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Saturday, December 22, 2018

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 State Comptroller 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. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

Friday, December 21, 2018

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."

* The “Rule of Necessity” permits a tribunal, the members of which could be affected by the decision, to decide a case or controversy, Pines, et. al. v State of New York, 115 AD3d 80.

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:

Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

Wednesday, December 19, 2018

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:

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

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

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:

Tuesday, December 18, 2018

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:

Monday, December 17, 2018

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:

Friday, December 14, 2018

New York State Comptroller DiNapoli Releases Audits

New York State Comptroller DiNapoli Releases Audits

On December 14, 2018 New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations

Click on text highlighted in color to access the full report

State Education Department (SED): Volunteers of America – Greater New York Inc.: Compliance With the Reimbursable Cost Manual (2017-S-32)
Auditors identified $1.6 million in reported costs that did not comply with requirements for state reimbursement, including $541,775 paid to 38 individuals who did not work in VOA-GNY’s SED preschool programs.

Department of Health (DOH): Medicaid Program: Improper Medicaid Payments for Childhood Vaccines (2017-S-41)

Auditors identified $32.7 million in improper Medicaid payments for costs related to administering Vaccines for Children program vaccines between Jan. 1, 2012 and May 31, 2017. Medicaid payments were made for free vaccines and payments of the fee to administer the vaccines were not always accurate.

Department of Health (DOH): Criminal History Background Checks of Unlicensed Health Care Employees (Follow-Up) (2018-F-13)
An initial audit concluded that DOH generally met its obligations for conducting background checks on unlicensed employees of Nursing Homes, Adult Care Facilities and Home Health Care providers. However, auditors identified 24 applicants whose determination letters were not completed timely and, as a result, the individuals could have been allowed to work for periods ranging from 2 months to as long as 28 months without final clearance. In a follow-up, auditors found DOH has made significant progress addressing the issues identified in the original audit.

Department of Labor (DOL): Examination of Unemployment Insurance Benefit Payments, January 1, 2017 – December 31, 2017 (2018-UI-01)
Auditors identified 2,956 overpayments totaling nearly $1.1 million and 902 underpayments totaling more than $98,000.  Based on the overpayments identified, DOL assessed $1,852,169 in penalties to claimants who made false statements or representations to obtain benefits to which they were not entitled.  

New York Power Authority (NYPA): Selected Management and Operations Practices (Follow-Up) (2017-F-17)
A prior audit, issued on August 1, 2016, found that NYPA reported certain information to the public that was incomplete and could lead the public to draw incorrect conclusions about the ReCharge New York (RNY) program. NYPA reported job commitments and included businesses that were awarded a power allocation, but were in pending status because they did not sign a contract. In some cases, these businesses later declined the contracts. In June 2015, this resulted in an overstatement of job commitments reported by 29,795, or 7.7 percent. In a follow-up, auditors found that officials have made progress in addressing the issues identified in our initial report. Of the 12 prior audit recommendations, two were implemented, seven were partially implemented, and three were not implemented.

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, the first test, 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, the second test. 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," the third test. 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, thus meeting the second test, 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, thus meeting the third test, and the Supreme Court should have denied the petition to permanently stay arbitration.

The decision is posted on the Internet at:

Thursday, December 13, 2018

Applying the Vehicle and Traffic Law's qualified statutory privilege available to drivers of emergency vehicles involved in an accident

Applying the Vehicle and Traffic Law's qualified statutory privilege available to drivers of emergency vehicles involved in an accident
Chesney v City of Yonkers, 2018 NY Slip Op 08277, Appellate Division, Second Department

Edward Chesney was struck by a City of Yonkers police vehicle as he attempted to cross a street within a crosswalk against a traffic light in Yonkers and sustained personal injuries. Chesney sued the City to recover damages for the injuries he has suffered, advancing the theory injury-causing conduct of the driver of the police vehicle was governed by the "principles of ordinary negligence."

Yonkers moved for summary judgment dismissing the complaint, contending that the police officer's conduct in the operation of the vehicle was governed by the "reckless disregard standard of care" under the qualified statutory privilege for drivers of emergency vehicles engaged in emergency operations set our in Vehicle and Traffic Law §1104[e].

Supreme Court applied the reckless disregard standard of care, and granted the City's motion for summary judgment dismissing the complaint. Chesney appealed.

The Appellate Division explained that the reckless disregard standard of care set out in Vehicle and Traffic Law §1104(e)* "applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by §1104(b)" and "Vehicle and Traffic Law § 1104(b)(3) permits the driver of an authorized emergency vehicle involved in an emergency operation to "[e]xceed the maximum speed limits so long as he [or she] does not endanger life or property." Any other injury-causing conduct of such a driver, said the court, is governed by the principles of ordinary negligence, citing Kabir v County of Monroe, 16 NY3d 217.

The Appellate Division said that Yonkers, in support of its motion for summary judgment, had submitted evidence, including a surveillance video of the accident and deposition transcripts sufficient to show that, at the time of the accident, the police officer was operating an authorized emergency vehicle and involved in an emergency operation, and that he was operating the vehicle in excess of the maximum speed limit. In addition, said the court, Yonkers "demonstrated that, based upon the speed of the vehicle, the officer was unable to stop his vehicle in time to avoid a collision with the plaintiff."

As the "injury-causing conduct" was operation of the vehicle in excess of the speed limit, the Appellate Division said that Supreme Court properly applied the reckless disregard standard of care. The court noted that Yonkers had submitted evidence demonstrating, prima facie, that "the police officer's vehicle had a green light, that Chesney was in the crosswalk near the middle of the road attempting to cross the street against the light, and the officer attempted to brake in order to avoid contact." In contrast, the Appellate Division noted that Chesney failed to raise a triable issue of fact as to whether the officer acted with reckless disregard for the safety of others.

Accordingly, the Appellate Division sustained Supreme Court's granting of Yonkers' motion for summary judgment dismissing the complaint. 

* (e) This provisions does not relieve the driver of an authorized emergency vehicle from his or her duty to drive with due regard for the safety of all persons, nor do these provisions protect the driver from the consequences of his or her reckless disregard for the safety of others.

The decision is posted on the Internet at:

Administrative Law Judge finds the testimony of the employer's witnesses more credible that the testimony of the accused employee

Administrative Law Judge finds the testimony of the employer's witnesses more credible that the testimony of the accused employee
Human Resources Admin. v. Brown, OATH Index No. 161/19

A case worker was charged with confronting a security officer at the facility where they worked, using profanity and physically restraining the security officer.

It was also alleged that when the security officer’s supervisor arrived on the scene and directed the officer to her post, the case worker continued to restrain the officer, pushed the supervisor, and directed profanity at the supervisor.

Following a two-day trial, OATH Administrative Law Judge Astrid B. Gloade found testimony of the security guard and her supervisor more credible than the case worker’s testimony concerning the event and she sustained the charges.

Judge Gloade recommended that the appointing authority impose a penalty of a thirty-day suspension without pay, with credit for time served during a pre-trial suspension by the employee.

Wednesday, December 12, 2018

Taylor Law amended to clarify an employee organization's duty of fair representation of non-members in a collective bargaining unit

Taylor Law amended to clarify an employee organization's duty of fair representation of non-members in a collective bargaining unit  
Section 209-a.2 of the Civil Service Law

In Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 138 SCt 2448, the Supreme Court held that "States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay."

In response to the Janus decision, §209-a.2 of the Civil Service Law was amended* and now provides that it is not a violation of an employee organization's duty of fair representation if the employee organization limits its services to, and representation of, non-members in accordance with this subdivision or declines to provide representation to a non-member in the relevant negotiating unit:

[1] during questioning by the employer;

[2] in statutory or administrative proceedings;

[3] to enforce statutory or regulatory rights; or

[4] at any stage of a grievance, arbitration or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to [i] proceed without the employee organization and [ii] be represented by his or her own advocate.

Further, the employee organization is not prohibited from providing legal, economic or job-related services or benefits beyond those provided in the relevant collective bargaining agreement with a public employer "only to its members."

In addition, §209-a.3 provides that in the event a charge  is filed alleging that the employee organization has breached its duty of fair representation in its processing of, or it failure to process, a claim, the public employer is to be made a party in the action.  

* §4 of Part RRR of Chapter 59 of the Laws of 2018

Other bills signed into law by the Governor:

1. Chapter 271 of the Laws of 2018 amended the §75 of the Civil Service Law to provide that certain  persons  holding  a  position in the Labor Class shall not be removed or otherwise subjected to any disciplinary penalty except  for incompetency or misconduct; and

2. Chapter 403 of the Laws of 2018 directs the President of the New York State Civil Service Commission to study and publish a report evaluating wage disparities among public employers.

Tuesday, December 11, 2018

A member of school board may be removed from his or her office after three successive unexcused absence from board meetings

A member of school board may be removed from his or her office after three successive unexcused absence from board meetings
Decision of the Commissioner of Education, Decision No. 17,544

Brian Butler appealed the decision of the Board of Education of the Massapequa Union Free School District to declare his position on the Board vacant and remove him as a board member to the Commissioner of Education. The Commissioner dismissed Butler's appeal.

The record before the Commissioner indicated that Board's president asked all board members to remain for a discussion following a board’s public and executive sessions to address Butler's alleged "public Facebook posts calling for the dismissal of the School District's Superintendent and his references to her as ‘Kim Jong Un,’” for the purpose of discussing "how we could all work together as a team, despite differences in policy, in a respectful and civil way, without name calling and personal attacks.”

The Commissioner's decision also included two footnotes reporting:

[1] The record indicates that the School District's recent efforts to reorganize the grade configuration of its schools resulted in considerable animus within the community and among individual board members and the superintendent and that a grade configuration matter came before the Commissioner in three separate appeals on which the Commissioner issued decisions, Appeal of Paglia, et al., 57 Ed Dept Rep, Decision No. 17,251; Appeal of Kaufmann, et al., 57 id., Decision No. 17250; and Appeal of Pulizzi, et al., 57 id., Decision No. 17,249.  The record also indicated that Butler made known on social media in profane and incendiary ways his personal feelings regarding the superintendent and others with whom he disagreed on policy matters; and

[2]  The School Board contended that Butler also failed to attend three consecutive meetings on April 4, April 12 and April 17, 2018 without a valid excuse and that Butler, in an affidavit, asserted that he missed the April 4, 2018 meeting because he was in California and advised the board president of that prior to the meeting.  However, in light of Butler's failure to attend five consecutive meetings without a valid excuse in May-June 2018, which alone is sufficient grounds for vacating Butler’s position pursuant to Education Law §2109, the Commissioner said that she did not need not consider whether the Board properly determined that Butler failed to present a valid excuse for missing the three consecutive meetings in April 2018.

The Board's president had sent a letter to Butler offering him "an opportunity to attend a special meeting of the board on June 28, 2018 at which [Butler] would be asked to provide an explanation for his five most recent consecutive absences.  The letter further stated that if Butler failed to provide valid or reasonable excuses for his absences, the board would have “no choice” but to declare his seat vacant.

Butler responded that he would not attend the June 28 meeting because of “a prior business arrangement" but that he would attend a future meeting of board to explain the reason for his absences, "but only if the board president and trustee Baldinger did not attend.  

By letter dated June 29, 2018, the School District's district clerk notified Butler that the Board had declared his seat vacant because of his habitual absences and that, "effective immediately," he was no longer a board trustee.

In his appeal Butler contended that "he provided [the Board] with a good and valid excuse for his failure to attend board meetings; i.e. fear for his personal safety" and that "the board president did not object to his absences."

In rebuttal, the Board argued that Butler "failed to provide a good and valid excuse to the other trustees for his absence from multiple consecutive board meetings" and thus "the decision to vacate [Butler's] seat on the board was a proper exercise of its authority that should not be disturbed."

Noting that Education Law §2109 provides, in pertinent part, that a board member who “refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse therefor to the other trustees vacates his office by refusal to serve,” the Commissioner observed that in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The Commissioner, noting that a board of education makes [1] the determination as to whether a trustee has rendered a valid excuse for missing board meetings and [2] that the excuse tendered is satisfactory to the board, explained the for the Commissioner to overturn the board’s determination, the petitioner must demonstrate that the board was arbitrary and capricious or otherwise abused its discretion in determining that the petitioner had vacated his or her seat.

It is undisputed that Butler refused or neglected to attend more than three successive board meetings, and that he was duly notified of such meetings.  It was therefore incumbent on Butler to demonstrate that he provided the other trustees a good and valid excuse for his frequent absences from board meetings.  The Commissioner said that on the record before her, Butler failed to meet that burden.

On this record, said the Commissioner, Butler failed to meet his burden of proving that he had a valid excuse for failing to attend the five consecutive board meetings between May 21 and June 21, 2018, nor has Butler demonstrated that the Board's rejection of his proffered excuse - his purported fear of physical harm arising out of a single remark by a fellow trustee made in a heated discussion on March 15, 2018 - was arbitrary and capricious or an abuse of discretion.

Accordingly, ruled the Commissioner, "... based on the record before me, I cannot conclude that [the Board's] decision to declare [Butler's] position on the board vacant pursuant to Education Law §2109 and to remove him as a board member was arbitrary, capricious or an abuse of its discretion."

The decision is posted on the Internet at:


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