Determining if a dispute between a public sector employer and employee is arbitrable

Determining if a dispute between a public sector employer and employee is arbitrable 

Board of Educ. of the Newburgh Enlarged City Sch. Dist. v Newburgh Teachers' Assn., 2017 NY Slip Op 05817, Appellate Division, Second Department

In a CPLR Article 75 action addressing a demand by the Newburgh Teachers' Association [Association], the Association appealed a Supreme Court order granting the Newburgh city School District's Board of Education's [Board] petition to permanently stay arbitration of the matter demanded by the Association and denied the Association's cross motion to compel arbitration.

Citing Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, the Appellate Division explained that in determining "whether a dispute between a public sector employer and employee is arbitrable, a court must first determine whether 'there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.'"

If, said the Appellate Division, there is no " statutory, constitutional or public policy prohibition" prohibition against arbitration, the court must examine the parties' collective bargaining agreement to determine "whether the parties in fact agreed to arbitrate the particular dispute.

The Association had "demanded arbitration" to compel the Board to implement certain measures regarding the discipline and suspension of students.

The Appellate Division succinctly ruled that as various provisions of New York's Education Law "grants discretion to boards of education to implement disciplinary rules and regulations in schools," the Association's demand was nonarbitrable "on public policy grounds." Accordingly the question of whether the parties had agreed to arbitrate such a dispute was never reached by the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05817.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 29, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 29, 2017

Click on text highlighted in color  to access the full report

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

DiNapoli Releases Analysis of State Financial Plan, Warns of Federal Risks
 New York state is facing signs of increasing fiscal challenges, including lower revenue targets and possible federal budget and tax changes, according to a reporton the state's Enacted Budget Financial Plan issued by New York State Comptroller Thomas P. DiNapoli.

 
Audit Finds More Than $16 Million in Medicaid Cost Savings

New York state's Medicaid system could have saved up to $13.6 million it spent on patients with severe kidney disease whose expenses could have been covered by the federal Medicare program, according to an auditby State Comptroller Thomas P. DiNapoli. Auditors also found another $3 million in cost savings. About $1.8 million of the overpayments were recovered before the close of the audit as a result of actions taken by DiNapoli's auditors.

 
Audit Recommends Better Protections for Child Performers

The state Department of Labor is falling short in enforcing New York’s laws to protect child performers, according to an auditby New York State Comptroller Thomas P. DiNapoli. State auditors found shortfalls with how work permits were given to children and employers, inadequate monitoring of work conditions, and insufficient enforcement of requirements to set aside some of the children’s earnings in a trust.

 
DiNapoli and Orange County DA Hoovler Announce Guilty Plea in Newburgh Embezzlement Case

State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that John Aber, 49, of Staten Island, pleaded guilty before Orange County Court Judge Robert H. Freehill to grand larceny in the fourth degree for having stolen money while he was the comptroller of the city of Newburgh. At the time he pleaded guilty, Aber admitted that between August 2013 and December 2016 he used his position as city comptroller to steal money collected from boat-launch fees in the city of Newburgh.

 
State Tax Collections Lagging Last Year by $1.2 Billion

State tax collections totaled $18.6 billion in the first quarter of the new fiscal year, $1.2 billion less than the same period last year and $315.7 million below projections, according to the state cash reportissued by State Comptroller Thomas P. DiNapoli.

Applying the appropriate causation standard in adjudicating alleged unlawful retaliation claims for exercising FMLA rights

Applying the appropriate causation standard in adjudicating alleged unlawful retaliation claims for exercising FMLA rights

Woods v. START Treatment & Recovery Ctrs., USCA, 2nd Circuit, 16-1318-cv

Cassandra Woods lost a jury trial on her claim that she was fired for exercising her rights under the Family and Medical Leave Act [FMLA]. One of the two principal questions* addressed by the court in her appeal was "what is the appropriate causation standard for FMLA retaliation claims?"

The federal district court had instructed the jury that it must apply the “but for” causation standard with respect to Woods’ retaliation claims. The Second Circuit held that FMLA retaliation claims of the sort Woods brought in this case require applying a “motivating factor” causation standard. 

Under the motivating factor test, an employee could prove retaliation by showing that his or her decision to report or notify the employer of possible discrimination was a motivating factor in the employer's decision to terminate the employee or take some other adverse employment action.

In contrast, under the "but-for causation" standard, the employee would have to prove that he or she would have retained his or her position or would have avoided some other adverse employment action in the absence of the employer's retaliatory intent.

The district court's decision was then vacated and remanded to the lower court for further action.

* The second principal issue addressed by the Circuit Court of Appeals: "Was Woods unduly prejudiced by the admission of adverse inferences based on her invocation of the Fifth Amendment at her deposition?"

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/75dbeb99-a261-443d-8109-fd5e2161ad2e/2/doc/16-1318_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/75dbeb99-a261-443d-8109-fd5e2161ad2e/2/hilite/

Employment Law News from WK WorkDay

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted in WK Workday distributed July 26, 2017

Click on text highlighted in color  to access the full report

Senate bill would effectively take down the NLRB

Jury to say if physical presence on-site was essential to program director job

HR director may be individually liable for FMLA and Pennsylvania wage violations

Motivating factor, not ‘but for’ causation, governs fired employee’s FMLA retaliation claim

Officer ‘targeted’ for association with mayor’s ‘political enemy’ did not voluntarily resign

Individual has no property interest in his or her former employment once he or she is discharged

Individual has no property interest in his or her former employment once he or she is discharged

Milwaukee Police Association v Flynn, USCA,7th Circuit

Opinion Summary posted by Justia

"Vidmar, Manney, and Gomez were discharged from the Milwaukee Police Department, for cause, by Police Chief Flynn. Their benefits and pay stopped immediately. They appealed their terminations to the Board of Fire and Police Commissioners, which rejected their appeals. They were permanently discharged. The former officers claimed that their employment did not end when they were discharged by the chief because they were entitled to employment until the conclusion of their appeals. They alleged that they were denied constitutional due process and wages.

"The district court rejected their claims and granted judgment on the pleadings. The Seventh Circuit affirmed.

"Under Wisconsin law, the former officers had no property interest in employment once they were discharged for cause by Chief Flynn. They were provided a full and adequate appellate process, and their discharges were upheld in accordance with Wisconsin law. They were not entitled to wages for the period of time between their discharge and the conclusion of their appeal under Wisconsin law as they were not employed during that time."

Justia has posted a PDF of this decision than may be downloaded on the Internet at:

http://law.justia.com/cases/federal/appellate-courts/ca7/16-3743/16-3743-2017-07-12.html?utm_source=summary-newsletters&utm_medium=email&utm_campaign=2017-07-14-labor-employment-law-cf0f45d344&utm_content=text-case-title-8

The collective bargaining representative's duty of fair representation

One of the issues in Winston Henvill's Article 75 petition seeking to vacate the arbitration award that terminated his employment with the Metropolitan Transportation Authority [MTA] was his allegation that his collective bargaining representative, the Metropolitan Transportation Authority Police Benevolent Association [PBA], breached its duty of fair representation. 

Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable

Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable

City of Watertown (Watertown Professional Firefighters' Assn. Local 191), 2017 NY Slip Op 05553, Appellate Division, Fourth Department

The City of Watertown [City] filed a petition pursuant to CPLR Article 75 seeking a court order permanently staying the arbitration of a grievance filed by the Watertown Professional Firefighters' Association Local 191 [Local 191].

Local 191 alleged that the City had violated, among other things, provisions in the parties' collective bargaining agreement [CBA] by failing to maintain required staffing levels of captains within the City's Fire Department and by requiring certain members of the Fire Department to perform out-of-title work as a result of Watertown's failure to maintain the required staffing levels.

Supreme Court denied the City's petition with respect to Local 191's grievance alleging a failure to maintain minimum staffing levels but granted the City petition with respect to dismissing that part of Local 191's grievance alleging the assigning its members to perform out-of-title work constituted a violation of the CBA.

Both the City and Local 191, respectively, appealed these ruling by Supreme Court. The Appellate Division unanimously modified the Supreme Court's decision "on the law" by denying the City's petition in its entirety.

The court then addressed arbitrability of each of the issues set out in Local 191's demand for arbitration.*

1. Failure to maintain minimum staffing levels.

The Appellate Division rejected the City's contention that arbitration of minimum staffing levels "is prohibited by law." In City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, the Court of Appeals held that "the subject matter of the dispute controls the analysis" and "a pending administrative proceeding concerning [a] respondent's alleged improper practices does not preclude arbitration inasmuch as there is no indication that the 'particular subject matter of the dispute' is not authorized,' i.e., not "lawfully fit for arbitration."

2. Agreement to arbitrate.

The Appellate Division also rejected the City's argument that the parties did not agree to arbitrate  Local 191's grievance, indicating that a court's review of that question "is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom." Here, said the court, the CBA contains a broad arbitration clause. Thus its determination of the arbitrability of the matter is limited to whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Finding that such a reasonable relationship existed, the Appellate Division said it was "the role of the arbitrator, and not the court, to 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."

3. Staffing levels.

Local 191 contended that the City demoted eight fire captains and thus violated the CBA by failing to maintain the requisite staffing levels, and by concomitantly forcing other members of the Fire Department to perform out-of-title work, i.e., fire captain's work, without the appropriate compensation. As the CBA included provisions governing both minimum staffing levels and compensation for out-of-title work, the Appellate Division concluded that the dispute is reasonably related to the general subject matter of the CBA.

That said, the court reject the City's argument to the contrary, holding that issue presented by Local 191 involves an interpretation of that provision and the merits of Local 191's grievance and thus is a question to be resolved by the arbitrator, "who is tasked with making '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.'"

4. Grievance procedural matters.

The Appellate Division ruled strict compliance with the step-by-step grievance procedure set forth in the CBA, which procedures the City's maintained Local 191 failed to honor, was a question for the arbitrator to resolve.

In the words of the court, "Questions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

5. Out of title work.

The Appellate Division said that with respect to Local 191's cross-appeal with concerning alleged out-of-title work, Supreme Court was incorrect in dismissing it and modified the lower court's order accordingly.

Rejecting the City's contention that arbitration should be stayed with respect to the issue of out-of-title work because compensation for such work falls within the meaning of "salary," which is expressly excluded from the CBA's definition of "grievance," the Appellate Division ruled that as "there is a reasonable relationship between the dispute over out-of-title work and the subject matter of the CBA ... it is for the arbitrator to determine whether the [compensation for out-of-title work] falls within the scope of the arbitration provisions of the [CBA]."

The Appellate Division ruled "that the [Supreme Court's] order so appealed from is unanimously modified on the law by denying the [City's] petition in its entirety, and as modified the order is affirmed without costs."

* The Appellate Division noted the so-called "two-part test" used by New York courts to determine if a grievance is subject to arbitration, stating "Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If there is a prohibition, our inquiry ends and an arbitrator cannot act. "If no prohibition exists, ' the courts then ask "whether the parties in fact agreed to arbitrate the particular dispute by examining their [CBA]."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05553.htm

Leaving employment without good cause disqualifies a claimant for unemployment insurance benefits

Leaving employment without good cause disqualifies a claimant for unemployment insurance benefits

Matter of Walters (Commissioner of Labor), 2017 NY Slip Op 05497, Appellate Division, Third Department

The Unemployment Insurance Appeal Board [Board] found that an applicant for unemployment insurance benefits [Claimant] was ineligible for such benefits because she had "voluntarily left her employment without good cause."

Claimant appealed but the Appellate Division sustained the Board's ruling finding that its decision was supported by substantial evidence. Claimant had advanced three arguments in pressing her claim for benefits.

Claimant first contended that on her last day of employment she would be late reporting for duty because of a "doctor's appointment" and, after she learned that her supervisor had to cover for her, she quit because she was afraid she was going to be reprimanded or terminated.

Citing Welsh [Commissioner of Labor], 138 AD3d 1328, the Appellate Division noted that "resignation in anticipation of being discharged does not constitute good cause for leaving one's employment."

Claimant had also testified that she also quit her job "because the employer made it difficult for her to schedule medical appointments when the employer was short-staffed."

However Claimant admitted that she was never informed that her job was in jeopardy due to being absent from or late to work.

The Appellate Division, citing McCarthy [Commissioner of Labor], 120 AD3d 876, explained that dissatisfaction with one's work schedule "... does not constitute good cause for leaving one's employment."

As to Claimant's final justification for quitting her job, she testified she had quit "due to stress involving a coworker." Claimant admitted, however, that her supervisor had taken certain actions as a result of her report and had changed her schedule so she did not have to work with the individual in question.

The Appellate Division said that it its view, the Board's decision that Claimant left her employment for personal and non-compelling reasons, was supported by substantial evidence and declined to disturbed it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05497.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 22, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 22, 2017

Click on text highlighted in color  to access the full report

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

OCFS Should Improve Foster Care Placement Oversight

The state Office of Children and Family Services (OCFS) could not show that caseworkers contacted children in foster care within the first 30 days of their placement and lacked documentation proving children were placed in foster homes that met program certifications, according to an auditby New York State Comptroller Thomas P. DiNapoli.

Town of Geneseo – Information Technology and Multiyear Planning (Livingston County)
The board has not adopted policies to sufficiently protect the town's information technology assets and did not ensure that the adopted acceptable use policy was enforced or monitored. Town officials did not adequately segregate online banking duties and did not dedicate a separate computer for online transactions to limit access to online bank accounts. In addition, auditors found the town accumulated excessive fund balance in various funds.

Monticello Joint Fire District – Fiscal Operations (Sullivan County)
The board did not adopt realistic budgets for the 2014 through 2016 fiscal years. Although total budgeted revenues were reasonable, total expenditures were overestimated an average of 20 percent or almost $391,000 annually. The treasurer performs all financial transactions without adequate oversight.

Town of Orchard Park – Recreation Department Cash Receipts (Erie County)
The board did not adopt written policies over financial operations or approve a key department contract. The department generally recorded and deposited cash receipts properly, but did not remit money to the supervisor in a timely manner.

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

2017 NY Slip Op 05608, Appellate Division, Second Department

In this decision the Appellate Division sets out the basic rules followed by the courts when reviewing an administrative determination arrived at following a quasi-judicial hearing by an appointing authority or its designee. In this instance the appointing authority adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75 finding the charged party [Petitioner] guilty of certain disciplinary charges, and terminated the Petitioner's employment.

Confirming the appointing authority's determination is confirmed, the Appellate Division explained:

1. The standard of review of an administrative determination made after a quasi-judicial hearing required by law is limited to considering whether the determination was based on substantial evidence.

2. It is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject.

3. Where evidence is conflicting and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency.

Here, said the court, substantial evidence supported the appointing authority's determination that Petitioner was guilty of committing certain acts of misconduct or insubordination.

As to the penalty imposed, dismissal from the position, the Appellate Division, citing Kreisler v New York City Tr. Auth., 2 NY3d 775, concluded that "the penalty of termination of [Petitioner's] employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05608.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click onhttp://booklocker.com/books/7401.html

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Municipalities and school districts rely on federal aid

Municipalities and school districts rely on federal aid

Source: Harris Beach PLLC, New York Municipalities Blog

A new report released by New York State Comptroller Thomas DiNapoli shows how much municipalities and school districts rely on federal aid. 

The report covers statistics from 2015 and shows that local governments and school districts outside New York City received $4.7 billion in direct federal support.

Click Here to Read Full Post

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

2017 NY Slip Op 05657, Appellate Division, Third Department

Appeal from a judgment of the Supreme Court Ulster County granting petitioner's [Petitioner] application in a proceeding pursuant to CPLR Article 78 seeking to annul a determination of the Board of Education denying Petitioner's request for certain seniority rights.

The Petitioner in action was elementary teacher and had attained tenure with the school district [the District]. In 2004 Petitioner took an unpaid leave of absence and in December 2005 resigned from her position when her eligibility for continuation on unpaid leave expired rather than return to work. In 2007 the District appointed Petitioner to a teaching position and she was subsequently granted tenure by the District upon her satisfactory completion of her probationary period associated with this new appointment in 2009.

In 2010 the District eliminated positions in the elementary tenure area and Petitioner seniority for the purposes Education Law §2510 was based on her service with the District running from 2007. §2510 provides, in pertinent part, "Whenever a board of education 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."

A temporary kindergarten teaching position then became available for the 2011-2012 school year. However, another former teacher was recalled to fill the vacancy because of her greater seniority. Petitioner, contending that the District had improperly calculated her seniority by ignoring her earlier service with the District and it should have reinstated her to the vacancy. Petitioner initiated the Article 78 action seeking a court order annulling the District's decision and ultimately Supreme Court directed the District to recalculate Petitioner's "seniority rights and all salary due to her."

The District appealed the Supreme Court's decision, contending that Petitioner's resignation from her position in 2005 served to sever her ties with the District and thus she forfeited any claim with respect to her earlier service with the District for the purposes of determining her  seniority rights.

The Appellate Division, citing Kwasnik v King, 123 AD3d 1264, explained that "Although an employee may waive his or her seniority rights by resigning or retiring, such a relinquishment must be knowing and voluntary" and be an effective waiver of such rights, the waiver "must be free from any indicia of duress or coercion."

In Petitioner's case the Appellate Division concluded that she resign from her position in 2005 rather than return from her leave when the District informed her that such extension was not possible as she had "exhausted her unpaid leave time." In other words, it was Petitioner decision to resign rather than return to work.

Thus, said the court, there was nothing in the record that could be construed as duress or coercion on the part of the District to obtain her resignation and the record indicated that Petitioner voluntarily resigned for her tenured position "in response to being accurately informed that she had exhausted her [rights to additional unpaid] leave.”

The Appellate Division also noted that Petitioner had been subsequently appointed by the District as a probationary employee after a year and half break in service, thus "belying any claim that she maintained a continuing employment relationship with it."

Accordingly, said the court, the District had properly determined that Petitioner was not entitled to count the period of time she had been employed by it prior to her 2005 resignation "for the purpose of [§2510] seniority" and, reversing the Supreme Court's decision, reinstated the District's initial determination regarding Petitioner seniority for the purposes of her reinstatement from the preferred list.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05657.htm

_______________

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

_______________

New York State regulations for Paid Family Leave Program adopted

New YorkState regulations for Paid Family Leave Program adopted

Source: NYS Workers Compensation Board

On July 19, 2017, Governor Andrew M. Cuomo announced that New York State has adopted regulations implementing New York's landmark Paid Family Leave program. These regulations outline the responsibilities of employers and insurance carriers in implementing the most comprehensive paid family leave program in the nation. 

Starting January 1, 2018, Paid Family Leave will provide employees with wage replacement and job protection to help them bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is deployed abroad on active military service. Employees are also entitled to be reinstated to their job when their leave ends and to the continuation of their health insurance during their leave. 

Paid Family Leave provides coverage for:

• Parents during the first 12 months following the birth, adoption, or fostering of a child;

• Employees caring for a spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild with a serious health condition; and

• Employees assisting loved ones when a spouse, child, domestic partner, or parent is deployed abroad on active military duty.

Employee Eligibility:

• Employees with a regular work schedule of 20 or more hours per week are eligible after 26 weeks of employment.

• Employees with a regular work schedule of less than 20 hours per week are eligible after 175 days worked.

Insurance Coverage

Paid Family Leave coverage will typically be included as a rider to an employer's existing disability insurance policy, and will be fully funded by employees through payroll deductions. In 2018, the maximum employee contribution is 0.126% of an employee's weekly wage up to 0.126% of the annualized New York State Average Weekly Wage. The program is mandatory for nearly all private employers. Public employers may opt into the program.

Phase-in Schedule

Paid Family Leave will be phased in over four years, beginning January 1, 2018. In 2018, employees may take up to eight weeks of paid leave at 50% of an employee's average weekly wage up to 50% of the New York State Average Weekly Wage. That increases to 12 weeks of paid leave in 2021 paid at 67% of an employee's average weekly wage up to 67% of the New York State Average Weekly Wage.

The regulations and other information is posted on the Internet at:

http://www.wcb.ny.gov/PFL/pfl-regs.jsp

  

Employment Law News from WK WorkDay Source: Wolters Kulwer

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted in WK Workday distributed July 19, 2017

Click on text highlighted in color  to access the full report

Per CBA, Teamsters had sole right to integrate pilot seniority lists post-merger

Macy’s ‘offer’ to decline ‘benefits of arbitration’ was no offer; employee’s silence was no acceptance

Fired medical marijuana user can sue Massachusetts employer for disability discrimination

  

Petitioning the Commissioner of Education to remove a member of a school board from his or her office

Petitioning the Commissioner of Education to remove a member of a school board from his or her office 

Decisions of the Commissioner of Education, Decision #17,055

A number of district residents, taxpayers and current or former members of the Board of Education [Petitioners] sought to have a sitting member of the Board of Education [Respondent] removed from his office by action of the Commissioner of Education pursuant to §306 Education Law. Petitioners alleged that the Respondent was guilty of "willful violation of the Education Law, General Municipal Law §805-a(1)(b) and Public Officers Law §105, and engaging in acts of willful misconduct in violation of the [school] district's code of ethics and policies concerning the confidential nature of the board's executive sessions."

Finding that there were a number of procedural defects in their appeal, the Commissioner dismissed Petitioners' complaint without reaching its merits.

First, said the Commissioner, Petitioners' application must be denied as moot as only matters in actual controversy will be considered and no decision will be rendered "on a state of facts which no longer exist or which subsequent events have laid to rest." In arriving at this ruling the Commissioner took "administrative notice that the official website" of the school district indicated that the Respondent "no longer serves on the board of education." Thus the issue of his removal from office was a  matter that had been "laid to rest."

The Commissioner then said that even if the Petitioners' application had not been dismissed as moot, it would have been denied because of the following procedural error or omissions:

1. Lack of proper service" as Petitioners did not personally serve their complaint "upon each named respondent;" and

2. The notice of petition was defective as it did not specifically advise a school officer that an application was being made for his or her removal from office by using the notice prescribed under 8 NCYRR §275.11(a) for appeals brought pursuant to Education Law §310.  

The Commissioner explained that "A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent" as it is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings. Thus the Petitioners' "failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal."

That said, the Commissioner noted that although the Petitioners' application must be dismissed on procedural grounds, there was yet "one administrative matter" to be consider.

The Respondent in this action had requested that the Commissioner issue a "certificate of good faith" pursuant to Education Law §3811(1) thereby authorizing the Board to indemnify him for "legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a board member."

The Commissioner explained that it was appropriate to issue such certification "unless it is established on the record that the requesting board member acted in bad faith."

As the Petitioners' application in this action was denied on procedural grounds and there had been no finding that Respondent acted in bad faith, the Commissioner certified, "solely for the purpose of Education Law §3811(1)" that the Respondent is entitled to a certificate of good faith.

The decision is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume56/d17055

An employer may be vicariously liable for an allegedly slanderous statement made by its employee

An employer may be vicariously liable for an allegedly slanderous statement made by its employee

2017 NY Slip Op 05353, Appellate Division, Fourth Department

The Plaintiff in this action against a village and an employee of the village [Defendants] alleged that an employee of the village made defamatory remarks*concerning the Plaintiff in the course of her employment as an administrative assistant of the village.

Addressing appeals concerning the disposition of motions for summary judgment dismissing the Plaintiff's petition filed by the Defendants, the Appellate Division said:

1. It is well established that, although "[s]lander as a rule is not actionable unless the plaintiff suffers special damage," where, as here, a statement charges plaintiff with a serious crime, the statement constitutes "slander per se" and special damage is not required.

2. In situations involving "slander per se," the defendants may claim a qualified privilege contending that there was a good faith, bona fidecommunication upon a subject in which the individual has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest.

3. In the event the defendants in such an action meet their initial burden of establishing that any of the alleged disparaging statements are protected by a qualified privilege inasmuch as they were made between members of the organization in connection with the plaintiff's application for employment, membership or a similar relationship, "the burden shifted to plaintiff to raise a triable issue of fact whether the statements were motivated solely by malice."

4. In the event the plaintiff raises an issue where a jury could reasonably conclude that malice was the one and only cause for the publication of the statements claimed by the plaintiff to constitute slander, the plaintiff has raised an issue of fact whether statements were motivated solely by malice and thus are not protected by a qualified privilege.

5. Citing Seymour v New York State Elec. & Gas Corp., 215 AD2d 971, the Appellate Division noted that an employer may be held vicariously liable for an allegedly slanderous statement made by an employee only if the employee was acting within the scope of his or her employment at the time that the statement was made.

In this action the Appellate Division concluded that the village failed to establish its  entitlement to summary judgment as a matter of law on the theory that the administrative assistant was not acting within the scope of her employment when she allegedly made disparaging statements concerning Plaintiff to other officials or employees of the village.

* A false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation. An oral utterance that inaccurately accuses a person of a serious crime can be slander per se as can oral statements alleging an individual's being infected with some disease that would result in his or her being ostracized from society, or being unfit to perform of his or her duties as an officer or employee. Defamatory words that could prejudice the individual in his or her profession or trade or the chastity of the individual have been held to constitute slander per se.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05353.htm

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law
Kirsch v Board of Educ. of Williamsville Cent. Sch. Dist., 2017 NY Slip Op 05547, Appellate Division, Fourth Department

Kim A. Kirsch filed a petition pursuant to CPLR Article 78 seeking a court order directing the Williamsville Central School District's Board of Education [Board] to comply with her Freedom of Information Law [FOIL] request. Kirsch's FOIL request sought certain email records.

In its review of a Supreme Court's ruling directing the Board to provide the records demanded by Kirsch the Appellate Division addressed the following objections raised by the Board:

1. Standing to submit a FOIL request.

The Board contended that Kirsch's attorney, Michael A. Starvaggi, Esq., the individual submitting the FOIL request, "lacked standing" to maintain the Article 78 action. The Appellate Division rejected this claim, explaining FOIL provides that "Any person denied access to a record may appeal and seek judicial review of any adverse appeal determination," and "any person on whose behalf a FOIL request was made has standing to maintain a proceeding to review the denial of disclosure of the records requested."

The court noted that the administrative appeal letter expressly stated that Starvaggi was making the request on behalf of Kirsch and concluded that Kirsch had "standing to maintain this proceeding."

2. Statute of Limitations.

Notwithstanding the fact that the Board's claim that the action was untimely was not "preserved for [the Appellate Division's] review," the court elected to consider the merits of its argument that the proceeding is barred by the statute of limitations. In so doing, the Appellate Division opined that the Board "failed to meet [its] burden of establishing that petitioners received notice of the final decision denying the administrative appeal more than four months before the proceeding was commenced.

3. Adding another party to the action.

The Board objected to Supreme Court's granting Starvaggi's oral motion to amend Kirsch's Article 78 petition "to add Starvaggi as a petitioner." The Appellate Division sustained the lower court's granting his oral motion "under the circumstances" in this action. Significantly, the court said that the relation back doctrine* permited the addition of Starvaggi after the expiration of the statute of limitations as the claims brought by Starvaggi and Kirsch are identical in substance - i.e., that Board improperly denied the FOIL request made by Starvaggi on behalf of Kirsch, and Starvaggi and Kirsch are united in interest in seeking compliance with that request.

4. Exemptions from disclosure.

The Board contended that the emails may contain "exempt material." The Appellate Division affirmed the Supreme Court directing the Board to provide Kirsch and Starvaggi  with the requested emails, "with any claimed exemptions from disclosure documented in a privilege log that may be reviewed by the court."

Addressing the Board's "broad allegation here that the [emails may] contain exempt material," the Appellate Division said that such a representation "is insufficient to overcome the presumption that the records are open for inspection . . . and categorically to deny petitioner[s] all access to the requested material."

Further, said the court, should the Board establish that a requested email contains exempt material, "the appropriate remedy is an in camera** review and disclosure of all nonexempt, appropriately redacted material."

5. Identification of the records demanded.

Noting that Kirsch and Starvaggi had "reasonably described" the requested emails thus enabling the Board to identify and produce the records, the Appellate Division, citing Konigsberg v Coughlin, 68 NY2d 245, held that the Board "cannot evade the broad disclosure provisions of [the] statute . . . upon the naked allegation that the request will require review of thousands of records."

It should be remembered that the basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The release of certain public records, such as those identified in Civil Rights Law §50-a, Education Law §1127 - Confidentiality of records and §33.13 Mental Hygiene Law - Clinical records, are examples of records to which access has been limited by statute. 

Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. Submitting a "formal" FOIL request becomes necessary only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a formal FOIL request to obtain the information.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian of the record could rely upon in denying a FOIL request, in whole or in part, for the information or records sought.

* Apply the Doctrine of Relation Back permits "something done today" to be treated as though it "were done earlier" notwithstanding the fact that the otherwise controlling statute of limitations had already expired.

** A hearing held conducted by the court or hearing officer in private or when the public is excluded from the proceeding to consider a particular issue is referred to as being held in camera.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05547.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 14, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 14, 2017

Click on text highlighted in color  to access the full report

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

DiNapoli report highlights local government reliance on federal aid

On July 14, 2017, State Comptroller Thomas P. DiNapoli issued a report  detailing the impact of federal aid on New York’s municipalities and school districts. In 2015, local governments and school districts outside New York City received $4.7 billion in direct federal aid. Separately, New York City received $7 billion, of which $1.7 billion went to funding the city’s public schools. “Local governments receive much-needed federal aid that supports our schools, fixes our roads and keeps our communities safe,” said DiNapoli. “But potential policy changes in Washington could have a considerable impact on local government operations. In today’s political climate, it’s important for New Yorkers to get a sense of how much funding is at stake and what programs might be at risk.”

How heavily local governments rely on federal aid as part of their individual revenue mix varies by class.  In 2015, federal aid as a share of total revenue was the highest for counties (11.2 percent), followed by New York City (10.1 percent), New York City schools (6.5 percent), other cities in the state (5.7 percent), other school districts (4.1 percent), villages (2.9 percent) and towns (2.7 percent). Reliance on federal aid can also vary widely within these classes of government. Specific data on each county, city, town, village and school district for 2015 is available through a new, interactive feature on DiNapoli’s website.

Generally, the type of federal aid New York’s local governments received in 2015 supported a broad range of purposes, which includes social services, education, transportation, public safety, economic development, health, community services, culture and recreation, utilities and sanitation.

To read DiNapoli’s report “The Impact of Federal Aid on New York’s Local Governments,” go to:

 http://www.osc.state.ny.us/localgov/pubs/research/federal-aid-impact.pdf

To view the interactive data, go to: http://wwe1.osc.state.ny.us/localgov/fedaid/fedaid.cfm 


State audits and examinations issued:

Department of Health (DOH): Medicaid Program: Medicaid Payments for Pharmacy Claims - Joia Pharmacy and a Related Prescriber (2013-S-4)

Based on a statistical projection, auditors determined DOH overpaid Joia $1,485,121 for improper pharmacy claims. Disallowances included: claims billed for excess quantities of drugs; claims for drugs in which the prescriptions were missing or invalid; and claims for unauthorized and inappropriate refills. The audit also identified a range of practices by both Joia and a doctor that warrant further review. The doctor was listed as the prescriber on 63 percent of Joia’s claims; among these claims, auditors found high volumes of prescriptions for individual patients on single days, and instances of drug conflicts and prescriptions that exceeded utilization.

Department of Health (DOH): Inappropriate Payments for Recipients not Enrolled in Medicaid Mainstream Managed Care or Family Health Plus (2015-S-47)  
For the period Oct. 1, 2010 through Dec. 31, 2014, DOH made 190,686 improper or questionable premium payments, totaling about $72.6 million, on behalf of 105,358 recipients who were subsequently disenrolled retroactively from managed care plans and who did not receive medical services during the disenrollment periods. This included more than $10.5 million related to 7,415 deceased recipients. During the six-month period after auditors provided the claim details to DOH, 14,209 claims totaling more than $7.4 million in improper premium payments had been voided, leaving 176,477 premium payments totaling about $65.2 million that still needed to be reviewed and, if warranted, recovered.

New York State Health Insurance Program: Empire BlueCross BlueShield (Empire): Controls over Payments for Special Items (2016-S-67)
In response to prior audits, Empire improved its controls over the identification and recovery of overpayments for special items. As a result of Empire’s efforts, including contracts with two vendors, Empire recovered overpayments totaling $6,313,534 for special items. Nonetheless, auditors concluded that Empire needs to further enhance its reviews of special item payments by incorporating steps and techniques that result in additional recoveries.

New York State Liquor Authority (SLA): Statewide Compliance with Administrative Requirements for Retail Liquor License Approvals, Renewals, and Enforcement Actions (2016-S-32)
On a statewide basis, SLA generally approved new liquor licenses and license renewals consistent with state law and its prescribed administrative protocols. SLA adequately ensured that license applicants and parties seeking renewals complied with the prescribed documentation requirements. For the new license applications selected for review, SLA had 99 percent of the required documentation on file. SLA also complied with its administrative requirements pertaining to license revocations, cancellations, and suspensions.

Department of Health, Office of Parks, Recreation and Historic Preservation - Department of Environmental Conservation Oversight of Health and Safety Regulations at Public Pools, Beaches, and Spray Grounds (2016-S-55)
All three agencies have appropriate controls in place and are providing adequate oversight to ensure that public pools, beaches, and spray grounds under their jurisdiction are safe for public use. Each agency has developed procedures to address health and safety issues at each of the facilities it operates or oversees.

New York City Department of Finance: Selected Controls over Property Tax Assessments (2015-N-1)
Auditors reviewed 508 parcels valued during fiscal year 2014 to fiscal year 2016 and found the agency  did not conduct necessary inspections for 276 (54 percent) of them. Without the required inspections, DOF cannot be certain such changes are adequately considered when valuing a property.

Office of Temporary and Disability Assistance (OTDA):  Electronic Benefit Transfer Card Transactions and Prohibited Locations(2016-S-52)
OTDA has adopted appropriate policies and practices to avoid the risk of federal financial penalties. In addition, auditors found the office’s monitoring of EBT transactions to generally be adequate, but identified certain strategic refinements that could help the office to better monitor transactions and identify violations. Auditors analyzed client card usage at prohibited locations and identified 15 recipients with 20 or more EBT transactions. Of these, seven recipients had 20 or more transactions at the Turning Stone Casino, including one recipient with 71 EBT card transactions totaling more than $3,360.

Department of State (DOS): Monitoring of Not-for-Profit Cemetery Corporations for Fiscal Stability and Adequate Facility Maintenance (2016-S-79)
As of Sept. 30, 2016, DOS records indicate 642 cemeteries (37 percent) had overdue audits and 285 (16 percent) had delinquent annual reports. For 145 cemeteries (8 percent), audits were overdue and annual reports were delinquent as well. As of Dec. 1, 2016, 391 cemeteries (22 percent) had not been inspected in over seven years.

Municipal audits and examinations issued:

Village of Fleischmanns – Financial Condition and Clerk-Treasurer’s Duties (Delaware County)
The board has not developed a multiyear financial plan and did not adopt effective budgets because it did not receive accurate and sufficient financial information from the clerk-treasurer. Unpaid property taxes ($101,000) and water bills ($64,000) have severely impacted the village’s financial condition. The board also did not conduct an annual audit of the clerk-treasurer’s records and reports.

Village of Old Westbury – Justice Court (Nassau County)
The justices correctly reported financial activities to the Justice Court Fund on a monthly basis. However, they did not perform bank reconciliations or accountability analyses on a monthly basis during the audit period. As a result, two of the three judges had cash overages totaling $1,743.

Town of Orangetown – Overtime (Rockland County)
The board did not develop overtime budgets based on known needs and historical trends. Officials did not adequately monitor adopted budgets and allowed them to be over-expended each year. Auditors also found that although the police department’s collective bargaining agreement allows officers to accumulate up to 80 hours of overtime during the year, town officials did not adhere to those limits.

Town of Portland – Water Operations (Chautauqua County)
The town’s unaccounted-for water during the past two years was approximately 38 million gallons, or 40 percent of total production. Inaccurate master meters and customer meters have contributed to the unaccounted-for water. Water Districts 1, 3 and 7 reported deficit fund balances as of December 31, 2016, and all but two water districts realized operating deficits in 2016.

Rockville Centre Housing Authority – Claims Auditing and Cash Receipts (Nassau County)
The board needs to improve the claims auditing process to ensure all claims are properly audited, adequately supported and for legitimate authority purposes. The board also needs to improve its cash receipt process to ensure cash receipt functions are adequately segregated to safeguard authority assets.

Village of Southampton – Fire Department Length of Service Award Program (Suffolk County)
The village’s length of service award program (LOSAP) records for 47 of the department’s 138 active volunteers showed that at least 27 of these volunteers did not receive accurate LOSAP points. This may result in the loss of future benefits for volunteers or, conversely, in the village incurring more LOSAP costs than necessary.

Westchester Community College – Fixed Assets (Westchester County)
College officials have adopted effective fixed asset policies and procedures. The fixed asset policies and procedures establish the minimum cost to determine when assets should be recorded in the inventory records.

City of Yonkers – Budget Review (Westchester County)
The 2017-18 budget relies on nonrecurring revenue, such as fund balance, to balance its budget. The city could potentially face a shortfall of approximately $1.7 million in revenue if income tax surcharges remain at 2016-17 levels and a shortfall of $515,000 if revenue estimates from the Parking Violations Bureau are not realized. Police overtime costs could potentially be over budget by as much as $2.6 million based on the 2016-17 fiscal year overtime costs.

For access to state and local government spending and 50,000 state contracts, visit OpenBookNY. The easy-to-use website was created by Comptroller DiNapoli to promote openness in government and provide taxpayers with better access to the financial workings of government.

 

Attempting to vacate an adverse arbitration award rendered after a consensual arbitration process

Attempting to vacate an adverse arbitration award rendered after a consensual arbitration process

Transit Workers Union, Local 100 v New York City Tr. Auth., 2017 NY Slip Op 05446, Appellate Division, Second Department

The New York City Transit Authority [CTA] terminated the employment of a member of the Transit Workers Union, Local 100 [Local 100], a bus CTA driver, who had been involved in an incident with a pedestrian. Local 100 filed an Article 75 action seeking a court order vacating an arbitration award that held that CTA had just cause to terminate Local 100's member's employment because of the incident.

The Supreme Court denied the petition and Local 100 appealed.

The Appellate Division sustained the lower court's decision, explaining that "Where, as here, an arbitration award was rendered after a consensual arbitration process pursuant to the terms of a collective bargaining agreement, the award may not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation of the arbitrator's power."

Contrary to Local 100's contention that the arbitrator's award was irrational, the Appellate Division ruled that "the arbitrator's award was supported by evidence in the record and is, therefore, rational."

Local 100 also argued that the penalty imposed, termination from employment, was irrational. The Appellate Division said it disagreed and sustained the dismissal of the bus driver from employment by CTA, concluding that the penalty did not violate any strong public policy or clearly exceed an enumerated limitation on the arbitrator's power.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05446.htm

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