Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions

Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions

Appeal of Diana Marie Van Vleet, Decisions of the Commissioner of Education, Decision No. 17,538

Diana Marie Van Vleet appealed an action of Molloy College, an institution of post-secondary education concerning Ms. Van Vleet's being given a failing grade in a course. 

The record before the Commissioner of Education indicated that at the time of the events described in this appeal, Ms. Van Vleet was enrolled as a student at Molloy College and here presents claims against Molloy College and several of its officers and employees asserting that she was improperly given a failing grade in one of her courses. 

The Commissioner said that Ms. Van Vleet's appeal must be dismissed as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  The pertinent portion of Education Law §310 reads as follows:

"Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action: 7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools."

In the words of the Commissioner, "[t]his grant of jurisdiction does not extend to acts or omissions of institutions of post-secondary education. The Commissioner explained that while the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, " the text do not stand alone and are "circumscribed and modified by the contextual words which precede and follow them.”

Citing Bd. of Educ. of City Sch. Dist. of City of Rome v. Ambach, 118 AD2d 932 and Application of Bowen, 17 AD2d 12, aff’d 13 NY2d 663, the Commissioner said courts have held that “the statute deals throughout with the common schools and, inferentially, ... it does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law,” the Commissioner dismissed Ms. Van Vleet's appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17538

Audits and reports issued by New York State Comptroller Thomas P. DiNapoli during the week ending December 21, 2018

Audits and reports issued by New York StateComptroller Thomas P. DiNapoli during the week ending December 21, 2018

Source: Office of the State Comptroller

Click on text highlighted in color to access the full report

Department of Health: Medicaid Overpayments for Medicare Part B Services Billed Directly to eMedNY (2017-S-36)
Auditors identified up to $8.7 million in improper payments for costs related to Medicare Part B deductibles and coinsurance between 2012 and 2017. Auditors found that Medicaid made: questionable payments totaling $5.3 million to providers who claimed excessive Part B coinsurance amounts; overpayments totaling $2.3 million to providers for the Part B coinsurance on services Medicaid did not cover; and overpayments totaling $1.1 million to providers for Part B deductibles that exceeded yearly limits.

Department of Health: Medicaid Overpayments for Medicare Advantage Plan Services (2017-S-46)
During the audit period, 2013 through 2017, Medicaid was the primary payer on 92,296 claims totaling almost $12.8 million for services typically covered by a recipient’s plan. Auditors sampled 266 such claims (totaling $220,661 in Medicaid payments) to determine the appropriateness of the payments. Auditors found that for 187 claims the provider either never billed the plan for the services, incorrectly indicated a plan payment of zero on its Medicaid claim or did not follow the plan’s billing guidelines. Medicaid paid $183,019 on these claims, while its actual obligation amounted to only $5,484. During the audit, certain providers acknowledged receiving overpayments and repaid Medicaid $25,300, leaving $152,235 to be recovered.

Department of Health: Improper Medicaid Payments for Recipients in Hospice Care (2017-S-76)
Auditors identified about $8 million in inappropriate Medicaid payments for services provided to hospice recipients, including: $2.9 million for services that were not allowed in combination with the daily hospice rate; $2.4 million for drugs, durable medical equipment, home care, and other services that are covered under the daily hospice rate; $2.6 million for services that should have been covered by Medicare or a Medicaid managed care organization; and $107,141 for hospice services while the patient was in the hospital.

Department of Labor (DOL): Protection of Child Performers (Follow-Up) (2018-F-24)
An initial audit found DOL had not created a sound and effective system of internal controls for the Child Performers Unit and did not have the necessary controls to monitor and enforce compliance with regulations designed to protect child performers’ earnings. Auditors also found that DOL’s electronic permit application system had significant data entry, maintenance, and functionality deficiencies that limited its effectiveness and reliability as a monitoring tool. In a follow-up, auditors found DOL officials have not made progress in addressing the issues identified in the initial report.

Department of Motor Vehicles (DMV): Registration and Enforcement of Automotive Service, Sales, and Salvage Facilities (Follow-Up) (2018-F-25)
State law outlines DMV’s responsibilities for administering the registration and licensing for certain types of automotive businesses, including registration of repair shops, dealers, dismantlers, and junk and salvage facilities and licensing of inspection stations. Where facilities are found to be in violation of laws, rules, or regulations, DMV must take necessary actions against them, which may include issuing penalties, suspending or revoking registrations/licenses to operate, or referring the operator or facility for criminal prosecution. An audit issued in August 2017 identified many locations where businesses could potentially be operating without a license. Auditors also identified delays in DMV’s process for handling consumer complaints. In a follow-up, auditors found DMV officials have made significant progress in correcting the problems identified in the initial report.

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 150,000 contracts, billions in state payments and public authority data. 

 

Procedural considerations relevant to conducting a disciplinary hearing pursuant to §75 of the Civil Service Law

Procedural considerations relevant to conducting a disciplinary hearing pursuant to §75 of the Civil Service Law

Tinter v Board of Trustees of the Pound Ridge Lib. Dist., 2017 NY Slip Op 08385, Appellate Division, Second Department

In this appeal from a disciplinary determination following a Civil Service Law §75 disciplinary hearing that resulted in the termination of the employee [Petitioner], the Petitioner challenged, among other things, the authority of the hearing officer to conduct the hearing.

The Appellate Division said that the Board of Trustees of the Pound Ridge Library District's [Board] minutes reflecting a resolution to appoint the Hearing Officer and the letter addressed to the Hearing Officer on Pound Ridge Library letterhead and signed by the Board's president, advising that the Hearing Officer had been designated to hold a hearing on the disciplinary charges preferred against Petitioner and on "amendments or supplements to the charges as might thereafter be preferred ... sufficiently documented the validity of the Hearing Officer's appointment and satisfied the relevant provisions of Civil Service Law §75(2), citing McKenzie v Board of Education, City School District of Albany, 100 AD3d 1096.

Petitioner also challenged certain members of the Board participating in the Board's review of the findings and recommendations of the Hearing Officer.

Citing Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714, the Appellate Division stated that while individuals "who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges", the "[i]nvolvement in the disciplinary process does not automatically require recusal." The court opined that the Board members who reviewed the recommendations of the Hearing Officer and acted on the charges "were not so personally or extensively involved in the disciplinary process so as to compel the conclusion that they could not fairly consider the evidence and recommendation resulting from the hearing and, thus, that their recusal was necessary."

Another issue raised by Petitioner was the Hearing Officer's involvement in another matter. The Appellate Division said that "[c]ontrary to the [Petitioner's] contention, the Hearing Officer's undisclosed participation in another matter involving the Board's counsel did not compel the Hearing Officer's disqualification."

With respect to Petitioner's claim that the Board's determination should be annulled because the Board made no independent review of the record, the Appellate Division found that the Board "had an opportunity to review the record, transcripts, exhibits, and post-hearing memorandum," and Petitioner "failed to make any clear showing that the Board did not make an independent appraisal and did not reach an independent conclusion."

Note:With respect to an appointing authority's review of the hearing record, in cases in which a board is the appointing authority and is voting to accept a hearing officer’s finding of fact, each member of the board must make an independent review of the record. This means a copy of the transcript must be made available to each member of the board who votes. The appointing authority, however, is not required to read every page of the transcript taken at a disciplinary hearing. In McKinney v Bennett, 31 AD3d 860, the Appellate Division held that the appointing authority was not required to read all 1,228 pages of the hearing transcript and each document submitted, citing Matter of Taub v Pirnie, 3 NY2d 188. In Stanton v Board of Trustees, 157 AD2d 712, the court commented that Stanton failed to demonstrate that the appointing authority "made no independent appraisal and reached no independent conclusion”, quoting Matter of Kilgus v Board of Estimate of City of N.Y., 308 NY 620.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08385.htm

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

Sears v DiNapoli, 2018 NY Slip Op 08610, Appellate Division, Third Department

§803.a of the Retirement and Social Security Law [RSSL] addresses processing applications for retroactive membership in a public retirement system of New York State and provides, in pertinent part, that "A public retirement system shall have the authority to grant relief from a failure to file an application for membership in that system in connection with service rendered prior to April first, nineteen hundred ninety-three in accordance with the provisions of this [§803]."

Patricia Sears, a permanent employee of the Department of Taxation and Finance [T&F] from November 1977 until her retirement in July 2015 was enrolled in ERS as a Tier 3 member.  Prior thereto her permanent appointment in 1977, Sears had been employed by T&F as a seasonal employment on two occasions, initially from March 4, 1976 to June 30, 1976 and then again from January 6, 1977 until September 16, 1977. Prior to the commencement of her second temporary period of employment with T&F Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*

After RSSL §803 was enacted in 1993, Sears sought, but was denied, retroactive Tier 2 membership in ERS. Shortly before Sears retired in July 2015, she again sought to have her ERS membership in Tier 3 changed to a Tier 2 membership. Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.

The Appellate Division said the ERS conceded, and its review of the record confirms, that the underlying determination denying Sears' application to Tier 2 membership in ERS was not supported by substantial evidence. In words of the court, "As the Hearing Officer aptly observed, the waiver signed by [Sears] in December 1976 cannot be applied retroactively to encompass [Sears'] initial period of seasonal employment from March 1976 to June 1976, and Sears testified without contradiction that she was neither offered an opportunity to join nor declined membership in the Retirement System at that time."

The court explained that there was no information in Sears' personnel file regarding her membership options or opportunities when she was first hired in 1976, nor were there any current employees who could attest to the membership notification procedures that were in place when Sears was initially employed by T&F. Further, said the court, the documentary proof offered at the hearing was insufficient to establish, among other things, that Sears participated in a procedure that a reasonable person would recognize as an opportunity to join or decline membership in the Retirement System.

Accordingly, the Appellate Division annulled the Comptroller's determination, granted Sears application for retroactive Tier 2 status in ERS and remitted the matter to ERS "further proceedings not inconsistent with this Court's decision."

In contrast, see Schuyler v New York State & Local Employees' Retirement System at http://www.nycourts.gov/reporter/3dseries/2018/2018_00874.htm where the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit."

* Frequently employees, other than employees in the Labor Class, eligible for membership in ERS but not required to become a member, declined becoming a member in order to avoid being required to make employee contributions to ERS and participating in Social Security. Employees in the Labor Class were required to participate in Social Security regardless of their membership in ERS.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08610.htm

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

Smith v. Town of Ramapo, USSC, Second Circuit, Docket 18-148-cv*

The single issue before the court in this appeal was whether Raymond K. Smith’s inability to perform the essential functions of his job at the time of the alleged discrimination forecloses his claim of discrimination under §102(a) of the Americans with Disability Act [ADA].   

Due to an injury Smith could no longer work as a police officer and Ramapo approved his disability status under New York General Municipal Law §207-c.** Smith alleged that Ramapo treated him differently than nondisabled officers in violation of the ADA.   

After qualifying for §207-c disability benefits, Smith was not permitted to use vacation days he had previously accrued when working as a police officer; and, while disabled, Smith was unable to accrue new vacation time or to take bereavement leave. The district court concluded that Smith failed to plead a necessary element of his ADA discrimination claim, namely that he was qualified to be a police officer at the time of the alleged discrimination. The Circuit Court agreed, explaining that one of the elements of a claim under the ADA is that an employee was "qualified to perform the essential functions of his job, with or without reasonable accommodation."

Smith’s injury, however, severely limited the use of his arm and shoulder and left him unable to engage in many daily activities and nowhere in his complaint did he claim that following his injury he could have performed the essential duties of a police officer, either with or without a reasonable accommodation. 

Citing Stevens v. Rite Aid Corp., 851 F.3d 224, the Circuit Court noted that where a disability renders an individual unable to perform the essential functions of the job, "that disability renders him or her unqualified.”

Thus Smith’s failure to plead that he was qualified to be a police officer is fatal to his claim. Although Smith cited Castellano v. City of New York, 142 F.3d 58, in contending he was "qualified' to be a police officer at the time he earned certain benefits, and that he is entitled to those benefits under the ADA regardless of his ability to serve as a police officer at the time of the discrimination, the court said that "Smith misreads Castellano, and his claim was properly dismissed," noting that Castellano hold that retired employees who were qualified to perform the essential functions of their jobs while employed remain entitled to receive post-employment benefits. The general rule, said the Circuit Court, is that the determination of whether a person is "qualified" should be made at the time of the discriminatory employment action and Castellano created a narrow exception to the rule for post-employment benefits intended to be used by retirees.   

In any event, the court indicated Smith’s claims were not about post-employment benefits, or any benefit used by a former employee., nor did he allege that he was ultimately deprive of the value of any previously accrued benefit, such as a payout for his accumulated vacation days.   

As the Castellano’s exception does not apply in Smith's situation and because Smith failed to plead that he was able to perform the essential duties of a police officer at the time of the alleged discrimination, the court ruled that he "failed to state a claim for disability discrimination."

Click here to Read a FREE excerpt from Disability Benefits for fire, police and other public sector personnel in New York State.

* The decision noted that it is a "Summary Order" and rulings by summary order do not have precedential effect.

** §207-c  provides for the payment of salary and medical expenses to a police officer who is injured in the performance of his or her official duties.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/doc/18-148_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/hilite/

Determining the liability of a government entity for an alleged negligent performance of a governmental function

Determining the liability of a government entity for an alleged negligent performance of a governmental function

Wilson v New York City Bd. of Educ., 2018 NY Slip Op 08534, Appellate Division, Second Department

Judith Wilson, an elementary school principal, allegedly was injured when a 12-year-old student grabbed a cell phone from Wilson's hand. Wilson commenced this action to recover damages for personal injuries against the New York City Board of Education and the City of New York, [BOE] alleging that a school safety officer failed to adequately protect her. The critical issue to be determined in this action was the liability of the BOE for the injury suffered by Wilson. However, Supreme Court granted BOE's motion for summary judgment and Wilson appealed.

Sustaining the lower court ruling, the Appellate Division explained that a school district may not be held liable for the negligent performance of its governmental function of supervising children in its charge in the absence of a special duty to the person injured. The court then indicated that there are three ways in which a special relationship with a municipal defendant can be formed with teachers, administrators, or other adults on or off school premises: 

(1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons;

(2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or

(3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation" 

The Appellate Division further explained that with respect to a special relationship based upon a duty voluntarily assumed by the municipality, such a relationship requires proof of the following four elements:

(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured;

(2) knowledge on the part of the municipality's agents that inaction could lead to harm;

(3) some form of direct contact between the municipality's agents and the injured party; and

(4) that party's justifiable reliance on the municipality's affirmative undertaking.

In addition, said the court, the "assurance" by the municipal defendant must be definite enough to generate justifiable reliance by [Wilson]" citing Dinardo v City of New York, 13 NY3d 872.

Ruling that the Board of Education established, prima facie, that it did not owe Wilson a special duty and that Wilson failed to raise a triable issue of fact, the Appellate Division said it agreed with the Supreme Court's determination granting BOE's motion for summary judgment dismissing Wilson's complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08534.htm

NYS Assembly Speaker Heastie announces leadership positions and committee chairs for 2019 Legislative Session

NYS Assembly Speaker Heastie announces leadership positions and committee chairs for 2019 Legislative Session

Source: NYS Assembly Press Office Release

Speaker Carl E. Heastie

Majority Leader Crystal D. Peoples-Stokes

Chair, Ways and Means Helene E. Weinstein

Deputy Speaker Catherine Nolan

Assistant Speaker Félix W. Ortiz

Speaker Pro Tempore Jeffrion L. Aubry

Chair, Committee on Committees Vivian E. Cook

Assistant Speaker Pro Tempore N. Nick Perry

Deputy Majority Leader Phil Ramos

Assistant Majority Leader David F. Gantt

Majority Whip William Colton

Deputy Majority Whip José Rivera

Assistant Majority Whip Michael Miller

Chair, Majority Conference Steven Otis

Vice Chair, Majority Conference Erik M. Dilan

Secretary, Majority Conference Rebecca A. Seawright

Chair, Majority Program Carmen E. Arroyo

Chair, Majority Steering Barbara Lifton

Vice Chair, Majority Steering John T. McDonald III

Chair, House Operations Ron Kim

Chair, Puerto Rican/Hispanic Task Force Maritza Davila

STANDING COMMITTEES

Chair, Aging Harry B. Bronson

Chair, Agriculture Donna A. Lupardo

Chair, Alcoholism & Drug Abuse Linda B. Rosenthal

Chair, Banks Kenneth Zebrowski

Chair, Children & Families Ellen Jaffee

Chair, Cities Edward C. Braunstein

Chair, Codes Joseph R. Lentol

Chair, Consumer Affairs Michael G. DenDekker

Chair, Corporations, Authorities & Commissions Amy Paulin

Chair, Correction David I. Weprin

Chair, Economic Development Robin Schimminger

Chair, Education Michael Benedetto

Chair, Election Law Charles D. Lavine

Chair, Energy Michael Cusick

Chair, Environmental Conservation Steve Englebright

Chair, Ethics & Guidance Aravella Simotas

Chair, Governmental Employees Peter J. Abbate, Jr.

Chair, Governmental Operations Michele R. Titus

Chair, Health Richard N. Gottfried

Chair, Higher Education Deborah J. Glick

Chair, Housing Steven Cymbrowitz

Chair, Insurance Kevin A. Cahill

Chair, Judiciary Jeffrey Dinowitz

Chair, Labor Marcos A. Crespo

Chair, Libraries & Education Technology Sean Ryan

Chair, Local Governments Fred W. Thiele, Jr.

Chair, Mental Health Aileen M. Gunther

Chair, Oversight, Analysis & Investigations Thomas J. Abinanti

Chair, Racing & Wagering J. Gary Pretlow

Chair, Real Property Taxation Sandy Galef

Chair, Small Business Al Stirpe

Chair, Social Services Andrew Hevesi

Chair, Tourism Daniel J. O'Donnell

Chair, Transportation William B. Magnarelli

Chair, Veterans Affairs Didi Barrett

TASK FORCES & LEGISLATIVE COMMISSIONS

Chair, Administrative Regulations Review Dan Quart

Chair, Farm, Food & Nutrition Michaelle C. Solages

Chair, Government Administration David Buchwald

Chair, New Americans Victor M. Pichardo

Chair, People with Disabilities Phil Steck

Chair, Reapportionment Robert J. Rodriguez

Chair, Rural Resources Angelo Santabarbara

Chair, Science & Technology Patricia Fahy

Chair, Skills Development & Career Education Walter T. Mosley

Chair, State-Federal Relations Nily Rozic

Chair, Women's Issues Latrice Walker

Correcting errors made in determining an individual's retirement allowance even after benefits are awarded

Correcting errors made in determining an individual's retirement allowance even after benefits are awarded

Smith v DiNapoli, 2018 NY Slip Op 08606, Appellate Division, Third Department

A one-time, 30-day overtime pay earned in the last year of a member's employment is excluded from the member's final average salary calculation as such payments are deemed "termination pay" within the meaning of  §302(9)(d) of the Retirement and Social Security Law [RSSL].

A member [Retiree] of the New York State and Local Retirement System [ERS] retired in August 1998 and commenced receiving his retirement pension. In 2012, ERS notified Retiree that it had reviewed the calculation of his final average salary used to compute his retirement benefits and determined that his one-time, 30-day overtime pay earned in the last year of his employment should have been excluded from the final average salary as mandated by §302(9)(d). Retiree challenge the determination but the Comptroller adopted a Hearing Officer decision that the 30-day overtime payment was properly excluded from Retiree's final average salary as it constituted termination pay and compensation in anticipation of retirement and, as such, was not includable pursuant to RSSL §431(2) and (3). Retiree then appealed the Comptroller's decision.

Citing Matter of Chichester v DiNapoli, 108 AD3d. The Appellate Division confirmed the Comptroller's decision 924, the court explained that "[T]he Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld — even if other evidence in the record could support a contrary result."

As relevant here, Retiree's "final average salary" was defined as "the regular compensation earned from [the] employer during the twelve months of actual service immediately preceding the date of [retiree's] retirement," with certain exclusions permitted pursuant to RSSL §302[9][d]. This, said the Appellate Division was "In order to avoid the artificial inflation of that figure." In computing retirement benefits the base salary excludes, as pertinent here, "any form of termination pay" and "any additional compensation paid in anticipation of retirement."

Significantly, observed the court, "the determination of what constitutes termination pay or compensation in anticipation of retirement requires that we 'look to the substance of the transaction and not to what the parties may label it.'" As substantial evidence supported the Comptroller's determination that the payment for 30 days of overtime in retiree's final year of service is excludable in arriving at his final average salary, as it constituted a form of termination pay and compensation in anticipation of retirement.

In this instance the relevant employment contract provided that Retiree and certain other employees were required to work overtime without additional compensation until their final year of service, when they could accumulate and were paid for overtime actually earned upon their retirement, such overtime pay "restricted to one-time, one[-]year maximum of 30 days." Retiree conceded that this was taken in the final year to boost his retirement benefits.

Under these circumstances, the Appellate Division held that the Comptroller rationally excluded such sums from retiree's final average salary and corresponding retirement benefit calculation.

Retiree had contended that General Municipal Law §90 provides a basis upon which to permit the inclusion of overtime pay in his final average salary for purposes of calculating his retirement benefits. The court, noting that §90 permits the governing board of a political subdivision of the state to adopt an ordinance, local law, resolution or rule providing for the payment of overtime compensation to public officers and employees, and mandates that such payments be considered as salary or compensation for "the purposes of any pension or retirement system," this statute, which is strictly construed, requires that, for overtime payments to be considered as salary, they must be paid pursuant to "an overtime plan [adopted by the governing board] setting forth in detail the terms, conditions and remuneration for such employment."

As the overtime payment to Retiree was not made pursuant to such an ordinance or resolution adopted by the City Council., his reliance on a 1994 adopted by the City Council was "unavailing." That resolution indicated that the City Council had entered into a memorandum agreement with the police union regarding a labor relations contract, although neither document was provided. Further, observed the court, the resolution "merely authorized the mayor to enter into a labor agreement" with certain employees in the police department but there is no indication that the attached labor relations agreement entered into with Retiree and other nonunion employees — which restricted overtime to a "one-time, one[-]year maximum of 30 days" of overtime and contained no details — was ever approved by the City Council. Indeed, said the Appellate Division, that agreement expressly stated that it was "subject to approval by the City Council."

Finally, the Appellate Division rejected Retiree's argument that the Comptroller is estopped* from correcting the error due to the passage of time. Rather, said the court, "[T]he Comptroller is statutorily required to correct errors in the retirement benefits records and adjust payments accordingly to ensure the integrity of the public retirement system,"** citing Matter of Mowry v DiNapoli, 111 AD3d 1117 and RSSL §111 [c]). Indeed, said the court, noting the decision in Matter of Schwartfigure v Hartnett, 83 NY2d 296, the Comptroller's duty to correct errors is ongoing, and continues even after benefits are awarded and includes the right to recoup overpayments.

* As a general rule, estoppel may not be invoked against the state or its agencies absent a "showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon."

** It is assumed that this duty extends to correcting errors that resulted in a retiree receiving less that the amount to which he or she was entitled.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08606.htm

The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice

The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice

Spence v New York State Dept. of Transp., 2018 NY Slip Op 08594, Appellate Division, Third Department

Certain employees serving with Department of Transportation [DOT] were assigned state-owned vehicles for work and, in some instances, several employees seeking to use the vehicle for commuting as well as for work was authorized.

Wayne Spence, as President of the New York State Public Employees Federation [Petitioner] filed an improper practice charge with Public Employment Relations Board [PERB] alleging that DOT violated the Taylor Law when it unilaterally discontinued providing state-owned vehicles to some of the employees that had submitted a request seeking be assigned a DOT vehicle . After a hearing, an Administrative Law Judge found that DOT's action constituted a violation of the Taylor Law.

DOT appealed and PERB reversed the Administrative Law Judge's decision. PERB, concluding that because DOT retained the discretion to annually review whether employees should be assigned a state-owned vehicle, such employees could not have a reasonable expectation that they would always be provided one.

Petitioner next files an Article 78 petition with Supreme Court seeking a court order annulling PERB's determination. Ultimately the matter was transferred to the Appellate Division.

The Appellate Division found that:

1. The Taylor Law requires all public employers and employee organizations to negotiate in good faith to determine the terms and conditions of employment of employees in the negotiating unit.

2. Where PERB's determination is made after an administrative hearing, such determination must be supported by substantial evidence.

The court found that the record revealed that DOT's assignment of state-owned vehicles to DOT employees was governed by various criteria set out in a manual that had to be met in order for a state-owned vehicle to be assigned. In addition, the manual required the employee seeking to be assigned a state-owned vehicle to submit a "Form EM-30" and justify his or her need for the state-owned vehicle and its use annually.

PERB concluded that "a past practice of assigning state-owned vehicles with commuting privileges did not exist." In this regard, PERB found that the employees had to annually request such vehicle pursuant to a DOT policy and that DOT retained the discretion to approve or deny such request and, therefore, the employees could not reasonably expect to be assigned a vehicle.

The Appellate Division found that PERB's determination was supported by substantial evidence in the record and although the vehicle requests were routinely approved, that fact did not create a past practice nor divest DOT of its right to exercise its discretion in granting or denying the requests or the use of the vehicle for commuting to and from work.

Citing State of New York Dept. of Correctional Servs. v Kinsella, 220 AD2d 19, the court held that "because PERB's determination is supported by substantial evidence, it will not be disturbed notwithstanding the fact that the record contains evidence that would support a contrary result."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08594.htm

Certain personnel records are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted form

Certain personnel records are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted form

New York Civ. Liberties Union v New York City Police Dept., 2018 NY Slip Op 08423, Court of Appeals

New York State's Civil Rights Law §50-a requires that police officer personnel records be kept confidential and sets out a procedure to obtain a court order of disclosure of such records. The New York Civil Liberties Union [NYCLU] sought the disclosure of protected personnel records and documents generated in connection with New York City Police Department [NYPD] disciplinary proceedings that arose out of allegations referred to the NYPD by the New York City Civilian Complaint Review Board [CCRB] NYPD  pursuant to a Freedom of Information Law [FOIL]* request, contending that compliance with Civil Rights Law §50-a is unnecessary where an officer's identifying information is adequately redacted.

The Court of Appeal disagreed, holding that the personnel records requested by NYCLU are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted format.

The CCRB is an independent City agency empowered to receive and investigate allegations of police misconduct involving NYPD officers. If the CCRB "substantiates" a complaint against an officer, it may refer the case to the NYPD for formal disciplinary action. If the NYPD decides to prosecute subject officer, the officer is served with written "Charges and Specifications" setting out the alleged misconduct. Disciplinary proceedings are then by NYPD's internal adjudicatory forum, which hearings are open to the public.

NYCLU submitted a FOIL request to the NYPD seeking (1) "[c]opies of all final opinions, dated from January 1, 2001 to present adjudicating charges and specifications arising out of cases in which the CCRB has substantiated charges against a member of the department," and (2) "[c]opies of documents identifying the formal and final discipline imposed in conjunction with each decision."

The NYPD denied the request, reasoning that the requested records were exempt from disclosure under several FOIL exemptions, including Public Officers Law §87(2)(a), which provides an exception for records that are "specifically exempted from disclosure by state or federal statute." NYPD, among other things, asserted that the records were protected by Civil Rights Law §50-a since they "are used to evaluate the continued employment of police officers by the NYPD."

In response to NYCLU's administrative appeal NYPD granted NYCLU's of the denial of its FOIL request, its appeal was in part and NYPD provided it with more than 700 pages of Disposition of Charges forms with redactions intended to conceal the identifying information of the subject officers and complainants. With respect to the NYCLU's request for "final opinions" -- the approved Report and Recommendation documents -- NYPD denied the appeal, again concluding that the documents were exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a, among other FOIL exemptions, noting that Civil Rights Law §50-a "defines a process which is the exclusive means for obtaining records that fall within its purview" and requires, among other things, "giving notice to the police officer who is the subject of the records, and obtaining a court order directing disclosure pursuant to the process defined in [Civil Rights Law] §50-a(2)."

NYCLU next filed a CPLR Article 78 petition seeking a court order requiring the disclosure of the disciplinary records withheld NYPD. Supreme Court denied the NYPD's subsequent motion to dismiss and directed the NYPD to "select five decisions at random, and redact them to remove anything to identify the subject of the complaint." Supreme Court further ordered the NYPD to notify the subject officers of the proceeding and the proposed redactions. NYPD complied by submitted the redacted documents to Supreme Court for in camera review. NYPD also filed an answer to the NYCLU's petition, contending that disclosure of the documents, even in redacted form, was prohibited by Civil Rights Law §50-a because the redactions could not adequately conceal the officers' identities. The five subject officers similarly objected to the disclosure of the redacted documents.

Supreme Court "deem[ed] the redactions adequate" and ordered that "[a]ll future requests are to be done as were the five in camera submissions. NYPD appealed.

The Appellate Division, citing Short v Board of Mgrs. of Nassau County Med. Ctr., 57 NY2d 399, and Karlin v McMahon, 96 NY2d 842, unanimously reversed the lower court's ruling explaining these two decisions provided "controlling precedent" and thus it could not "order [NYPD] to disclose redacted versions of the disciplinary decisions.

The Court of Appeals said that the disciplinary decisions requested by the NYCLU are quintessential "personnel records" protected by Civil Rights Law §50-a, a statute designed to protect police officers from the use of their records "as a means for harassment and reprisals and for purposes of cross-examination by plaintiff's counsel during litigation." Further, said the court, the protection afforded by Civil Rights Law §50-a is not limited to the context of actual or potential litigation as the "legislative objective" of section 50-a extends "beyond precluding disclosure on behalf of defendants in pending litigation"; it seeks to prevent any "abusive exploitation of personally damaging information contained in officers' personnel records."

The Court of Appeals explained that the documents at issue here are " the very sort of record'" presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law §50-a. Noting that NYCLU's FOIL request seeks internal police department disciplinary records, spanning a 10-year period, that arise from civilian complaints against NYPD officers described the records sought as being "replete with factual details regarding misconduct allegations, hearing judges' impressions and findings, and any punishment imposed on officers," opining that such material was ripe for "degrad[ing], embarrass[ing], harass[ing] or impeach[ing] the integrity of [an] officer", concluding that the documents are, accordingly, "protected from disclosure under Civil Rights Law §50-a."

The court then observed that:

1.  "There can be no question" that Civil Rights Law §50-a permits court-ordered disclosure but "only in the context of an ongoing litigation; and

2. Absent officer consent, protected personnel records are shielded from disclosure "except when a legitimate need for them has been demonstrated to obtain a court order" based on a "showing that they are actually relevant to an issue in a pending proceeding."

In this instance, said the court, and in the context of the NYCLU's FOIL request, the requested records are not "relevant and material" to any pending litigation (Civil Rights Law § 50-a [3]), and accordingly, they are not disclosable.

The court of Appeals also noted that the FOIL exemption at issue, Public Officers Law §87(2)(a), applies not only to §50-a personnel records, but to all records covered by the various "state or federal statutes" that serve to protect the confidentiality of countless categories of individuals, including, but not limited to, sex offense victims; medical patients; and prospective jurors.

Noting that "nothing in FOIL" prohibits an agency from "disclos[ing] exempt records at [its] discretion," there are distinct and mandatory New York statutory provisions expressly operating to guarantee confidentiality notwithstanding FOIL's permissive disclosure regime.

Opinion by Judge Garcia. Chief Judge DiFiore and Judges Fahey and Feinman concur. Judge Stein concurs in result in an opinion. Judge Rivera dissents in an opinion. Judge Wilson dissents in a separate dissenting opinion.

* 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 custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.  The release of some public records, however, may be limited by statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08423.htm

A three-part test is applied by the court to determine if a party to a collective bargaining agreement's demand for arbitration is viable

A three-part test is applied by the court to determine if a party to a collective bargaining agreement's demand for arbitration is viable

City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2018 NY Slip Op 08294, Appellate Division, Second Department

The collective bargaining agreement [CBA] between Local 328 and the City of Yonkers provides a three-step grievance procedure to resolve a dispute involving the interpretation or application of any provision of the CBA. In the event the grievance is not administratively resolved at any of the three step of the grievance procedure, the City or Local 328, as the case may be, may elect to submit the dispute to arbitration.

When the City issued a General Order, General Order No. 4-15, changing certain dispatch response protocols for Emergency Medical Service [EMS] personnel to include new or additional incidents, Local 628 filed a grievance asserting, among other things, that the new protocols had not negotiated with it. After exhausting its internal grievance remedies, Local 628 filed a timely demanded for arbitration of the dispute.

In response to Local 628's demand for arbitration, the City had initiated this Article 75 proceeding in Supreme Court seeking an order permanently staying arbitration, contending that the dispute was not arbitrable. Supreme Court agreed with the City argument and, in effect, granted the City's petition to permanently stay arbitration.

Local 628 appealed the Supreme Court's ruling and the Appellate Division reversed the Supreme Court's determination "on the law."

The Appellate Division, citing Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc., Long Beach Unit, 8 NY3d 465, explained that "[p]ublic policy in New York favors arbitral resolution of public sector labor disputes." A dispute between a public sector employer and an employee, however, is only arbitrable if it satisfies a two-prong test.

Initially the court must determine that there is no statutory, constitutional, or public policy prohibition against arbitrating the grievance. If the demand for arbitration survives this judicial test, the court must then "examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute." Further, when deciding whether a dispute is arbitrable the court may not consider the merits of the dispute as the arbitrator is charged with weighing the merits of the claim.

Noting that it was undisputed that there is no statutory, constitutional, or public policy prohibition to arbitration of Local 628's grievance, the Appellate Division said that the only issue to be resolved is whether the parties, in fact, agreed to arbitrate the dispute.

Citing Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, the Appellate Division explained that "Where, as here, the relevant arbitration provision of the CBA is broad, if the matter in dispute bears a reasonable relationship to some general subject matter of the CBA, it will be for the arbitrator and not the courts to decide whether the disputed matter falls within the CBA."

Local 628's grievance alleged that the City violated Article 33.1 of the CBA, which mandated that the EMS program be kept at the highest level of professional standards based upon the standards in place at the time of the agreement. Local 628 contended that General Order 4-15 increased the call protocols and subjected its members to calls for which they are not trained and lack necessary equipment. Accordingly, said the Appellate Division, the grievance is reasonably related to at least one provision in the CBA, and the Supreme Court should have denied the petition to permanently stay arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08294.htm

Selected Links to featured Employment Law News items from WK Workday

Selected Links to featured Employment Law News items from WK Workday

Posted December 16, 2018

Click on text highlighted in color to access the full report

Average hourly wage across a workweek is relevant unit for determining FLSA minimum wage violation

Premature to find NLRA preempted NYC car wash law before discovery on law’s interference with collective bargaining

San Francisco can’t sue DOJ over rescission of disability, national origin discrimination guidance

NLRB again extends comment period on joint-employer proposal, now to January 14

USCCR pushes for protections against discrimination based on sexual orientation, gender identity

Son had standing to bring retaliation claim based on father’s discrimination complaints against previous employer, but couldn’t show prospective employer knew of complaint

NLRB: Special remedies essential to ensure that employees may freely exercise Section 7 rights

Employee advances OT claims even though facial recognition system reflected 40 hours weekly

Employee fired after refusing to establish MMR immunity or get vaccine can’t revive ADA claims

An administrative determination made after a hearing will be sustained by the court if the decision is supported by substantial evidence

An administrative determination made after a hearing will be sustained by the court if the decision is supported by substantial evidence

DeStefano v Incorporated Vil. of Mineola, 2018 NY Slip Op 08481, Appellate Division, Second Department

Michael A. DeStefano, a member of the Volunteer Fire Department of the Incorporated Village of Mineola, was served with disciplinary charges alleging that he had violated certain provisions of the Fire Department's constitution and by-laws. Found guilty of the charges by the Fire Department's Fire Council [Fire Council], DeStefano membership in Fire Department was terminated.

DeStefano asked the Board of Trustees of the Incorporated Village of Mineola [Board] to review the Fire Council's determination. The Board of Trustees appointed a hearing officer, who conducted a hearing. Following the hearing, the hearing officer recommended that the Fire Council's findings of misconduct and the penalty of termination of DeStefano's membership in the Fire Department be sustained. The Board adopted the recommendation of the hearing officer.

DeStefano appealed the Board's decision by commencing a proceeding pursuant to CPLR Article 78 contending that the Board's determination "was made in violation of lawful procedure and was not supported by substantial evidence."* Supreme Court denied DeStefano's petition and dismissed the proceeding. DeStefano appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division, noting that as a matter of procedure Supreme Court should have transferred the proceeding to the Appellate Division but as the complete record "is now before this Court," held that it would treat the matter as one that has been transferred here and will review the determination de novo."

The court explained that with respect to judicial review of a determination rendered by an administrative body following a hearing, the Appellate Division's function "is limited to consideration of whether the determination is supported by substantial evidence." In this instance, said the Appellate Division, the Board's determination that DeStefano violated certain provisions of the Fire Department's constitution and its by-laws was supported by substantial evidence. Further, said the court, "... contrary to [DeStefano's] contention, certain members of the Fire Council were not required to disqualify themselves from acting on the disciplinary charges filed against him."

With respect to the penalty imposed, termination from the Fire Department, the Appellate Division noted that a court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." 

The Appellate Division said that it found that the penalty of dismissal imposed on DeStefano was "not so disproportionate to the offenses as to be shocking to one's sense of fairness," citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

The court then confirmed the Board's decision and dismissed DeStefano's appeal "on the merits."

* Substantial evidence it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt and "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact [300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176].

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2018/2018_08481.htm

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

Sears v DiNapoli, 2018 NY Slip Op 08610, Appellate Division, Third Department

§803.a of the Retirement and Social Security Law [RSSL] addresses processing applications for retroactive membership in a public retirement system of New York State and provides, in pertinent part, that "A public retirement system shall have the authority to grant relief from a failure to file an application for membership in that system in connection with service rendered prior to April first, nineteen hundred ninety-three in accordance with the provisions of this [§803]."

Patricia Sears, a permanent employee of the Department of Taxation and Finance [T&F] from November 1977 until her retirement in July 2015 was enrolled in ERS as a Tier 3 member.  Prior thereto her permanent appointment in 1977, Sears had been employed by T&F as a seasonal employment on two occasions, initially from March 4, 1976 to June 30, 1976 and then again from January 6, 1977 until September 16, 1977. Prior to the commencement of her second temporary period of employment with T&F Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*

After RSSL §803 was enacted in 1993, Sears sought, but was denied, retroactive Tier 2 membership in ERS. Shortly before Sears retired in July 2015, she again sought to have her ERS membership in Tier 3 changed to a Tier 2 membership. Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.

The Appellate Division said the ERS conceded, and its review of the record confirms, that the underlying determination denying Sears' application to Tier 2 membership in ERS was not supported by substantial evidence. In words of the court, "As the Hearing Officer aptly observed, the waiver signed by [Sears] in December 1976 cannot be applied retroactively to encompass [Sears'] initial period of seasonal employment from March 1976 to June 1976, and Sears testified without contradiction that she was neither offered an opportunity to join nor declined membership in the Retirement System at that time."

The court explained that there was no information in Sears' personnel file regarding her membership options or opportunities when she was first hired in 1976, nor were there any current employees who could attest to the membership notification procedures that were in place when Sears was initially employed by T&F. Further, said the court, the documentary proof offered at the hearing was insufficient to establish, among other things, that Sears participated in a procedure that a reasonable person would recognize as an opportunity to join or decline membership in the Retirement System.

Accordingly, the Appellate Division annulled the Comptroller's determination, granted Sears application for retroactive Tier 2 status in ERS and remitted the matter to ERS "further proceedings not inconsistent with this Court's decision."

In contrast, see Schuyler v New York State & Local Employees' Retirement System at http://www.nycourts.gov/reporter/3dseries/2018/2018_00874.htm where the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit."

* Frequently employees, other than employees in the Labor Class, eligible for membership in ERS but not required to become a member, declined becoming a member in order to avoid being required to make employee contributions to ERS and participating in Social Security. Employees in the Labor Class were required to participate in Social Security regardless of their membership in ERS.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08610.htm