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Tuesday, January 15, 2019

New York State pays drug treatment center nearly $4 million for ineligible expenses


New York State pays drug treatment center nearly $4 million for ineligible expenses
Source: Office of the State Comptroller

A national drug and alcohol treatment provider was able to collect $3.9 million in ineligible payments due to the processing of invalid claims and inadequate oversight by the state Office of Alcoholism and Substance Abuse Services (OASAS), according to an audit released on January 13, 2019 by New York State Comptroller Thomas P. DiNapoli.

"Phoenix House is contracted to provide services to New Yorkers who are trying to overcome substance abuse problems, but it requested and received funding it was not entitled to,” said DiNapoli. “Our audit revealed that millions of dollars were claimed and spent on ineligible costs. Officials from the Office of Alcoholism and Substance Abuse Services must recoup this money, which should have been used for cost-effective addiction services to New Yorkers.”

OASAS, which oversees one of the nation’s largest programs for the prevention and treatment of alcohol and substance abuse, signed a five-year $47.6 million contract with Phoenix House New York (PHNY) in 2009 to provide outpatient, inpatient, and residential drug and alcohol addiction treatment services at several facilities in the New York metropolitan area. The state’s contract with PHNY was renewed in 2014 for another five-year term (July 1, 2014 through June 30, 2019) at a total cost of $51.4 million.

Auditors examined a three-year period ending June 30, 2016 and determined that PHNY received reimbursement for expenses that did not comply with the contract. This included approximately $2.9 million in unallowable or unsupported parent organization administrative expenses.

For example, PHNY's parent organization periodically allocates its administrative costs to its affiliates throughout the country. When an affiliate in one state did not have the revenue to fund their share of these costs, the parent organization reallocated a portion to PHNY and New York was billed for the other state's share. All told, New York was billed $850,000 for these costs.

In addition, PHNY received reimbursement from OASAS for expenses deemed to be ineligible under the contract. This included:

● Equipment and property depreciation of about $700,000;

● Unsupported employee salaries and raises totaling about $500,000;

● Fundraising costs of about $400,000;

● More than $200,000 paid to the foundation's public policy office and outside lobbyists; and

● Entertainment and party expenses of about $12,700.

DiNapoli recommended OASAS take steps to recoup the $3.9 million from PHNY and take steps to establish better monitoring to ensure that only properly supported claims that are for contractually-approved expenses are approved.

The response from OASAS officials, who requested the audit by OSC, is included in the final report. The audit can be found on the Internet at:


Monday, January 14, 2019

Paid Family Leave webinar specifically for public employers


Paid Family Leave webinar specifically for public employers
Source: New York State Workers' Compensation Board

Learn about the nation’s strongest and most comprehensive paid family leave and how public employers can opt in at a special Paid Family Leave webinar specifically for public employers.

This one-hour, online session will provide you with an overview of the state’s landmark Paid Family Leave benefit, and the easy process for opting in.

Paid Family Leave is employee-paid insurance that provides employees with job-protected, paid time off from work to bond with a new child, care for a family member with a serious health condition, or assist when a spouse, domestic partner, child or parent is deployed abroad on active military service. Under the New York Paid Family Leave law, it is easy for public employers to opt in to provide access to these benefits for your employees. Those with union-represented employees may provide Paid Family Leave if it is agreed to through collective bargaining.

Register 
The one-hour sessions are free and will include time for questions and answers. Dates and times are below. Register for a session here:  http://bit.ly/pflwebinar.

Thursday, January 17, 2019, 12:00 p.m. - 1:00 p.m.
Thursday, January 24, 2019, 12:00 p.m. - 1:00 p.m.
Thursday, January 31, 2019, 12:00 p.m. - 1:00 p.m.
Thursday, February 7, 2019, 12:00 p.m. - 1:00 p.m.
Thursday, February 14, 2019, 12:00 p.m. - 1:00 p.m.
Thursday, February 21, 2019, 12:00 p.m. - 1:00 p.m.

Additional Paid Family Leave resources are available

In addition to the webinars, New York State offers complete details and resources on Paid Family Leave at PaidFamilyLeave.ny.gov, including a special page for public employers. Help is also available via a toll-free Paid Family Leave Helpline at 844-337-6303

Accidental disability retirement benefits are available to an applicant if the precipitating event is not a risk of the work ordinarily performed by the applicant


Accidental disability retirement benefits are available to an applicant if the precipitating event is not a risk of the work ordinarily performed by the applicant
Larivey v DiNapoli, 2019 NY Slip Op 00018, Appellate Division, Third Department

Becky C. Larivey, a bus attendant for a school district, applied for accidental disability retirement benefits after suffering a fall in the course of her being assigned to washing school buses. Her application was initially denied by the New York State Employees' Retirement System, but was subsequently granted by a Hearing Officer following a hearing. The State Comptroller overruled the Hearing Officer's decision and denied the application, deciding that the incident precipitating Larivey's fall and injury did not constitute an accident within the meaning of the Retirement and Social Security Law [RSSL]. Larivey appealed the Comptroller's determination.

The Appellate Division said that it is well settled that, for purposes of the Retirement and Social Security Law, an accident is "a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact,'" citing Matter of Kenny v DiNapoli, 11 NY3d 873 and that the Court of Appeals had recently explained "the precipitating event must not be a risk of the work ordinarily performed."

In addition, observed the court, it is the petitioner who bears the burden of demonstrating the existence of an accident, and the Comptroller's determination in this regard will be upheld if is supported by substantial evidence.

The record in Larivey's case revealed that she had never been directed to wash buses as part of her duties as a bus attendant nor did her "job description" indicated that cleaning or maintaining buses were duties that could be assigned to her to perform.* Indeed, notes the court's decision, Larivey's "regular duties involved assisting disabled children getting on and off the bus and ensuring their safety while riding the bus."  The Appellate Division's decision also noted that except for the date of which Larivey suffered her injury she had never been to the parking lot where the buses were kept.

The Appellate Division found that "[u]nder the circumstances presented, the incident was clearly sudden, unexpected and not a risk of [Larivery's] ordinary job duties." Accordingly the court found that Larivey met her burden of establishing that it was an accident within the meaning of the RSSL and that the Comptroller's contrary determination was not supported by substantial evidence.

Granting Larivey's petition, the Appellate Division remanded the matter to the Comptroller "for further proceedings not inconsistent with this Court's decision."

* See Matter of McCambridge v McGuire, 62 NY2d 563. An applicant is entitled to accidental disability retirement benefits when the injury involved "a precipitating accidental event which was not a risk of the work performed."

The decision is posted on the Internet at:
_________________

Click here to Read a FREE excerpt from Disability Benefits for fire, police and other public sector personnel employed by the State and political subdivisions of the State of New York.

Sunday, January 13, 2019

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued


On January 10, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits were issued
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Department of Corrections and Community Supervision (DOCCS): Oversight of Sex Offenders Subject to Strict and Intensive Supervision and Treatment (Follow-Up) (2018-F-21)
The Sex Offender Management and Treatment Act requires that Strict and Intensive Supervision and Treatment (SIST) parole officers to have a minimum number of monthly contacts with paroled offenders. An initial audit identified weaknesses in officers meeting these requirements and significant differences in compliance among the locations tested. Auditors also found that officers didn’t adequately document their responses to electronic monitoring alerts. In a follow-up, auditors found DOCCS has made significant progress and implemented all of the recommendations.

Dormitory Authority of the State of New York (DASNY): Monitoring of Prevailing Wage Compliance on Construction Contracts (Follow-Up) (2018-F-30)
An initial audit found DASNY generally monitored contractors and sub-contractors on its projects to ensure they paid employees at the prevailing wage rate, but auditors found some shortcomings. In a follow-up, auditors found DASNY has made some progress. Of the two prior audit recommendations, one was implemented and one was partially implemented.

Office of General Services (OGS): Food Metrics Implementation (Follow-Up) (2018-F-23)
State law requires OGS and the Department of Agriculture and Markets to develop regulations, establish guidelines, and provide training on New York state food purchasing to agency personnel involved in the acquisition process. OGS is also responsible for tracking data on state agencies’ food purchases and for providing a Food Metrics Annual Report each year detailing these purchases. An initial audit report found that the two Food Metrics Annual Reports completed by the time of the initial audit fell short of providing complete and reliable information regarding the state’s efforts to support its farm and agricultural businesses. In a follow-up, auditors found OGS has made significant progress in correcting the problems.


Department of Health (DOH): Administrative Costs Used in Premium Rate Setting (Follow-Up) (2018-F-10)
An initial audit found DOH overpaid managed care organizations more than $18.9 million in mainstream Medicaid managed care premiums for the state fiscal year 2014-15 due to a flaw in the DOH’s rate-setting methodology. In a follow-up, auditors found DOH made some progress addressing the problems identified in the initial audit report but additional actions are needed.


Department of Health (DOH): Improper Medicaid Payments to Eye Care Providers (Follow-Up) (2018-F-28)
The initial audit report identified vulnerabilities in the DOH’s provider enrollment and revalidating processes that undermine DOH’s ability to ensure that only qualified providers participate in the Medicaid program and prevent improper payments for services rendered by providers who do not meet federal and state requirements. In a follow-up, auditors found DOH has made progress addressing the problems identified in the initial audit.


Department of Health (DOH): Medicaid Payments for Pharmacy Claims – Joia Pharmacy and a Related Prescriber (Follow-Up) (2018-F-26)
From Jan. 1, 2008 through Dec. 31, 2012, DOH paid Joia more than $7.7 million for 50,060 claims on behalf of 706 Medicaid recipients. One particular doctor was listed as the prescriber on 31,351 (63 percent) of the 50,060 claims. Auditors found that, based on a statistical projection of the audit sample results, DOH made improper payments totaling approximately $1.5 million to Joia for pharmacy claims. In a follow-up, auditors determined DOH made progress in addressing the issues. Of the report’s four audit recommendations, three were implemented and one was partially implemented.


State Education Department: Headstart of Rockland Inc. (HSOR): Compliance with the Reimbursable Cost Manual (2018-S-25)
HSOR is a not- for-profit special education provider located in
Rockland County. It provides preschool special education services to children with disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $7,958 in ineligible costs that HSOR reported for reimbursement. .

State Education Department: Developmental Disabilities Institute Inc. (DDI): Compliance with the Reimbursable Cost Manual (2018-S-3)
DDI is a Suffolk County-based not-for-profit organization approved by SED to provide preschool special education services to children with disabilities who are between the ages of three and five years. For the three years ended
Dec. 31, 2015, auditors identified $138,718 in reported costs that did not comply with state requirements

State Education Department (SED): Leake and Watts Services Inc.: Compliance with the Reimbursable Cost Manual (2017-S-73)
Leake and
Watts (now known as Rising Ground) is a not-for-profit special education provider located in Westchester County. Leake and Watts provides preschool special education services to children with learning disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $228,071 in ineligible costs that Leake and Watts reported for state reimbursement.

State Education Department: Pinnacle Organization: Compliance with the Reimbursable Cost Manual (2018-S-6)
Pinnacle is a not-for-profit special education provider located in
Oswego County. It provides preschool special education services to children with disabilities who are between three and five years of age. For the three fiscal years ended June 30, 2015, auditors identified $103,220 in ineligible costs that Pinnacle reported for state reimbursement.

Department of State: Monitoring of Not-for-Profit Cemeteries for Fiscal Stability and Adequate Facility Maintenance (Follow Up) (2018-F-22)
An initial audit report found numerous issues with the agency’s monitoring. For example: as of
Sept. 30, 2016, records indicate 642 cemeteries (37 percent) had overdue audits and 285 (16 percent) had delinquent annual reports. For 145 cemeteries (8 percent), audits were overdue and annual reports were delinquent as well. As of Dec. 1, 2016, 391 cemeteries (22 percent) had not been inspected in over seven years. In a follow-up, auditors found some progress has been made to the problems identified in the initial audit. Of the four prior report recommendations, two were implemented and two were partially implemented.

Saturday, January 12, 2019

Internet online anonymity didn't shield lawyer from ethical obligations


Internet online anonymity didn't shield lawyer from ethical obligations

Rochester, New York attorney Nicole Black has posted an item on her LawBlog Sui Generus summarizing a decision by the Supreme Court of Louisiana, In re: Salvadore R. Perricone, No. 2018-B-1233, in which the court considered whether Perricone violated his ethical obligations as an attorney as a result of anonymous comments that he posted online between 2007-2014. Some of the comments related to trials for which he was the prosecuting attorney and others related to trials that his colleagues were prosecuting. The court concluded that the appropriate sanction for Perricone’s conduct was disbarment.

The Internet link to Ms. Black's article is:

Former Savona Mayor arraigned on charges related to defrauding the Village


Former Savona Mayor arraigned on charges related to defrauding the Village
Source: Office of the State Comptroller Thomas P. DiNapoli

Former Savona Mayor Gregge Harrian was arraigned in Steuben County Court today on felony charges of five counts of offering a false instrument for filing and five counts of misdemeanor falsifying business records. As Mayor, Harrian allegedly submitted fraudulent vouchers and falsified records to trick the village into paying his personal expenses. 

“Mr. Harrian allegedly abused his authority to deceive the residents he was supposed to serve,” State Comptroller Thomas P. DiNapoli said, “I thank District Attorney Brooks Baker and Sheriff James Allard for bringing Mr. Harrian to justice and for our continued partnership to fight public corruption.”

Harrian, 52, resigned his position and left the state after allegedly submitting dozens of unsupported, false, inaccurate or unfounded mileage and purchase claims, according to the audit and investigation. A second unnamed defendant was indicted for facilitating the alleged crimes. 

The indictment was the result of a joint investigation by Comptroller DiNapoli, Steuben County District Attorney Baker and Steuben County Sheriff Allard.

An earlier State Comptroller’s audit found that Harrian also appointed his wife as clerk-treasurer under his supervision, in violation of the village employee handbook, and approved her unsubstantiated claims of off-hours work for $21,000 in extra pay.

Since taking office in 2007, DiNapoli has committed to fighting public corruption 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. Review prior cases at http://www.osc.state.ny.us/investigations/index.htm


Friday, January 11, 2019

Administrative due process trumps an employer's claim to a "management right" to summarily terminate an employee for cause

Administrative due process trumps an employer's claim to a "management right" to summarily terminate an employee for cause
Matter of the Arbitration between the Town of Greece Guardians' Club, Local 1170 and the Town of Greece, 2018 NY Slip Op 08775, Appellate Division, Fourth Department

Supreme Court rejected the Guardians' Club, Local 1170's [Local 1170] petition to confirm an arbitration award requiring the Town of Greece's [Town] to reinstate an individual it had terminated and granted the Town's cross petition to vacate the arbitration award. The Appellate Division unanimously reversed the Supreme Court's ruling "on the law" and confirmed the arbitration award in favor of Local 1170.

The genesis of the demand for arbitration was the Town's chief of police terminating an employee for alleged misconduct without "notice and hearing." Local 1170 filed a grievance on behalf of the employee and ultimately demanded that the matter be submitted to arbitration pursuant to a provision in the Collective Bargaining Agreement [CBA] between the Town and Local 1170.

The arbitrator, noting that the Collective Bargaining Agreement [CBA] between the Town and Local 1170  allowed the Town to terminate the grievant "for cause," opined that the term "for cause" was synonymous with the term "just cause" and that "just cause encompasses some degree of due process." 

Finding that the grievant's termination fell short of the requirements of due process,* the arbitrator concluded that as the grievant "was not provided even rudimentary due process" prior to being terminated, the employee's termination "must be found to be without just cause."

Among the defects identified by the arbitrator related to the Town's failure to provide the grievant with "due process"were the following:

1. The termination letter that the chief of police delivered to the grievant at their meeting was broadly worded and failed to provide her with notice of the charges against her.

2. The grievant was not given an opportunity to respond to the charges of alleged misconduct before the chief of police made the decision to terminate the grievant.

3. The chief of police did not conduct a full and fair investigation inasmuch as he failed to interview a key witness to the alleged misconduct, the grievant herself.

Accordingly, the arbitrator concluded that there was a failure to provide the grievant with "even rudimentary due process" and thus the grievant's "termination must be found to be without just cause" and Local 1170's grievance sustained.

In affirming the arbitrator's decision the Appellate Division noted that "It is well settled that judicial review of arbitration awards is extremely limited", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, cert dismissed 548 US 940, explaining that a ruling by an arbitrator is reviewable only pursuant to CPLR §7511(b), which states in relevant part: "The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by . . . an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made."

When does an arbitrator exceed his or her power under the statute? When, said the Appellate Division, "his [or her] award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power", citing Kowaleski, 16 NY3d at 90 [also see Matter of Town of Tonawanda [Town of Tonawanda Salaried Workers Assn.], 160 AD3d 1477,  leave to appeal denied 32 NY3d 908].

Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact. Indeed, notes the decision, "An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be", citing Matter of NFB Inv. Servs. Corp. v Fitzgerald, 49 AD3d 747

Further, said the Appellate Division, courts lack the power to review the legal merits of the arbitration award, or to substitute the court's judgment for that of the arbitrator, "simply because it believes its interpretation would be the better one."

Supreme Court had vacated the arbitrator's award after it determined that "the arbitrator exceeded a limitation on his power when he determined that the grievance was arbitrable." In the words of the Appellate Division, "Even if the court is correct that the issue of arbitrability was not before the arbitrator, [the Town] conceded on appeal that the grievance was arbitrable. Thus, even assuming, arguendo, that the arbitrator exceeded a limitation on his power, we conclude that [the Town] was not prejudiced by his determination. Absent a showing of prejudice, the court lacks the authority to vacate an arbitration award where, as here, the matter is before the court on the application of a party who participated in the arbitration."**

The Appellate Division said that Supreme Court also erred insofar as it vacated the award on the ground that the arbitrator exceeded a limitation on his power by adding a substantive provision that was not included in the CBA by reason of "the absence of a stand-alone article [in the CBA] pertaining to employee discipline."  However, the "for cause" language set out in the management rights provision relied upon by Supreme Court expressly circumscribed the Town's right to discipline or discharge the grievant and the arbitrator had interpreted that language, consistent with arbitral precedent, as incorporating "a just cause standard that encompasses a right to due process."

Finally the Appellate Division indicated that it had concluded that "the arbitrator merely interpreted and applied the provisions of the CBA, as [he] had the authority to do."

* At the arbitration hearing the chief of police testified that he had made the decision to terminate the employee before meeting with the grievant. In addition, the Town conceded  that the grievant was entitled to notice and a hearing pursuant to Civil Service Law §75, and that the Town had  failed to comply with that statute. 

** The Appellate Division also explained that Supreme Court further erred in determining that the arbitration award was irrational, indicating that "An award is irrational if there is no proof whatever to justify the award". Noting that a court must confirm the award where "the arbitrator offer[ed] even a barely colorable justification for the outcome reached," in this instance the Appellate Division described the arbitration award as a thoughtful, well-reasoned opinion and award based on the hearing testimony of the chief of police and the undisputed evidence in the record, concluding that the arbitrator's award was not irrational.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2018/2018_08775.htm

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

Thursday, January 10, 2019

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


A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence
Sears v DiNapoli, 2018 NY Slip Op 08610, Appellate Division, Third Department

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

Patricia Sears, a permanent employee of the Department of Taxation and Finance from November 1977 until her retirement in July 2015 was enrolled in ERS as a Tier 3 member. Prior thereto her permanent appointment in 1977, Sears had been employed by the NYS Department of Tax and Finance as a seasonal employment on two occasions, initially from March 4, 1976 to June 30, 1976 and then again from January 6, 1977 until September 16, 1977

Prior to the commencement of her second temporary period of employment with Tax and Finance Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*

After RSSL §803 was enacted in 1993, Sears sought, but was denied, retroactive Tier 2 membership in ERS. Shortly before Sears retired in July 2015, she again sought to have her ERS membership in Tier 3 changed to a Tier 2 membership. 

Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.

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

The court explained that there was no information in Sears' personnel file regarding her membership options or opportunities when she was first hired in 1976, nor were there any current employees who could attest to the membership notification procedures that were in place when Sears was initially employed by Tax and Finance. Further, said the court, the documentary proof offered at the hearing was insufficient to establish, among other things, that Sears participated in a procedure that a reasonable person would recognize as an opportunity to join or decline membership in the Retirement System.

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

In contrast, in Schuyler v New York State and Local Employees' Retirement System, 158 AD3d 909, the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit." 

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

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2018/2018_08610.htm

Historical Note: Eligibility to participate in Social Security was made available to public employees of the State of New York pursuant to an agreement between the State and the Social Security Administration as authorized by §1 of Chapter 619 of the Laws of 1953. Members of a public retirement system in service prior to the effective date of the agreement could elect to decline to participate in Social Security. With respect to such individuals who chose to participate in Social Security, the employee could elect to either (a) pay the employee contributions for Social Security in addition to paying the required employee contributions for his or her membership in the retirement system or (b) elect to apply his or her required employee contributions for participation in the retirement system towards paying for his or her required FICA employee contributions for his or her participation in Social Security.


Wednesday, January 09, 2019

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


As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action
Smith v. Town of Ramapo, USSC, Second Circuit, Docket 18-148-cv*

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

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

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

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

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

Thus Smith’s failure to plead that he was qualified to be a police officer is fatal to his claim. Although Smith cited Castellano v. City of New York, 142 F.3d 58, in contending he was "qualified' to be a police officer at the time he earned certain benefits, and that he is entitled to those benefits under the ADA regardless of his ability to serve as a police officer at the time of the discrimination, the court said that "Smith misreads Castellano, and his claim was properly dismissed," noting that Castellano hold that retired employees who were qualified to perform the essential functions of their jobs while employed remain entitled to receive post-employment benefits. 

The general rule, said the Circuit Court, is that the determination of whether a person is "qualified" should be made at the time of the alleged discriminatory employment action and Castellano created a narrow exception to the rule for post-employment benefits intended to be used to the benefit of retirees.   

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

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

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

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

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

The decision is posted on the Internet at:


Tuesday, January 08, 2019

Court address claims of breach of contract, negligent termination and defamation alleged by educator


Court address claims of breach of contract, negligent termination and defamation alleged by educator
Williams v. Buffalo Board of Education, et al, USCA, Second Circuit, Docket #17-3483-cv

Dr. Yamilette Williams, a school administrator, appealed a federal district court's ruling sustaining the Buffalo Board of Education's decision to terminate her from her position. Among the issues addressed by the Circuit Court of Appeals were Dr. Williams' claims concerning the Board's alleged breach of her contract resulting in her alleged negligent termination, and Dr. Williams' allegation that she was defamed by a member of the Board.


Breach of Contract

Addressing the alleged Breach of Contract, the court said that to plead a breach of contract claim under New York law, the plaintiff must allege (1) the existence of a contract; (2) his or her performance under the contract; (3) the defendants’ breach of the contract; and (4) damages.

Under New York law, said the court, "[t]he fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties’ intent.” A contract is the best source of the parties’ intent and “if an agreement is ‘complete, clear and unambiguous on its face[, it] must be enforced according to the plain meaning of its terms.’”

A district court may dismiss a breach of contract claim at the pleadings stage “only if the terms of the contract are unambiguous ... Whether or not a writing is ambiguous is a question of law to be resolved by the courts."


Negligent Termination

With respect to Dr. Williams' claims of having been subjected to "Negligent Termination," the Circuit Court indicated that "It appears that New York courts do not recognize such a claim."

The court then opined that even if such a claim existed under New York Law, Williams’s relationship with the District was governed by contract, and the well-established rule is that "a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated," citing Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382.


Defamation

Finally, with respect to the claims advanced by Dr. Williams' alleging that she had been defamed by a member of the Board, the Circuit Court observed that defamation involves “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society.”

The elements of a defamation claim are "a false statement that is negligently, at minimum, causes harm, unless the statement is per se* defamatory" and only false statements of fact are subject to a defamation action. In contrast, said the court, "expressions of opinion are deemed privileged."

In the words of the court, "Determining whether a statement is one of fact or opinion requires consideration of several factors, including "the full context of the communication in which the statement appears ... whether the specific language in issue has a precise meaning which is readily understood and whether the statements are capable of being proven true or false.”

The Circuit Court also noted that “In an action for libel or slander, the particular words complained of shall be set forth in the complaint." In addition, the complaint also must specify “the time, manner and persons to whom the publications were made.”

The court then affirmed the district court's with respect to its dismissal of the issues alleging negligent termination and defamation.

The Circuit Court, however, remanded Williams’s breach of contact claim to the district court for its further consideration, explaining that given the present record, "it was error" for district court to conclude that Williams failed to satisfy a contractual provision obligating her to maintain professional certifications required by the Department of Civil Service or Department of Education, thereby obviating its finding that the Board did not violate the contract by terminating her.

* Court typically view "uttering a false and injurious statement" concerning an individual's sexual morality, he or she being guilty of a crime or being incompetent in his or her profession or trade as libel or slander per se

The decision is posted on the Internet at:


Monday, January 07, 2019

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


Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions
Appeal of Diana Marie Van Vleet, Decisions of the Commissioner of Education, Decision No. 17,538

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

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

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

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

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

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

The decision is posted on the Internet at:

Sunday, January 06, 2019

New York Public Personnel Law Electronic Handbooks

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

Click here to Read a FREE excerpt from A Reasonable Disciplinary Penalty Under the Circumstances applied to public employees in New York State.

Click here to Read a FREE excerpt from The Layoff, Preferred List and Reinstatement Manual.

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

Saturday, January 05, 2019

Proposed bills of particular interest to school administrators vetoed by the Governor


Proposed bills of particular interest to school administrators vetoed by the Governor
Source: Attorney Douglas E. Gerhardt, Harris Beach, PLLC

Douglas E. Gerhardt, Esq., a partner with the Harris Beach, PLLC law firm, has posted an article addressing two significant bills of interest to school administrators that were passed by the State legislature. One bill would have harmonized certain tenure laws, the second sought to remove the salary cap currently in effect applicable to BOCES superintendents. Both bills were vetoed by the Governor. 

Mr. Gerhardt discusses the impact of these vetoes on school districts and administrators in New York state public schools.

The article is posted on the Internet at:


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