The doctrine of res judicata bars considering claims that could have been advanced in an earlier administrative disciplinary hearing in the course of subsequent litigation

Although the Appellate Division held that the Plaintiff's breach of contract claims against the New York City Department of Education [DOE] was properly dismissed for failure to serve a notice of claim within three months of claim accrual, citing Fifty CPW Tenants Corp. v Epstein, 16 AD3d 292, the court further observed that these breach of contract claims against DOE were all related to Plaintiff's termination. As Plaintiff's breach of contract claims  "... were litigated, or could have been litigated in his Education Law §3020-a hearing or his proceeding to vacate the arbitration award," the Appellate Division ruled that the claims were barred by the doctrine of res judicata."

Addressing Plaintiff's complaint that his collective bargaining representative, the United Federation of Teachers [UFT], failed to properly represent him during his Education Law §3020-a disciplinary proceedings, the Appellate Division noted that UFT's alleged failure "to properly represent" Plaintiff occurred almost a year before he had commenced the instant litigation. The court explained that the applicable statute of limitations was "four months from the date the [Plaintiff] knew or should have known that such breach occurred," and thus it was untimely. 

Further, opined the Appellate Division, "[c]haracterizing a claim for breach of the duty of fair representation as one for breach of contract is unavailing to avoid the four-month limitations period," citing Roman v City Empls. Union Local 237, 300 AD2d 142, lv denied 100 NY2d 501.

In addition, the Appellate Division noted that Plaintiff's claim was based on an alleged breach of contract based on Plaintiff's representation that UFT failed to offer him opportunities to "participation in certain remediation programs during the 2008-09, 2009-10, and 2010-11 school years." As this issue related to Plaintiff's §3020-a disciplinary hearings, the court said the claim was subject to a six-year statute of limitations and thus it would run, at the latest, only until 2017.

The Appellate Division unanimously affirmed Supreme Court's ruling granting DOE's and UFT's motions to dismiss Plaintiff's complaint.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07516.htm

 

Emergency Medical Technician found guilty of disciplinary charges alleging that he addressed vulgar language to a triage nurse is suspended without pay

The New York City Fire Department [Department] served disciplinary charges on an Emergency Medical Technician [EMT] alleging that the EMT used vulgar language in the course of his responding to a work-related question posed by a hospital triage nurse in violation of Department rules. This, the Department contended, "created a hostile work environment."

At the disciplinary hearing that followed, the Department presented documentary evidence and testimony given by the EMT's coworker and a nurse who had overheard the EMT's response to the triage nurse. The EMT testified that he did not recall the incident but did not challenge the charge in the light of the testimony of the Department's witnesses.

OATH Administrative Law Judge Ingrid M. Addison found the EMT guilty of violating five of the six rules he was alleged to have violated and recommended that the EMT be suspended from his employment without pay for 45 day.

Then Judge Addison, noting that EMT's misconduct was based on a single incident, opined that imposing "a single penalty" was appropriate under the circumstances and so recommended to the Department.

The decision is posted on the Internet at http://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-1798.pdf

 _______________

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html

 

 

Prosecuting a claim of "employer retaliation" allegedly based on an employee's having exercised his federal Family Medical Leave Act rights

The federal Family Medical Leave Act, 29 U.S.C. §2612(a)(1)(C), [FMLA] entitles eligible employees to twelve workweeks of unpaid leave per year “to care for [a] spouse, or a son, daughter, or parent . . . , if such spouse, son, daughter, or parent has a serious health condition.”

The FMLA prohibits an employer from interfering with an employee’s exercise of this entitlement or retaliating against an employee for exercising this entitlement.* 

In this action the U.S. Circuit Court of Appeals, Second Circuit, distinguished between prosecuting claims of “interference” and claims of “retaliation” under the FMLA as follows:

a. An employee typically brings an “interference” claim when the employer allegedly has prevented or otherwise impeded the employee’s ability to exercise rights under the FMLA, characterized as ex ante FMLA protection; and

b. “Retaliation” claims, in contrast, typically involve an employee, having actually exercised his FMLA rights or opposed perceived unlawful conduct within the meaning of the FMLA, subsequently alleges that he was subjected to some adverse employment action by the employer. This is characterized as ex post FMLA protection.

To establish a prima facie case of interference with FMLA rights, a plaintiff must demonstrate that:

(1) Plaintiff is an eligible employee for FMLA leave within the meaning of the FMLA;

(2) The defendant is an employer as defined by the FMLA;

(3) Plaintiff was entitled to take leave under the FMLA

(4) Plaintiff gave notice to the defendant of her intention to take leave; and

(5) Plaintiff was denied benefits to which she was entitled under the FMLA.

In contrast, to establish a prima faciecase of retaliation within the meaning of the FMLA, the plaintiff must demonstrate that:

(1) Plaintiff “exercised rights protected under the FMLA”; 

(2) Plaintiff“was qualified for [the] position”; 

(3) Plaintiff “suffered an adverse employment action”; and 

(4) “the adverse employment action occurred under circumstances giving rise to an inference of retaliatory intent.”

Courts test FMLA retaliation claims under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, whereby upon the plaintiff's making a prima facie case of retaliation the burden shifts to the employer to demonstrate action was not in the nature of retaliation but made for legitimate business reasons. 

Then, as the court held in Weinstock v. Columbia Univ., 224 F.3d 33, if the employer demonstrates that the action taken was for "a legitimate business reason," the burden of going forward then shifts back to the plaintiff, who "must then show that [the employer's] proffered explanation is pretextual.” A plaintiff may satisfy this burden “by demonstrating weaknesses, implausibilities, inconsistencies, or contradictions in the employer’s proffered” reason, or by providing evidence such that "a reasonable fact finder could conclude that the prohibited reason was a motivating factor in the adverse employment action."

* See Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158

Click here to access the text of the Circuit Court's decision.

 

A governmental entity may be subject to the doctrine of estoppel where the injured party has suffered manifest injustice as the result of bureaucratic confusion and deficiencies

Shortly after commencing their employment with the City of New York, the New York City Employees' Retirement System [NYCERS] placed the petitioners [Members] in this CPLR Article 78 action in the Basic Tier 4, 62/5 Retirement Plan [the 62/5 plan] which provided for retirement with full benefits at age 62 after at least 5 years of credited member service.

It was undisputed that the Members' enrollment in the 62/5 plan was in error and that the NYCERS was required by statute to enroll the Members in the Tier 4 57/5 Retirement Plan [the 57/5 plan] which Plan allows for retirement with full benefits at age 57 after at least 5 years of credited member service. The 57/5 Plan also requires greater employee contributions to the NYCERS.* The Members were in the 62/5 plan for more than 20 years, receiving annual statements from NYCERS confirming their membership in that plan.

However, in 2016 NYCERS advised the Members, then respectively 63 and 62 years of age, that their retirement plans were being changed to the 57/5 plan and that they owed additional member contributions because of their belated placement in that plan. The amount respectively due, said NYCERS was $20,198.41 and $24,346.69. This increased employee pension contributions was attributed to required contributions to the 57/5 plan that should have been deducted from their compensation since the time the Members joined NYCERS.

NYCERS also advised the Members that they could pay off their respective deficits "either in a lump sum or through periodic payroll deductions and that any unpaid balance remaining at the time of their retirement would permanently reduce their pension benefits."

The Members commenced this CPLR Article 78 proceeding seeking a court order directing NYCERS to reinstate them in their former 62/5 plan and to reimburse them for any additional pension contributions resulting from their involuntary switch into the 57/5 plan.

Supreme Court found that switching the Members from the 62/5 plan to the 57/5 plan violated Article V, §7 of the New York State Constitution. Further Supreme Court ruled that NYCERS long delay in discovering its error deprived the Members of "any opportunity to retire with full benefits before the age of 62," and it would be "an injustice to require them to make ...  payments when this benefit has been lost," notwithstanding their newly acquired 57/5 members status. NYCERS appealed the Supreme Court's decision.

The Appellate Division, agreeing with NYCERS that the Supreme Court erred in finding that switching the Members from the 62/5 plan to the 57/5 plan violated Article V, §7 of the New York State Constitution, modified the judgment of Supreme Court with respect to the Members' placement in the 57/5 plan in accordance with the applicable statute. The Appellate Division, however, sustained Supreme Court's applying the doctrine of estoppel thus requiring NYCERS to reimburse the Members for any funds collected pursuant to their placement in the 57/5 plan and barring its further collection of any such funds.

Citing Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Regan, 71 NY2d 653 and other decisions, the Appellate Division observed that Article V, §7 "provides in pertinent part that 'membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.'" The Appellate Division then observed that "under the New York State Constitution, '[t]he rights of public employees are . . . fixed as of the time the employee becomes a member of the system,' not at the time of retirement."

Further, opined the Appellate Division:

1. NYCERS is obligated to correct its errors and was required by statute to place the Members in the 57/5 plan;

2. The Members were never were eligible for membership in the 62/5 plan and thus were not entitled to receive benefits hereunder; and

3. The Members were required by law to be placed in the 57/5 plan from the outset of their employment and thus do not possess a constitutionally protected contractual right to be returned to the 62/5 plan.

However, the Appellate Division, noting "the extraordinary circumstances of this case," concluded that the Members had successfully established that NYCERS should be estopped from collecting additional funds resulting from their being placed in the 57/5 plan.

Although the Appellate Division conceded that "[a]s a general rule, estoppel may not be invoked against a governmental body to prevent it from performing its statutory duty or from rectifying an administrative error ... [t]his Court has invoked the doctrine of estoppel against governmental entities where ... 'misleading nonfeasance would otherwise result in a manifest injustice,' such as where the plaintiff has been the victim of bureaucratic confusion and deficiencies."

Pointing out that NYCERS' failure to discover its pension enrollment error for more than 20 years had effectively deprived the Members of any opportunity to avail themselves of the key benefit of early retirement, since they were both older than 62 when they were first advised of the NYCERS' error." The Appellate Division concluded that "[u]nder these circumstances, it would be manifestly unjust to permit NYCERS to collect additional employee contributions from the [Members] after its negligence rendered it impossible for them to obtain the primary benefit of the 57/5 plan."

The decision states that "Simply put, [NYCERS] may not negligently deny the [Members] the benefit of the 57/5 plan while simultaneously demanding from them the additional contributions associated therewith."

Sustaining that part of Supreme Court's determination stopping NYCERS from collecting such additional contributions and directing it to reimburse the Members for any such amounts it has already collected, the Appellate Division said it agreed with the Supreme Court's dismissal of NYCERS' cross motion to dismiss the Members' petition as amended.

* See Retirement and Social Security Law §604-d.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07583.htm

 

Employee terminated for continuing to address disrespectful written statements to coworkers after being told to discontinue such misconduct

A tenured faculty member [Plaintiff], after having several "guidance memoranda" placed in his personnel file concerning disrespectful written statements sent to coworkers, was served with disciplinary charges alleging similar misconduct. The arbitrator, finding that Plaintiff's conduct was unbecoming of a member of the college's faculty, imposed the penalty of a letter of reprimand to be placed in the Plaintiff's personnel file.*

Subsequently Plaintiff was denied promotion to full professor by a select committee and sent an email to committee members stating, in part, "I damn you all to hell-may your bodies and souls burn in eternal fires." 

The college filed disciplinary charges on the Plaintiff, alleging he exhibited "conduct unbecoming a staff member" and proposed his termination as the penalty to be imposed. After an administrative disciplinary hearing, the arbitrator found Plaintiff guilty of the charge and determined that the College had just cause to terminate Plaintiff's employment.

Supreme Court [1] denied the petition filed by Plaintiff  pursuant to CPLR Article 75 seeking to vacate the arbitrator's award and the penalty imposed, termination of Plaintiff's employment, and [2] granted the College's cross motion to dismiss Plaintiff's petition. 

Plaintiff appealed but the Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division sustained the arbitration award and penalty imposed, citing Hackett v Milbank, Tweed, Hadley and McCloy, 86 NY2d 146.

The court explained that an arbitration award may be vacated "only if the court finds that the party's rights were prejudiced by corruption, fraud or misconduct in procuring the award or the partiality of an arbitrator appointed as a neutral; where the arbitrator exceeded his or her power or so imperfectly executed it that a final and definite award was not made; or where the arbitrator failed to follow the procedure set forth in CPLR 7511(b)(1). 

Further, said the court, an arbitration award should not be vacated based on errors of law and fact nor should the court assume the role of overseers to make the award conform to the court's sense of justice.

Here, opined the Appellate Division, "the arbitrator's findings are supported by the record and are not arbitrary, capricious or irrational." 

Addressing the Plaintiff's assertion that the arbitrator was biased against him, the Appellate Division said that Plaintiff's allegation "was not supported by any evidence in the record."

As to the penalty imposed on Plaintiff, dismissal from his position, the Appellate Division acknowledged that "the penalty imposed, which may seem harsh given [Plaintiff's] lengthy and satisfactory service at the college" but, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, opined that it "was not so disproportionate to the offense as to shock the conscience."

Conceding that Plaintiff acknowledged that his email to the faculty committee members was an error in judgment, the Appellate Division, noting that Plaintiff had "received numerous prior warnings about disrespectful and intemperate writings to staff and coworkers," found that the arbitrator "reasonably concluded that a more lenient penalty was unlikely to change [Petitioner's] unprofessional conduct."

* The letter of reprimand [1] noted the findings of the arbitrator; [2] advised Plaintiff to commit to taking steps necessary to maintain a civil tone with coworkers; and [3] warned Plaintiff that additional such incidents "may lead to further disciplinary action."

** See United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72.

Click here to access the text of the decision.

 

New York State Comptroller's report of the State's Education Department's oversight of career training programs issued

On December 21, 2020 New York State Comptroller Thomas P. DiNapoli issued an audit report focusing on the New York State Education Department [SED] oversight of New York's Career and Technical Education [CTE] programs. 

CTE programs that are intended to prepare high school students for future employment. The audit, however indicates that these CTE programs are often failing to ready students for jobs that are in demand, fast-growing, or pay higher wages.

The audit report indicates that during the 2018-19 school year, only 13 percent of students were enrolled in programs that closely aligned with occupations deemed highest in demand, growth and salary. Auditors determined that 57.5 percent of student enrollments were in approved programs geared to high-salary occupations, with the remaining 42.4 percent of students enrolled in programs that align with an occupation with a typical salary below the state average.

Auditors also found SED lacks sufficient employee resources to monitor CTE programming in the state. SED focuses on review of CTE program applications and the administration of federal grants, but does not perform routine visits to program locations or monitor program-level performance. As a result, the report concludes that SED's oversight activities are insufficient for assessing how programs are performing.

DiNapoli’s auditors also found:

a. SED has not established any requirements or issued guidance to address scheduling barriers for students trying to meet educational requirements while also accommodating CTE courses.

b. The majority of locations (78 percent) visited said that attracting, hiring and retaining certified teachers with industry experience to instruct CTE programs is impeded by a prolonged certification application process, inadequate salaries, and stringent educational requirements.

c. Approved program course curriculum and articulation agreements with post-secondary programs are not developed using a centralized approach. There is no single CTE curriculum for comparable programs at different locations, and, as a result, different standards may be required depending on the school district or BOCES where the student takes the CTE program

d. SED cannot accurately determine the number of endorsed graduates each year and does not have assurance that students have met the academic and industry standards of the respective CTE program for which they received an endorsement.

State Comptroller DiNapoli recommended SED take the following actions:

a. Ensure approved and local CTE programs, as well as student enrollments, align with state workforce needs and meet the career goals of secondary school students;

b. Take the steps necessary to monitor CTE program-level performance as well as the accuracy and consistency of data submitted by school districts and BOCES;

c. Assess whether the funding provided for CTE-related activities is sufficient to support high-quality CTE programs;

d. Work with schools to ensure they are adequately promoting, supporting, and teaching CTE programs;

e. Review and update CTE regulations to ensure alignment with state law;

f. Work with schools and BOCES to standardize CTE curriculum; and

g. Provide additional guidance to schools, school districts and BOCES regarding the application of CTE program requirements to ensure there is a clear and consistent process to record and report accurate CTE-related information.

SED, however, generally disagreed with the audit’s findings. SED’s response is included in the audit.

Click here to access the full text of the Audit Report: State Education Department: Oversight of Career and Technical Education Programs in New York State Schools

 

New Regulations and Fact Sheets on New York State's Paid Sick Leave Law

Harris Beach PLLC, a law firm, reports that on December 9, 2020, the New York State Department of Law [DOL] issued proposed regulations that further implement New York's Paid Sick Leave Law.

Harris Beach notes that the regulations are still in "proposed" form and not yet final.

Employers and other members of the public have until February 7, 2021, to submit comments and feedback to the DOL regarding the proposed regulations.

Click here to

Read Full Article

 

The Doctrines of Collateral Estoppel and Res Judicata bar a party relitigating the same issues involving the same defendant

Reviewing an appeal challenging Supreme Court's granting the defendant's motion to dismiss Plaintiff's complaint, the Appellate Division affirmed the lower court's ruling, explaining:

1. When a party's complaint arises out of the same set of circumstances as his prior CPLR Article 78 proceeding, the second action is barred on the grounds of res judicata; and

2. When a party has been afforded a full and fair opportunity to litigate an issue and loses in a CPLR Article 78 action, collateral estoppel will bar him from litigating the issue a second time.

The Appellate Division observed that both in the instant proceeding and in an earlier Article 78 proceeding, the plaintiff [Petitioner] attacked an administrator's [Defendant] decision to give him an unsatisfactory ["U"] rating and her refusal to allow him to rescind his resignation.

The court also opined that Supreme Court properly granted summary judgment to the Defendant on the merits, finding that the collective bargaining agreement relied upon by Petitioner "could not serve as the basis for a tortious interference with [his] contract claim" because, among other reasons, Petitioner had not properly alleged that "he was party to a contract with a third party."

As to Petitioner's claim for "tortious interference with [his] prospective business relations," the Appellate Division found that Petitioner was unable to show that Defendant directly interfered with any prospective third-party agreement through "wrongful means" nor could he establish that he would have been hired by a third party "but for" Defendant's actions. In the words of the court, "such vague aspirations of future employment are insufficient ...," citing Kickertz v New York Univ., 110 AD3d 268 and Murphy v City of New York, 59 AD3d 301.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07286.htm.

 

Audits issued by the New York State Comptroller during the week ending December 18, 2020

On December 18, 2020, New York State Comptroller Thomas P. DiNapoli announced the following audit reports had been issued.

Click on the text highlighted in color to access the complete audit report

State Departments and Agencies

 

Metropolitan Transportation Authority - Long Island Rail Road (LIRR): Management of Capital Projects (2018-S-70) LIRR’s capital management process is guided by a series of Department of Program Management procedures; however, project managers do not always comply with, and contractors/consultants are not required to follow, these procedures. Auditors believe this contributed to LIRR completing 10 of 11 sampled projects late, ranging from three months to over four years. In addition, eight of the projects sampled were over budget.

 

Office of Information Technology Services (ITS): Oversight of Information Technology Consultants and Contract Staffing (Follow-Up) (2020-F-21) An audit issued in September 2019 found that ITS was monitoring information technology 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 meeting the deliverables. For the remaining six contracts, for which ITS paid out more than $156 million, there were deficiencies in contract monitoring. In a follow up, auditors found ITS has made progress in correcting the problems identified in the initial report.

 

State Education Department (SED): Mary Cariola Children’s Center, Inc. – Compliance With the Reimbursable Cost Manual (2020-S-25) Mary Cariola is a not-for-profit organization located in Monroe County that provides preschool special education services to children with disabilities who are three and four years of age. Mary Cariola is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2016, auditors identified $12,744 in ineligible costs that Mary Cariola reported for reimbursement.

 

State Education Department (SED): Wayne County Chapter NYSARC Inc. (ARC Wayne) – Compliance with the Reimbursable Cost Manual (2020-S-30) ARC Wayne is a not-for-profit organization located in Wayne County. Among other programs, ARC Wayne provides preschool special education services to children with disabilities who are three and four years of age. ARC Wayne is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2017, auditors identified $20,988 in ineligible costs that ARC Wayne reported for reimbursement.  

 

Department of Health: Medicaid Program – Claims Processing Activity Oct.1, 2019 Through March 31, 2020 (2019-S-53) Auditors identified about $2.9 million in improper Medicaid payments that require the department’s prompt attention, including: $978,966 was paid for inpatient claims that were billed at a higher level of care than what was actually provided; $740,920 was paid for newborn birth claims that contained inaccurate information; and $513,427 was paid for practitioner, clinic, inpatient, pharmacy, and episodic home health care claims that did not comply with Medicaid policies.

###

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

Courts will accept an agency's interpretation of its statutory authority if it determines that agency's interpretation of the statute is rational

The New York City's Administrative Code §13-254(a) provides that the New York City's Police Department's Medical Board [Board] may require "any disability pensioner, under the minimum age or period for service retirement elected by him, to undergo medical examination," and if the Board concludes that he or she "is able to engage in a gainful occupation," it certifies the pensioner to the appropriate civil service commission, which places the pensioner "as a preferred eligible on such appropriate lists of candidates as are prepared for appointment to positions for which [the pensioner] is stated to be qualified."

A retired New York City police officer [Petitioner] submitted an application for reinstatement to the New York City Police Department [NYPD]. NYPD rejected the Petitioner's application. Petitioner initiated an action pursuant to CPLR Article 78 challenging NYPD's decision. Supreme Court granted NYPD's motion to dismiss the proceeding and Petitioner appealed.

The Appellate Division unanimously affirmed the Supreme Court's ruling. Noting the Board's authority to reinstate a disability pensioner "is limited to members under the age of 55 or who have not reached the service retirement contribution period (20 0r 25 years) they elected upon joining the pension fund," the court opined that the Board's interpretation of §13-254(a) was rational.*

As was undisputed that when Petitioner joined NYPD he elected a minimum service retirement period of 20 years. It was also conceded that when he requested reinstatement to the NYPD, he was no longer under the minimum 20-year period for service retirement elected by him.

Accordingly, the Appellate Division held that Supreme Court correctly found that the Board's denial of Petitioner's application for reinstatement was "a rational determination based on  the Board's rational interpretation of its statutory authority."

* Encarta^® World English Dictionary^© defines the term "rational" as being "reasonable and sensible: governed by, or showing evidence of, clear and sensible thinking and judgment, based on reason rather than emotion or prejudice".

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07308.htm

 

Considering COVID-19 pandemic infection risks - opening and closing schools

ResearchGate has posted an item by NYPPL's science consultant Dr. Robert Michaels addressing scientifically supportable criteria for deciding whether schools should be open versus closed considering COVID-19 pandemic infection risks.  The item can be viewed (and downloaded at no charge) at:  https://www.researchgate.net/publication/347358002_Look_at_Risks_of_In-person_Schooling_Letter_to_the_Editor_Daily_Gazette_Newspaper_Schenectady_New_York_16_December_2020<br< 

 

Prohibiting employees from associating with persons reasonably believed to be engaged in criminal activities

§2.c of the New York City Police Department's General Regulations Procedure 203-10, Public Contact – Prohibited Conduct, bars an individual subject to its provisions from knowingly associating with any person or organization "Reasonably believed to been engaged in, likely to engage in, or to have engaged in criminal activities."

The New York City Police Department [NYCPD] terminated a NYCPD employee [Petitioner] after a Hearing Officer found that the Petitioner was guilty of associating with an individual "who he should have reasonably believed was involved in criminal activity." Petitioner commenced a CPLR Article 78 action challenging his dismissal from the Department.

The Appellate Division sustained NYCPD's action, finding that the determination that Petitioner was guilty of association with an individual who he should have reasonably believed was involved in criminal activity and in failing to report corruption was supported by substantial evidence.

The court also rejected Petitioner's contention that the Hearing Officer incorrectly considered admissions made in the course of his Internal Affairs Bureau [IAB] interview beyond those that were included in exhibit introduced at the hearing as "unavailing," noting that the Hearing Officer specifically stated that he intended to consider all the portions of the IAB transcript "that amounted to admissions and the limited context necessary to understand" Petitioner's testimony.

The Appellate Division unanimously confirmed NYCPD's action and dismissed Petitioner's appeal, opining that "[t]he penalty of termination does not shock one's sense of fairness."

Other decisions involving administrative disciplinary charges served on police officer alleged to have associated with persons thought to have been engaged in criminal activities include Brinson v Safir, 255 AD2d 247, leave to appeal denied 93 NY2d 805; Richardson v Safir, 258 AD2d 328; Delgado v Kerik, 294 A.D.2d 227 and Hastings v City of Sherrill, 90 AD3 1586.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07483.htm

______________

A Reasonable Disciplinary Penalty Under the Circumstances - An publication focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html

 

Denying an application for accidental disability retirement resulting from an injury not a risk of the applicant's ordinary employment duties held arbitrary and capricious

The Medical Board [Board] of the New York City Employees' Retirement System [NYCERS] evaluated a New York City Department of Sanitation employee [Applicant] then serving as a Sanitation General Superintendent, Deputy Chief, who had applied for accidental disability retirement [ADR] benefits. After  reviewing Applicant's medical records the Board determined that, although the Applicant was disabled due to his right knee injury, the incident that caused Applicant's injury was not an accident. The Board recommended that the Applicant be denied ADR benefits and, instead, be granted ordinary disability retirement [ODR] benefits.*

The Board of Trustees [Trustees] of the NYCERS adopted the findings and recommendation of the Board and disapproved Applicant's ADR application for the reasons advanced by the Board.

Applicant filed a CPLR Article 78 petition seeking judicial review of the Trustees'  denial of his application for ADR. Supreme Court granted Applicant's petition to the extent of "annulling the determination and remitting the matter" to the NYCERS for further proceedings and NYCERS, the Trustees, the Board, and the City of New York appealed the Supreme Court's decision to the Appellate Division.

The Appellate Division sustained the Supreme Court's decision, explaining:

1. Retirement and Social Security Law §605-b[b][1] provides that a [New York City] Department of Sanitation worker who "is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident,** not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service ...  shall be retired for accidental disability;"

2. Not every injury that occurs while a worker is performing his or her ordinary duties will support an award of ADR benefits; and

3. Applicant's account of the incident underlying his application was that he tripped and fell due to stepping on a loose and broken sidewalk outside the refuse-strewn lot he was photographing.

The Appellate Division concluding that Applicant's injury was not the result of a risk of his ordinary employment duties but rather the result of a sudden, fortuitous, and unexpected precipitating event, and noting "the unrefuted credible evidence regarding Applicant's ordinary employment duties," held that "the challenged determination was made without sound basis in regard to the facts, and thus, the [Trustee's] determination was arbitrary and capricious."

Accordingly, the court sustained the Supreme Court's determination granting Applicant's petition to the extent of, in effect, "annulling the determination and remitting the matter for further proceedings."

* ODR benefits are typically less generous than ADR benefits.

** Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, the Appellate Division noted that an accident is a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07197.htm.

There is no statutory, constitutional, or public policy prohibition barring arbitrating the termination of an employee serving in an "exempt class" position

Teamsters Local 445, [Teamsters] initiated a CPLR Article 75 seeking a court order compelling the Town of Monroe Planning Board arbitrate its termination of the Board's secretary, a position in the Unclassified Service.*

The Town of Monroe moved to dismiss the petition, contending that:

[1] The dispute was nonarbitrable; and

[2] Teamsters failed to make a timely demand for arbitration.

Supreme Court denied the Town's motion and the Town appealed.

The Appellate Division sustained the Supreme Court's ruling, explaining a dispute between a public sector employer and an employee is arbitrable if it satisfies a two-prong test.

The first test - the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If the matter survives the first test, the court must next determine whether the parties agreed to arbitrate the particular dispute "by examining [the] collective bargaining agreement" [CBA] between the parties.

Finding that there was no statutory, constitutional, or public policy prohibition against arbitrating this dispute regarding the termination of an employee in an "exempt class", the Appellate Division, sustaining the Supreme Court's determination, concluded that the parties CBA indicates that the relevant CBA "authorized the Teamster to file grievances, and ultimately demand arbitration, on behalf of bargaining unit employees, including the secretary to the Planning Board, irrespective of her [jurisdictional] class designation under the Civil Service Law."

Citing Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Appellate Division opined that where, as here, the relevant arbitration provision of the CBA is broad, providing for arbitration of any grievance involving "a claimed violation, misinterpretation or inequitable application" of the CBA, a court "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA." Assuming that the court finds that the matter is arbitrable, the arbitrator will then make "a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

Finding a reasonable relationship existed between the subject matter of the dispute and the general subject matter of the CBA, the Appellate Division declared that the issue of whether the Board's secretary was afforded tenure protections within "the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator."

Addressing the issue of whether the Teamsters' demand for arbitration was timely, the Appellate Division concluded that this was "a matter of procedural arbitrability to be resolved by the arbitrator," citing Enlarged City School Dist. of Troy [Troy Teachers Assn.], 69 NY2d 905.

Sustained the Supreme Court's determination denying the Town's motion to dismiss the petition, the Appellate Division dismissed its appeal.

* Positions in New York State's "Classified Service" [Civil Service Law §40] are placed in one of four jurisdictional classifications: the exempt class, [see Civil Service Law §41]; the noncompetitive class [see Civil Service Law §42]; the labor class [see Civil Service Law §43]; or the competitive class [see Civil Service Law §44]. Other jurisdictional classifications are the Unclassified Service [see Civil Service Law §35] and the State's Military Service [see Military Law §2].

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06535.htm

 

The New York State Department of Civil Service posted the following Position Classification Standards on the Internet on December 14, 2020

Classification Standard issued by the New York State Department of Civil Service on December 14, 2020 in PDF format. Click on the title of the position to download the standards for that title.

Associate Attorney (Health Care Regulation)

Associate Director & Director Veterans Home Nursing 1 & 2

Child Support Specialist Series

Compliance Assistant

Driver Improvement Examiner Series

Environmental Laboratory Consultant

Farmer

Health Systems Specialist Series

Library Technical Assistant

Medical Assistance Specialist Series

Motor Vehicle Field Operations Specialist Series

Pharmacy Consultant

Public Health Educator

Public Health Sanitarian Series

Teaching & Research Center Licensed Practical Nurse

The custodian of the records containing the names of retired police officer may refuse to disclose such names demanded pursuant to a Freedom of Information Law request

Supreme Court granted the CPLR Article 78 petition filed by the Empire Center for Public Policy [Empire Center] seeking an order compelling New York City Police Pension Fund [Fund], under color of New York State's Freedom of Information Law [FOIL], to provide unredacted records disclosing the names of all police officers retiring during fiscal year 2017 other than the names which the Fund had earlier withheld in response to Empire Center's 2014 FOIL request.

The Fund appealed portions of the Supreme Court's ruling and the Appellate Division, unanimously modified the Supreme Court's order, on the law.

The Appellate Division first noted that Supreme Court had properly upheld the Fund's decision to refuse to disclose the names of 2008 to 2014  police officer retirees as [1] duplicative and, or, [2] time-barred.

Addressing the Fund opposition to disclosure of records providing the names of the retired police officer retirees demanded by Empire Center, the Appellate Division noted that the Fund had submitted affidavits outlining the dangers faced by police officers generally, and detailing the risks retired officers faced in particular, including thefts of handguns and assaults by persons they had arrested during their careers.

Citing Matter of Bellamy v New York City Police Dept., 87 AD3d 874, the Appellate Division opined that the Fund met its burden of showing a possibility that disclosure of [such] names could endanger the lives or safety of police retirees, as required to exempt them from disclosure pursuant to Public Officers Law §87(2)(f)".

Public Officers Law §87(2), among other limitations concerning the disclosure of its records, provides that "Each agency shall, in accordance with  its  published  rules,  make   available  for  public  inspection  and copying all records, except that  such agencymay deny access to records or portions thereof* that:

 "(a) are specifically exempted from disclosure by state or federal statute; and

 "(f) if disclosed could endanger the life or safety of any person."

* Emphasis supplied.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06949.htm

 

Audits issued by the New York State Comptroller during the week ending December 10, 2020

Click on the text highlighted in colorto access the complete audit report.

 

Municipal Audits

On December 10. 2020, New York State Comptroller Thomas P. DiNapoli announced the following local government audits has been issued.

Cayuga County Soil and Water Conservation District – Financial Condition District officials did not effectively manage the district’s financial condition, and it declined approximately $1 million during the audit period because of the board’s hindered ability to recognize revenue shortfalls or cost overruns, limiting any potential corrective action. The 2016 through 2020 adopted budgets were not realistic. Revenue and expenditure estimates were not based on prior years’ actual results or trends and did not contain estimates for all known revenues and expenditures. The adopted budgets were also not maintained in the financial accounting software. In addition, no budget-to-actual reports were prepared to monitor the district’s financial health. Comprehensive multiyear strategic, financial and capital plans were also not developed.

Cayuga County Soil and Water Conservation District – Information Technology Governance District officials did not establish adequate controls over information technology (IT) assets. The board did not develop comprehensive IT policies or procedures. The board also did not enter into a written service level agreement with the IT vendor. In addition, the board did not establish adequate safeguards for online banking transactions. Auditors also found the board did not implement strong access and financial application controls nor did they provide IT security awareness training for employees.

Town of Corning – Procurement (Steuben County) Town officials did not always seek competition, as required, when purchasing goods or obtaining professional services. Of the purchases totaling $455,792 from 35 vendors and 10 professional service providers examined, town officials purchased goods and services totaling $299,046 from 21 vendors and nine providers without using competitive methods. Officials also did not enter into a contract with any of the 10 providers. Auditors found a one-year mowing contract was awarded for $26,000 to a company owned by a board member’s son even though the company was not the lowest bidder. The board also extended the contract for another five years without seeking competition. Although the board was required to document its rationale for awarding the contract to a higher bidder, they did not do so.

Nyack Parking Authority – Parking Ticket Operations (Rockland County) The board and authority officials did not effectively pursue and maximize the collection of parking violation tickets. Auditors determined the board and authority officials did not provide oversight and were unaware of inconsistencies in penalty assessment, delinquent notices and collections. The board and authority also did not establish a benchmark collection rate. If the industry standard collection rate of 85 percent was achieved, over the five-year period, the authority would have collected additional revenue totaling $572,609. In addition, the board and authority officials did not review the number or the amount of outstanding tickets or consider alternatives to increase collections.

 

 School District Audits 

On December 10, 2020 New York State Comptroller Thomas P. DiNapoli announced the following school district audit has been issued.

Chenango Forks Central School District – Nonresident Tuition (Broome and Chenango County) District officials did not adopt a clear and comprehensive nonresident admission or tuition policy. As a result, auditors could not determine exactly which students should have been classified as a nonresident student and should have been billed tuition. In addition, some student records contained insufficient documentation to support residency or exceptions to the policy.

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