An individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations

An individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations

Vaccaro v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2016 NY Slip Op 04116, Appellate Division, First Department

Supreme Court granted Gaetano Vaccaro’s Article 78 petition seeking [1] the annulment of the Board of Education of the City School District of the City of New York’s [Board of Education] determination discontinuing Vaccaro’s probationary employment and [2] a declaration that Vaccaro was a tenured teacher at the time his employment as a probationary employment was terminated. Supreme Court also denied the Board of Education’s cross motion to dismiss Vaccaro’s petition.

The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and dismissed the Article 78 proceeding brought by Vaccaro.

Citing Springer v Board of Education of the City School District of the City of New York, 121 AD3d 473, affirmed 27 NY3d 102*, the Appellate Division explained that Vaccaro had not complied with the provisions set out in New York City Department of Education's Chancellor's Regulations C-205(28) and C-205(29), which provisions govern with respect to the withdrawal of a resignation by an individual and the restoration of the tenure previously enjoyed by that individual.

As noted in NYPPL’s summary of the Springer decision, while Springer’s position was in the Unclassified Service,** in the event "a permanent employee in a position in the Classified Service*** of the State as the employer resigns from his or her position and subsequently wishes to withdraw his or her resignation he or she must obtain the approval of the appointing authority to do so. Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provide that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.

“Further, 4 NYCRR 5.4, Reinstatement following resignation provides, in pertinent part, that a former permanent State employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant. This rule, then further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.

“Many local Civil Service Commissions have adopted rules similar to 4 NYCRR 5.4.”

* The Springer decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_02553.htm

** See, generally, Civil Service Law §35.

*** See, generally, Civil Service Law §§40-45

The Vaccaro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04116.htm

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Woods v State Univ. of N.Y., 2016 NY Slip Op 04084, Appellate Division, Third Department

The genesis of Woods v State University of New York [SUNY], was Norman Woods being served with a notice of discipline issued in accordance with the terms of the collective bargaining agreement [CBA] negotiated by State and Woods’ collective bargaining organization, the Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA]. In October 2013 the Disciplinary Arbitrator issued an award in which he found Woods guilty of four of the five charges brought against him and imposed a penalty of a fine and, as relevant to this appeal, "a one (1) year probation period."

In June 2014 Woods’ supervisor issued a negative "final" probationary evaluation and on the same day SUNY's director of human resources wrote to Woods to advise him that his "disciplinary probationary appointment" at SUNY was terminated.

In response to NYSCOPBA filing a grievance challenging Woods’ termination from his “disciplinary probation, SUNY's director of employee relations wrote to NYSCOPBA to advise it that Woods had not been disciplined and "returned" the grievance to NYSCOPBA. NYSCOPBA initiated a proceeding seeking to compel arbitration pursuant to CPLR §7503, or, in the alternative, to vacate and annul the termination pursuant to CPLR Article 78. Supreme Court converted the proceeding to one seeking to confirm the award pursuant to CPLR §7511 and directed the parties to seek clarification of the October 2013 arbitration award.

The Appellate Division reversed the Supreme Court ruling. The court explained while public policy generally favors the resolution of labor disputes through arbitration, not  every dispute is arbitrable. When considering a petition to compel arbitration courts make "two distinct inquiries:" [1] is arbitration of the issue is authorized by the Taylor Law and permitted as a matter of public policy, and, [2] did the parties agreed in the CBA to submit the issue to arbitration.

Although SUNY had contended that Woods had waived the right to pursue arbitration should he be terminated during his disciplinary probationary period, the Appellate Division, conceding that such right may be waived, held that Woods was not a party to a "last chance agreement" reciting a clear and unequivocal waiver of negotiated arbitration procedure set out in the CBA.

Although SUNY contended that “by virtue of the October 2013 arbitration award, [1] Woods was a probationary employee, and [2] the parties did not agree to arbitrate issues regarding the termination of probationary employees,” the Appellate Division ruled that the issue before it was to determine whether there is a "reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.*

The majority of the Appellate Division held that the CBA provides that "[d]iscipline shall be imposed upon employees otherwise subject to the provisions of §§ 75 and 76 of the Civil Service Law only pursuant to [the contract disciplinary grievance procedure] in lieu of the procedure and remedies prescribed by such sections of the Civil Service Law …." Further, said the majority, it was “mindful that one of the referenced statutes provides that certain employees in the classified civil service who have completed a probationary period of employment may not be disciplined "except for incompetency or misconduct shown after a hearing upon stated charges."

The majority said that it did not find that the cited provision of the CBA “unambiguously excludes" Woods, as an individual serving a disciplinary probationary period, from its coverage and it was for an arbitrator to interpret and apply the CBA, and the court did not have the authority to consider the merits of SUNY's argument.”

Holding that the CBA provision is ambiguous, the majority said that an arbitrator must decide whether it governs Woods' summary dismissal from service during his disciplinary probationary status and Supreme Court should have granted NYSCOPBA's petition seeking to compel arbitration.

Although this was apparently not the situation in Woods v SUNY, disciplinary settlement agreements providing for a “disciplinary probation” typically set out the reason permitting the employee to be summarily terminated from his or her position during his or her “disciplinary probation” period.

Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement that included a disciplinary probation component whereby the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.” Taylor was terminated during his disciplinary probationary period without a hearing for “failing to give a fair day’s work and sleeping during scheduled working hours.” However, there was no allegation that he had been intoxicated on the job as a reason for his dismissal as a disciplinary probation employee.

Taylor sued, challenging his dismissal and won reinstatement with back salary. The Appellate Division said that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In contrast, in Outley v Upstate Med. Univ., 60 AD3d 1398 [motion for leave to appeal denied,13 NY3d 708], the Appellate Division sustained the summary termination of Joanne Outley, an employee at SUNY’s Upstate Medical Center [UMC], after it was demonstrated that she had violated the terms of her “disciplinary probation.” UMC and Outley entered into a disciplinary settlement agreement that placed her on "disciplinary probation" for a specified period of time and prohibited her taking any unauthorized absences.

The Appellate Division dismissed Outley’s challenge to her termination explaining that that the record established that Outley had violated the settlement agreement by being on an unauthorized absence during her disciplinary probation period, thus providing UMC with a legally sufficient basis for summarily terminating her employment that was neither arbitrary nor capricious. 

Further, said the court, Outley failed to establish that she "was dismissed in bad faith or for an improper or impermissible reason."

* The decision notes that Judge Rose dissented from the majority opinion.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04084.htm

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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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Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate

Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate
Traxler v DiNapoli, 2016 NY Slip Op 03949, Appellate Division, Third Department

Sheila Traxler, a correction officer, applied for performance of duty disability retirement benefits alleging that she was permanently incapacitated due to work-related injuries sustained when a self-closing gate struck her after an inmate accidentally let go of it while Traxler was standing in the doorway.

Traxler’s application was initially denied by the Retirement System and she requested a hearing and redetermination. Following the hearing, the Hearing Officer sustained the denial of Traxler’s application for duty disability retirement holding that Traxler "failed to establish that her injuries were the result of an act of an inmate." The Comptroller accepted the findings and conclusions of the Hearing Officer and denied Traxler’s appeal. Traxler appealed the Comptroller's decision.

Citing Retirement and Social Security Law §607-c[a],* the Appellate Division annulled the Comptroller’s decision. The court explained that Traxler bore the burden of demonstrating that the incident in which she sustained her injuries was "the natural and proximate result of any act of any inmate." All that is required, said the court, is that the applicant for duty disability retirement show that his or her injuries “were caused by direct interaction with an inmate."

While Traxler did not believe that the inmate intended to injure her, she was injured as the result of the inmate disobeying Traxler’s instruction to remain where she was standing. Under these circumstances, said the court, there is no evidentiary basis in the record to conclude that [Traxler’s] injuries did not occur contemporaneously with, and flowed directly, naturally and proximately from, the inmate's’ disobedient and affirmative actions.

Accordingly, the Appellate Division ruled that Traxler’s injury was a natural and proximate result of an act of an inmate and remitted the matter to the Retirement System “for further proceedings on the issue of the permanency of [Traxler’s] alleged disability.”

In contrast to the ruling in Traxler, in Palmateer v DiNapoli, 117 AD3d 1228 [motion for leave to appeal denied, 24 NY3d 901], the Appellate Division rejected a correction officer’s appeal of the denial of his application for duty disability retirement, holding that “[a]ny connection between his injuries and the inmate conduct here is too attenuated to form a basis for an award of performance of duty disability retirement benefits.”

Lawrence Palmateer, a correction officer, had applied for duty disability retirement benefits pursuant to Retirement and Social Security Law §507-b.** The record indicated that Palmateer was seated at a desk when he heard a commotion in the shower room that he believed to be an altercation between inmates. Getting up from his desk “his right knee gave out, causing him to fall.”

Although it was uncontroverted that Palmateer was permanently incapacitated from performing the duties of a correction officer, the Appellate Division said that it did not agree with Palmateer’s contention that the injuries he suffered “responding to a potential emergency involving inmates” were the natural and proximate result of an act of an inmate.

* §607-c[a], Performance of duty disability benefit, provides, in pertinent part, that “Any sheriff, deputy sheriff, undersheriff or correction officer as defined in subdivision a of section sixty-three-b of this chapter, and who are employed in a county which makes an election pursuant to subdivision d of such section sixty-three-b, who becomes physically or mentally incapacitated for the performance of duties as the natural and proximate result of an injury, sustained in the performance or discharge of his or her duties by, or as the natural and proximate result of any act of any inmate or any person confined in an institution under the jurisdiction of such county, shall be paid a performance of duty disability retirement allowance equal to that which is provided in section sixty-three of this chapter, subject to the provisions of section sixty-four of this chapter.”

** §507-c, Performance of duty disability retirement, applies to the uniformed personnel serving in institutions under the jurisdiction of the New York City Department of Correction.

The Traxler decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03949.htm

ThePalmateer decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_03322.htm

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The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Inability to satisfactorily perform the duties of the position due to an alleged disability

Inability to satisfactorily perform the duties of the position due to an alleged disability

OATH Index No. 858/16

The appointing authority alleged that a Computer Associate was unfit to perform his job after employer proved that he had difficulty keeping up with technological changes and was confrontational when interacting with co-workers and supervisors. Designated “a disability proceeding” it was submitted to the Office of Administrative Trials and Hearings pursuant to §72 of the Civil Service Law [CSL].

Finding that the employer had demonstrated that employee is currently unfit for the duties of his job,* Oath Administrative Law Judge Alessandra F. Zorgniotti recommended that the employee be placed on an Involuntary Leave of Absence, explaining that in order to place an employee on an involuntary medical leave pursuant to CSL §72, the employer must prove by a preponderance of the evidence that: (i) employee suffers from a disability, (ii) he of she is unable to competently perform his or her job duties, and (iii) his or her inability to perform is caused by a disability.

ALJ Zorgniotti also observed that: “The focus of the §72 proceeding is on the employee’s current fitness and ability to perform his or her job duties, not on his or her past condition or work performance” and that “[p]ast performance is relevant only to the extent that it is probative of [the employee’s] present condition and future conduct.”

Noting that “[a]n essential part of fitness to work in any job assignment is an ability to work with and be supervised by others, without being disruptive or abusive”, Judge Zorgniotti said earlier OATH decisions indicated that a “finding of unfitness is supported where an employee denies the existence of a disability. or refuses to treat it, [and there is competent medical evidence to the contrary] thereby creating a greater risk of future recurrence of the disability.” 

* Judge Alessandra F. Zorgniotti noted that employee’s behavior continued to be disruptive even after supervisors had made efforts to simplify his job, action that could be deemed to an effort to provide a reasonable accommodation of the employee's disability.

The appointing authority adopted the ALJ’s findings and recommendation.  
  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-858.pdf

______________

The Disability Benefits E-book:- This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Conducting disciplinary hearings in absentia

Conducting disciplinary hearings in absentia

OATH Index No. 1046/16

Although rare, an employee upon whom disciplinary charges have been served may refuses to participate in the scheduled disciplinary hearing. If the appointing authority goes forward with the disciplinary hearing notwithstanding the employee’s failure to participate, has the employee been denied due process?

New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:

1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.

2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.

3. A formal hearing must be conducted and the employer is required to introduce evidence proving its charges to the hearing officer.

4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.

5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.*

OATH Administrative Law Judge John B. Spooner conducted a Civil Service Law §75 disciplinary hearing with the employee in absentia when the appointing authority appeared at the scheduled time and place but the employee declined to do so. Judge Spooner characterized the hearing as being in the “form of an inquest” and found that the appointing authority had [1] properly served the employee with the disciplinary charges and the notice of the hearing, and [2] had then produced records and the provided testimony by the employee’s supervisors supporting the charges of the employee’s alleged misconduct at the "inquest." The ALJ found that that the appointing authority had proven the employee was guilty of the charges and recommended that the employee be terminated from service. 

This is another example demonstrating that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing.

Holding a disciplinary action in absentia, however, is a two-way street. Case law demonstrates that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. 

In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the disciplinary arbitration because it believed that Hall was not entitled to the disciplinary arbitration. The arbitrator ruled in favor of the employee and directed Environment Conservation to reinstate the employee to his position with back pay. 

Environmental Conservation [DEC] sought a court order vacating the arbitration award, contending that its termination of Hall was not subject to being challenged pursuant to the “contract disciplinary procedure” because the State Department of Civil Service had disqualified Hall for employment. DEC argued that as Hall’s appointment had been voided by the Department of Civil Service he could not claim any rights under Section 75 of the Civil Service Law or the collective bargaining agreement.**

A Supreme Court judge granted the union’s motion to confirm that portion of the award providing for the payment of certain back pay, holding that the disciplinary proceeding was not rendered moot by the Civil Service Department’s action but declined to confirm that part of the award that directed DEC reinstate Hall to his former position. The Appellate Division sustained the lower court’s ruling.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

** Pursuant to Civil Service Law Section 76.4, many Taylor Law collective bargaining agreements provide that a permanent employee in the classified service may challenge a disciplinary action in accordance with the terms set out in a "contract disciplinary procedure" that is operative in lieu of disciplinary action pursuant to a statutory disciplinary procedure [see Antinore v State, 40 NY2d 6].

Judge Spooner’s decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1046.pdf

__________________________ 

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

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Determining the impact of performing light, limited or restricted duty on applications for disability retirement benefits

Determining the impact of performing light, limited or restricted duty on an application for disability retirement benefits

Koenig v DiNapoli, 2016 NY Slip Op 03942, Appellate Division, Third Department

2 NYCRR 364.3 addresses situations in which a member of the New York Stateand Local Police and Fire Retirement System [SLPFRS] has been assigned to light, limited or restricted duty applies for disability retirement benefits.

If the SLPFRS member has been assigned to light, limited or restricted duties for less than two years prior to the date application for disability retirement benefits was filed with the Comptroller and has not performed at least 100 hours of paid overtime in any 12-month period within such two-year period, SLPFRS is to “render its determination on the issue of permanent incapacity on the basis of the duties and job requirements of such previous full duty assignment.”

In contrast, if the SLPFRS member has been continuously assigned to light, limited or restricted duties for at least two years prior to the date application for disability retirement benefits SLPFRS  is to render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.

If, however, the SLPFRS member has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed performed at least 100 hours of paid overtime while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, SLPFRS is to base its determination on the issue of permanent incapacity “on the basis of such light, limited or restricted duty assignment.”

In July 2007, Daniel G. Koenig, a police officer, was injured when a bullet fragment from another police officer's gunshot ricocheted off a target at the firing range and struck petitioner in the leg. Koenig returned to work in December 2007 and placed on light duty assignment. In January 2009, Koenig filed an application for accidental disability retirement benefits.

The New York State and Local Police and Fire Retirement System [SLPFRS] assessed Koenig's disability application on whether he was incapacitated from the performance of the duties assigned to light duty work in accordance with 2 NYCRR 364.3(c).*

The Comptroller, however, accepted the findings and conclusions of the Hearing Officer, concluding that whether Koenig was permanently disabled from the performance of his duties should be evaluated on the basis of his light duty assignment and thereafter denied his application for accidental disability retirement benefits. The Comptroller, in effect, held that Koenig was not disabled from continuing to perform his light duty assignment.

Koenig filed an Article 78 petition challenging the Comptroller’s determination, contending that as the hearing had already been commenced under the full duty performance standard, the provisions of 2 NYCRR 364.3(c) should not control. He also claimed that he had not worked 100 hours or more of overtime.

The Appellate Division held that Koenig's contention that it was error, following the commencement of the hearing, to change the standard upon which to evaluate his disability retirement application from full duty to light duty performance, particularly given that he already had presented medical testimony based upon his full duty assignment, “was without merit.” The court said that evidence in the record established that Koenig continuously performed light duty assignment for a year following his return to work and also performed at least 100 hours of paid overtime during a 12-month period prior to filing his application for disability retirement benefits. Accordingly, said the court, 2 NYCRR 364.3(c) requires that the determination on the issue of permanent incapacity be evaluated on the basis of the light duty assignment.

Although Koenig sought to deduct mandatory overtime for medical evaluations or court appearances and contractual travel overtime from his total hours of overtime, the Appellate Division said that it found “nothing irrational, unreasonable, arbitrary or capricious in the Comptroller's interpretation that, under the circumstances herein, such overtime was reasonably anticipated by the regulation and should not be excluded from the total overtime hours reported.”**  Further, explained the court citing Bombace v Nitido, 117 AD3d 1375, “[t]he Comptroller is vested with . . . the duty to correct errors and cannot be estopped to create rights to retirement benefits to which there is no entitlement.”

Although Koenig was given the opportunities to recall or have his medical expert submit an affidavit as to his ability to perform light duty work and also was informed that appropriate time would be given in order for him to present any additional evidence or witnesses, he declined to do so.

The Appellate Division ruled that as Koenig presented no evidence regarding his inability to perform light duty work, the Comptroller's denial of his application for accidental disability retirement benefits “will not be disturbed.”

* 2 NYCRR 364.3(c) provides the member has been continuously assigned to light, limited or restricted duties for at least one year prior to the date application for disability retirement benefits was filed with the Comptroller has performed at least 100 hours of paid overtime while on light, limited or restricted duty assignment during any 12-month period within the two-year period prior to the filing of the application for disability retirement, SLPFRS “shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.”

**The Appellate Division observed that even under his own assessment, Koenig completed more than 90 hours of voluntary overtime during the relevant 12-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03942.htm

______________

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

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Selected reports issued by the Office of the State Comptroller during the week ending May 21, 2016

Selected reports issued by the Office of the State Comptroller during the week ending May 21, 2016

Click on text highlighted in color to access the entire report

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

Metropolitan Transportation Authority -  Paratransit service “Access-A-Ride” accident claims

State Education Department (Center for Disability Services) - Compliance with the Reimbursable Cost Manual

State Education Department (Crossroads Center for Children) -  Compliance with the Reimbursable Cost Manual

State Education Department (Helping Hands School) - Compliance with the Reimbursable Cost Manual

Workers' Compensation Board – Examination of Workers’ Compensation daily payment requests by claimants and medical providers

Retailers agree to increased use of renewable energy

New York State Comptroller Thomas P. DiNapoli announced that Fortune 500 retailers Best Buy and Nordstrom have agreed to the New York State Common Retirement Fund’s request that they increase the use of renewable energy in their operations and supply chain.

http://www.osc.state.ny.us/press/releases/may16/051816.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160522&utm_campaign=pension+fund

State ends fiscal 2015-2016 with strong cash position due to “temporary resources”
 
The state collected $153.3 billion in State Fiscal Year (SFY) 2015-16, an increase of 2.8 percent from a year earlier, and ended the SFY $1.9 billion higher than initial projections, largely because of legal settlements and personal income tax collections, according to a reportreleased by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/may16/051316a.htm?utm_source=weekly+news&utm_medium=email&utm_term=fiscal+report&utm_content=20160522&utm_campaign=fiscal+oversight

State contract and payments – April 2016
 
State Comptroller Thomas P. DiNapoli announced his office approved 990 contracts valued at $750 million and approved nearly 3.9 million payments worth more than $10.4 billion in April. His office also rejected 116 contracts and related transactions valued at $330 million and nearly 6,000 payments valued at more than $10.7 million due to fraud, waste or other improprieties.

http://www.osc.state.ny.us/press/releases/may16/052016.htm?utm_source=weekly+news&utm_medium=email&utm_term=state+operations&utm_content=20160522&utm_campaign=fiscal+oversight

An administrative decision annulled and remanded for a new hearing based on a judicial finding that it is “affected by errors of law”

An administrative decision annulled and remanded for a new hearing based on a judicial finding that it is “affected by errors of law”

DeMaio v DiNapoli, 2016 NY Slip Op 02505, Appellate Division, Third Department

VHB, a correction officer, applied for performance of duty disability retirement benefits alleging that he was injured while escorting an inmate away from an altercation between the inmate and another correction officer. The application was initially denied by the Retirement System and VHB requested a hearing and redetermination.

Following the hearing, the Hearing Officer upheld the initial denial of VHB’s application for duty disability retirement, concluding that VHB had not meet his burden of proof of establishing each and every element necessary to sustain his application and that the initial determination was supported by substantial evidence. The Comptroller accepted the findings and conclusions of the Hearing Officer and VHB initiated a CPLR Article 78 proceeding.

The Appellate Division said that the Hearing Officer's determination, which was adopted by the Comptroller, was affected by errors of law.

The court explained that the Hearing Officer had improperly noted that the applicable standard of review was whether the initial determination was "supported by substantial evidence." Rather than a review of the initial determination, the Appellate Division said that such a hearing is conducted to allow the Comptroller to make a “redetermination” with “the same powers upon such hearing as upon the original application.”

In addition, said the court, “the Hearing Officer's determination misstated the applicable burden.” VHB was required to establish that he is incapacitated from performing his work-related duties “as the natural and proximate result of an injury, sustained in the performance . . . of his or her duties by, or as the natural and proximate result of any act of any inmate” [emphasis supplied by the court].

Further, the Appellate Division said it has repeatedly held that the relevant statute, Retirement and Social Security Law §607-c[a],requires that an applicant for duty disability retirement benefits demonstrate that his or her injuries were “caused by direct interaction with an inmate … and have specified that such injuries must be caused by some ‘affirmative act on the part of the inmate’ … there is no legal support for the Hearing Officer's enhancement of such burden by indicating that VHB was required to demonstrate "an intentional overt act of an inmate” (emphasis supplied by the court).

Accordingly, the court annulled the Comptroller’s determination and remanded the matter to the Comptroller for a new hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02505.htm

An application for retirement benefits must be timely delivered to and received by the retirement system to be operative

An application for retirement benefits must be timely delivered to and received by the retirement system to be operative

Biscardi v New York State and Local Retirement Sys., 2016 NY Slip Op 03238, Appellate Division, Third Department

Valerie J. Biscardi initially applied for disability retirement benefits pursuant to Retirement and Social Security Law Article 15 in February 2012. She, however, withdrew that application in March 2012 and in September 2012 filed an application for “service retirement.”

In May 2013, Biscardi’s attorney, contending that Biscardi had filed an application for disability retirement on September 19, 2012, inquired about the status of Biscardi’s application for “disability retirement.” The New York State and Local Retirement System [SLRS] advised him that there was no record that [Biscardi] had filed a subsequent application for "disability retirement benefits” on September 19, 2012.

Following an administrative hearing, the Hearing Officer determined that Biscardi had not established that she had filed a timely application for disability retirement benefits as required by Retirement and Social Security Law §605.* The Comptroller adopted the ALJ's determination and Biscardi appealed.

The Appellate Division affirmed the Comptroller’s decision.

An application for disability retirement benefits, said the court, “must be filed, as relevant here, ‘within three months from the last date the member was being paid on the payroll.’” Kathleen Nowak, Director of Disability Services for the Retirement System, testified that a search of the Retirement System's records found Biscardi's February 2012 disability retirement application and the March 2012 withdrawal letter, “but no subsequent disability retirement benefits application.”

Although Biscardi contended that her counsel “timely mailed a second application” to the Retirement System in September 2012, the Appellate Division said that "simply mailing an application does not constitute filing; rather, filing only occurs upon actual delivery to and receipt by [the Retirement System]."

Accordingly, said the court, “substantial evidence supports the Comptroller's determination that [Biscardi] failed to file a timely application and it will not be disturbed.”

* In Biscardi’s case, RSSL §605[b][2] required that she file her an application for disability retirement benefits "within three months from the last date the member was being paid on the payroll."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03238.htm

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Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties

Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties

Hall (Commissioner of Labor), 2016 NY Slip Op 03797, Appellate Division, Third Department

An employee of the Office of Persons with Developmental Disabilities [OPDD], Richard Hall, was arrested at his home for possession of marijuana. When OPDD learned of Hall’s arrest, it placed him on indefinite suspension. While on suspension, Hall applied for unemployment insurance benefits but was disqualified from receiving them based on a finding that he had engaged in disqualifying misconduct.

While on suspension from his position with OPDD, Hall pleaded guilty to criminal possession of marijuana in the fourth degree and, in settlement of the administrative disciplinary charges then pending against him, OPDD reinstated Hall to his position after he had been out of work for 15 months.

With respect to Hall's claim for unemployment insurance benefits, ultimately an Administrative Law Judge [ALJ] ruled, among other things, that Hall’s plea of guilty to the criminal charge amounted to misconduct disqualifying him from receiving benefits. The Unemployment Insurance Appeal Board sustained the ALJ's decision and Hall appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling.

Citing Matter of Sinker [Sweeney], 89 NY2d 485, the court explained that criminal convictions arising from conduct occurring outside the workplace have been found to constitute disqualifying misconduct where the conduct demonstrates a breach "of the standards of behavior to be reasonably expected by an employer in light of the nature of the employment involved."

Here, said the court, Hall’s job duties included dispensing medications to developmentally disabled individuals. Given the environment in which Hall worked, the Appellate Division said that it was reasonable for OPDD to expect that Hall would not illegally use or possess controlled substances. Clearly, said the court, Hall's criminal conduct posed a risk to his employer's mission and was detrimental to its interests.

Accordingly, the Appellate Division found that substantial evidence supports the Board's finding that Hall had engaged in disqualifying misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03797.htm

An 18-year delay by the State Division of Human Rights in issuing its determination characterized as being “jurisprudentially intolerable”

An 18-year delay by the State Division of Human Rights in issuing its determination characterized as being “jurisprudentially intolerable”

Matter of New York State Dept. of Correction and Community Supervision v New York State Div. of Human Rights, 137 AD3d 1512, Appellate Division, Third Department

In August 1995 Kenneth W. Howarth filed the first of his two complaints with respondent State Division of Human Rights [SDHR] alleging that the New York State Department of Corrections and Community Supervision [DCCS] had discriminated against him on the basis of a disability.*

In the words of the Appellate Division, “SDHR did not commence hearings on the 1995 and 1997 complaints until 2004. Although the testimony was neither long nor complicated, the hearings were not concluded until 2006. Finally, in 2013, an Administrative Law Judge [ALJ] determined, among other things, that DCCS had granted light-duty assignments to employees with disabilities incurred on the job, whereas employees with disabilities that were not work related—such as Howarth—were denied light-duty assignments. The ALJ also found that DCCS had discriminated against Howarth by placing him on involuntary leave under the Civil Service Law, resulting in the use of leave accruals and leave without pay.”

The ALJ's recommended award directed DCCS to pay to the trustee in bankruptcy** any lost wages and benefits that had not been restored to Howarth for times that he was out of work between July 1994 and August 1997, as well as compensatory damages of $20,000 for mental anguish. To the extent of the "unrestored lost wages and benefits" was not determined, the State Comptroller was ordered to "perform an accounting" to supply this information and determine these amounts. DCCS was also ordered to revise its policy regarding light-duty assignment and provide discrimination prevention training to all of its employees.

The Commissioner of Human Rights adopted the ALJ's recommendations in December 2013, with some modifications not relevant here, and found DCCS guilty of an unlawful discriminatory practice based on disability.

DCCS appealed the Commissioner's determination.

Addressing a procedural issue, the Appellate Division rejected DCSS’s argument that because a public employer has discretion when using Civil Service Law procedures regarding an employee, SDHR did not have jurisdiction over this matter. The court held that where it is alleged that such procedures are used in a discriminatory manner under the Human Rights Law, SDHR does have jurisdiction.

However, the court said it agreed with DCCS’s argument that the complaints should be dismissed because of SDHR's delay in processing them. The controlling statute, said the court, “sets forth time limits, measured in mere days and months, requiring SDHR to promptly consider and determine discrimination complaints.” 

Although the Appellate Division noted it was well aware that [1] the time limits in Executive Law §297 are "directory only," citing Corning Glass Works v Ovsanik, 84 NY2d 619, [a case involving an eight-year delay] and [2] that these time limits "exist for the benefit of complainants and should not be used to shelter those charged with violating the statute unless there is a showing of substantial actual prejudice," the court said that “the time that elapsed here from the initial complaint until the Commissioner issued her final order was more than 18 years” and by an agency “long known for its troublesome and excessive delays.”

In the words of the Appellate Division, “this delay of nearly a generation has plumbed a new depth of administrative inertia that has, in our view, reached the point of being ‘jurisprudentially intolerable.’”

The court noted [1] that Howarth will receive no financial benefit here, inasmuch as the order directs payment to the trustee in bankruptcy; [2] although not in the record, it was represented at oral argument that Howarth is now deceased; [3] SDHR has made no effort to offer any explanation or excuse for its apparently unexplainable and indefensible delay; [4] there is no allegation that DCCS contributed to the delay, and [5] the complaints filed by Howarth presented issues that were relatively simple and straightforward.

In the court’s view, the most difficult part of the matter would have been reconstructing the unrestored lost wages and benefits for the various times that Howarth was out of work. Rather than SDHR making this determination, the Commissioner ordered the State Comptroller to do so.***

As to the Commissioner directing DCCS to draft a new light-duty assignment policy and embark on a discrimination prevention training program for all of its employees, the Appellate Division observed that this directive is based on DCCS's policy in effect two decades ago when the complaints were filed. Its imposition now, without regard to DCCS’s currently evolved policy and subsequent training, lacks support in the record and creates potentially expensive, time-consuming and unnecessary action by DCCS.

Finding that there is substantial prejudice to DCCS occasioned by this "intolerable delay" and that such delay is "an abuse of SDHR's discretion," the Appellate Division annulled SDHR’s determination.

* The second of these complaints filed with SDHR alleged that DCCS had discriminated against Howarth yet again because of disability and it had retaliated against him for having filed his first complaint.

** As a result of being out of work, as well as other factors, Howarth filed for bankruptcy in 1996.

*** Although the Commissioner cited no statutory or other authority giving her the power to order the Comptroller to conduct yet another administrative inquiry to gather the necessary information, the Appellate Division said it need not decide this issue as it was annulling the Commissioner's determination on other grounds.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02493.htm

A court’s review of a PERB's decision is limited to determining if it was affected by an error of law or it was arbitrary and capricious or an abuse of discretion

A court’s review of a PERB's decision is limited to determining if it was affected by an error of law or it was arbitrary and capricious or an abuse of discretion

Kent v Lefkowitz, 2016 NY Slip Op 03650, Court of Appeals

In response to New York State Racing and Wagering Board* (the Racing Board) reducing per diem wages for its seasonal employees* by 25%, the Public Employees Federation, AFL-CIO [PEF], the certified collective bargaining representative for the Professional, Scientific and Technical Services Unit of New York State employees, which unit includes seasonal track personnel employed by the Racing Board** filed an improper practice charge, alleging that the reduction in wages violated Civil Service Law §209-a(1)(d) with the Public Employment Relations Board [PERB]. PERB dismissed the improper practice charge and PEF appealed contending that PERB’s decisions “was affected by an error of law or was arbitrary and capricious or an abuse of discretion.”

The Appellate Division reversed, with two Justices dissenting, vacated PERB’s determination [119 AD3d 1208]. The majority held that "PERB's determination . . . was arbitrary and capricious" because it "d[id] not believe" that the Side Letter Agreement demonstrated that the Racing Board negotiated the unilateral 25% reduction in wages. The dissent opined that "when PERB's interpretation of the [S]ide [L]etter [A]greement is afforded the deference it is due, its determination that the [Racing] Board met its burden of establishing that it satisfied its duty to negotiate with [PEF] is rational and not arbitrary and capricious."

The Court of Appeals, [Judge Fahey dissenting in an opinion; Judge Stein taking no part], reversed the Appellate Division’s ruling, thus sustained PERB’s determination.

The genesis of this dispute was a collective bargaining agreement negotiated by PEF and the New York State Governor's Office of Employee Relations [GOER] that was operative from 1995 to 1999. The CBA included a "Memorandum of Interpretation," or side-letter agreement that addressed terms and conditions of the employment of seasonal employees and provided for Compensation wherein Paragraph A provided for lump-sum payments and salary increases for eligible employees; Paragraph B set out the specific fiscal years covered by the CBA; [3] Paragraph C addressed the effect on a seasonal employee's rate of compensation "[i]f during the term of th[e] Agreement the rate of compensation of any employee in a seasonal position [wa]s increased at the discretion of the Director of the Budget for the purpose of making such rate equal to the [f]ederal minimum wage level;" and Paragraph D of the Side Letter Agreement [SLA] expressly made Paragraphs A through C applicable to seasonal employees paid on a per diem basis.

Approximately two months after the Side Letter Agreement was executed, the Racing Board's chair announced a 25% reduction in the per diempay of seasonal track employees, effective with the January 1996 appointments. In response, PEF filed an improper practice charge with PERB, alleging that this reduction violated the Racing Board's duty to negotiate in good faith under Civil Service Law § 209-a (1) (d). The Racing Board answered, raising the affirmative defense of waiver.

After administrative hearings, PERB's Assistant Director rejected the Board’s waiver defense and found a violation of Civil Service Law §209-a(1)(d). The Board filed exceptions to Assistant Director’s decision as did PEF with respect to the relief awarded by the Assistant Director. PERB dismissed the improper practice charge finding that the SLA was "a negotiated limitation upon the State Budget Director's discretion with respect to unilateral adjustments in the rates of compensation for seasonal positions in the unit" and, therefore, the duty to negotiate was satisfied.

Supreme Court dismissed the PEF’s petition challenging PERB's decision. The Appellate Division, however, reversed the Supreme Court’s decision, with two Justices dissenting. The majority held that "PERB's determination . . . was arbitrary and capricious" because it ‘d[id] not believe’ that the Side Letter Agreement demonstrated that the Racing Board negotiated the unilateral 25% reduction in wages.” The dissent, in contrast, opined that "when PERB's interpretation of the [S]ide [L]etter [A]greement is afforded the deference it is due, its determination that the [Racing] Board met its burden of establishing that it satisfied its duty to negotiate with [PEF] is rational and not arbitrary and capricious.

The Court of Appeals ruled that the order of the Appellate Division should be reversed and the judgment of Supreme Court reinstated. The court explained that its scope of review in this context is limited to whether PERB's decision "was affected by an error of law or was arbitrary and capricious or an abuse of discretion." Further, said the court, it has recognized that "PERB is accorded deference in matters falling within its area of expertise," which includes "the resolution of improper practice charges."

The Court of Appeals said that the SLA “was comprehensive in addressing all conditions of employment for seasonal employees for 1996 to 1999,” including specific pay increases for specific years, but not for the fiscal year in which the 25% reduction took effect. Further, the SLA “did not rule out pay reductions and did not impose any conditions precedent to pay reductions.”

Accordingly, said the court, PERB's conclusion that it was "reasonably clear" that both sides intended the SLA "to act as a negotiated limitation upon the State Budget Director's discretion" as to compensation for seasonal employees was not arbitrary and capricious. 

Reading the Side Letter Agreement as a whole, the Court of Appeals concluded that the language of the SLA "implicitly demonstrate[s] that the parties had reached accord" with respect to any limitations on the discretionary authority of the Budget Director to change the per diem compensation of seasonal employees, noting that “[e]ach of the compensation sections of the Side Letter Agreement demonstrates negotiation with respect to the statutorily authorized discretion."

* Effective February 1, 2013, the Racing Board merged into the New York State Gaming Commission, a newly created entity.
 

** Seasonal track employees are in the exempt class [Civil Service Law §41] and are appointed each year by the chair of the Racing Board to work during a specific season from opening date until closing date.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03650.htm