TO SEARCH this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

September 30, 2019

Perfluoroalkyl compounds (PFAs) have become notorious global contaminants


PFAs were detected in water sources serving more than 7 million Californians, according to a new report* by the Environmental Working Group. EWG describes itself as "dedicated to protecting human health and the environment.” It reports finding PFA contamination in water sources for 74 community drinking water systems -- serving 7.5 million people in California.

Unlike other global contaminants such as lead (Pb) and other metals, PFAs have upended the environmental regulatory world.  Regulatory agencies usually have found that control to parts per billion (ppb) or parts per million (ppm) will protect public health reliably and adequately.  The drinking water standard for Pb, for example, is 15 ppb.  PFAs, however, exhibit potent toxicological effects in the usually-unregulated parts-per-trillion (ppt) range, posing new challenges for environmental monitoring and regulation.

These challenges posed by the disturbing toxicology and environmental dynamics of PFAs have been examined by Dr. Robert A. Michaels in two articles recently published in the Environmental Claims Journal. Michaels (2017; see below) addresses massive PFA contamination of drinking water and other  environmental media in Hoosick Falls, Rensselaer County, New York. This episode of corporate environmental impact has garnered national attention because it adversely affected the health of people and the market value of their homes. Michaels (2018; see below) critiques the New York State Health Department's cancer cluster study in Hoosick Falls. He finds major shortcomings, some particular to the study and others applying to cancer cluster studies generally.

Most notably, standard operating procedure in science requires application of the stringent p ≤0.05 confidence criterion of statistical significance.  The Health Department study, like other cancer cluster studies, used this standard inappropriately to confirm cancer clusters in Hoosick Falls.  Unsurprisingly, it found none related to PFAs.  Use of the p ≤0.05 confidence level is aimed at conservatively protecting the body of scientific knowledge.  As a trade-off, however, it may confuse real cancer clusters with statistical flukes, justifying ignoring them.  Consequently, the standard procedure may fail to protect public health conservatively.

Michaels (2018) and Michaels (2017) both are available for download at no charge via the following URL links:

Michaels (2018):

Michaels (2017): 

Please direct questions or comments concerning this post, and/or Michaels (2018), and/or Michaels (2017) to Dr. Michaels at ram@ramtrac.com.

* See https://www.cnn.com/2019/09/27/us/pfas-california-contamination-trnd/index.html

September 28, 2019

New York's Adirondack Council's 2019-20 State of the Park report and blog postings


Wild Thoughts by Julia Randall, Adirondack Council's Clarence Petty Intern, is a three-part series on wilderness ethics and management written in anticipation of the 2020 Adirondack Wilderness Symposium. 

The Symposium and this three-part series will seek to offer a comprehensive, 21st Century consideration of wilderness as a legal concept, an ecological condition and cultural phenomenon. 

Click on the following links to access Part I, What is Wilderness; Part II, For Whom Does Wilderness Exist?; and Part III, Wilderness and a Livable World. 

In addition, Challenged by SuccessNew York's Adirondack Council's 2019-20 State of the Park report, is posted on the Internet at https://www.adirondackcouncil.org/vs-uploads/sop_archive/1567097203_SOP_2019_2.pdf

September 27, 2019

New York State Comptroller Thomas P. DiNapoli issues report on local governments identified as under financial stress


Urging local communities to engage in more long-term planning, on September 27, 2019 State Comptroller Thomas P. DiNapoli issued reports concerning 25 local governments in fiscal stress identified under DiNapoli's Fiscal Stress Monitoring System (FSMS). Included are eight counties, nine cities, seven towns and one village. Ten of those municipalities are in the highest ranking designation of “significant fiscal stress.”

The Comptroller said “For those in fiscal stress, effective long-term planning is critical for charting a better path. These municipalities should use the tools my office provides and engage the public in those difficult, but important, discussions about community priorities.”

Click on text highlighted in color to access the complete text of the material.

The latest round of scores, released today, are based on financial information reported to DiNapoli’s office by local governments operating on a calendar year basis (Jan. 1 – Dec. 31). In New York that includes all counties and towns, 44 cities and 10 villages.

Eight municipalities designated to be in “significant fiscal stress” in this scoring round are in the same category for the second year in a row. They are: the large downstate counties of Nassau, Suffolk and Westchester, the cities of Niagara Falls and Poughkeepsie and the towns of German Flatts, Parish and Oyster Bay. The city of Elmira and the village of Islandia were designated as being in “significant fiscal stress” for the first time.

Monroe County and the town of Clarkstown are designated as being under “moderate stress” in 2018. The counties of Broome, Franklin, Montgomery and Onondaga, the cities of Plattsburgh, Albany, Glen Cove, Little Falls, Watervliet, Tonawanda  and the towns of Dayton, Colonie and Little Valley were designated as being “susceptible to fiscal stress.”

DiNapoli’s monitoring system, implemented in 2013, evaluates local governments on financial indicators and creates fiscal stress scores. Indicators assess year-end fund balance, cash-on-hand, short-term borrowing, fixed costs and patterns of operating deficits. The system also evaluates information such as population trends, poverty and unemployment in order to establish a separate “environmental” score for each municipality which can be used to help describe the environment in which these local governments operate.

In March, DiNapoli issued scores for all non-calendar year local governments, mostly villages, and found seven villages and three cities in fiscal stress.

The Comptroller also released a reporton the challenges faced by local governments in stress. The report looked at all 35 local governments in stress, regardless of when their fiscal year ended and found:  

Cities were the most likely to be in fiscal stress in FYE 2018. Almost 23 percent (12 out of 53 cities scored) were designated in some level of fiscal stress, up from 14.5 percent (eight of 55 scored) designated in stress in FYE 2017.

Counties also had a relatively high rate of stress, with just over 14 percent (eight of the 56 counties scored) found to be in some level of fiscal stress in FYE 2018. However, this is a decrease from the nearly 18 percent (10 of 56 scored) in fiscal stress in FYE 2017.

Only seven of 853 towns scored (less than 1 percent) and eight of 485 villages scored (less than 2 percent) were in fiscal stress, which is similar to FYE 2017 results.

This year, more local governments did not file their financial data with the Comptroller’s office in time to be included in the fiscal stress scores (139 in total), including the cities of Ithaca, Syracuse and Newburgh, which had each filed for FYE 2017.

The report also points to useful tools to help local governments experiencing stress, such as multiyear financial planning, to ensure that financial resources are available for future needs.

Most local governments (almost 98 percent of those that filed) were not in a stress category. However, a “no designation” rating does not necessarily indicate an absence of fiscal stress. Local officials should review their FSMS results, including performance on individual indicators, to identify potential risk areas and develop a plan to address problem areas.

For a list of municipalities in stress for fiscal year ending in 2018:

To sort fiscal scores by year and entity name, visit:

For more detailed information about the Comptroller’s fiscal stress monitoring system, visit:

For municipalities that have not filed or designated inconclusive, visit:

Arbitrator's consideration of "past practices" in resolving a collective bargaining dispute may be limited



A collective bargaining agreement between the School District [District] and the Teachers Association [Association] provided that "covered teachers shall be paid graduate hour compensation ... for additional study approved by the chief school administrator" up to a specified maximum number of semester hours beyond the bachelor's degree.

The Association filed a contract grievance on behalf of a number of teachers after the District refused to pay the teachers for graduate study hours earned prior to their employment by the District.

The contract was silent with respect to payment for "pre-employment" graduate study. An arbitrator, however, decided that these teachers should be paid for graduate study credits completed before they were hired by the District because of the District's "past practice" of granting "salary enhancement to newly hired teachers."

Supreme Court vacated this arbitration award, and the Association appealed. The Appellate Division affirmed the lower court's ruling to deny payment for graduate credits earned prior to employment by the District.

The Appellate Division explained that past practices may be considered by an arbitrator only when interpreting a specific contractual provisions covering the issue in dispute or when the agreement expressly allows for the consideration or  inclusion of past practices in fashioning a remedy.

Here the controlling collective bargaining agreement did not provide for the inclusion of benefits characterized as based on past practices. Furthermore, the arbitrator acknowledged that the agreement did not cover the situation before him.  Noting that the agreement "expressly provides that an arbitrator's decision shall be final and binding only as to the interpretation of the contract," the Appellate Division said that it was not persuaded by the Association's contention that the arbitrator "merely considered past practices as an aid to interpretation of the contract."

Rather, the Appellate Division decided that the arbitrator's decision "derived not from the contract ... but, rather, apparently from his deliberate and intentional consideration of matters dehors [i.e., is foreign to] the contract" and dismissed the Association's appeal.


The decision is posted on the Internet at:

September 26, 2019

Controversy surrounds a whistle blower complaint reported to have been filed by a federal employee


New York State's §75-b of the State's Civil Service Law bars a public employer's taking “adverse personnel actions” against a public employee if the employee reports what he reasonably believe to be a violation of a law, rule, or regulation by his public employer to a governmental body.* However to come within the ambit of  §75-b, the employee must:

[a] Initially provide the information concerning the alleged violation to his appointing authority or the appointing authority's designee,** or have made a “good faith effort” to do so;

[b] Allow a “reasonable period of time" for the appointing authority to take appropriate action unless there is an imminent and serious danger to public health or safety; and

[c] In the event such an "imminent and serious danger" situation exists, the individual must report the alleged violation to a “governmental body".

Links to whistle blower cases posted in NYPPL












Whistle blowing – complaint of retaliation


* Labor Law Article 20-c, Retaliatory Action By Employers, provides similar protections to employees in the private sector. See, also, New York City’s Administrative Code §12-113.

** The general rule is that an individual is not required to exhaust the available administrative remedy where such action would constitute an exercise in futility. Typically the courts apply this exception in situations where it determines that the administrative decision "is a foregone conclusion." See Gaffney v Addison, 132 AD3d 1360.

Concerns about Telecommunications, Electromagnetic Fields, and Human Health


Concerns about Electromagnetic Fields [EMFs] have been noted, most recently related to expanding of 5G antenna networks that are speeding up internet service in communities.  An article addressing this issue by Dr. Robert Michaels [bam@ramtrac.com] has been published in the Environmental Claims Journal. An abstract of the article is set out below:

Abstract

Telecommunication generates electromagnetic fields (EMFs) at radio and microwave frequencies.  Transmitters have proliferated with siting of wireless communication networks, often co-located among other transmitters.  ‘Cell’ phones also have proliferated, representing small transmitters used in contact with human heads, and stored on human bodies.  Telecommunications equipment is ubiquitous, and EMF exposure prolonged, raising the issue of possible health risks.  Such risks, if any, must be managed.  For example, epidemiology studies reported higher exposure to analog cell phone EMFs among brain cancer patients than among controls, but those risks were ‘managed’ via replacement of analog phones with today’s digital phones, which have not been associated with human cancer.  

Challenges remain, recently from rodent bioassays that show dose-related association of lifetime exposure to cell-phone-type EMFs with heart schwannomas (cancers of schwann cells, which insulate nerve cells) in male rats, though not females.  Human cancer risk, if any, remains to be characterized and quantified, which partly will depend upon whether EMFs indeed are non-ionizing as has been assumed, and whether a threshold or non-threshold (genotoxic) mechanism caused the cancers in the male rats.  Health concerns have motivated further exposure reduction suggestions, and sometimes opposition to siting transmitters.  

Credible, objective explication of technical information to primarily non-technical audiences is necessary to support informed public participation and dispassionate weighing of telecommunications risks and benefits in community decision-making.  

Ultimately, experts and non-experts should adhere to the ‘precautionary principle’, requiring adoption of reasonably (but not excessively) pessimistic exposure and risk assumptions, whether or not they are likely to materialize.

The full text of article can be downloaded at no charge from Research Gate via the following URL:  

September 25, 2019

New York State Comptroller Thomas P. DiNapoli Releases Audits


On September 24, 2019, New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued.

Office of General Services (OGS): Compliance With Executive Order 88: Energy Efficiency of State Buildings (2018-S-62) OGS has developed targets and plans to contribute toward EO 88 and complied with the guidelines. However, OGS relied on one project to provide the majority of its energy savings. This project has met criticism from environmental and community advocates because of health concerns related to the burning of natural gas, and its implementation is currently in doubt. Should the project fail to move forward, it is unlikely that OGS will meet its goal of reducing energy usage by 20 percent.

An initial audit released in February 2018 found MCOs improperly paid $50.3 million to providers who were excluded from the Medicaid program or who were otherwise ineligible to receive Medicaid payments. Auditors also identified 22.5 million MCO claims (totaling over $2 billion) that lacked the provider identification information needed to assess the propriety of payments. In a follow-up, auditors found DOH officials made some progress in addressing the problems identified in the initial audit.

An initial audit issued in March 2018 examined the adequacy of state agencies’ continuity of operations planning for major unexpected events. Auditors tested a sample of 11 agencies, finding they had incorporated certain essential features of the COOP best practices endorsed by the division. Auditors also identified some opportunities for improvements. In a follow-up, auditors found the division implemented the recommendations in the original report.

Division of Housing and Community Renewal (DHCR): Enforcement of the Mitchell-Lama Surcharge Provisions (Follow-Up) (2019-F-9) An initial report issued in April 2018 found DHCR in general properly assessed surcharges at Mitchell-Lama housing developments, but there were significant deficiencies in the processes used. In a follow-up, auditors found that DHCR has made some progress in addressing the issues previously identified.

In general, ITS is monitoring IT services procured from consultants and contract staff to ensure compliance with contract terms and deliverables. For 14 of the 20 contracts reviewed, ITS provided adequate oversight to ensure that the contractor or consultant was fulfilling the contract. For the remaining six contracts, for which ITS paid out more than $156 million, there were deficiencies in contract monitoring – primarily of contractors’ reporting and documentation requirements.

Auditors identified 2,115 unemployment insurance overpayments totaling $788,487. Based on the findings, the department assessed penalties valued at $1,110,430 against certain claimants who received the overpayments. Auditors also identified 267 underpayments totaling $48,728.

An initial report issued in April 2018, found the department lacked policies and procedures to guide its complaint investigations, resulting in missing documentation, inconsistent application of the law, delayed investigations of state-operated facilities, and poor communication with complainants. In a follow-up, auditors found the department has made some progress in addressing the problems identified.

An initial report issued in April 2018, determined that preventive maintenance was not performed within the scheduled frequency levels set by MTA’s New York City Transit unit. Transit did not establish a timetable for preventive maintenance for intercoms passengers can use to obtain emergency assistance. Additionally, repairs were not always done on time. In a follow-up, auditors found the MTA made progress in addressing the problems identified.

An initial report issued in April 2018, determined that SIR did not always perform the inspection and maintenance of security equipment on a timely basis. In September 2017, SIR officials developed a new maintenance procedure for security equipment. However, it was unclear if the new procedure included customer assistance intercoms. In a follow-up, auditors found that the MTA made progress in addressing the problems identified.

Auditors performed certain procedures to ascertain the expenses the department incurred in administering the acts for the four State Fiscal Years ended March 31, 2018. On average, the department incurred $20.4 million in expenses to administer the acts for each year.

Bilingual is a New York City-based for-profit organization authorized by SED to provide preschool Special Education Itinerant Teacher (SEIT) services to children with disabilities who are between the ages of three and five years. In addition to the SEIT program, Bilingual operated one other SED-approved preschool special education program. For the three fiscal years ended June 30, 2015, auditors identified $370,685 in reported costs that did not comply with reimbursement requirements.

The TRA’s financial statements represent, in all material respects, the respective financial position of the TRA for the five fiscal years ending March 31, 2018.

Springbrook is an SED-approved special education provider located in Otsego County. Springbrook provides, among other programs, 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 $56,183 in ineligible costs that Springbrook reported for reimbursement. 

An initial audit released in February 2018 found SUNY should improve its oversight of campus foundations. For example, it did not ensure each campus had an executed contract with its foundation or obtain and review available information that the foundations were required to have, such as the IRS Form 990. Auditors also identified certain questionable foundation expenses. In a follow-up, auditors found SUNY has made significant progress in addressing the problems identified.


In an examination of refunds and credits processed by the department from Jan. 1, 2018 through Dec. 31, 2018. Auditors returned 12,783 questionable or inappropriate refunds totaling $41.3 million to the department for follow up evaluation and appropriate action.  In addition, auditors returned 13,097 credits totaling $6.9 million to the department for follow-up and appropriate action.

September 24, 2019

Telecommunications, Electromagnetic Fields, and Human Health


Recent news items revealed concerns about Electomagnetic Fields [EMFs], most recently from 5G antenna networks that are speeding up internet service in communities.  Below is the Abstract of an article prepared by Dr. Robert Michaels [bam@ramtrac.com], that was published in the Electromagnetic Claims Journal.

Abstract

Telecommunication generates electromagnetic fields (EMFs) at radio and microwave frequencies.  Transmitters have proliferated with siting of wireless communication networks, often co-located among other transmitters.  ‘Cell’ phones also have proliferated, representing small transmitters used in contact with human heads, and stored on human bodies.  Telecommunications equipment is ubiquitous, and EMF exposure prolonged, raising the issue of possible health risks.  Such risks, if any, must be managed.  For example, epidemiology studies reported higher exposure to analog cell phone EMFs among brain cancer patients than among controls, but those risks were ‘managed’ via replacement of analog phones with today’s digital phones, which have not been associated with human cancer.  

Challenges remain, recently from rodent bioassays that show dose-related association of lifetime exposure to cell-phone-type EMFs with heart schwannomas (cancers of schwann cells, which insulate nerve cells) in male rats, though not females.  Human cancer risk, if any, remains to be characterized and quantified, which partly will depend upon whether EMFs indeed are non-ionizing as has been assumed, and whether a threshold or non-threshold (genotoxic) mechanism caused the cancers in the male rats.  Health concerns have motivated further exposure reduction suggestions, and sometimes opposition to siting transmitters.  

Credible, objective explication of technical information to primarily non-technical audiences is necessary to support informed public participation and dispassionate weighing of telecommunications risks and benefits in community decision-making.  

Ultimately, experts and non-experts should adhere to the ‘precautionary principle’, requiring adoption of reasonably (but not excessively) pessimistic exposure and risk assumptions, whether or not they are likely to materialize.

The full text of article can be downloaded at no charge from ResearchGate.net via the following URL:

Authority to modify or vacate an arbitration award may be limited by the terms of a collective bargaining agreement


A collective bargaining agreement between the parties provided that if an employee was found guilty of charges involving an assault, the appointing authority had the power to set and impose a penalty.

An employee was charged with assaulting another worker. Found guilty of the charge, the penalty imposed by the appointing authority was dismissal. The union, on behalf of the employee, appealed the appointing authority's determination to the Tripartite Arbitration Board [Board] in accordance with the controlling contract disciplinary grievance procedure.

When the Board denied the grievance but modified the penalty imposed to a suspension rather than termination, the appointing authority filed an Article 75 petition pursuant to §7511 petition seeking to vacate the Board's action. The appointing authority contended that the Board had exceeded its authority when it modified the penalty the appointing authority had imposed.

Supreme Court agreed and vacated that portion of the award that modified the penalty imposed by the appointing authority. The Appellate Division subsequently rejected the union's appeal challenging the lower court's ruling. The Appellate Division said that a court could vacate an arbitrator's award for a limited numbers of reasons, including:

a. the violation of a strong public policy;

b. finding that the award was irrational; or

c. determining that the award clearly exceeded a specific limitation on the arbitrator's powers.

Here the Appellate Division found the limitation described in (c) above controlled as the collective bargaining agreement specifically provided that where the Board sustained the disciplinary charges, the penalty imposed by the Authority must be sustained as well.

Accordingly, the Court ruled that the Board, having sustained the assault charge, had no authority to modify the penalty fixed by the appointing authority -- termination of the employee.

The decision is posted on the Internet at:

September 23, 2019

Imposing the penalty of termination on an employee found guilty of misconduct following a disciplinary hearing overturned as "shocking to the conscience of the court"


A police officer was found guilty of misconduct after a disciplinary hearing. The Police Commissioner imposed the penalty of  dismissal. The Appellate Division modified the penalty imposed on the Petitioner by the Commissioner that resulted in the officer's termination and the forfeiture of his retirement benefits "on the law" and remanded the matter to the Commissioner "for determination of a lesser penalty."

Petitioner had admitted to the theft of $20 from an undercover officer illegally parked near a hydrant and acting intoxicated in the course of an integrity test* targeting Petitioner's partner. Evidence supported the finding that Petitioner also made false statements in the course of an official investigation in violation of the Police Department's Patrol Guide.

Although the Appellate Division concluded that there was no basis to disturb the credibility determinations of the Hearing Officer, it found that "under the circumstances presented here," the penalty of termination and forfeiture of [Petitioner's] pension "shocked the court's conscience and sense of fairness" and thus violated the so-called Pell Doctrine.**

The court opined that the question of whether a penalty is so disproportionate to the misconduct as to shock the conscience requires a case by case factual analysis and found mitigating factors that required it to vacate  the penalty of dismissal and the deprivation of Petitioner's right to his accrued pension. The Appellate Division characterized such a disciplinary penalty as an "affront to our sense of fairness" and "shock[s] the conscience" by the Appellate Division.

Considering mitigating factors, the majority of the court,*** conceding that Petitioner's conduct was "troubling," concluded that Petitioner's misconduct "was an aberration from his otherwise exemplary career," noting that Petitioner:

1. Had nearly twenty years of police service with the Police Department, prior to which he served in the United States Army for eight years where he was a sergeant in the military police, receiving an honorable discharge;

2. During his tenure with the Police Department, Petitioner had no formal disciplinary history, and received a total of 38 medals for "Excellent Police Duty" and "Meritorious Police Duty;" and

3. The loss of Petitioner's pension would work a financial hardship on his wife, who is diagnosed with cancer, and their now 10-year-old daughter.

* An integrity test places a police officer in a lifelike scenario to ascertain whether the officer would act in accordance with the law and Police Department policies.

** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

*** Judges Richter and Kern dissented in part in a memorandum by Judge Richter, concluded that in view of Petitioner's "on-duty theft of money and his subsequent false statements, both of which are offenses involving moral turpitude, the penalty of termination is not so disproportionate to the offense as to shock one's sense of fairness."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_06568.htm


Click here to Read a FREE excerpt from NYPER's

A Reasonable Disciplinary Penalty Under the Circumstances

September 22, 2019

Applying the terms of a settlement agreement settling a disciplinary action


During the course of Plaintiff's disciplinary hearing Plaintiff, represented by counsel, entered into a settlement agreement with the appointing authority [Employer] acting "on its own behalf and on behalf of its present and former ... employees." The settlement agreement provided that the Employer would discontinue the disciplinary proceeding and remove a letter of disciplinary charges from the Plaintiff's personnel file while Plaintiff agreed to retire from his employment with the Employer and to release the Employer and its employees "from all claims or causes of action he may have or claim to have . . . including any and all claims in any way arising out of, or related to, his employment with the Employer, or his separation from that employment."

Subsequently Plaintiff commenced an action to recover damages for defamation, alleging that the individuals [Defendants] named in his complaint, also employees of the Employer, had falsely accused him of actions that led to the disciplinary charges that were preferred by the Employer against him.

Defendants move to dismiss the complaint, submitting a copy of the settlement agreement that had been executed by the Plaintiff in connection with the discontinuance of the disciplinary proceeding that had been brought against him.
Notwithstanding Plaintiff's argument to the contrary, Supreme Court granted the Defendant's motion "for failure to state a cause of action" and Plaintiff appealed.

The Appellate Division explained that [1] the terms of the release contained in the settlement agreement clearly and unambiguously encompass Plaintiff's action and [2] Plaintiff failed to allege any unlawful or wrongful threat by the Employer that could serve as the basis of a claim of duress, which was the only ground the plaintiff alleged to void the release. Thus, opined the Appellate Division, "the release executed by the [Plaintiff] should be enforced according to its terms."

The Appellate Division noted the following elements with respect to a release that will be enforced by a court:

1. "A release is a contract, and its construction is governed by contract law;"

2.  "A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release";

3 "Where . . . the language of a release is clear and unambiguous, the signing of a release is a jural act 'binding on the parties';"

4.  "Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release"; and

5. "Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden ... to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release."

The decision is posted on the Internet at:

September 20, 2019

Criteria for promotion are a managerial prerogative and thus not a mandatory subject of collective bargaining


The New York City Correction Officers' Benevolent Association [Petitioner] filed an  Article 78 petition to challenge a determination by New York City Board of Collective Bargaining [BCB] which concluded that New York City Department of Corrections [DOC] and the City of New York [City] did not commit an improper practice under the City Collective Bargaining Law [CBL] when it altered the procedures pursuant to which correction officers represented by Petitioner secure promotions to the title of correction captain.

Petitioner had filed an improper practice petition with BCB alleging that the City and DOC violated New York City when DOC issued Directive 2230, entitled "Pre-Promotional Assignment Procedures" in accordance with a consent order approved by a federal district court in a case involving allegations of excessive use of force incidents in DOC facilities.*

The relevant provision in Directive 2230 concerns promotions within DOC provided for (1) a review of a correction officer's use of force and disciplinary history during the five years prior to the consideration for promotion; (2) a prohibition of the promotion of candidates who were found guilty or plead guilty on two or more occasions to five categories of discipline for excessive use of force during the prior five year period; and (3) a prohibition of a promotion from correction officer to captain while disciplinary charges related to use of force incidents are pending.

Board of Education, City School District of City of NY. v New York State Public Employment Relations Board, 75 NY2d 660, Supreme Court observed that "[i]n cases involving the issue of mandatory or prohibited bargaining subjects under the Civil Service Law, we have defined our review power as a limited one: [s]o long as [the agency's] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation." Further, opined Supreme Court, "New York courts have deferred to BCB's expertise in applying and interpreting the provisions of the CBL," citing New York City Dept. of Sanitation v MacDonald, 87 NY2d 650.

BCB had found that Directive 2230 does not constitute a unilateral change to a term of condition of employment, thus DOC did not make a unilateral change to a mandatory subject of collective bargaining, noting that in prior cases BCB had held that criteria for promotion are a managerial prerogative and not a mandatory subject of collective bargaining. Here, said the court, BCB concluded "that the contested changes in promotions set forth in Directive 2230 concern criteria for 'promotion"

Noting that BCB had found that DOC "exercised its managerial prerogative" when it took into consideration DOC took into consideration use of force incidents when considering  promotion to captain a correction officer's use of force incidents, finding that these elements "most akin to promotional considerations like aptitude, demeanor, and judgment, or to awarding greater points for those candidates with a less extensive disciplinary history."

Supreme Court held that these conclusions by BCB were rational and consistent with its  decisions in other cases and thus were "legally permissible" and there was "no breach of constitutional rights [or] protections" in its determination.  Accordingly, said Supreme Court, it had "no power to substitute another interpretation" in considering the arguments advanced by Petitioner.

Addressing Petitioner arguments that the Directive 2230 criteria regarding whether a corrections officer should be recommended for promotion to captain is analogous to imposing mandatory penalties for disciplinary violations, a mandatory subject of collective bargaining, Supreme Court opined that "New York courts, like BCB in the instant proceeding, have held that discipline is not the same as failure to promote."

The court then granted the motions advanced by BCB, the City and DOC to dismiss the Petitioner's Article 78 action.

* See Nunez v City of New York, 11 Civ 5845 (SDNY 2015),

The decision is posted on the Internet at:



September 19, 2019

Rescinding or withdrawing a letter of resignation


The employee [Plaintiff] in this action was a civilian employee of a police department [Department]. A detainee had died in her holding cell at police headquarters while the Plaintiff was on duty. The New York State's Attorney General's Office investigated the death of the detainee and recommended "administrative action regarding the Plaintiff's conduct" be initiated by the Department.

The then Department's appointing authority "authorized" the Plaintiff's supervisor "to resolve the disciplinary issue by accepting a letter of resignation" from the Plaintiff. The supervisor told Plaintiff that if he did not resign from his position a formal disciplinary proceeding would be commenced against him. Plaintiff tendered his resignation letter immediately after his meeting with his supervisor.

The next day, however, Plaintiff sent a letter to his supervisor rescinding his resignation. About two weeks later the Department notified the Plaintiff' that it had rejected his effort to rescind his resignation. Plaintiff then commenced a CPLR Article 78 proceeding seeking a court order [1] vacating the Department's decision, [2] directing the Department to reinstate him to his former position and [3] to pay Plaintiff "damages and back pay. The Supreme Court granted Plaintiff's petition and the Department appealed.

With respect to resigning from a position in the classified service, the Appellate Division, citing 4 NYCRR 5.3(b), said that such resignations are to be delivered to, or filed in the office of, the appointing authority* and that 4 NYCRR 5.3(c) provides that "a resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority without the consent of the appointing authority."

However, the court noted that the Department's appointing authority was not authorized to delegate his authority to receive the delivery of an employee's written resignation to another individual.

Although the heads of other departments in the jurisdiction were specifically authorized to delegate the power to receive the delivery of an employee's resignation to a designated individual, the powers and duties of the Department's appointing authority "did not specifically provide for any such delegation of the [appointing authority's] power to a subordinate." Accordingly, the Appellate Division held that Plaintiff's supervisor "was without authority to receive delivery of [Plaintiff's] resignation letter" on behalf of the Department's appointing authority.

As there was no indication in the record that Plaintiff's letter of resignation was delivered to the appointing authority or filed by or on behalf of the Plaintiff with the appointing authority's office prior to the Plaintiff's request to rescind it, "such that the [appointing authority's] consent to [its withdrawal] was necessary," the Plaintiff was not preclude from "unilaterally rescinding his resignation."

It should be noted that  the Plaintiff  was informed that if he did not submit his resignation to his supervisor a formal disciplinary proceeding against him would be initiated. Does such a demand constitutes “duress or threat” that will defeat the “voluntariness” of the resignation and make it meaningless? Case law indicates that in the absence of extenuating circumstances such as an excessively lengthy or intense questioning, courts will not deem the individual's resignation to have been obtained under duress.

In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeal addressed a situation where an employee was offered the option of resigning from his position or having formal disciplinary charges filed against him. Although permitted to confer with a union official, when the employee asked for additional time to consult with an attorney, he was told that unless he submitted his written at that very moment, disciplinary charges would be filed against him. He submitted his resignation but four days later attempted to withdraw or rescind his resignation, which he contended had been “forced” from him.

Ultimately the Court of Appeals held that a threat to file formal disciplinary  charges against an employee if he declined to submit his resignation "does not constitute duress," explaining that as the appointing authority had the legal right, if not the duty, to file disciplinary charges against the individual, threatening to do what the appointing authority had the legal right to do is not duress.

In contrast to an individual's efforts to withdraw his or her resignation, an appointing authority may elect to ignore a lawfully delivered resignation.

4 NYCRR 5.3(b), which as noted earlier applies to State employees in the classified service, provides that in the event “… charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation". Many civil service commissions of political subdivisions of the State have adopted a similar provision.

* 4 NYCRR 1.1 et seq. applies to incumbents of positions in the classified service of the State as the employer and to public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the New York State Department of Civil Service. Here the "local civil service commission" had adopted personnel rules similar to those set out in 4 NYCRR 1.1 et seq. which applied to all positions in the classified service of the county and all civil divisions "which are or may hereafter be under the jurisdiction" of the local commission.

The decision is posted on the Internet at:

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