Monday, October 16, 2017

Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration



Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration
2017 NY Slip Op 07122, Appellate Division, Second Department

Education Law §3020-a mandates compulsory arbitration in the event an educator challenges disciplinary charges that have been filed against him or her by the appointing authority.

Petitioner was found guilty of charges of misconduct filed pursuant to Education Law §3020-a after a hearing. The penalty imposed: termination from the position. Petitioner then initiated an action in Supreme Court pursuant to CPLR Article 75 seeking a court order vacating the arbitrator's determination. Supreme Court, however, confirmed the arbitration award and Petitioner appealed that court's ruling to the Appellate Division.

The Appellate Division affirmed the lower court's decision explaining:

1. Where the obligation to arbitrate arises through a statutory mandate such as Education Law §3020-a, the determination of the arbitrator is subject to closer judicial scrutiny than it would otherwise receive.

2. An award resulting from a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious.

3. The arbitrator's decision must be rational or have a plausible basis.

4. The reviewing court "should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists."

The Appellate Division held that the arbitrator's determination had evidentiary support and was not arbitrary or capricious. Further, the court found that the arbitrator's determination "was in a form sufficient to enable [Petitioner] to understand its basis so as to permit an intelligent challenge and adequate judicial review."

The decision also notes that Petitioner "failed to present evidentiary proof of actual bias or the appearance of bias on the part of the arbitrator and thus failed to establish entitlement to vacatur of the arbitrator's award  on the ground of partiality."

As to the penalty imposed by the Arbitrator, termination, the Appellate Division, citing Pell v Board of Education of Union Free School District No. 1, 34 NY2d 222, said that the penalty "does not shock the conscience" and sustained it.

* §3020-a(2)(a) of the Education Law requires the appointing authority to provide the individual against whom disciplinary charges are served with a written statement specifying (i) the charges in detail and (ii) the maximum penalty which will be imposed by the board if the employee does not request a hearing while §3020-a(2)(f) provides that "The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing."

The decision is posted on the Internet at:

Saturday, October 14, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 14, 2017


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 14, 2017 
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report 

Some NY Schools Not Reporting Bullying or Harassment 
Many New York schools fall short when it comes to protecting students from harassment and discrimination based on gender, race, religion, sexual orientation or gender identity, according to an audit by New York State Comptroller Thomas P. DiNapoli. 

Former Ontario Water Superintendent Rodney Peets was arraigned in Wayne County on charges of offering a false instrument for filing, tampering with a public record and official misconduct after a year-long investigation by the State Comptroller’s Office, the New York State Police, and Acting Wayne County District Attorney Christopher Bokelman.



Friday, October 13, 2017

Resolving an issue of statutory interpretation in the event the statutory language is ambiguous


Resolving an issue of statutory interpretation in the event the statutory language is ambiguous
Feinman v County of Nassau, 2017 NY Slip Op 07110, Appellate Division, Second Department

The plaintiffs [Plaintiffs] in this action had worked at the Office of the Nassau County Attorney from 2002 or 2003 until 2009 and prior to that time had worked for the City of New York or the State of New York. They alleged that they "had been wrongly charged contributions to their health insurance premiums" under color of Nassau County Ordinance No. 543-1995. Plaintiff's petitioned Supreme Court for summary judgment seeking a refund of contributions paid by them and a declaration that they were entitled to receive health insurance coverage without contributions to the cost of premiums.*

Supreme Court determined that the plain language of Ordinance No. 543-1995 required the County to pay the full cost of Plaintiffs' health insurance premiums. The court said that:

1. §4.1(a) of the Ordinance provided that, "[f]or all employees hired prior to January 1, 2002, ... the County shall pay the full cost of the health insurance premium," but "[f]or all employees hired on or after January 1, 2002 and earning a salary greater than thirty thousand ($30,000.00) dollars the employee shall contribute" specified sums towards health insurance premiums;"

2. §5.2 of the ordinance provides that "prior public service to the State and/or a municipal subdivision thereof 'shall be deemed as service to the County for purposes of the benefits provided in this Ordinance,' and an employee 'shall be deemed to have an initial employment date with the County as of the original employment with the State and/or municipal subdivision thereof;'" and

3. After addressing how to credit prior public employment in the event there had been an interruption in public employment, the Ordinance states "All such prior public service to the State and/or a municipal subdivision thereof shall be considered as actual completed service to the County for purposes of this Ordinance and such . . . employee shall be deemed to have a initial employment date that reflects all prior public service form [sic] which appropriate benefits otherwise provided in this Ordinance shall be computed."

Nassau appealed the Supreme Court decision and its granting summary judgment to Plaintiffs. The Appellate Division affirmed the lower court's ruling, explaining:

a. §5.2 of the Ordinance does not mandate consideration of an employee's prior public service only for those benefits provided for in the ordinance which reference an employee's "actual completed service" to the County; it also mandates such consideration in determining an employee's "initial employment date" for the purposes of the benefits provided for in the ordinance;"

b. Accepting Nassau's construction of the Ordinance would render the provisions concerning an employee's "initial employment date" superfluous and, citing Universal Metal & Ore, Inc. v Westchester County Solid Waste Commission, 145 AD3d 46, said "[C]ourts must give effect to the wording of a statute without rejecting any words as superfluous, and must harmonize related provisions in a way that renders them compatible;"

c. When presented with a question of statutory interpretation, a court's "primary consideration is to ascertain and give effect to the intention of the Legislature" and courts  must first look to a statute's "plain language, as that represents the most compelling evidence of the Legislature's intent;" and

d. In the event the statute is ambiguous, the construction given to it by the administrative agency responsible for its administration should be sustained by the courts unless [i] the agency's interpretation is irrational, unreasonable, or inconsistent with the governing statute" except [ii] when a question is one of pure legal interpretation of statutory terms, deference to the agency is not required  and in such instances, courts should construe clear and unambiguous statutory language [so] as to give effect to the plain meaning of the words used.

In consideration of the Plaintiffs' prior public service, the court found that they all had effective "initial employment date[s]" with the County prior to January 1, 2002. Accordingly, the ordinance entitled them to have the County pay the full cost of their health insurance premiums, and the Supreme Court properly granted their motion for summary judgment on the declaratory judgment and breach of contract causes of action.

The Appellate Division then remitted the matter to the Supreme Court for the entry of a judgment declaring that [1] Nassau was not authorized to require Plaintiffs to pay any portion of the cost of the health insurance coverage provided to them by the County of Nassau and [2] Nassau is to reimburse Plaintiffs for any such payment made by Plaintiffs on or after April 12, 2004.

* Plaintiffs conceded that their damages were those damages incurred on or after April 12, 2004.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_07110.htm

Thursday, October 12, 2017

The judicial test for determining if a grievance involving a term or condition set out in a collective bargaining agreement is arbitrable


The judicial test for determining if a grievance involving a term or condition set out in a collective bargaining agreement is arbitrable
Matter of the Arbitration between Lewis County and CSEA Local 1000, AFSEME, AFL-CIO, Lewis County Sheriff's Employees Unit #7250-03, Lewis County Local 825, 2017 NY Slip Op 06743, Appellate Division, Fourth Department

The Lewis County Sheriff appointed one of three part-time dispatchers in the collective bargaining unit represented by CSEA Local 1000, AFSEME, AFL-CIO, Lewis County Sheriff's Employees Unit #7250-03, Lewis County Local 825 [Local 825] to the position of full-time dispatcher. Local 825 filed grievances on behalf of the two part-time dispatchers not selected for the full-time position, alleging that these two dispatchers had more seniority and experience than the part-time dispatcher selected for the full-time position by the Sheriff.

Lewis County denied the grievances and Local 825 filed demands for arbitration.* In response, Lewis County filed a CPLR Article 75 petition seeking a court order permanently staying the arbitration contending that the grievances were not the proper subject of arbitration." Supreme Court granted Lewis County's petition for a permanent stay of arbitration with respect to D.H.'s grievance and Local 825 appealed the ruling to the Appellate Division.

The Appellate Division said it agreed with Local 825 that Supreme Court erred in granting Lewis County's petition, explaining in City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, the Court of Appeals set out a two-pronged test to determine "whether a grievance is arbitrable."

Applying the first prong, usually referred to as "the may-they-arbitrate' prong," the court determines whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If the court concludes that arbitration is not so prohibited, it proceeds and considers "the second prong, known as "the did-they-agree-to-arbitrate' prong," in which the court examines the collective bargaining agreement [CBA] "to determine if the parties have agreed to arbitrate the dispute at issue".

As Lewis County did not claim that the arbitration of D.H.'s grievance is prohibited because of a statutory, constitutional or public policy prohibition against arbitration of the grievance, the Appellate Division said that it was only concerned applying the second prong of the test set by the Court of Appeals in Johnstown Police, the "did-they-agree-to-arbitrate' prong,"

With respect this second test, the court said "[i]t is well settled that, in deciding an application to stay or compel arbitration ... the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim." Citing Matter of Van Scoy [Holder], 265 AD2d 806, the Appellate Division said that "[w]here, as here, there is a broad arbitration clause and a reasonable relationship 'between the subject matter of the dispute and the general subject matter of the parties' [CBA], the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them."

In this instance the grievance concerned the determination of the appointing authority with respect to which one of three employees should be given the full-time position. Holding that "a reasonable relationship exists between the subject matter of the grievance and the general subject matter of the CBA," the Appellate Division ruled that "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

* The demand for arbitration was withdrawn with respect to one of the part-time dispatchers. The Local's demand to compel arbitration on behalf of the remaining part-time dispatcher, D.H., survived.

The decision is posted on the Internet at:


Wednesday, October 11, 2017

Liability for the acts or omissions of a deputy sheriff


Liability for the acts or omissions of a deputy sheriff
Jones v Seneca County et al, 2017 NY Slip Op 07084, Appellate Division, Fourth Department

Jacqueline M. Jones commenced an action seeking to recover damages for injuries she allegedly sustained as a result of an encounter with Deputy Frank Eldredge, a Sheriff's deputy employed by Seneca County. Supreme Court granted Seneca County's motion for summary judgment dismissing the complaint.

The Appellate Division affirmed the Supreme Court's decision noting its prior decisions holding that "[a] county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior,* in the absence of a local law assuming such responsibility."

Referring to the 1989 amendment to New York Constitution of Article XIII, §13(a), the so-called Flaherty Amendment,** the Appellate Division said that although the amendment "allows a county to accept responsibility for the negligent acts of the Sheriff[, it does not impose liability upon the county for the acts of the Sheriff or his [or her] deputies on a theory of respondeat superior." Further, said the court, Seneca County had established that it did not assume such responsibility by local law.

Jones also argued that Seneca County had "nevertheless assumed responsibility for the acts of its Sheriff's deputies when it entered into a collective bargaining agreement [CBA] with the Seneca County Sheriff's Police Benevolent Association." 

The Appellate Division rejected Jones' contention that the CBA provides for indemnification of employees from judgments and settlements of claims arising from actions taken within the scope of such employees' public employment and duties and opined "a CBA is not a local law*** and, in any event, the language of the CBA here does not expressly provide that defendant will assume responsibility for the tortious acts of its Sheriff's deputies."

* The Doctrine of Respondeat Superior provides that an employer or principal is legally responsible for the wrongful acts or omissions of an employee or an agent.

** Article XIII, §13(a) as amended, is sometimes referred to as the "Flaherty Amendment." The term "Flaherty deputies" was applied to certain employees of the sheriff following a decision by the Court of Appeals holding that the fact that the sheriff was personally liable for the acts of his or her civil deputies required their exemption from the civil service system of selection, appointment and promotion (Flaherty v Milliken, 193 NY 564). "Flaherty deputy sheriffs" -- civil deputies, as distinguished from "criminal deputy sheriffs" -- had been then exempted from the civil service merit system mandates on the authority of Flaherty v Milliken. Article XIII, §13(a) of the State Constitution, as amended in 1989, deleted the words "The county shall never be made responsible for the acts of the sheriff." As the amendment then allowed a county to assume liability for the acts of a sheriff's civil deputies, the State Department of Civil Service reasoned that where a county had assumed such liability the rationale for the exemption of "Flaherty deputies" from the merit and fitness requirements for such public employment was no longer valid. Accordingly, it was determined that effective January 1, 1990, Civil Service examinations would be required for the appointment and promotion of such civil deputies, i.e., civil deputies of a sheriff where the county has assumed liability for the acts or omissions of a sheriff's civil deputies in the performance of his or her duties. See, also, Hondzinski v. County of Erie, 57 NY2d 715, a decision addressing the "determining the seniority of a "Flaherty deputy sheriff" who had been grandfathered into the competitive class" in the event of a layoff.

*** Subdivision 2 of Public Officers Law §18, "Defense and indemnification of officers and employees of public entities," provides, in pertinent part, for an entity "whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation (i) to confer the benefits of this section upon its employees, and (ii) to be held liable for the costs incurred under these provisions."

The Jones decision is posted on the Internet at:

Flaherty v Milliken is posted on the Internet at:
https://www.courtlistener.com/opinion/3626014/matter-of-flaherty-v-milliken/

Tuesday, October 10, 2017

The custodian of a record destroying or altering it so as to make it unavailable for use in litigation may result in sanctions being imposed of the custodian


The custodian of a record destroying or altering it so as to make it unavailable for use in litigation may result in sanctions being imposed of the custodian
Zacharius v Kensington Publ. Corp., 2017 NY Slip Op 06995, Appellate Division, First Department 

Spoliation is the destruction or alteration of a document that makes it unavailable for use as evidence in a legal proceeding. Further, spoliation is presumed to be damaging to the spoliator's interest with respect to proving his or her claims or his or her defenses when it is intentionally changed, modified, deleted or destroyed.

In Matter of Klikocki (NYS Department of Corrections, Mount McGregor), 216 AD2d 808, the Appellate Division decided that evidence Klikocki claimed would be helpful in his defense in a disciplinary action that the employer had destroyed had not been destroyed in an effort to conceal something but rather occurred in accordance with the normal procedure concerning the retention or destruction of certain records after they had been retained for a specified period of time.

In contrast, in Zacharius [Plaintiff] Supreme Court's granted Kensington's [Defendant]  motion for spoliation sanctions to the extent of directing Plaintiff to pay the attorneys' fees and costs incurred by Defendants in reviewing Plaintiff's e-mail account and in preparing the motion seeking sanctions for spoliation. Supreme Court's ruling was unanimously affirmed by the Appellate Division, with costs.

The Appellate Division held that the spoliation sanctions imposed by Supreme Court  were providently granted as the record demonstrated that Plaintiff, an attorney, was in control of the email account at issue; was aware of Plaintiff's obligation to preserve it at the time it was destroyed, with or without service of Defendants' litigation hold notice as Plaintiff [1] had commenced the action; and [2] had a "culpable state of mind," demonstrated by admitted to having intentionally deleted well over 3,000 emails during the pendency of the action.

In the words of the Appellate Division, "Destroyed evidence is automatically presumed 'relevant' to the spoliator's claims when it is intentionally deleted." The court noted that although Plaintiff asserted only "irrelevant emails" were deleted, Plaintiff's own emails "evidenced intentional deletion of thousands of emails" and Defendants recovered at least one email that was pertinent to the allegations in Plaintiff's complaint.

Under the circumstances, said the Appellate Division, Supreme Court "providently exercised its discretion in limiting the sanction against Plaintiff to costs and attorneys' fees, rather than the "drastic remedy" of striking Plaintiff's complaint as the Defendants were "not entirely bereft of evidence tending to establish [its] position."

Another element to consider: Is the custodian of the record required by law to retain the record for a minimum period of time?

For example, EEOC regulation implementing Title VII [42 USC 2000e-8(c)] requires “every employer ... subject to this subchapter” to “(1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, [and] (2) preserve such records for [two years].”

In Byrnie v Town of Cromwell Board of Education, CA2, 243 F.3d 93, Judge Rosemary S. Pooler said that “where, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination action.” As the Byrnie decision demonstrates, an employer's failure to retain these records for the statutory minimum period required may become a critical element in the course of litigation.

The decision is posted on the Internet at:

Monday, October 09, 2017

Seeking relief from judgment from a tribunal other than the one that handed down the judgment


Seeking relief from judgment from a tribunal other than the one that handed down the judgment
Cherry v. New York City Department of Correction, USCA, 2nd Circuit, Docket No. 16-3725

Bernard Cherry was terminated from his position with the NYC Department of Corrections [DOC] after an administrative law judge [ALJ] at the Office of Administrative Trials and Hearings [OATH] found him guilty of excessive absenteeism and failure to comply with orders. Cherry appealed the ALJ's findings and recommendation and the Appellate Division on the New York State Supreme Court affirmed the administrative action resulting in Cherry's dismissal from his position.

Cherry subsequently sued New York City, DOC, and several officials, asserting claims for employment discrimination in federal district court. The federal district court dismissed that case on timeliness grounds, and Second Circuit Court of Appeals affirmed the lower court's ruling. Cherry, proceeding pro se,* next filed this action under Federal Rules of Civil Procedure 60(d)(1) and (3), alleging that DOC committed fraud on the court by submitting forged documents during the OATH hearing.

Although the district court interpreted Cherry’s complaint as a request to vacate the judgment in Cherry’s earlier employment discrimination suit in the instant appeal Cherry subsequently clarified that "he was actually asking the district court to vacate the OATH decision."

The Second Circuit, noting that it must "construe pro se complaints “liberally and interpret them ‘to raise the strongest arguments that they suggest," said that "Cherry explicitly states that he was requesting the district court to vacate the judgment of the state administrative law judge."

Accordingly, the Second Circuit said that it lacked subject matter jurisdiction. and dismissed Cherry's action seeking to vacate the ALJ's determination.

The court explained that the plaintiff bears the burden of establishing subject matter jurisdiction over his own claims. Here, said the Circuit Court of Appeals, there is no diversity jurisdiction under 28 U.S.C. §1332 nor is there federal question jurisdiction under 28 U.S.C. §1331.

Cherry cited  Federal Rules of Civil Procedure 60(d)(1) and (3) in his brief in support of his petition but the Second Circuit, citing Cresswell v. Sullivan & Cromwell, 922 F.2d 60, pointed out that "it is well-settled that the Federal Rules of Civil Procedure 'do not provide an independent ground for subject matter jurisdiction over an action for which there is no other basis for jurisdiction.'”**

Noting that district court had correctly refused to exercise ancillary jurisdiction over Cherry’s claims as Cherry sought relief from judgment from a tribunal different than the one that handed down the judgment, the Circuit Court said that there is no independent ground for jurisdiction in contrast to “an independent action brought in the same court as the original lawsuit” which does not “require an independent basis for jurisdiction.

* A Latin phrase meaning "for oneself" or "on one's own behalf".

** In addition, the Circuit Court said that were it to construe Cherry's claim under 42 U.S.C. §1983 [the Civil Rights statute], such an action would be untimely as the otherwise relevant three-year statute of limitations had elapsed.

The decision is posted on the Internet at:


Saturday, October 07, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 7, 2017


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 7, 2017
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations:

Department of Health: Questionable Payments for Practitioner Services and Pharmacy Claims Pertaining to a Selected Physician (Follow-Up) (2017-F-2)
An initial audit issued in September 2015 found significant issues with medical records provided by a physician to support his Medicaid claims. There was insufficient assurance that the doctor provided appropriate medical care and that services totaling $1,039,404 warranted Medicaid payment. At the time of the follow up review, the Office of the Medicaid Inspector General (OMIG) was actively investigating the doctor. According to OMIG officials, steps will be taken to implement each of the four recommendations made in the initial audit pending the results of the investigation.

Department of Health (DOH): Medicaid Program: Administrative Costs Used in Premium Rate Setting of Mainstream Managed Care Organizations (MCOs) (2015-S-76)
Auditors found that one MCO reported about $9.8 million in administrative expenses that were not allowable. Several MCOs appear to have shifted costs from the non-allowable category of marketing to the allowable category of facilitated enrollment, contrary to the intent of a policy change that was initiated from the Governor's Medicaid Redesign Team proposal. As a result, DOH is not fully realizing the annual savings that should occur as a result of the policy change. For fiscal year 2014-15, auditors estimate DOH paid MCOs about $127 million for facilitated enrollment through the premium rates. However, despite the magnitude of these payments, DOH does not adjust each MCO's premium to reflect the MCO's actual facilitated enrollment activities.

Hudson River Park Trust: Selected Financial Management Practices (2016-F-22)
A prior audit found the trust needed to improve its practices related to revenue collection, procurement, investments, payroll, budgeting and equipment inventories. In a follow-up, auditors found that the trust made progress in correcting the problems identified in the initial report. However, additional actions are still needed.

Metropolitan Transportation Authority: New York City Transit - Train On-Time Performance (Follow-up) (2017-F-8)
A prior audit determined that for calendar years 2013 and 2014, actual on-time performance for subways was well below the goal of 91.9 percent. In a follow-up, auditors found that the MTA made limited progress in addressing the problems identified in the prior report. Of the two prior audit recommendations, neither were fully implemented. Moreover, since the conclusion of the last audit, on-time performance has continued to decline.

State Education Department (SED): Lois Bronz Children's Center Inc., Compliance with the Reimbursable Cost Manual (2016-S-86)
The center provides preschool special education services to children with disabilities who are between three and five years of age. For the two years ended June 30, 2014, auditors identified $177,786 in ineligible costs that the center reported to SED for reimbursement. Auditors also identified $132,713 in questionable costs that the center reported from a contract it could not prove was competitively bid.

Thruway Authority: Compliance With Payment Card Industry Standards (2017-S-11)
Auditors identified several matters that management should address to improve the authority's information security program for cardholder data and to help ensure it meets PCI requirements. The Thruway has not taken fundamental steps to secure its network and could also improve certain other technical safeguards over the cardholder data it processes.

State Comptroller DiNapoli also released the following Municipal Audits

Town of Canandaigua – Fund Balance, Water Operations and Information Technology (Ontario County)
The board has not developed a long-term financial or capital plan, including a plan for reserves, or require a cash flow analysis. The board has not provided sufficient fiscal oversight of the town's water operations. As a result, there are no procedures for the accounting records to be maintained for each water district or extension to ensure that costs are equitably and appropriately distributed. The board has also not adopted policies to sufficiently protect its IT assets.

Greece Public Library – Information Technology (Monroe County)
Library officials need to improve controls to ensure that Library IT assets are adequately safeguarded. The board has not adopted any IT policies, including those addressing acceptable use, password management, user accounts, access rights, data backups, hardware and software inventories, restricting personal use, remote access or the disposal of hardware and electronic media.

Industrial Development Agency Board Governance (2017-MS-1)
Of the six IDAs examined, auditors found 49 of 155 projects reviewed contained incorrect information, including inaccurate job creation and retention numbers, project status and transfer information. The agencies' 2014 annual reports indicated they would create or retain 13,818 jobs, but they actually created or retained 10,209 jobs, a shortfall of 26 percent. In addition, the Orange County IDA's board acted outside of its authority by agreeing to accept a grant and administering the grant funds in consideration for approving a payment in lieu of taxes agreement.

Town of Junius – Supervisor's Records and Reports (Seneca County)
The town supervisor relied on the secretary to perform most of the financial transactions without providing adequate oversight. Consequently, the town's records are incomplete and not up-to-date, and are therefore, unreliable. The supervisor also failed to provide the board with the necessary financial reports to adequately monitor operations, and did not file the required reports with the appropriate agencies.

Orange County Community College – Information Technology and Financial Activities (2017M-111)
The board did not adopt adequate IT policies that address appropriate computer use and security. The board also needs to improve its purchasing procedures to ensure college officials procure goods and services in accordance with applicable statutes. College officials did not ensure that claims were properly authorized, supported and for legitimate purposes.

Village of Ravena – Departmental Collections and Leave Accruals (Albany County)
The recreational director and other staff collected pool fees but did not issue receipts or maintain records to adequately account for collections. Staff also did not properly update the accounting records and did not accurately record departmental collections.

Westchester County Sewer Districts – Financial Condition (2017M-155)
County officials have adopted structurally balanced budgets using fund balance in a judicious manner. The budget process for the county's sewer districts found officials adequately monitor the budget throughout the year.

For access to state and local government spending, public authority financial data and information on 140,000 state contracts, visit Open Book New York. The easy-to-use website was created to promote transparency in government and provide taxpayers with better access to financial data.

Friday, October 06, 2017

An individual is not deemed permanently disabled if undergoing a reasonably safe surgical procedure would permit the individual to perform the duties of his or her position


An individual is not deemed permanently disabled if undergoing a reasonably safe surgical procedure would permit the individual to perform the duties of his or her position
2017 NY Slip Op 07026, Appellate Division, Third Department

The New York State Comptroller denied Petitioner's applications for both accidental and performance of duty disability retirement benefits relying on the opinion of his medical expert, an orthopedic surgeon with respect to Petitioner's ability to perform the duties of his position.  Petitioner then filed an Article 78 action seeking a court order vacating the Comptroller's decision.

The Comptroller's expert had stated that although Petitioner "was currently disabled from performing his job duties as a police officer," the expert also opined that Petitioner had not suffered a permanent disability and further stated that were Petitioner to undergo "a reasonably safe surgical procedure" there was a significant likelihood that Petitioner would regain strength, stability and function so as to allow him to perform the duties of his position, "including being able to carry and discharge a firearm and a pepper spray canister, use a baton and handcuffs and make arrests."

The Petitioner's treating orthopedic surgeon, however, had opined that Petitioner was permanently disabled from performing his job duties and although the procedure suggested by the Comptroller's medical expert was a safe procedure, he would not recommend Petitioner undergo such surgery because, in his opinion, it would not result in Petitioner being able to perform his duties as a police officer.

The Appellate Division affirmed the Comptroller's determination, explaining that "An applicant for accidental disability retirement benefits [and performance of duty disability retirement benefits] bears the burden of proving that he or she is permanently incapacitated from performing his or her job duties" and that here the record indicated that the Comptroller "considered Petitioner's actual job duties in determining whether he was permanently disabled."

Citing Matter of Dingee v DiNapoli, 56 AD3d 876, the Appellate Division observed that "[i]n determining whether a person is permanently disabled, [the Comptroller] may consider whether proper medical treatment is reasonably and safely available to correct the disability." Further, the Appellate Division said that it was not free to substitute its assessment of the medical evidence for that of the Comptroller, "whose determinations must be upheld when they are supported by substantial evidence."

Further, the court noted that "The Comptroller has the exclusive authority to resolve conflicting medical evidence and to credit one expert's opinion over another."

As the Comptroller's expert's was of the opinion that there was a significant likelihood that further medical treatment would alleviate Petitioner's disability was rationally based upon his examination of Petitioner and a review of Petitioner's medical records, the Appellate Division ruled that "the Comptroller's determination that Petitioner did not meet his burden of proving a permanent incapacity from performing his job duties is supported by substantial evidence and will not be disturbed."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_07026.htm

____________________________

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html
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Thursday, October 05, 2017

New York City Technology Forum to be held November 1 and 2, 2017


New York City Technology Forum to be held November 1 and 2, 2017
Source: Government Technology

The two-day New York City Technology Forum will be held in Brooklyn New York on November 1 and November 2, 2017. 

N.B. Registration is complimentary for all government professionals. 
Click here to register online .

Sessions include:

Technologies That Will Change How Government Works
I See Potential in You!
Best Practices in Answering “Are We Secure Yet?”
Next Generation Analytics
Smarter Communities and IoT
Accelerated Digital Transformation
Data Governance
We Are All in IT Together
Transforming Your Personal Skill Set
Soar into the Cloud with Your Eyes Open
Design Thinking in Government
Procurement – Where Are We Headed?
Cyber War Games – Your Organization has been Breached. Now What?

For more information, please e-mail Jennifer Caldwell, Sr. Registration Coordinator and Team Lead, at jcaldwell@govtech.com or telephone Ms. Caldwell at 800-940-6039, Extension 1345. 


Wednesday, October 04, 2017

Albany Law School offers a free CLE Program addressing Cybersecurity and the Law


Albany Law School offers a free CLE  Program addressing Cybersecurity and the Law
Source: Albany Law School

The program is presented by the Albany Law Journal of Science and Technology, Center for Internet Security and the Cybersecurity and Privacy Law Center at Albany Law School.  

This event is free and open to the public. Eight free CLE credits will be offered. 

Thursday, October 19 from 12:00 noon to 5:00 PM
Friday October 20 from 8:30 AM to 4:15 PM

Covered topics include:

Internet of Things
Insurance and Liability Breach Response 
Cyber 101
Cloud Computing and Legal Issues
Law Enforcement
Breach Response 
Local Government

CLE Credit
October 19: Up to 3.0 Hours Professional Practice
October 20: Up to 5.0 Hours Professional Practice

For additional information and registration, click on:


PERB will defer to an arbitration award involving the same parties and the same issue in determining an improper practice charge only in limited circumstances


PERB will defer to an arbitration award involving the same parties and the same issue in determining an improper practice charge only in limited circumstances
Matter of Buffalo Teachers Fedn., Inc. v New York State Pub. Empl. Relations Bd., 2017 NY Slip Op 06800, Appellate Division, Fourth Department

The Buffalo City School District [District] adopted a resolution naming a single health insurance carrier for the teachers in its employ. This, however, constituted a change to the of the terms of the controlling collective bargaining agreement [CBA] between the District and the Buffalo Teachers Federation [Federation], the teachers' collective bargaining representative. The District explained that "it was forced either to make that change to the CBA or to make 'massive cuts' in other areas." The Federation filed a grievance and demanded that the District's actions be submitted to arbitration.

The District subsequently sent a letter to 88 teachers informing them that they were to be laid off because of "the failure to reach an agreement on a single health insurance carrier had forced the District to make budgetary cuts elsewhere." Ultimately the District discontinued the services of the 88 teachers and implemented its resolution naming a single health insurance carrier. The Federation filed an improper practice charge alleging violations Civil Service Law §209-a (1) (a) and (d) of the Taylor Law (Civil Service Law Article 14 with New York State Public Employment Relations Board [PERB]

While that charge was pending before PERB, the grievance proceeded to arbitration. The  arbitrator concluded that the District had discharged the teachers "wrongfully, in furtherance of its ill-conceived effort to force the Union into submissive acceptance of the unilateral modification" to the CBA. The District was directed to reinstate the teachers with back pay whereupon the District filed an Article 75 petition seeking to vacate the arbitration award.

Supreme Court confirmed the arbitration award and the District appealed that ruling. The Appellate Division ruled that "the arbitrator acted in excess of the power granted to him with respect to that part of the award concerning the teachers" and vacated that part of the award providing for the reinstatement of the teachers.*

The improper practice charge, however,  proceeded before PERB on a stipulated record before an Administrative Law Judge [ALJ]. The ALJ concluded that the discharge of the 88 teachers was "the final step in the preconceived scheme designed to pressure [the Federation] to drop the single carrier grievance" and thus violated the Taylor Law and, as the arbitrator had ruled, the ALJ ordered the District to reinstate the teachers with back pay.The District filed exceptions to the ALJ's decision with PERB. 

PERB relying on the "long-recognized distinction between a threat of retaliation because either a union or covered employee exercises protected rights and a statement that there might be layoffs if the exercise of protected rights results in cost increases for the employer," concluded that the District "announced the layoffs as a decision that had already been made and explained the underlying reason for the layoffs." Thus, ruled PERB, "the  discharge of the teachers did not violate the statute" and reversed that part of the ALJ's determination that directed that the District reinstate the 88 teachers. The Federation then initiated the instant proceeding seeking to annul PERB's determination.

The Appellate Division observed that its review was limited to whether PERB's determination was affected by an error of law, arbitrary and capricious or an abuse of discretion, or unsupported by substantial evidence. The court then explained that  ... "the agency charged with implementing the fundamental policies of the Taylor Law, [PERB] is presumed to have developed an expertise and judgment that requires us to accept its decisions with respect to matters within its competence."

The court rejected the Federation's contention that PERB's "determination was arbitrary and capricious inasmuch as PERB departed from its own precedent in refusing to defer to the arbitration award." The Appellate Division commented that although an administrative body acts arbitrarily and capriciously in departing from its own precedent and failing to explain the reasons for the departure, here PERB's determination was consistent with its own precedent. PERB, said the court, "will defer to an arbitration award only in limited circumstances and it usually does not do so where the charging party alleges a violation of Civil Service Law §209-a(1)(a).

As the Federation alleged the District had violated §209-a(1)(a) and (d), it was the precedent of PERB to refuse to defer to the arbitration award in this case. Further, said the court, to the extent that the arbitrator made findings with respect to the layoffs, it was reasonable for PERB not to defer to the arbitration award because the arbitrator had been earlier found to have exceeded the scope of his authority and his findings were inconsistent with PERB's interpretation of the statute.

Although it is unlawful for a public employer "to interfere with, restrain or coerce public employees in the exercise of [certain] rights," such as their right to participate in organizing activity, "for the purpose of depriving them of such rights," in this instance the District had explained "that layoffs were a cost-cutting measure made necessary by the failure to reach an agreement on health insurance." The Appellate Division concluded that, based upon its review of the record, "it was rational for PERB to determine that the layoffs were not motivated by an improper purpose." 


The decision is posted on the Internet at:

Tuesday, October 03, 2017

An educator seeking to overturn an unsatisfactory annual performance rating must meet is very high standard of proof


An educator seeking to overturn an unsatisfactory annual performance rating must meet is very high standard of proof
Decisions of the Commissioner of Education, Decision No. 17,192

M.H., a tenured teacher of mathematics employed by the City School District of the City of New York received an unsatisfactory annual rating following four unsatisfactory observation reports. M.H. appealed the rating to the Chancellor’s Committee Chairperson. The Chairperson conducted a review at which M.H. was represented by an advocate from the relevant collective bargaining entity.

The Chairperson recommended that M.H..'s appeal be denied and that the unsatisfactory rating be sustained. The Chancellor of the New York City Department of Education adopted the Chairperson recommendation. M.H. appealed the Chancellor's decision to the Commissioner of Education.

After addressing a procedural issue, the Commissioner considered the merits of M.H.'s appeal, noting that the standard of proof required to overturn an unsatisfactory rating is very high and in the absence of a showing of malice, prejudice, bad faith or gross error, the Commissioner will not substitute his or her judgment for that of the Chancellor.

M.H., said the Commissioner, "... failed to meet her burden of proving that the unsatisfactory rating was based upon malice, prejudice, bad faith or gross error," explaining that the record indicates that the assistant principal conducted three formal observations of a math lesson taught by M.H. as well as one walk-through evaluation.. In the last observation report made by the assistant principal, the assistant principal concluded that:

(1) The lesson taught did not match the lesson written on the board or prescribed in M.H. ’s lesson plan;

(2) M.H. posed questions in which the answers were embedded;

(3) M.H. failed to implement previous recommendations, made in previous observation reports to “engage the students by creating a physical setting that promotes teamwork”; and

(4) there was no “share/summary” presentation, as observed in during the last observation.

The Commissioner said that in the course of the walk-through evaluation, "the assistant principal concluded that [M.H.] continued to struggle with questioning techniques", noting that earlier she had provided M.H. with a document called “Asking Better Questions” and that M.H. had failed to incorporate any of the suggestions contained in that document. 

As to M.H.'s argument that the observation reports were not based on “facts,” “statistics”, or “appropriate supporting data,” M.H. cited no legal requirement that evaluations of personnel must be based on such criteria, and the Commissioner said she found nothing inappropriate about the procedure utilized by the district. 

Although M.H. did not participate in a pre-observation conference before each observation as required, the Commissioner said that she did not find that such noncompliance prohibited imposing an unsatisfactory rating based upon the observations of the assistant principal and further found that the observations and conclusions of the assistant principal supported the unsatisfactory rating imposed on M.H..

Concluding that M.H.'s unsatisfactory rating was supported by the evidence in the record, and that M.H. "has not met her burden of proving malice, prejudice, bad faith or gross error attributable to the respondent," the Commissioner dismissed M.H.'s appeal

The decision is posted on the Internet at:


Monday, October 02, 2017

Determining an educator's seniority in a tenure area for the purposes of layoff upon the abolishment of a position or positions


Determining an educator's seniority in a tenure area for the purposes of layoff upon the abolishment of a position or positions
Decisions of the Commissioner of Education, Decision No. 17,190

On June 16, 2008 16 elementary education teachers received appointments to positions in the elementary education tenure area effective September 1, 2008.  On June 16, 2015, the School Board [Board] abolished eight positions in the elementary education tenure area. effective July 1, 2015. Scott Page, Kiernan Terranova and Penny Valvo, [Respondents] were among the teachers retained while Gwendolyn Gingrich, Cindy Inglut and Kyle Mack [Petitioners] were among those excessed following the abolishment of the 8 positions.*

Petitioners initiated an Article 78 proceeding challenging the Board's decision to excess them as a result of the abolishment of the eight position, contending that they were "not the least senior persons in the elementary tenure area." Supreme Court, Erie County, granted the school district’s motion to dismiss for lack of primary jurisdiction** and the Commissioner of Education assumed jurisdiction in the matter.

Petitioners contend that the Board erroneously credited Page, Terranova and Valvo with more seniority credit than Petitioners by providing them with seniority credit for prior interrupted substitute service.  Petitioners asked the Commissioner to rule that the Board violated Education Law §§2510(2) and 3013(2) and to reinstate them "with back pay, lost seniority credit, pension credits and other emoluments of the positions."

After considering procedural issues the Commissioner noted that it was undisputed that:

1. Petitioners were continuously employed by school district from September 1, 2008 through July 1, 2015 and that Page, Terranova and Valvo were each appointed by the Board on June 16, 2008. 

2. The record shows that the Board credited Page for regular substitute service from April 1, 2008 through June 12, 2008 (the school year ended on June 20, 2008); Terranova for regular substitute service from February 26, 2008 through June 13, 2008 (the school year ended on June 20, 2008); and Valvo for regular substitute service from April 6, 2006 to June 30, 2006, August 30, 2006 through June 30, 2007 and September 10, 2007 through November 16, 2007; thereby crediting these Respondents with more seniority credit.

The issue to be resolved, as identified by the Commissioner was whether the Board properly credited Respondents for substitute service that was not immediately prior to their June 16, 2008 probationary appointments for purposes of calculating seniority credit for the purposes of layoff under Education Law §§2510(2) and 3013(2) "where it appears from the record that respondents Page and Terranova’s service ended a week prior to their probationary appointment and respondent Valvo’s service ended more than a year before her probationary appointment."

Education Law §§2510(2) and 3013(2) govern the rights of individuals relate to a teacher’s abolition rights and provide, in pertinent part, "Whenever a trustee, board of trustee, board of education or board of cooperative educational services abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

The Commissioner then observed that:

a. It is well-settled that for purposes of determining the seniority rights of teachers when a position is abolished, it is the teacher having the least seniority in the tenure area of the position abolished whose services must be discontinued;

b. It is well-settled that seniority credit for full-time substitute teaching under Education Law §2510(2) need not immediately precede full-time probationary experience; and

c. The Court of Appeals accepted the Commissioner’s interpretation in Appeal of Carey, 31 Ed Dept Rep 394, Decision No. 12,678, that a teacher whose full-time regular substitute service was interrupted could nonetheless receive seniority credit for such service.

In Carey the Commissioner said that Education Law §2510's "salutary purpose is furthered by allowing seniority credit for full-time substitute teaching even though interrupted." In contrast, the Commissioner has ruled that [i] “Teachers lose their seniority rights when they sever service with the school district" and [ii] "A teacher whose full-time service is interrupted by part-time service in the same district does not lose the right to claim such prior full-time service for purposes of seniority.”

The Commissioner concluded that the relevant consideration in this instance is whether Page, Terranova and Valvo’s employment in the school district was severed by the teacher or the district and concluded that Petitioners failed to meet their burden of proving that Respondents voluntarily severed their employment with the district. 

In the words of the Commissioner: "All that is established on the current record is that each of these Respondents had a regular substitute position that terminated prior to their probationary appointments, which suggests that their substitute service was terminated by the district." Accordingly, the Commissioner dismissed Petitioners' appeal, holding that the Board "properly treated [Respondents'] prior regular substitute service as interrupted rather than severed service and properly credited them for their prior regular substitute service in the district."
 
* Petitioners characterize the district’s decision as "abolishing their positions." It would be more accurate to state that the district abolished eight positions and then determined that Petitioners were the least senior in the tenure area of the positions abolished. Only in the event the incumbent was the sole individual having tenure in the tenure area of the abolished position could it be said that his or her position was abolished.

** The Doctrine of Primary Jurisdiction is applied in the event a judicial tribunal determines that the petitioner[s] should have first appealed to the Commissioner of Education  as he or she "is uniquely suited to resolve the matter and . . . possesses the specialized knowledge and experience required to determine the factual issue" involved in the litigation [see, for example, Donato v. Bd. of Educ., 286 A.D.2d 388].

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume57/d17190

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