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Wednesday, October 31, 2018

Disciplinary probation


Disciplinary probation
Reillo v New York State Thruway Auth., 2018 NY Slip Op 02170, Appellate Division, Second Department

New York State Thruway Authority employee Anthony Reillo was served with  disciplinary charges alleging certain misconduct.

Reillo and the Thruway Authority then entered into a stipulation settling the disciplinary action whereby Reillo agreed to a one-year period of "disciplinary probation" which provided that the Thruway Authority could summarily terminate Reillo from his employment for any similar act or acts of misconduct. 

In addition, settlement stipulation provided that the determination that Reillo had engaged in such misconduct was to be at the sole discretion of the Thruway Authority.

In February 2016, the Thruway Authority terminated Reillo's employment based on incidents that occurred while he was still serving as a  disciplinary probationer. Reillo file an Article 78 petition seeking a court order directing the Thruway Authority to reinstate him to his former position with back salary.

Supreme Court denied the petition and dismissed the proceeding on procedural grounds, finding that Reillo failed to serve the notice of petition on the Attorney General as required by CPLR §7804(c). Reillo appealed but the Appellate Division affirmed the Supreme Court's determination.

CPLR §7804(c) provides that when a CPLR Article 78 proceeding is commenced against a "state body or officers" by a notice of petition, the notice of petition must be served upon the Attorney General. Following a "particularized inquiry" into the nature of the Thruway Authority and the statute claimed to be applicable to it, the Appellate Division concluded  that the Thruway Authority is a "state body" for the purposes of CPLR §7804(c). Thus, said the court, as the Attorney General had not been timely served, Supreme Court properly dismissed Reillo's petition.

Although the merits of Reillo termination was not considered in this action, it should be noted that frequently a settlement of a disciplinary action provides for the employee to serve a disciplinary probationary period and, as in Reillo, the individual is subject to being summarily terminated "without notice and hearing" if he or she violates the terms or conditions of his or her "disciplinary probation" settlement.

If, however, an employee is to be dismissed for violating the conditions of the disciplinary probation, the appointing authority must to make certain that the actions, or omissions, cited for triggering the termination of the employee serving the disciplinary probationary period do indeed violate the specific terms or conditions enumerated in the disciplinary settlement agreement as the decision in Taylor v Cass, 122 AD2d 885, demonstrates.

Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after he was summarily, and as was ultimately determined, improperly, dismissed from his position while serving a disciplinary probation period.

In Taylor's case the terms of the disciplinary probation provided that Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job during the next six months." Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division said the dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement of the disciplinary action agreement: intoxication on the job.

As the court noted in  Matter of Sepulveda, 123 AD2d 703, even employees who would otherwise be entitled to the benefits of Section 75 of the Civil Service Law or a similar statute, an employee's agreement to be placed on probation pursuant to terms set out in a settlement of a disciplinary action agreement sacrifices the notice and hearing requirements that would otherwise be available to the employee by such statute for the duration of his or her disciplinary probationary period.

Additionally, it is good practice make certain that the employee’s acceptance of disciplinary probation is set out in settlement of the disciplinary action agreement is made openly, knowingly and voluntarily and be memorialized to that effect in the written agreement signed by the parties.

The decision is posted on the Internet at:


Tuesday, October 30, 2018

Challenging a hearing officer's determination following a §3020-a disciplinary hearing


Challenging a hearing officer's determination following a §3020-a disciplinary hearing
Appeal of Douglas S. White, Decisions of the Commissioner of Education, Decision No. 17,521

Douglas S. White submitted an Education Law §3020-a hearing officer's decision finding him guilty of 6 of 7 specifications set out in two Charges filed against him by the Roosevelt Union Free School District Board of Education [Roosevelt] and the penalty imposed by the Arbitrator, suspension without pay for 42 school days, to the Appellate Division for judicial review.

The Appellate Division vacated portions of the hearing officer’s findings and remanded the matter to the hearing officer for a review and determination of the penalty to be imposed on White in consideration to the court's decision in the matter.*

The hearing officer, in consideration of the Appellate Division's decision, reduced the penalty to be imposed on White. White thereupon appealed the reduced penalty to the Commissioner of Education, contending, among other things, that the hearing officer erred by imposing a penalty upon on remand. 

Roosevelt challenged White's appeal, contending that it must be dismissed because [1] White failed to make proper service of his appeal; [2] the Commissioner lacked jurisdiction to consider White's appeal; and [3] White's appeal had been untimely filed.

Citing 8 NYCRR 275.8(a), the Commissioner said that the appeal must be dismissed for improper service, explaining that the Commissioner’s regulations requires that [1] the petition be personally served upon each named respondent and [2] if a school district is named as a respondent, service upon the school district is to be made personally by "delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

Turning to Roosevelt's claim that the Commissioner "lacked jurisdiction to review the decision of a hearing officer in a §3020-a proceeding," the Commissioner noted that Education Law §3020-a was amended by Chapter 691 of the Laws of 1994 to divest the Commissioner of jurisdiction to review determinations of hearing officers, both final and non-final.

Addressing Roosevelt's argument claiming "untimeliness," the Commissioner said that "[w]eighing the parties’ submissions," she found that Roosevelt had met its burden of proving its affirmative defense that service was improper and that White failed to rebut the evidence provided by Roosevelt with respect to its claim of the lack of proper service.

Finally, the Commissioner noted that the only relief sought by White in this appeal is that "the charges be overturned and expunged from his record and that he be awarded reimbursement for his expenses resulting from the charges, including attorneys’ fees and lost wages." However, explained the Commissioner, "...  even if [White's] appeal had been properly served, it would be dismissed as [the Commissioner of Education has] no jurisdiction over [White's] claims and lack the authority to grant the relief sought."

* See White v Roosevelt Union Free Sch. Dist. Bd. of Educ., 147 AD3d 1071, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2017/2017_01371.htm

The Commission's decision is posted on the Internet at:


Monday, October 29, 2018

Reinstatement to a position in the classified service following appointment to a position in the unclassified service with the State University of New York


Reinstatement of an individual to a position in the classified service following his or her appointment to a position in the unclassified service with the State University of New York

Question: May an individual with permanent status who resigned from a position in the competitive class of the Classified Service to accept a position with the State University of New York in the Unclassified Service* be reinstated to a position in the competitive class following his or her separation from his or her State University of New York position in the Unclassified Service?

Response: In NYPPL's editor's opinion, the rules applicable in such a situation** are as follows:

1. An employee who resigns from his or her permanent appointment then serving in a position in the competitive class to accept a position with the State University of New York in the Unclassified Service is eligible for reinstatement:

a. With his or her former agency in the same position, or in a similar or lower grade position, except that such a reinstatement cannot be made in the face of [i] a special military list established pursuant to §243.11 of the Military Law;*** or [ii] a preferred list.

b. A different department or agency in the same title and grade, or in a similar or lower grade position, except that such a reinstatement cannot be made in the face of [i] a special military list; [ii] a preferred list; [iii] a "department or agency" promotion list; or [iv] an existing promotion field in that department or agency.

2. For the purposes of reinstatement and similar personnel rights and considerations, service in the classified service is not deemed to be a "break in service" by reason of an intervening unclassified service employment.

* See also, §355-a.10 of the Education Law, "Salary, status, and accumulated leave credits of employees whose employment changes as between the classified and the unclassified service," for additional provisions of law applicable to incumbents of positions in the State University upon the jurisdictional reclassification of his or her position. 

**N.B.  Note 4 NYCRR 5.4, RULES FOR THE CLASSIFIED SERVICE, provides as follows:

A permanent employee who has resigned from his position may be reinstated, without examination, within one year from the date of such resignation in the position from which he resigned, if then vacant, or in any vacant position to which he was eligible for transfer or reassignment. In computing the one-year period within which a person may be reinstated after resignation, the day the resignation takes effect, any time spent in active service in the military or naval forces of the United States or of the State of New York, and any time served in another position in the civil service of the same governmental jurisdiction shall not be counted. In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his former position more than one year after resignation. For the purpose of this section, where an employee on leave of absence resigns, such resignation shall be deemed effective as of the date of the commencement of such leave.

*** Persons not covered by the provisions of §243.11 may be entitled to have their names placed on a "military reemployment list" pursuant to §243.12 of the Military Law.        

Saturday, October 27, 2018

Election Workers: Payroll Reporting and Withholding


Election Workers: Payroll Reporting and Withholding 
Source: Internal Revenue Service

Click on text highlighted in color to access the full report

Each election year, state and local government entities hire temporary workers to conduct primary and general elections. Election workers are subject to unique reporting and withholding requirements and may be coveredby a Section 218 Agreement.


IRS Videos available

Watch the latest presentations made for federal, state and local governments.

Payroll Reporting for Election Workers Learn about reporting and withholding requirements that apply to paid election workers.

Why File Form 1099-MISC Learn about the basic filing requirements for reporting payments on Form 1099-MISC.

Taxpayer Identification Number (TIN) Matching Program Use TIN Matching to validate whether the TIN and name combinations provided on Forms W-9 match IRS tax filing records prior to submitting related information returns.

10 Minutes on Reconciling Forms 941/W-3/W-2 to Gross Payroll Employers who reconcile payroll can avoid discrepancies by ensuring that employees’ wages and taxes reported to the IRS and the Social Security Administration match.

Find these presentations and more on the IRS Video Portal.


Employee privacy and expectations of privacy in the electronic age


Employee privacy and expectations of privacy in the electronic age

Does your organization have a policy concerning the use of its computer equipment? Has it addressed the use of E-mail by employees for personal communications?  Has it distributed copies of these policies to the staff?

The expectations of employees concerning E-mail privacy and the privacy of other material stored or sent on an employer's computer equipment for personal reasons is becoming a significant issue. The topic has been placed on the table in the course of collective bargaining while elsewhere employers have unilaterally adopted policies.

It would seem prudent for an employer to have a policy in place limiting or prohibiting the use of employer E-mail programs by a staff member for personal business. Some have suggested that without such a policy in place an employer could be exposed to claims of invasion of privacy if it reads E-mail records or the employee's "personal files" stored in the employer's computer.

On the other hand, complaints could arise alleging libel or unlawful discrimination resulting from an individual's using the employer's computer equipment. Some have observer that sending out an E-mail with a return address like  from "JSmith[at symbol]XYZagency.gov" is much like sending out a letter on government letterhead. 

What should be set out in such a  policy?

At a minimum the employees should be told that the use of  the "employer's E-mail program is limited to "department or agency business" and that they should not expect any "privacy" with respect to any information, personal or private business related, received, transmitted or stored electronically on the employer's computers.

The Society for Human Resource Management has recommended that employees be required to acknowledge in writing that they have been advised of the employer's computer/E-mail policies.

The following is adopted from the Society's model statement concerning the use of company equipment and the employer's E-mail capability by employees for personal purposes:

I, [name of employee], am aware and agree that, regardless of its source, [name of the employer] has, and may exercise, its rights to review, intercept, access, record, use and disclose all E-mail correspondence as well as all files and records in its computer system at any time, with or without any notice to employees, or the consent of any employee. I also understand that I have no right to expect any privacy with respect to any material I send, receive, place or retain in or through the [name of employer]'s computer system, including, but not limited to, E-mail sent to or received by me from a coworker or from an another individual or organization. I also understand and agree that the use of any office equipment, including any E-mail capability, in violation of this policy may  result in disciplinary action being taken against me.

A number of law suits have been filed against employers alleging that offensive, discriminatory or libelous communications concerning an individual, was created, transmitted or circulated by employees using the employer's electronic data processing equipment. For example, in Strauss v Microsoft Corporation [USDC SDNY, 91 Civ 5928], a federal district court allowed a former Microsoft employee,  Karen  Strauss, to introduce E-mail messages between Microsoft workers as evidence of sexual harassment.

Other means of communicating the employer's policy to staff include having a copy of the statement printed in the employer's "employee handbook"; posting a copy of the policy on all employee bulletin boards; and having a "reminder" greet the computer user each time he or she activates a computer terminal or desktop computer. It may also be advisable to periodically circulate a copy of the policy to all staff members or from time to time attach a copy of the policy to the employees' paycheck.

Once a policy is established, the employer should adopt procedures, and designate the individuals, to implement it and, in addition, periodically review it in order to "keep it current."

On a related issue, does your organization have a policy prohibiting employees from "electronically sabotaging" the work of another staff member or the company's database? This may become an increasing important concern as more and more work is performed electronically.

The New York State Department of Education's State Archives and Records Administration has published a booklet Managing Records in E-Mail Systems. The booklet includes a sample E-mail policy as well as suggestions concerning "E-mail etiquette." For a free copy of the booklet, write to the State Records Advisory Services, 9C71 Cultural Center, Albany, New York, 12230 [518-474-6771].

Employers also should be familiar with the provisions of the Electronic Communications Protection Act of 1986 and the federal Wiretap Act which set out a number of standards dealing with employee privacy in the workplace.


Friday, October 26, 2018

Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality


Arbitration award exonerating an employee the employer found guilty of sexually harassing a co-worker overturned as reflecting a "blame the victim" mentality
New York City Tr. Auth. v Phillips, 2018 NY Slip Op 02442, Appellate Division, First Department

The New York City Transit Authority [Authority] appealed a Supreme Court ruling rejecting its Article 75 petition seeking to vacate an arbitration award.

The New York City Transit Authority had sought a court order vacating a determination by an arbitrator that had set aside the Authority's determination that one of its employees [Harasser] was guilty of sexual harassment of his co-worker and the penalty it had imposed on Harasser -- termination from his position. Supreme Court denied the Authority's Article 75 petition to vacate an arbitration award, confirming the arbitration award and dismissing the proceeding. The Authority appealed the Supreme Court's decision.

The Appellate Division reversed the lower court's decision, on the law, granted the Authority's petition, and the remanded the matter to a different arbitrator to [1] enter a finding that Harasser had subjected a co-worker to inappropriate and unwelcome comments of a sexual nature in violation of the Authority's sexual and other discriminatory harassment policy and [2] to pass upon the appropriateness of the penalty of termination imposed by the Authority on Harasser.

The Appellate Division, in reversing the Supreme Court's ruling,  noted that [1] the arbitrator had "expressly" agreed with the pertinent factual findings set out in the investigation report submitted by the Authority's Office of Equal Employment Opportunity [EEO],* but [2] had nonetheless, "incredibly and inconsistent with his own findings, the arbitrator  ruled that [Harasser's] conduct did not "rise to the level" of sexual harassment."

Further, said the court, "[t]he arbitrator's decision fashions a remedy that violates public policy." Moreover, the award contains language maligning victims in an entirely inappropriate manner, including statements that it was incumbent on the involved co-worker to take appropriate action if she felt Harasser's comments were inappropriate and that such a "blame the victim" mentality inappropriately shifts the burden of addressing a hostile work environment to the employee.

The Appellate Division then opined that the arbitrator's decision belies the realities of workplace sexual harassment. "The fact that the victim did not earlier report [Harasser's] behavior is not atypical and should in no way be construed as absolving [Harasser] of his misconduct" and the arbitrator's decision shifts the onus to the employee to report and fend off the harasser.

Accordingly, explained the Appellate Division, "public policy prohibits enforcement of the arbitration award in this case."

* EEO's report concluding that there was reasonable cause to believe that the Harasser had subjected a co-worker to inappropriate and unwelcome comments of a sexual nature in violation of the Authority's' sexual and other discriminatory harassment policy, which policy defined sexual harassment to include "unwelcome sexual advances and other behavior of a sexual nature when . . . such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile, or offensive working environment."

The decision is posted on the Internet at:

Thursday, October 25, 2018

Firefighting training for the purpose of developing a firefighter's ability to perform certain activities held not part of firefighting per se


Firefighting training for the purpose of developing a firefighter's ability to perform certain activities held not part of firefighting per se
Sears v City of New York, 160 AD3d 471,

Jamel Sears, a probationary firefighter, died as the result of suffering dehydration while performing the New York City's Fire Academy's physically demanding Functional Skills Training (FST) exercise course, a course designed to simulate actual firefighting tasks under a controlled environment. Sherita Sears submitted a claim for certain benefits pursuant to General Municipal Law §205-a, claim predicated on an alleged violation of Labor Law §27-a,

The Appellate Division ruled that the plaintiff in this action, Sherita Sears, was not entitled to recover under GML §205-a,* as the injuries Jamel Sears had sustained while participating in FST exercises were not the type of occupational injury that Labor Law §27-a** was designed to address.

The court explained that the FST course was "part of training and not part of firefighting per se" and was for the purpose of developing the firefighter's ability to perform certain activities efficiently, which activities were a necessary and important part of their job as it ensures that a firefighter could effectively perform those tasks during an actual fire.
                                         
The Appellate Division opined that the "risks of dehydration and other physiological conditions experienced during FST training are the same as those inherent in actual firefighting. Given the special dangers firefighters face, and their responsibility to protect the public, judgments as to how they should be trained are better left for the FDNY supervisors and not second-guessed by the Department of Labor," apparently a reference to provisions set out in Labor Law §27-a(2)(2) in particular.

* GML §205-a, provides, in pertinent part, an "additional right of action to certain injured or representatives of certain deceased firefighters" in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death shall be liable to pay any officer, member, agent or employee of any fire department injured, or whose life may be lost while in the discharge or performance at any time or place of any duty imposed by the fire commissioner, fire chief or other superior officer of the fire department,

** Labor Law §27-a(2), "Safety and health standards for public employees", provides in pertinent part, that every employer shall "(1) furnish to each of its employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees and which will provide reasonable and adequate protection to the lives, safety or health of its employees; and (2) comply with the safety and health standards promulgated under this section. In applying this paragraph, fundamental distinctions between private and public employment shall be recognized."

The decision is posted on the Internet at:


Wednesday, October 24, 2018

Hamburg employee admits $150,000 theft of recreation fees

Hamburg employee admits $150,000 theft of recreation fees
Source: Office of the State Comptroller

On October 24, 2018 , State Comptroller Thomas P. DiNapoli and Erie County District Attorney John J. Flynn announced that a Village of Hamburg recreation attendant admitted stealing more than $150,000 by skimming village fees and altering public records from 2011 to 2017.

Joanne Erickson, stole cash payments that were meant to fund an after-school program, a children’s summer program and recreation hall rental fees. She allegedly altered cash reports and submitted them to the village and the Recreation Center supervisor. The Comptroller’s office conducted an investigation and audit, discovered the theft and brought the matter to Flynn’s office as part of their ongoing partnership. Erickson was terminated from her $35,000-a-year post by the village in April 2018.

"Little by little, Ms. Erickson systematically defrauded the Hamburg taxpayers of $150,000,” DiNapoli said. “Thanks to the hard work of my office in partnership with District Attorney Flynn, Ms. Erickson has been held accountable.”

“This defendant not only stole from taxpayers, but stole money intended to support programs for children in the Village of Hamburg. I want to thank our partners in the State Comptroller’s Office for conducting this audit, which allowed us to prosecute this individual,” Flynn said.

Erickson, a 14-year village employee, pleaded guilty to grand larceny, false filing and official misconduct. She is due back in court on Jan. 9 for sentencing.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and fraud and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.
 

A correction officer's application for performance of duty disability retirement is to be evaluated to determine if the disability resulted from an act or omission of an inmate


A correction officer's application for performance of duty disability retirement is to be evaluated to determine if the disability resulted from an act or omission of an inmate
Garcia v DiNapoli, 2018 NY Slip Op 06602, Appellate Division, Third Department

A county correction officer [Officer] filed for Retirement and Social Security Law §607-c performance of duty disability retirement benefits claiming he had suffered a  permanently disability as a result of his tripping and falling while descending stairs within the facility in the course of his preparing to move inmates to another location.

Officer's application was denied by the Retirement System on the ground that his alleged disability "was not the result of an act of any inmate" and ultimately the State Comptroller accepted the findings and recommendation of the hearing officer. Officer appealed the Comptroller's determination.

The Appellate Division noted that Officer was [1] required to establish that the alleged incapacity was "the natural and proximate result of any act of any inmate" and [2] had to demonstrate that Officer's claimed injuries were caused by direct interaction with an inmate and were caused by some affirmative act on the part of the inmate." Further, noted the court, the action by an inmate need not to be intentionally directed at the correction officer nor does need to be volitional or disobedient in a manner that proximately causes the officer's injury, but must be more than "a benign chore routinely performed in penal institutions by inmates."  

Officer testified that he daily performs a recreation movement and on the day of the incident he was performing a routine recreation movement in accordance with regular procedures when he heard footsteps behind him, turned around to look, and "saw an inmate right on [his] back" running down the stairs about two steps behind him." Officer then stated the "[u]pon unexpectedly seeing the inmate, [he] became 'scared,' missed a step and grabbed a railing with his arm but continued to fall to the ground, resulting in his injuries."

Officer testified that, although the inmate did not make physical contact with him until assisting him off the ground after he fell, "the inmate should not have been on the stairs at that time," as Officer had not yet given the command to the inmates to descend the stairs. Officer further explained that this incident had never happened before and that "inmates are always required to wait for his command before descending the stairs and entering the recreation yard."

The Appellate Division said that under circumstances it found that Officer had demonstrated that the injuries that he sustained from his fall occurred "contemporaneously with, and flowed directly, naturally and proximately from, the inmate's 'disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so.'"

Under these circumstances the court decided that Officer had demonstrated that the injuries that he sustained from his fall occurred "contemporaneously with, and flowed directly, naturally and proximately from, the inmate's disobedient and affirmative act of descending down the stairs unexpectedly prior to receiving permission to do so."

While "losing one's footing — without more — does not constitute an affirmative act," in this instance the Appellate Division concluded that Officer's misstep and fall flowed directly, naturally and proximately from the inmate's act of being out of place without permission and startling Officer by running down the stairs.

The Appellate Division remitted the matter to the Retirement System for further proceedings on the issue of the permanency of Officer's alleged disability

The decision is posted on the Internet at:

Tuesday, October 23, 2018

A retiree not in the collective bargaining unit when he or she became aggrieved may not file a "contract grievance" set out in the collective bargaining agreement


A retiree not in the collective bargaining unit when he or she became aggrieved may not file a "contract grievance" set out in the collective bargaining agreement
Meyer v City of Long Beach, 2018 NY Slip Op 06526, Appellate Division, Second Department

Certain retired police officers [Plaintiffs] sought to recover damages resulting from an alleged breach of the terms and conditions set out in a collective bargaining agreement [CBA] established pursuant to Article 14 of the Civil Service Law [the Taylor Law] from their former employer, the City of Long Beach [City]. Supreme Court denied the City's motion to dismiss the Plaintiffs' petition and the City appealed the Supreme Court's ruling. The Appellate Division affirmed the lower court's decision, with costs.

The facts as reported in the Appellate Division's decision are as follows:

Plaintiffs were members of the Long Beach Patrolmen's Benevolent Associations [PBA], when the relevant CBA between the City  and the PBA expired. Efforts to negotiate a successor CBA failed and ultimately an arbitration award resulting from "compulsory interest arbitration," which allegedly had the statutory effect of becoming the successor CBA to the expired CBA for those members covered by the award, was issued.

The Plaintiffs here, however, had retired prior to the issuance of the arbitration award and although Plaintiffs claimed that the arbitration award applied to them, the City contends that it does not and refused to give them certain compensation mandated by the award.

The City argued that:

[1] the doctrine of collateral estoppel bars Plaintiffs from bringing this action, citing the decision in an improper practice charge filed by the Commanding Officers Association of Long Beach, New York, Inc. [COA] against the City with the New York State Public Employment Relations Board [PERB]. In that action  PERB determined that the City did not violate Civil Service Law §209-a(1) by refusing to allow COA members to share in the arbitration award; and

[2] Plaintiffs' failed to pursue the grievance procedure set out in the CBA established by the award bars their lawsuit seeking to recover damages for the alleged breach of contract.

With respect to the City's reliance on the doctrine of collateral estoppel, the Appellate Division said that the issue raised in Plaintiffs' action is not identical to the issue litigated in an improper practice charge filed by COA against the City before PERB and PERB's determination that the City did not violate Civil Service Law §209-a(1) by refusing to allow COA members to share in the arbitration award did not determine whether the benefits set forth in the arbitration award applied to the Plaintiffs, who were never members of the COA. Thus, said the court, doctrine of collateral estoppel is inapplicable to that issue.

As to the City's claim that Plaintiffs' failed  to pursue the grievance procedure set out in the successor CBA, the Appellate Division said that this failure "does not warrant dismissal of the cause of action to recover damages for breach of contract" as "the CBA limits invocation of the grievance procedure outlined therein to 'bargaining unit member[s].'" The court explained that as retired employees of the City, Plaintiffs were not members of the collective bargaining unit when they became aggrieved and thus they could not have pursued the grievance procedure set out in the CBA that the City claimed was available to them.

The Appellate Division's decision is posted on the Internet at:

Monday, October 22, 2018

Court of Appeals' decision addresses the concept of the separation of powers and the legislature's delegating rule making authority to a state department or agency


Court of Appeals' decision addresses the concept of the separation of powers and the legislature's delegating rule making authority to a state department or agency
LeadingAge N.Y., Inc. v Shah, 2018 NY Slip Op 06965, Court of Appeals

The Court of Appeals' ruling in LeadingAge, et. al., [Proceeding No. 1.] and Coalition of New York State Public Health Plans, et al., Proceeding No. 2.] explores the concept of separation of powers in the context of the State legislature's delegation of certain rule making powers to the New York State Department of Health, an executive administrative agency [EAA].

The Court of Appeals observed that:

1. An EAA rule or regulation grounded in the statutory mandate must not usurp the Legislature's role;

2. An EAA rule or regulation [a] must be promulgated in consideration of, among other things, findings resulting from research and public comment, [b] have defined thresholds and exclusions, if any, and [c] decisions involving the application of rules and regulations by an EAA must be rational; and

3. An EAA may not promulgate rules or regulations reflecting ideas and policies that are inconsistent with effecting "legislative intent" as set out in the statute.

The Court of Appeals noted 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." The concept also requires that the Legislature make the critical policy decisions, while the executive branch may be delegated with responsibility to implement those policies.*

The court explained that an EAA, as a creature of the Legislature, acts pursuant to specific grants of authority conferred by their creator. In effect, a legislative body may enact a general statute that reflects legislative policy and, or, intent and then grant authority to an EAA to promulgate and enforce rules and regulations that "expand upon the statutory text by filling in details consistent with that enabling legislation," i.e., promulgating rules and regulations reflecting the legislative body's intent. In the event an EAA promulgates a rule or regulations beyond the power granted to it by the legislature, the EAA is said to have acted "ultra vires"** and usurped the legislature's role thereby violating the doctrine of separation of powers.

In other words, the separation of powers doctrine requires that the legislature make the primary policy decisions while the EAA, in the exercise of its technical expertise, may be vested with considerable discretion to flesh out a policy broadly outlined by legislators in order to implement the legislature's "primary policy decisions."

The Court of Appeals then indicted that to attain this result in promulgating rules and regulations, an EAA may rely on a general but comprehensive grant of regulatory authority to determine the best methods to attain the objectives articulated by the legislature and "because it is not always possible to draw a clear line between the functions of the legislative and executive branches," common sense must prevail when determining whether an EAA has acted within its grant of authority delegated to it by the legislature.

If the court finds that the EAA has been empowered to regulate the matter in question and has not usurped any of the legislative body's prerogative, judicial review of the separation of powers inquiry is at a judicial end as it is not the court's role to question the efficacy or wisdom of the means chosen by the EAA to accomplish the ends identified by the legislature as it is the court's role to determine whether the agency acted within the scope of the authority delegated to it even if believes there are alternative and better means of effecting the legislative body's intent.

Should the court finds that the EAA meets this initial test, i.e., it has acted within the scope of the powers delegated to it by the legislature, it still may be necessary for the court to adjudicate another issue: are the rules, regulations and procedures adopted by the EAA to effect the legislative intent arbitrary and capricious?

* In Schechter Poultry Corp. v. United States, 295 U.S. 495, the United States Supreme Court held that Congress violated the "nondelegation doctrine" by granting certain rule-making powers to a non-governmental entity under color of Article 8 of the Commerce Clause of the Constitution of the United States which vests in Congress the "power to regulate commerce...."

** Acting beyond one's or an entity's legal power or authority.

The decision is posted on the Internet at:

Saturday, October 20, 2018

State Comptroller DiNapoli Releases School Audits


State Comptroller DiNapoli Releases School Audits
Source: Office of the State Comptroller

The following audits and reports were issued by New York State Comptroller Thomas P. DiNapoli during the week ending October 19, 2018

Click on text highlighted in color to access the full report


Brighter Choice Charter School for Boys – Payroll (Albany County)
School officials effectively designed and implemented procedures to ensure that compensation payments were accurate and properly authorized. Officials established and adhered to an effective payroll process that decreases the risk that errors or irregularities in processing and paying payroll could occur.

Central Islip Union Free School District – Claims Audit Process (Suffolk County)
The district's claims auditor approved $114,333 of claims without documentation to support that the prices charged were accurate. Without adequate documentation such as quotes, bids or contracts, the auditor has no assurance that the district is being billed correctly.

Fort Ann Central School District – Fund Balance Management (Washington County)
District officials need to improve budgeting practices to more effectively manage the general fund balance. The district has accumulated unrestricted fund balance of more than $1.8 million as of June 30, 2017, or 15.25 percent of the 2017-18 budgeted appropriations, exceeding the statutory limit.

Northeast Central School District – Payroll (Dutchess County)
District officials ensured the accuracy of compensation and benefits provided to employees. Auditors found the salaries and wages paid and benefits provided to employees agreed with collective bargaining agreement stipulations and board-approved contracts.

Romulus Central School District – Financial Condition Management and State Transportation Aid (Seneca County)
The board-adopted budgets for the 2014-15 through 2016-17 fiscal years overestimated appropriations by an average of nine percent and generated almost $3.7 million in surpluses during the period. To reduce the unrestricted fund balance to within the statutory limit, officials transferred more than $3.5 million to the capital building reserve and $200,000 to the capital bus reserve over this same period. As a result, reserve fund transactions were not transparent to the public, because each year the funding transfers were not included in the adopted budgets but instead transferred at year-end.



Friday, October 19, 2018

If substantial evidence supports the administrative tribunal's decision, a reviewing court may not substitute its judgment for that of the tribunal


If substantial evidence supports the administrative tribunal's decision, a reviewing court may not substitute its judgment for that of the tribunal
Haug v State Univ. of N.Y. at Potsdam, 2018 NY Slip Op 06964,

In deciding Haug v State University of New York at Potsday [Potsdam], a case involving student discipline, the Court of Appeals commented on some issues relevant to the  standard of proof required to support an administrative tribunal's decision.

The Appellate Division had concluded that Potsdam's determination was not supported by substantial evidence and vacated its decision. The Court of Appeals disagreed,* explaining:

1. Upon judicial review, the Appellate Division "must accord deference to the findings of the administrative decision-maker" noting that "neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact;" and

2. Courts have no right to review the facts generally as to weight of evidence beyond seeing to it that there is substantial evidence.

The substantial evidence standard is a minimal standard said the court, requiring only that a given inference be reasonable and plausible, "not necessarily the most probable." In other words, said the Court of Appeals, "[r]ationality is what is reviewed under the substantial evidence rule" and substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

Further, the court opined, "[w]here substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently" and if substantial evidence supports the administrative decision being challenged, that determination must be sustained "irrespective of whether a similar quantum of evidence is available to support other varying conclusions."

In addition, the Court of Appeals noted that hearsay is admissible as competent evidence in an administrative proceeding "and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds."

Ultimately, said the court, it was the province of Potsdam to resolve any conflicts in the evidence and make credibility determinations and ruled that the Appellate Division had improperly engaged in a re-weighing of the evidence when it substituted its own factual findings for those made by Potsdam. It then reversed the Appellate Division's order and remitted the matter it "for consideration of issues raised but not determined on the appeal."

* Judge Fahey dissented, stating that he would have sustained the majority opinion of the Appellate Division.

The decision is posted on the Internet at:

Thursday, October 18, 2018

Employment of persons with disabilities and employment of veterans with disabilities


Employment  of persons with disabilities and employment  of  veterans  with  disabilities
Source: New York State Department of Civil Service

The New York State Department of Civil Service's Division of Staffing Services [DSS] has published the following Policy Bulletins:

1. Policy Bulletin 18-01 provides guidelines and procedures for appointing applicants for employment with disabilities pursuant to §55-b of the Civil Service Law by the State.*

The text of Policy Bulletin 18-01 is posted on the Internet at:

A printable version of Bulletin 18-01 in PDF format is posted on the Internet at:


2. Policy Bulletin 18-02, providing program guidelines and procedures for the employment of disabled  veterans  and  veterans  with   disabilities pursuant to §55-c of the Civil Service Law by the State.

The text of Policy Bulletin 18-02 is posted on the Internet at:

A printable version of Bulletin 18-02 in PDF format is posted on the Internet at:

** §55-a of the Civil Service Law provides for the employment  of applicants with disabilities by political subdivisions of the State.

N.B. §55 of the Civil Service Law addresses the "Examination  of  blind  or physically handicapped applicants."

Wednesday, October 17, 2018

Strict compliance with the pleading requirements set out in §11(b) of the Court of Claims Act is required for the Court of Claims to have jurisdiction over the claim

Strict compliance with the pleading requirements set out in §11(b) of the Court of Claims Act is required for the Court of Claims to have jurisdiction over the claim
2018 NY Slip Op 06844, Appellate Division, Third Department

Claimant, acting pro se, appealed an order of the Court of Claims which granted defendant employer's motion to dismiss the claim.

The Appellate Division's decision indicates that Claimant was placed on involuntary leave due pursuant to Civil Service Law §72 to after being found to be unfit to perform her duties and a danger to her coworkers, Claimant was ultimately terminated from her employment in July 2009 and had filed multiple employment-related discrimination complaints with the Equal Employment Opportunity Commission and commenced subsequent federal actions, each of which was dismissed.

In February 2016, Claimant filed a petition with the Court of Claims seeking damages as the result of alleged adverse and discriminatory employment actions taken by, among other government officials and personnel, various employees of her former employer [Defendant]. In lieu of answering, Defendant moved to dismiss the claim, asserting, among other things, that the Court of Claims lacked subject matter jurisdiction because the claim failed to comply with the substantive pleading requirements of Court of Claims Act §11(b).

The Court of Claims granted defendant's motion and Claimant appealed.

The Appellate Division affirmed the Court of Claims' ruling, explaining that §11(b) of the Court of Claims Act requires that "a claim must set forth the nature of the claim, the time when and place where it arose, the damages or injuries and the total sum claimed" in sufficient detail to permit a defendant to investigate and promptly ascertain the existence and extent of its liability."

In contrast, the Court of Claims Act does not require a defendant "to ferret out or assemble information that §11(b) obligates the claimant to allege." Further, said the court, "[s]trict compliance with the pleading requirements contained in Court of Claims Act §11(b) is required, and the failure to satisfy any of the pleading requirements is a jurisdictional defect."

The Appellate Division characterized the claim consisted of "88 prolix paragraphs, raises vague, conclusory and non-linear allegations that lack context and fail to provide a coherent and sufficiently detailed description of the particulars of the claim" that would permit Defendant to investigate and promptly ascertain the existence and extent of its liability. As a result, the Appellate Division ruled that Claimant failed to satisfy the pleading requirements of Court of Claims Act §11(b).

Accordingly, said the Appellate Division, the Court of Claims lacked subject matter jurisdiction and properly granted Defendant's motion to dismiss the claim.

The decision is posted on the Internet at:

Tuesday, October 16, 2018

Recent disciplinary determinations by the New York State Commission on Judicial Conduct


Recent disciplinary determinations by the New York State Commission on Judicial Conduct
Matter of Astacio, 2018 NY Slip Op 06850, Court of Appeals
Matter of O'Connor, 2018 NY Slip Op 06852, Court of Appeals

The New York State Commission on Judicial Conduct, following hearings, sustained certain charges of alleged misconduct brought against two members of the judiciary and recommended that the jurists be removed from their respective offices. 

The Court of Appeals accepted the Commission's findings and recommended sanctions and removed the jurists from office.

The court's decisions are posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2018/2018_06850.htm [Matter of Astacio, Opinion Per Curiam]
http://www.nycourts.gov/reporter/3dseries/2018/2018_06852.htm [Matter of O'Connor, Opinion Per Curiam]

Surveillance video and hearing testimony obviates earlier determination that workers' compensation benefit claimant suffered a "permanent total disability"


Surveillance video and hearing testimony obviates earlier determination that workers' compensation benefit claimant suffered a "permanent total disability"
Santangelo v Seaford U.F.S.D., 2018 NY Slip Op 06838,

Workers' Compensation Law §114-a, "Disqualification  for  false  representation," provides for the disqualification of a claimant from receiving future wage replacement benefits pursuant to §15 of said law if he or she is found to have made any "false representation" with respect to his or her claim for benefits.

In 2007, Lawrence Santangelo [Claimant] sustained a work-related injury to his "back and right leg" and underwent surgery. Claimant, however, continued to complain of chronic back pain and reported that he experienced numbness and weakness in his "left leg," which necessitated that he walk with the use of a cane or knee brace. The Workers' Compensation Board ultimately classified Claimant as having a "permanent total disability."

In 2016, the Claimant's former employer's workers' compensation carrier reopened the case, raising the issue of whether Claimant violated WCL §114-a.

Claimant's medical records indicated that "he was in constant pain, required use of a cane or knee brace on a daily basis and was severely impacted in his ability to stand and walk — at times grabbing the wall for stability."

However, surveillance videos of Claimant between August 2015 and March 2016 showed Claimant "walking without a limp, standing and driving for extended periods of time, bending over to do repair work under the hood of a vehicle, and lifting items, such as a car battery, a floor jack and an automobile tire, from the bed of his truck."

In addition, "the only time during the surveillance period that Claimant was observed using a cane or knee brace was during a medical appointment" although later that same day Claimant was observed "walking normally without any assistive device."

The carrier's medical expert testified that Claimant's unrestricted movements and activities depicted on the surveillance videos were inconsistent with complaints of pain and reported limitations expressed by Claimant during the examinations.

After reviewing surveillance video and hearing testimony, a Workers' Compensation Law Judge [WCLJ] ruled that Claimant had violated WCL §114-a and disqualified him from receiving future benefit payments. The Workers' Compensation Board affirmed the WCLJ's decision and denied Claimant's subsequent request for full Board review and, or, reconsideration. Claimant appealed both decisions.

The Appellate Division sustained the Board's decisions, finding that Claimant made false representations regarding material facts and that the Board's ruling was supported by substantial evidence.

The court also rejected Claimant's argument that the Board's decision sustaining the WCLJ's ruling was inconsistent with its 2009 decision, noting  "that the 2009 decision was superseded by a 2012 decision and, in any event, is irrelevant to the issue as to whether [C]laimant subsequently violated WCL §114-a."

The decision is posted on the Internet at:

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