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Tuesday, July 31, 2018

Employee exercising a right to obtain his or her own attorney to prosecute a grievance divests the employee organization's attorney of standing in the matter with respect to the grievant

Employee exercising a right to obtain his or her own attorney to prosecute a grievance divests the employee organization's attorney of standing in the matter with respect to the grievant
Matter of City of Syracuse (Lee), 2018 NY Slip Op 05077, Appellate Division, Fourth Department

This decision explores a number of unusual circumstances and events impacting on efforts to confirm an arbitration award, including:

1. a policy negotiated by the employer and the employee organization permitting an aggrieved member, in lieu of the employee organization, to submit certain issues to arbitration;

2. a Supreme Court's authority to, sua sponte, vacate its prior order and judgment confirming an arbitration award  and directing further arbitration; and

3. the lack of Supreme Court having "personal jurisdiction" of the grievant with respect to the employer's efforts to confirm an arbitration award in its favor.

A dispute between the City and the Syracuse Police Benevolent Association [SPBA]  concerning the General Municipal Law §207-c benefits received by Katherine Lee [Lee], a former City police officer who was injured in the line of duty. Although Lee was directed to return to work she refused and her §207-c benefits were discontinued. Lee  challenged the directive given to her pursuant to the "General Municipal Law §207-c Policy" [Policy] negotiated by the City and SPBA.

The Policy negotiated by the City and SPBA provided that an officer "shall not be required to return to work and shall continue to receive his or her prior benefits during the review process but, '[i]n the event that the Chief's determination is sustained, the Officer must reimburse the City for the value of benefits received during the pendancy [sic] of the review process.'" Lee demanded the City's action discontinuing her §207-c benefits be submitted to arbitration.*

Arbitrator Michael S. Lewandowski ruled that SPBA "failed to prove that the City acted arbitrarily [or] capriciously or that the City's determination was affected by an error of law when it determined to discontinue [Lee's] 207-c benefits." Subsequently a second arbitration was held concerning the interpretation of the   "value of benefits" subject to reimbursement to the City under the Policy, and Arbitrator Thomas N. Rinaldo ruled in the City's favor, holding that "wages are included in the 'value of benefits' for purposes of reimbursement under the Policy." In response to the City's request that Arbitrator Lewandowski to direct Lee to reimburse the City in the amount of $71,436.44, Lewandowski responded that the City was "free to seek reimbursement of wages . . . by whatever means it finds available to it." Lewandowski also declined the City's request to make a supplemental award providing for such reimbursement.

Although Supreme Court denied the City's motion to resettle the prior order and judgment, if concluded that it had inherent authority to vacate the order and judgment in the interest of justice, and it held the order and judgment in abeyance pending a decision by Lewandowski on the amount that the City is entitled to recoup from Lee.

The Appellate Division found that Supreme Court erred in denying Lee's cross motion to dismiss the City's petition as Lee had established that Supreme Court failed to acquire personal jurisdiction over her in the proceeding to confirm the arbitration award by Lewandowski because the City never properly served her.

Nor,  said the Appellate Division, did Supreme Court acquire personal jurisdiction over Lee by the unauthorized appearance of the Union's attorney "on behalf of Katherine Lee" in the course of the proceedings, explaining that "there is no evidence that Lee expressly or implicitly authorized the Union's attorney to represent her at any stage of the proceedings."

In concluding that the appearance of the Union's attorney did not confer jurisdiction over Lee, the Appellate Division acknowledges the general rule that "an employee has no individual right to enforce a contract between the employee's employer and union." 

However, noted the court, there are exceptions to that rule, and one of those exceptions applies in the circumstances herein inasmuch as "the contract provides otherwise." Specifically, the Policy explicitly provides Union members with the rights "to compel a review of the Chief's determination" and to have counsel or another representative "at any stage of the procedure."

In the words of the Appellate Division, "Lee availed herself of those rights from the outset of the arbitration and, to the extent that the Union's attorney acted on Lee's behalf during that part of the proceeding that was before arbitrator Rinaldo, that attorney was not the 'representative of . . . [Lee's] choosing' contemplated by the Policy. In any event, while the Union represented all of its members with respect to the proper interpretation of the 'value of benefits" to be reimbursed under the Policy, it was Lee alone who would be affected by, and thus entitled to litigate, the amount to be reimbursed to the City."

As to Supreme Court's "sua sponte vacating its prior order and judgment, which confirmed the arbitration award by Lewandowski, and directing further arbitration," the Appellate Division vacated "the second ordering paragraph of the order on appeal."

Although Supreme Court had authority to "vacate its own judgment for sufficient reason and in the interests of substantial justice," the Appellate Division observed that such authority "is not unlimited" and a court's "inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect." Further, noted the Appellate Division, in vacating the order and judgment the Supreme Court "exceeded the narrow bounds within which courts are authorized to alter [arbitration] awards" as set out in CPLR 7511 (b) or (c) for vacating or modifying an arbitration award", which provisions apply to the arbitrator's failure to award the City a specific dollar amount for the value of benefits received by Lee, "and the court had no power to disturb the award apart from the grounds set forth in those subdivisions."

The court, Justice Nemoyer dissenting, dismissed the City's Article 75 petition seeking confirmation of the arbitration award in favor of the City "for lack of personal jurisdiction" over the grievant.

* Under the Policy, "[a]ny Officer . . . shall have a right to a representative of his or her choosing, and at his or her own cost, at any stage of this procedure, and shall be given a reasonable opportunity to . . . obtain a representative and/or counsel." Lee exercised that right and retained an attorney to represent her in the arbitration conducted before arbitrator.

The decision is posted on the Internet at:

Monday, July 30, 2018

Making false statements concerning the employee's performance of his or her duties

Making false statements concerning the employee's performance of his or her duties
NYC Office of Administrative Trials and Hearings, OATH Index No. 1147/18
NYC Office of Administrative Trials and Hearings, OATH Index No. 1244/18

In OATH No. 1147/18 a New York City Emergency Medical Technician was served with disciplinary charges alleging that he had failed to prepare a patient care report after observing an injured individual and with making false statements about the incident.

The EMT contended that he was not required to write a report because the person refused treatment and did not show signs of injury.

OATH Administrative Law Judge Astrid B. Gloade found that the patient’s injuries were visible and that the EMT’s statement to the contrary was false.

Judge Gloade also found that the EMT's failure to complete a patient care report and document that the patient's refusal of medical treatment violated the Department’s rules.

The ALJ recommended that the EMT be suspended without pay for 40 days, which recommendation was adopted by the Appointing Authority.

In the second case, OATH Index No. 1244/18, New York City Office of Administrative Trials and Hearings Administrative Law Judge KEVIN F. CASEY found a New York City correction officer guilty of charges that he used excessive force and sexually assaulted an inmate, submitted a false report and lied to investigators about his conduct.

The correction officer contended that he was not guilty of the charges and argued that the alleged victim lied to pursue a civil suit.

Judge Casey credited the complainant's claim that correction officer repeatedly kicked him in the ankles, groped him, and used sexually suggestive and demeaning language towards him.

The ALJ found that correction officer falsely denied that he used force in his report and investigatory interview in an effort to conceal his misconduct and recommended imposing a penalty of a 60-day’ suspension without pay, with credit for time served.

The Appointing Authority adopted Judge Casey’s findings of fact, but she imposed the penalty of termination of employment.

The decision involving the EMT is posted on the Internet at:

The decision involving the correction officer is posted on the Internet at:

Determining an employee's health insurance benefits upon his or her retirement

Determining an employee's health insurance benefits upon his or her retirement
Ames v County of Monroe, 2018 NY Slip Op 04886, Appellate Division, Fourth Department

In this decision the Appellate Division held that "although the collective bargaining agreements in effect at the time of an employee's' retirement are binding and enforceable agreements that dictate the retired employee's rights, the relevant collective bargaining agreements in this action did not require the County of Monroe [Monroe] to maintain for each Plaintiff fully-paid health insurance coverage equivalent to that in effect at the time such Plaintiff retired."

Plaintiffs had complained the Monroe failed to "to maintain fully-paid health insurance coverage equivalent to that in effect at the time each Plaintiff-retiree retired" and that the Monroe has breached those CBAs by failing to do so. 

Citing Greenfield v Philles Records, 98 NY2d 562, the Appellate Division disagreed, explaining that "It is well settled that "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms," and whether a contract is ambiguous is a question of law. Significantly, said the court, extrinsic evidence may not be considered unless the document itself is ambiguous.

The various CBAs at issue provide "retirees" with certain health insurance benefits, but did not define the term "retirees." Plaintiffs interpret the term "retirees" to mean all retirees, even those who are eligible for or enrolled in Medicare. That interpretation is supported by other provisions of the CBAs, such as one that provides such benefits to spouses of deceased retirees "for the lifetime of the surviving spouse or until remarriage" (emphasis added in the decision). 

Monroe contended that the CBAs do not provide for health insurance for those Plaintiffs  eligible for or enrolled in Medicare because of the realities of Medicare, the CBAs' prohibition of duplicate coverage, and the fact that the specific insurance plans in effect at the time of the individual Plaintiffs' retirement were not available to individuals who were eligible for Medicare.

Indicating that the CBAs were ambiguous with respect to whether retirees who are eligible for, or enrolled in, Medicare are entitled to fully-paid health insurance coverage that is equivalent to the insurance coverage in effect at the time they retired, the court turned to "extrinsic evidence to determine the parties' intent with respect to the health insurance coverage to be provided to those retirees who are eligible for or enrolled in Medicare."

Where, as here, it is determined by a court that "a contract is ambiguous, its interpretation remains the exclusive function of the court unless determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence."
Noting that "for decades" Monroe 's retirees who were not yet eligible for Medicare were provided with health insurance benefit. In contrast, its retirees enrolled in Medicare were only provided with Medicare supplement plans. No objection was made to this arrangement and, until recently, the union representing Plaintiffs never sought to negotiate any additional benefits for retirees eligible for or enrolled in Medicare.*
Considering the conduct of the parties "after the contract is formed" the Appellate Division concluded that Monroe had established as a matter of law that it and the union formerly representing Plaintiffs** did not intend that the County be required to maintain fully-paid health insurance coverage equivalent to that in effect at the time of retirement for those Plaintiffs who were eligible for or enrolled in Medicare."

* Presumably such negotiations for additional benefits upon retirement must be effective before, and are only applicable to, employees before their retirement. In Burnham and UFT, 28 PERB 4590, PERB ruled that the union's "duty of fair representation" runs only to employees; there is no such duty with respect to former unit members such as retirees [See, also,  McDonald PBA v City of Geneva, 92 N.Y.2d 326; Kolbe v Tibbetts, 22 NY3d 344].

** Retirees are not employees for the purposes of collective bargaining for the purposes of Article 14 of the Civil Service Law [the Taylor Law] 

The decision is posted on the Internet at:

Sunday, July 29, 2018

Qualification for office

Qualification for office
Reeves v County of Onondaga, 89 N.Y.2d 901

The New York State Court of Appeals ruled that if an individual is qualified to be appointed to the board of directors of the Central New York Regional Market Authority at the time of appointment, he or she may continue in that position even if he or she does not meet the qualifications at a later date.

§827 of the Public Authorities Law mandates that two members of the three-person board "must be persons engaged in farming who derive a greater part of their income therefrom and who actually sell all or part of their produce on the [Central New York Regional] Market." Timothy D. Reeves sued the Onondaga County Legislature contending that a "farmer-producer" member of the Authority had retired from farming and therefore could no longer serve in that capacity.

The Court of Appeals disagreed, noting that if the farmer-producer members of the Authority were qualified persons at the time of appointment, nothing in §827 required the individual to be terminated "upon a change in his [or her] status as a farmer-producer."

Friday, July 27, 2018

The Doctrine of Unintended Consequences?

The Doctrine of Unintended Consequences?
Source: Albany Time Union

In its decision in Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 85 U. S. ____ (2018), the United States Supreme Court ruled that employees of a state or a political subdivision of a state may not be required to pay an agency-shop fee to a union unless the employee affirmatively consents to pay such a fee.

In what may be an illustration of the Doctrine of Unintended Consequences, on July 27, 2018, Albany Times Union reporter Rick Karlin states that New York State United Teachers President Andy Pallotta said that in the first two weeks after the Janus decision just nine members left the union, but about 1,200 people who were agency-fee members joined up.

A broad arbitration clause may trump an "exclusion from arbitration" set out in the collective bargaining agreement's grievance procedure

A broad arbitration clause may trump an "exclusion from arbitration" set out in the collective bargaining agreement's grievance procedure
Onondaga Community Coll. (Professional Adm'rs of Onondaga Community Coll. Fedn. of Teachers & Adm'rs), 2018 NY Slip Op 04878, Appellate Division, Fourth Department

Although Supreme Court granted the Onondaga Community College's [OCC] petition seeking to stay arbitration, the Appellate Division unanimously reversed the lower court's order and granted the Onondaga Community College Federation of Teachers and Administrator's [Federation] cross-motion seeking to compel arbitration.

The Federation had filed a grievance on behalf of one of its members after OCC served the member with a letter notifying her that her position was being retrenched, i.e., eliminated. In its grievance and subsequent demand for arbitration the Federation alleged that OCC had "violated, misinterpreted, and/or inequitably applied the parties' collective bargaining agreement (CBA). Among the Federation's claims was that OCC had violated the CBA provision providing that dismissal of an employee having a continuing appointment "shall be for just cause" and was subject to "the grievance procedure of the CBA" as OCC deprived the member of work and benefits without just cause by constructively discharging her in under the guise of a retrenchment.

Concluding that Supreme Court should have denied OCC's petition staying arbitration, the Appellate Division explained:

1. It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim.

2. There is a two-step test to determine "whether a grievance is arbitrable" whereby  [a] the court first determines whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance and [b] if there is no such prohibition, the is to determine whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration.

As OCC conceded that arbitration of the grievance is not prohibited pursuant to the first step of the test, the Appellate Division said that "[t]he sole question presented on this appeal is whether the parties have agreed to arbitrate the dispute at issue" consistent with the second step of the test.

A court's review under the second step, said the Appellate Division, "is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom."

Here the Federation alleged that OCC "violated, misinterpreted, and/or inequitably applied the CBA in dismissing the member without just cause" by constructively dismissing the individual under the guise of a retrenchment.

In the words of the Appellate Division, "[i]nasmuch as [Federation] alleged that the ostensible retrenchment of the member's position was actually a dismissal without just cause, we agree with [Federation] that the court erred in concluding that [Federation had challenged OCC's] decision to retrench."

Although, said the Appellate Division, the CBA specifies several exclusions from the definition of a "grievance" that are therefore not subject to arbitration, including a decision by OCC to retrench a position, all other grievances remain subject to arbitration, in this instance the arbitration clause at issue here is broad, and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the parties' [CBA]. Accordingly, the Appellate Division ruled the matter arbitrable, and "the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them."

In other words, the grievance at issue concerns whether the member was improperly dismissed without just cause under the guise of retrenchment, and there is a reasonable relationship between the subject matter of the grievance and the general subject matter of the CBA. Accordingly, "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

The decision is posted on the Internet at:

Thursday, July 26, 2018

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration
Matter of the Arbitration between Unit 8251, Local 842, CSEA v City of Troy, 169 AD2d 871

 Under the terms of a Taylor Law agreement, an employee against whom disciplinary charges had been filed was entitled to a three step disciplinary proceeding. The third step was arbitration.

In the Matter of the Arbitration between Unit 8251, Local 842, CSEA v City of Troy, the basic issue was the effect of an employee's pre-arbitration resignation on his or her right to demand arbitration.

The worker was found guilty of four acts of misconduct. The hearing officer recommended that the employee be terminated. A few days later the employee submitted his resignation.* On the same day that the employee submitted the resignation the union filed a demand for arbitration. The City refused to submit the issue to arbitration on the grounds that the individual, having resigned from his position, was no longer an employee and thus was not covered by the collective bargaining agreement.

The Union filed a legal action seeking a court order compelling the City to submit the matter to an arbitrator. The Union alleged that the employee had been coerced into submitting the resignation and thus it was null and void. Accordingly, it argued, the individual, not having lawfully resigned from his position, was still covered by the Taylor Law agreement.

The Appellate Division rejected the Union's claims regarding coercion. The decision notes that a union official and a city official simultaneously spoke to the individual regarding the ramifications of his decision to resign and that "[the individual] persisted in this course of action and signed a formal, written notice of resignation, witnessed by both officials."

Under the circumstances, the Appellate Division found that there was no evidence of coercion and that having resigned from his position, the individual was no longer covered by the Taylor Law agreement.

As to the issue of a resignation being coerced from an employee or obtained under duress, the courts have concluded that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [Rychlick v Coughlin, 63 NY2d 643].

Rychlick, in the presence of a union representative, was told that unless he submitted his resignation formal disciplinary charges would be filed against him. Although allowed to confer with his union representative, he was told that he would not be given additional time to confer with an attorney. He was also then advised that unless he resigned, charges would be filed. Rychlick submitted his resignation.

A few days later Rychlick asked to withdraw the resignation on the grounds that it had be "forced" from him. When his request was denied, Rychlick sued, claiming the resignation had been obtained under duress and thus was void.

Ultimately the Court of Appeals upheld the agency's refusal to allow Rychlick to withdraw the resignation, indicating that the "threat to file formal charges ... if [Rychlick] did not resign does not constitute duress."

* N.B. The Rules of the State Civil Service Commission, which apply to State officers and employees, provide that "every resignation shall be in writing" [4 NYCRR 5.3]. Most local commissions and personnel officers have adopted a similar rule or regulation.

Wednesday, July 25, 2018

Considering the employee’s history of misconduct, her inappropriate treatment of patients, and other factors, the hearing officer recommended termination of employment

Considering the employee’s history of misconduct, her inappropriate treatment of patients, and other factors, the hearing officer recommended termination of employment

NYC Office of Trials and Hearings, OATH Index No. 486/18

The Appointing Authority served disciplinary charges against an employee alleged the employee, a service aide:

1) made disrespectful comments to her supervisor;

2) announced that there was going to be a fight and instigated a verbal altercation with a co-worker;

3) used profanity while snatching a meal tray from a patient; and

4) took a meal tray from a patient before he had finished eating and rudely commented to the patient that he was inadvertently exposed.

After a three-day trial, OATH Administrative Law Judge Joycelyn McGeachy-Kuls found that Appointing Authority had proven the charged misconduct.

Taking into consideration service aide's history of misconduct, the disruption that she caused in the workplace and her inappropriate treatment of patients, Judge McGreach-Kuls recommended that the aide be termination from her position.

The Appointing Authority adopted the ALJ's findings and recommendation and terminate the service aide from her position.

The decision is posted on the Internet at:

Claim that the arbitrator exceeded a limitation in the collective bargaining agreement held to be, in fact, a challenge to the arbitrator's interpretation of the agreement

Claim that the arbitrator exceeded a limitation in the collective bargaining agreement held to be, in fact, a challenge to the arbitrator's interpretation of the agreement
Matter of Lift Line, Inc. (Amalgamated Tr. Union, Local 282), 2018 NY Slip Op 05102, Appellate Division, Fourth Department

The terms of the collective bargaining agreement (CBA) between Lift Line, Inc., [Employer] and the Amalgamated Transit Union, Local 282 [Local 282] provided that, if the discharge of an employee was found to be without "just cause," the record of the offense would be cleared from the employee's personnel file.

The CBA also incorporated a memorandum of agreement with respect to employee attendance (Attendance Policy) that set forth an eight-step disciplinary process, including discharge of the employee at step eight. The Attendance Policy provided that an employee "who is tardy will progress one step in the attendance disciplinary process for each instance of tardiness," and would move back one step if he or she did not have "another incident of tardiness for six consecutive months after such discipline."

The employee [grievant] here was late to work on seven occasions over the course of a little over one year and was thus at step seven at the time of the incident that led to her termination. In that incident, she was one minute late to work after her vehicle was stuck behind a disabled train at a rail crossing near her employer's facility.

The arbitrator analyzed the just cause provision together with the Attendance Policy and concluded that Employer's strict application of the attendance disciplinary process to terminate the grievant was "overly severe, especially with the absence of any evidence that efficiency or other difficulties were created by the [g]rievant's one-minute tardiness."

Supreme Court granted Employer's petition to vacate the arbitration award, in part, denied the application of Union to confirm the arbitration award, and reimposed the penalty of employment termination as provided by the CBA. The Appellate Division unanimously reversed the Supreme Court's ruling "on the law," granted the Union's application and confirmed the arbitration award.

As relevant here, said the Appellate Division, "[A]n arbitrator's rulings, unlike a trial court's, are largely unreviewable [and] [a]n arbitrator's interpretation may even disregard the apparent, or even the plain, meaning of the words of the contract before him [or her] and still be impervious to challenge in the courts." Explaining that an arbitration award is irrational "if there is no proof whatever to justify," the court said it agreed with the Union  that the arbitrator's award in this instance was not irrational* as here "there is a colorable justification for the arbitrator's determination."

The Attendance Policy was a no-fault, straightforward progression of discipline that would be imposed for every incident of tardiness. Nevertheless, the CBA also had the "just cause" provision, and the arbitrator concluded that strict adherence to the attendance policy could be rejected in exceptional cases.

In concluding that the grievant's termination was overly severe, the court said that the arbitrator relied on the fact that the grievant called in 10 minutes before her shift to say that she might be late due to the delay caused by the disabled train; another employee called in to report the same delay; the delay was unexpected and abnormal; the grievant was only one minute late; and no difficulties were created by the grievant's tardiness.

Thus, said the Appellate Division, "[t]he arbitrator made a rational interpretation of the just cause provision and the Attendance Policy. "Although the court recognized that "a different construction could have been accorded to the subject provision[s] of the [CBA]," it decided that "it cannot be stated that the arbitrator gave a completely irrational construction to the provision in dispute and, in effect, exceeded [his] authority by making a new contract for the parties."

Observing that the CBA provided that the arbitrator "shall have no power or authority to add to, subtract from, modify, change, or alter any provisions of this Agreement,"** the Appellate Division found that the arbitrator had not impose any new requirement upon Employer before it could discipline its employees and thus did not add to or alter the CBA. Rather, as the court had indicated earlier in its opinion, "the arbitrator determined, under the specific facts of this case, that the penalty of termination could not be upheld" and did not adopt any new rules that Employer must follow in future disciplinary cases. [Emphasis supplied by the court.]

Indeed, the court commented that "[t]he argument that the arbitrator exceeded a limitation in the collective bargaining agreement . . . is nothing more than a challenge to the substance of the arbitrator's contract interpretation, which . . . is foreclosed." 

* The Appellate Division, however, noted that "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

** A court may vacate an arbitration award if it finds that the rights of a party were prejudiced when "an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made" (CPLR 7511 [b] [1] [iii])." Such an excess of power occurs only where the arbitrator's award violates strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

The decision is posted on the Internet at:

Tuesday, July 24, 2018

Selected audits and reports posted by New York State Comptroller

Selected audits and reports posted by New York State Comptroller
Source: Office of the State Comptroller, July 24, 2018

Click on text highlighted in color to access the full report.

On July 24, 2018,  New York State Comptroller Thomas P. DiNapoli announced that the following audits and examinations had been issued.
State Education Department: The Network for Children's Speech, Occupational & Physical Therapy (CTN) (2017-S-79)

For the three fiscal years ended June 30, 2015, auditors identified $707,677 in ineligible costs that CTN reported for state reimbursement. The ineligible costs included $668,259 in personal service costs, including $511,672 in overstated personal service costs for special education itinerant teachers (SEIT), and $39,418 in other than personal service costs, which included $13,574 in insufficiently documented expenses and $13,491 in related-party lease expenses that exceeded the owner’s actual cost.

Erie County Medical Center Corp. (ECMCC): Employee Incentive and Bonus Payments (2018-F-06)
An initial audit report, issued in January 2017 found ECMCC did not properly administer certain incentive payments made to its employees. For the audit period reviewed, auditors identified $76,254 in incentive payments that should be recovered from employees because they were not justified under the terms of the relevant incentive plan, were distributed in error, or were miscalculated. In a follow-up, auditors found ECMCC has made progress addressing the issues identified in the initial audit.

Environmental Facilities Corp. (EFC): Monitoring the Green Innovation Grant Program (2017-S-19)

Auditors found EFC monitors some aspects of the projects by frequent communication with grantees, receiving progress photographs, and reviewing fiscal documentation to monitor project progression. However, EFC’s on-site monitoring of the projects auditors sampled frequently occurred later in the construction cycle than EFC’s goal of between 50 and 75 percent completion. Also, EFC does not perform site visits after project completion to determine if the grantee is properly maintaining the project and has installed the required signage.

Homes and Community Renewal (HCR): Office of Rent Administration (2018-F-3)
An initial report issued in December 2014 found the office had not established criteria for how long it should take to assign, address, or resolve tenant complaints. Records showed that a significant number of tenant complaints may have been unresolved for anywhere between one to four years, taking an average time of 6.7 months just to assign an incoming complaint to an examiner, among other findings. In a follow-up, auditors found HCR has made some progress in addressing the issues identified in the prior report.

Department of Taxation and Finance: Personal Income Tax (2018-BSE8-01)
Auditors examined personal tax refunds processed during the calendar year January 1, 2017 through Dec. 31, 2017. During that time, the department processed almost 7.7 million refunds totaling over $9.5 billion. Auditors stopped 10,414 refunds totaling almost $36.7 million and sent them to the department for follow up evaluation and appropriate action.

New York State Homes and Community Renewal (HCR): Taxable Travel (2018-BSE7-01)

Auditors examined travel expenses of a HCR rent inspector incurred during calendar years 2014, 2015, and 2016. The employee’s official station was New York City, and all of his assignments were within 35 miles of his official station.  According to state regulations, employees are not in travel status when their work locations are within 35 miles of their official station. Therefore, the employee was not entitled to reimbursement for expenses to travel from his home to his work area. HCR was required to report the commuting expenses as supplemental wages of the employee, but did not.  As a result, we determined the employee incurred $3,543, $2,556, and $1,838 in personal commuting expenses during 2014, 2015, and 2016, respectively.
New York City Health and Hospitals Corp. (HHC) (2017-N-2)
Auditors reviewed files for a random sample of 200 direct hire and 98 temporary nurses from five HHC facilities or organizations to verify that these nurses were properly screened prior to being hired and were continuously monitored after hire. Of the 200 direct hire nurses in the sample, 41 (21 percent) had not been fingerprinted. Of these, 38 were hired before 2002 – when fingerprinting became required. For direct hire nurses, various background checks were not completed before hire. None of the facilities followed HHC procedures for maintaining documentation of all screening checks. Further, there was no evidence that HHC reviewed background check documentation, as required. Performance evaluations were not completed for 25 direct hire nurses, including 24 at a single facility.

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Monday, July 23, 2018

Terminated educator alleges that her employer breached the employment agreement and negligently terminated her

Terminated educator alleges that her employer breached the employment agreement  and negligently terminated her
Morrison v Buffalo Board of Education, et al, USCA, 2nd Circuit, No. 17-3496-cv

A school administrator, [Plaintiff] terminated from her position, sued the City of Buffalo Board of Education [District] and numerous individual administrators alleging breach of her employment agreement [Agreement] and "negligent termination."

The genesis of Plaintiff's termination was her alleged failure to obtain the professional certifications required by the Agreement. 

Although Plaintiff acknowledged that she held only a Florida certification at the time she applied for a position with the District, she contended that she “truthfully declared” her lack of a valid New York certification during the application process and was hired nonetheless." Plaintiff further alleged that when, during her first week on the job, she was directed to apply for interstate certification reciprocity, she promptly did so and said that  "the New York State Department of Education awarded her a conditional School Building Leader certificate [and] she was directed to apply for a School District Leader  internship certificate, which certificate she received in March 2014.

Accordingly, Plaintiff asserted that she was "adequately certified" at the time of her termination in April 2014.

The Circuit Court vacated that part of the district court's decision concerning Plaintiff's  breach of contract claim, affirming the lower court's ruling "in all other respects," explaining that "In dismissing the breach of contract claim, the district court here determined that [Plaintiff] failed to satisfy a contractual condition requiring her to maintain certain professional certifications and, thus, that [the District] did not violate the Agreement by terminating her employment. Because the first conclusion cannot be reached as a matter of law on the present record, [district court] dismissal was premature." 

The decision is posted on the Internet at:

Friday, July 20, 2018

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5
NYC Office of Administrative Trials and Hearings, OATH Index No. 1865/18

Based on statements a customer service representative [Anonymous] was reported to have made to co-workers, the Appointing Authority [Authority] placed Anonymous on involuntary leave pursuant to Civil Service Law §72.5 in consideration of safety concerns about Anonymous' presence at the work place.

Anonymous filed a timely objection to being placed on §72.5  leave, typically refered to as "emergency leave." After a two-day hearing during which Authority presented the testimony of a psychiatrist, who examined Anonymous and concluded he was unfit, as well as the testimony of two of Anonymous’ co-workers and Anonymous' testimony on his own behalf and the testimony of a psychiatrist called by Anonymous a witness, OATH John B. Spooner found that Authority's failed to meet the standard justifying its placing Anonymous on emergency leave.

Judge Spooner said the Authority did not prove that [1] it had probable cause to believe that Anonymous was dangerous or [2] his presence in the workplace would “severely interfere" with its operations, or [3] Anonymous was likely to be violent. Accordingly, said the ALJ, Authority failed to demonstrate that placing Anonymous on an “extraordinary” pre-hearing suspension authorized by §72.5 was necessary.

Judge Spooner recommended that Authority's petition be dismissed and that Anonymous be awarded back pay for the period of pre-trial leave. Authority, however, rejected the ALJ’s recommendation, finding that it had proved that, due to his psychiatric disorders, Anonymous was unfit to work. Authority also found that Anonymous was not entitled to back pay for the period of prior to his hearing as it had a sufficient basis to institute emergency leave.*

The "standard Section 72 procedure" is triggered by the appointing officer's determina­tion that the individual is physically or mentally unable to perform his or her duties and should be placed on leave of absence and CSL Section 72.1 requires completing a number of procedural steps before the individual may actually be placed on Section 72 leave over his or her objections.
In contrast, Section 72.5 relied upon by Authority in Anonymous' situation, essentially sets out an exception to the "standard procedure" that allows it to be truncated only in the event the appointing authority determines that there is probable cause to believe that the continuation of the individual on the job poses a danger to persons, property or the agency's operation.

The "standard procedure" followed under Section 72 may be summarized as follows:

1. The appointing authority determines than an employee is unable to perform the duties of his or her position by reason of an ordinary disability.

2. The appointing authority requires such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or munici­pal commission having jurisdiction.

3. The appointing authority provides the employee and the civil service department or commission, in writing, the facts that constitute the basis for the judgment that the employee is not fit to perform the duties of his or her position prior to the medical examination.

4. If the medical officer certifies that the employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority notifies the em­ployee of any proposed Section 72 leave and the proposed date on which such leave is to commence.

5. The employee is also advised of his or her right to object to his or her placement on the proposed Section 72 leave of absence and to request a hearing.

6. If the employee requests a hearing, the appointing authority is to give the employee a hearing within 30 days of the receipt of the request. The appointing authority is also required to provide the employee and the employee's personal physician or authorized representative, with copies of all diagnoses, test results, observations and other data supporting the appointing authority's decision.

7. The employee is not to be placed on leave until a final determination is made by the appointing authority after the hearing is held.

As is typical in administrative actions of this type, the appointing authority has the burden of proof and must provide the evidence that the employee is mentally or physically unfit to perform his or her duties.

Following the receipt of the hearing officer's findings and recommendations, the ap­pointing authority may decide to (1) uphold the original proposed notice of leave of absence, (2) withdraw such notice or (3) modify the notice as may be appropriate.

If the final determination is to place the individual on Section 72 leave, the employee is to be advised of his or her right to appeal the determination to the civil service commis­sion having jurisdiction as provided by CSL Section 72.3.

* §75.2, in pertinent part, provides "5. Notwithstanding any other provisions of this section, if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it may place such employee on involuntary leave of absence immediately; provided, however, that the employee shall be entitled to draw all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit...."

The Anonymous decision, including Authority's justification for rejecting the OATH ALJ's recommendation, is posted on the Internet at:

Thursday, July 19, 2018

Separation of Powers

Separation of Powers
Garcia v New York City Dept. of Health & Mental Hygiene, 2018 NY Slip Op 04778, Court of Appeals

Among the issues addressed by the Court of Appeals in this action was an alleged violation of the doctrine of Separation of Powers.

In response to the Appellate Division's holding that the adoption of certain administrative rules violated the separation of powers doctrine, New York City argued that the legislature has properly delegated to New York City's Board of Health, through Administrative Code §17-109, the necessary authority to promulgate the rules at issue.* The City contended that the Appellate Division inappropriately applied the so-called Boreali factors** "to second-guess the manner in which the Board exercised its regulatory authority, instead of merely determining whether the Board possessed the requisite authority to promulgate the rules in the first instance."

The Court of Appeals agreed. Citing Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 27 NY3d 174, the court explained that "The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions." This principle, "implied by the separate grants of power to each of the coordinate branches of government, requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies."

Separation of powers challenges, noted the court, "often involve the question of whether a regulatory body has exceeded the scope of its delegated powers and encroached upon the legislative domain of policymaking."

In this regard an administrative agency can adopt regulations that go beyond the text of the relevant legislation, "provided they are not inconsistent with the statutory language or its underlying purposes." On the other hand, as it ruled in Greater N.Y. Taxi Assn., 25 NY3d at 609, the Court of Appeal said that "The guiding legislation 'need not be detailed or precise as to the agency's role' and, as an overarching principle, 'common sense must be applied when reviewing a separation of powers challenge.'"

The "difficult-to-define line between administrative rule-making and legislative policy-making" was clarified [by Boreali] by articulating four "coalescing circumstances" relevant to rendering such a determination as follows:

1. Did the regulatory agency balanced costs and benefits according to preexisting guidelines rather than make value judgments requiring difficult and complex choices between broad policy goals to resolve social problems;

2. Did the regulatory agency "merely filled in details of a broad policy" or did it create its own comprehensive set of rules without benefit of legislative guidance;

3. Had the legislature been unsuccessful in its efforts to enact laws pertaining to the issue; and

4. Did the regulatory agency use "special technical expertise in the applicable field."

Ultimately any Boreali analysis, said the court, "should center on the theme that it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends" as "A rule has the force of law, but it is not a law; rather, it implements or applies law or policy" and the administrative body must act within the limitations of its legislatively-delegated powers.

Rejecting the Petitioners' separation of powers challenge, the Court of Appeals emphasized that a Boreali analysis is not aimed at determining whether a regulatory agency adopted the most desirable method or type of regulation and the factors enumerated in Boreali "are not designed to second-guess agency regulations that properly falls within the agency's purview." In the event the Boreali factors indicate that the agency has been empowered to regulate the matter in question, the court said that the separation of powers analysis "goes no farther in reviewing the agency's methods."***

* The challenged rules: The City's Board of Health's amendments to the New York City Health Code mandating that children between the ages of 6 months and 59 months who attend city-regulated child care or school-based programs receive annual influenza vaccinations.

** Boreali v Axelrod, 71 NY2d 1.

*** The Court of Appeals also rejected Petitioner's alternative theory, that the City's flu vaccine rules were invalid because they conflicted with the State's Public Health Law and thus violated the Premption Doctrine which expresses "a fundamental limitation on home rule powers" and "embodies the untrammeled primacy of the [l]egislature to act with respect to matters of State concern."

The decision is posted on the Internet at:

Wednesday, July 18, 2018

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"
2018 NY Slip Op 05104, Appellate Division, Fourth Department

A college [Respondent] had sanctioned a student for alleged violations of the Student Code of Conduct. In response to the student's challenge to the Respondent's action the Appellate Division "unanimously annulled" the determination "on the law" and directed the Respondent "to expunge all references to this matter from [the student's] school record."

The Respondent had determined that the student had "possessed weapons and engaged in harassment" and imposed 50 hours of community service, two years of disciplinary probation, and exclusion from on-campus housing as the penalty for the alleged misconduct.

The Appellate Division said it agreed with the student that "the record is devoid of any evidence, much less substantial evidence," to support the Respondent's determination, pointing out that Respondent's determination rests exclusively on a "seriously controverted" hearsay statement, and that does not, as a matter of law, constitute substantial evidence."

The court also declined the Respondent's "invitation to remit the matter for a new hearing in light of its failure to transcribe the disciplinary hearing," explaining "Annulment and expungement is the prescribed remedy for an administrative determination that is unsupported by substantial evidence."

It would be anomalous, said the Appellate Division, were the Respondent afforded "a new opportunity to establish [the student's] culpability based on its own procedural error in failing to transcribe the initial hearing."

The court also said it felt "compelled to express [its] dismay at [Respondent's] cavalier attitude toward [the student's] due process rights in this case, and we remind [Respondent] -- and all other colleges and universities, particularly state-affiliated institution -- of their unwavering obligation to conduct student disciplinary proceedings in a manner that comports with fundamental notions of due process for the accused, that renders determinations consistent with the facts, and that respects the presumption of innocence to which all students are entitled."

The decision is posted on the Internet at:


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