy Advisor at Empire State Development. Ms. Greene joined the administration as an Empire State Fellow in the Executive Chamber, where she assisted in the development and implementation of civil rights, economic development, and workforce policies and initiatives. Prior to joining State government, Ms. Greene served as a Legal Associate at the Newark Public Schools and was responsible for the negotiation and compliance of collective bargaining agreements as well as the creation of district wide policies to address new school initiatives and maximize human capital. Ms. Greene holds a B.A. from Boston College, J.D. from the University of Connecticut School of Law, and a M.A. from Columbia University.
 
James Miskiewicz has been appointed Special Counsel for Ethics, Risk and Compliance at the Long Island Power Authority. Previously, Mr. Miskiewicz served as the Assistant United States Attorney and Deputy Chief for the Long Island Criminal Division of the U.S. Attorney’s Office for the Eastern District of New York. Before joining the US Attorney’s Office, he served as a Trial Attorney in the Environmental Crimes Section of the US Department of Justice, and as a law clerk for the Honorable G. Thomas Eisele, Chief United States District Judge, Eastern District of Arkansas. He received his B.A., cum laude, from the City College of New York, and his J.D. from the City University of New York School of Law.
 
Jamie Frank has been appointed Assistant Secretary for Education. Most recently she served in the Education Unit in the New York State Division of Budget, where she focused on education finance, including conducting research and policy analysis on issues such as academic performance, accountability, school funding and the State’s pre-kindergarten expansion. Before coming to New York State government, Ms. Frank was an English as a Second Language teacher at a public elementary school in North Carolina. She graduated with a B.A. with honors from the University of Rochester, and holds a M.P.A. with a concentration in Social Policy from Cornell University.

An individual who refused to report for appropriate light duty denied General Municipal Law §207-c disability benefits effective on and after the date of such refusal


An individual who refused to report for appropriate light duty denied General Municipal Law §207-c disability benefits effective on and after the date of such refusal
Farina v County of Orange, 2015 NY Slip Op 08408, Appellate Division, Second Department

General Municipal Law §207-c(1) entitles correction officers to certain enumerated benefits, including the payment of full salary or wages, where the officer "is injured in the performance of his [or her] duties or . . . is taken sick as a result of the performance of his [or her] duties" and to eligible for such disability benefits the municipal employee "need only prove a direct causal relationship between job duties and the resulting illness or injury." 

A county correction officer, Ronald Farina, slipped and fell while performing his rounds at a county correctional facility. Farina was examined by two physicians. One physician concluded that Farina was capable of working in a light duty capacity; the second physician concluding that Farina was incapable of working "for the next 10 days." Although the Undersheriff issued an order directing Farina to return to work in a light duty capacity effective July 20, Farina did not return to work until July 30.

Subsequently the Undersheriff denied Farina’s application for benefits pursuant to General Municipal Law §207-c. A hearing was conducted and the hearing officer found that Farina was fit to return to light duty status on July 20 but refused to do so and confirmed the Undersherriff's determination denying Farina any §207-c benefits.

Farina then filed a petition pursuant to CPLR Article 78 seeking a court order annulling the hearing officer's determination and the restoration of the leave time he was charged while he was out of work due to the injuries he sustained.

The Appellate Division noted that the standard of review of an administrative determination made after a hearing is limited to considering whether the determination was supported by substantial evidence and the test of whether the administrative determination is supported by substantial evidence is whether, on the relebant record, a reasonable person might have made the findings and conclusions made by the administrative agency.

Citing Flynn v Pease, 242 AD2d 331, the Appellate Division noted that a municipality is entitled to conduct its own medical examination of an employee claiming §207-c benefitsand if the medical examiner concludes that the individual can perform light duty relevant to his or her position, payment of the individual's full amount of salary or wages may be discontinued should the employee refuse to return to work in a light-duty assignment.

In this instance the court said that the record indicates a direct relationship between Farina’s job duties and his resulting injuries and therefore, he qualified for benefits pursuant to General Municipal Law §207-c and the Undersheriff’s determination to deny Farina §207-c benefits from the date of the accident, July 6, up to and including July 19 -- prior to the ordered start of Farina light duty assignment -- was not supported by substantial evidence.

In contrast, the Appellate Division held that there was substantial evidence to support the hearing officer's determination that Farina was fit to return to light duty when he was ordered to do so on July 20. Because Farina refused to report for his light duty assignment on July 20, the court ruled that he was not entitled to the §207-c benefits he requested from that date forward.

Accordingly, the Appellate Division vacated the determination of the hearing officer denying §207-c benefits for the period of July 6 up to and including July 19, but otherwise denied Farina’s petition. Thus the County was directed to award Farina §207-c benefits only for the period of July 6 through and including July 19.

The decision is posted on the Internet at:
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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
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