August 2, 2021

New York Public Personnel Law Update

NYPPL readers please note.

Only "Blogspot Custom Readers" are able to access the more than 6,600 New York Public Personnel Law case summaries and commentaries that are now posted on a different edition of NYPPL having its own unique URL.

All future postings to this edition of NYPPL will be limited to selected "press releases" and certain other information. Case summaries and commentaries on court decisions will neither be referenced nor included in this edition of NYPPL.

If you are interested in receiving information about becoming a NYPPL "Blogspot Custom Reader", email your name and affiliation to n467fl@gmail.com using "Custom Reader" in the"Subject" line of your email. 


July 31, 2021

A Story Map of the Adirondack Mountains posted by the Adirondack Council

A three-part series on wilderness ethics and management offers a comprehensive review of wilderness as a legal concept, an ecological condition and as a cultural phenomenon. Part I, What is Wilderness; Part II, For Whom Does Wilderness Exist?; and Part III, Wilderness and a Livable World. 

Ms. Randall's StoryMap is posted on the Adirondack Council’s website at: https://storymaps.arcgis.com/stories/39efc4883ac348a09fbd03a0f2c6c78f


Sexual Harassment

Sexual Harassment is a form of unlawful discrimination.

New York State's Internet guidelines addressing employer obligations to combat sexual harassment in the workplace is at: https://www.ny.gov/programs/combating-sexual-harassment-workplace

Contaminants of Emergent Concern

Contaminants of Emergent Concern was discussed by Dr. Robert A. Michaels [bam@ramtrac.com] at the New York State Bar Association, Energy and Environmental Law Section on January 31, 2020

Dr. Michaels' remarks are posted for viewing/downloading at no charge at the following URL: https://www.researchgate.net/publication/339055672_Legacy_Contaminants_of_Emergent_Concern

Cyber Cemetery - providing access to sites and publications of defunct U.S. government agencies and commissions

The University of North Texas Libraries and the U.S. Government Printing Office, as part of the Federal Depository Library Program, created a partnership to provide permanent public access to the Internet sites and publications of defunct U.S.government agencies and commissions. 

Named the "CyberCemetery" by early users of the site, information about the collection is posted on the Internet at: https://library.unt.edu/digital-projects-unit/web-archiving/; the latest additions to the collection are posted at: https://digital.library.unt.edu/explore/collections/GDCC/#latest

COVID-19 in New York State and related information

Isaac Michaels has created and maintains a program reporting the geographic distribution of confirmed cases of COVID-19 in New York State and related information.

Data updated daily, Statewide, by County, and by New York City zip codes, is posted at: https://isaacmichaels.netlify.com/post/new-york-state-covid-19-map/


July 30, 2021

Combating on the job sexual misconduct or sexual harassment

An “app” (the #NotMe app) employers can make available to their personnel permitting the easy and timely submission of complaints of alleged supervisor or co-worker sexual misconduct and, or, harassment to personnel officers, human resource teams, compliance officers or designated individuals. 

Click on https://www.not-me.com/organizations for information concerning this program.

July 29, 2021

NY-NJ Port Authority Falling Short of Compliance With Americans With Disabilities Act

New York State Comptroller Thomas P. DiNapoli released an audit indicating that "People with disabilities face challenges and limited access at some facilities run by the Port Authority of New York and New Jersey (PANYNJ) according to an audit released today by State Comptroller Thomas P. DiNapoli.

“The Americans with Disabilities Act says that people with disabilities should be able to participate in the same day-to-day activities as everyone else, but the Port Authority is not living up to this promise,” DiNapoli said. “As this month marks the 31st anniversary of the ADA, I am encouraged that the Port Authority has agreed to address the problems we identified. Transit systems are facing many challenges, but it is important that trains and buses are accessible to all.”

The Americans with Disabilities Act (ADA) defines disability as a physical or mental impairment that substantially limits one or more of an individual’s major life activities and provides people with disabilities the right to access and participate in the same day-to-day activities as everyone else. The Rehabilitation Act of 1973 prohibits discrimination based on disability in federally assisted programs.

According to the ADA, PANYNJ was required to identify key stations in its Port Authority Trans-Hudson (PATH) system and make those stations accessible and usable by people with disabilities by July 1994, absent an extension of time. Any new construction or alteration of an existing station after October 1991 was also subject to this accessibility requirement.

Although PANYNJ is complying with some aspects of the ADA and the Rehabilitation Act, auditors identified numerous areas where passengers with disabilities face significant challenges and obstacles.

DiNapoli’s auditors found four of 13 PATH stations (Christopher Street, 9th Street, 14th Street, and 23rd Street) were not accessible to persons in wheelchairs, and two of the four stations (14th Street and 23rd Street) share connections to MTA subway stations that were also inaccessible.

PATH station platforms have raised rubber platform edges to alert travelers with visual impairments to the end of the platform. Auditors found that the warning strips at Newark, Newport, and Grove Street were in poor condition with tiles that were heavily cracked, not level, or slippery from dripping water.

Auditors also found issues at the Port Authority Bus Terminal (PABT) and the George Washington Bridge Bus Station (GWBBS) that could impede access to these terminals.

For example:

  • The GWBBS and the closest MTA subway station at 175th Street were not fully accessible because the underground passenger connection between the two includes steps that could not be used by people using walkers or wheelchairs.
  • At PABT, the subway entrance was an inclined pathway that lacks automatic doors for mobility-impaired individuals. Moreover, gates on the second floor and six lower-level gates were not accessible to individuals using mobility devices as the gates were only accessible by escalators and stairs.

In 2007, the Department of Justice issued a best practices tool kit for state and local governments’ website accessibility. This tool kit recommended establishing procedures for visitors to request accessible information, ensuring webpages are accessible, and providing alternative ways for users to access information on a website. The PANYNJ website does none of these things. For example, there is no option to format text for visually impaired people or an option to change the language.

DiNapoli’s auditors recommended PANYNJ:

  • Improve connections for transfer between the PANYNJ’s bus terminals/stops and MTA subway stations;
  • Ensure that passengers with disabilities have access to all gates at PABT;
  • Maintain PATH’s platform-edge warning tiles in good condition;
  • Renovate the facilities such as the PATH stations and platforms at PABT so that they are wheelchair accessible; and
  • Work with organizations serving persons with disabilities to address specific needs and test its website for ease of use.

PANYNJ officials agreed with most of the recommendations and have taken actions to implement them, committing to finalize those efforts over the coming months. They disagreed with the recommendation that PANYNJ should take action at locations where its property is adjacent to MTA stations.

Audit
Port Authority of New York and New Jersey: Selected Aspects of Accommodations for Passengers with Disabilities

 

July 24, 2021

Audits and reports issued during the week ending July 23, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending July 23, 2021

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

MUNICIPAL AUDITS

Copiague Fire District – Procurement (Suffolk County)

District officials did not always use a competitive process to procure goods, services or professional services or ensure no conflicts of interest existed. Auditors found no competition was sought for professional services. Officials paid the 12 providers $388,628. In addition, required verbal or written quotes were not always obtained when goods and services were procured. Auditors also found 23 purchases totaling $129,696 reviewed required competition. Only one purchase totaling $2,076 was competitively procured. A Commissioner, employed by a company the district contracts with, did not disclose his company’s interests or abstain or recuse himself from approving claims and warrants. The district has been contracting with the company for about 10 years.

City of Glen Cove Industrial Development Agency – Project Approval and Monitoring (Nassau County)

The board and officials did not properly approve and monitor projects or take action when goals were not met. Auditors found required annual financial disclosure statements that are meant to help identify conflicts of interest were not filed. Payments in lieu of taxes (PILOTs) billing and collections were not monitored or correctly allocated to affected taxing jurisdictions. In fact, 52 of 115 payments were late and late fees totaling $259,303 were not billed or collected. In addition, Nassau County received $375,914 more than it should have. These funds should have been paid to the City of Glen Cove, $75,039, and to the school district and library, $300,875. Tax exemptions disclosed in audited financial statements were overstated.

Village of South Floral Park – Budgeting and Financial Oversight (Nassau County)

The board did not provide appropriate oversight and management of budgets and fund balance or ensure annual audits were completed. More real property taxes were assessed than necessary to fund operations each year. The board also failed to hold budget hearings before April 15 each year (from two to 11 days late) to discuss the 2017-18, 2018-19 and 2019-20 budgets, and the budgets presented were not in the proper form, as required. Inaccurate budgeting led to underestimated revenues totaling $289,565 (19%) over these years. As of May 31, 2020, unassigned fund balance was $463,948, which is 78% of the 2020-21 appropriations. The Village has excess fund balance and the board did not adopt a fund balance policy.

Henrietta Fire District – Financial Condition (Monroe County)

The board did not effectively manage the district’s financial condition and presented budgets indicating the district needed to both increase real property taxes and use appropriated fund balance to close projected budget gaps. As a result, more real property taxes were levied than needed. The board also did not adopt realistic budgets from 2017 through 2021. As a result, fund balance increased to $4.4 million on December 31, 2020, which is excessive and enough to pay 41.5% of the District’s 2020 expenditures.

In addition, the board unnecessarily overrode the 2019 and 2020 tax cap. The 2021 tax cap override will likely be unnecessary because the 2021 budget overestimated appropriations by approximately $1.4 million, and the $1 million appropriated fund balance will likely not be used. The board did not adopt budgeting, fund balance or reserve policies or multiyear financial and capital plans.

Town of Otselic – Records and Reports and Conflict of Interest (Chenango County)

The Supervisor did not maintain complete, accurate and timely financial records and reports, and the board did not ensure there were no prohibited conflicts of interest. Auditors found the supervisor did not provide the board with accurate financial reports and did not record deposits totaling $127,000, cash withdrawals totaling $199,000 and fund transfers totaling $874 in the accounting records. She also recorded one deposit for $25,000 twice. Auditors also found, the required 2016 through 2019 annual financial reports were not filed with the Office of State Comptroller, as required. As of May 5, 2021, the reports were late and remained unfiled. In addition, a board member had a prohibited interest in the contracts between the town and his auto parts businesses. The board did not comply with General Municipal Law by adopting a code of ethics and did not audit the supervisor’s records, as required.

.

SCHOOL DISTRICT AUDITS

Mount Pleasant Central School District – Information Technology User Accounts (Westchester County)

District officials did not establish adequate controls over the district’s user accounts to prevent unauthorized use, access and/or loss. Officials did not monitor compliance with the district’s acceptable use policy. Officials also did not adequately manage network user accounts. Sensitive information technology control weaknesses were communicated confidentially to officials.

 

Williamson Central School District – Non-Payroll Disbursements (Wayne County)

The board did not ensure that non-payroll disbursements were appropriately procured, properly audited and approved, adequately supported and for valid district purposes. The claims auditor did not audit and approve claims before payment as required.

 

July 23, 2021

Challenging Adverse Personnel Decisions

A 766-page E-book focusing on appealing penalties imposed following disciplinary action, adverse performance ratings, probationary terminations and the denial of unemployment insurance benefits initiated by officers and employees of New York State as an employer and its political subdivisions. 

For more information about this electronic handbook click HERE.

July 21, 2021

Diminishing a retiree's health insurance benefits by the retiree's former public employer

NYPPL recently received inquiries seeking a 2008 New York State Supreme Court decision that addressed the unilateral diminishing of retiree health insurance benefits by the retiree's former public employer.

In view of the interest in this ruling by State Supreme Court Judge Joan B. Lefkowitz, the text of the decision, DiBattista v County of Westchester,* is set out below: 

DiBattista v County of Westchester

Decided on July 29, 2008
Supreme Court, Westchester County

Carmine DiBattista, ANTHYONY EGIZIACO, KATHERINE JONES, ANTHONY P. DEL BORGO, KENNETH A. FISCHER and VIOLA WANCHO on behalf of themselves and certain other RETIRED EMPLOYEES of the COUNTY OF WESTCHESTER formerly in the CSEA BARGAINING UNIT, Plaintiffs,

against


County of Westchester and ANDREW J. SPANO, as County Executive of the County of Westchester, Defendants.

Paul S. Bamberger, Esq.,
Nancy E. Hoffman, Esq.
Attorneys for Plaintiffs
CSEA, Inc.
Box 7125, Capitol Station
143 Washington Avenue
Albany, New York 12224

Matthew B. Kogan, Esq.
Ohrenstein & Brown, LLP
Attorneys for Defendants
1010 Franklin Avenue
Garden City, New York 11530

Joan B. Lefkowitz, J.

In this certified class action involving approximately 1,600 persons who retired from Westchester County during the period of 1993 to 2004, plaintiffs allege that defendants breached their contracts by diminishing their health insurance benefits causing plaintiffs additional medical and health insurance costs of $3,610,181 to date.

Between 1993 - 2001, two collective bargaining agreements were executed between CSEA and Westchester County which provided for certain medical health insurance benefits. Those provisions remained in effect until May 2004 when a new agreement was made. That agreement changed the health benefits of active employees and Westchester County decided that such changes also affected retired employees. It had been the policy of Westchester County to treat retirees the same as active employees whenever a new collective bargaining agreement occurred.

Counsel have stipulated to the facts in this action rather than a trial and have submitted various exhibits and memoranda of law for the Court to consider.

Until 1993, prior collective bargaining agreements insofar as health insurance benefits were concerned were effective for the duration of the contract or the term of the contract. The immediate past two collective bargaining agreements (effective January 1, 1993 through May 2004) omitted language as to duration and specifically included retirees.

Absent consent of all parties, a union does not represent retirees when it negotiates with an employer in collective bargaining. Allied Chem. Wkrs. v. Pittsburgh Plate Glass Co., 404 US 157, 180 footnote 20 (1971). Indeed, "vested retirement rights may not be altered without the pensioner's consent". Ibid. Where, as here, there is no durational limit in the immediate prior collective bargaining agreements as to retiree health insurance benefits "it is unlikely that such benefits, which are typically understood as a form of delayed compensation for past services, would be left to the contingencies of future negotiations". International Union, UAW v. Yard-Man, Inc., 716 F2d 1476, 1482 (6th Cir. 1983), cert. den. 465 US 1007 (1984). Retiree benefits "carry with them an inference that they continue so long as the prerequisite status is maintained". Ibid. This inference trumps any general duration clause as to the life or termination of the agreement. Id. at 1482-83. Therefore, pursuant to settled principles of law involving interpretation of collective bargaining agreements, it is clear that plaintiffs' health insurance benefits in the prior collective bargaining agreements survived those agreements and may not be diminished without their consent. Hudock v. Village of Endicott, 28 AD3rd 923 (3rd Dep't 2006); Della Rocco v. Schenectady, 252 AD2d 82 (3rd Dep't 1998); Myers v. City of Schenectady, 244 AD2d 845 (3rd Dep't 1997).

Defendants' reliance on McDonald Police v. Geneva, 92 NY2d 326 (1998) is misplaced as the collective bargaining agreements there did not address the benefits in issue whereas the prior collective bargaining agreements at bar do.

Accordingly, judgment in favor of plaintiffs is granted. Submit Order on notice. 

DATED: July 29, 2008

ENTERED: /S/

JOAN B. LEFKOWITZ, J.S.C. 

* DiBattista v County of Westchester, 2008 NY Slip Op 52731(U); [35 Misc 3d 1205(A)] . Decided on July 29, 2008 Supreme Court, Westchester County Lefkowitz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law §431. This opinion is uncorrected and will not be published in the printed Official Reports. 

 

 

July 16, 2021

Redistricting for the 2022 Elections

Redistricting for the 2022 Elections, an article addressing New York State's engaging "in a new and untried procedure in creating legislative and congressional districts following the 2020 census," was posted July 16, 2021 by Richard Rifkin, Legal Director of Albany Law School's Government Law Center. 

Click HERE to access Mr. Rifkin's article.

 

July 13, 2021

Voter suppression and election protection

The notice below is posted pro bono:

Lawline.com reports that a free CLE course addressing such topics as voter suppression and election protection is available to interested parties by clicking  CLAIM MY COURSE

New York CLE Approved 1.0 credit - Professional Practice through June 23, 2023. 
 
A list of CLE credit approved by other states is set out in the notice.

July 8, 2021

The Discipline Book

A concise guide to disciplinary actions involving public officers and employees in New York State and its political subdivisions set out as an e-book. 

For more about this electronic handbook, click https://booklocker.com/books/5215.html.

July 7, 2021

A Reasonable Disciplinary Penalty Under the Circumstances

The text of this publication focuses 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. 
 
For more information click https://booklocker.com/books/7401.html

July 6, 2021

Disability Benefits for fire, police and other public sector personnel

An e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." 

For more information about this e-book click https://booklocker.com/books/3916.html.

July 5, 2021

The Layoff, Preferred List and Reinstatement Manual -

This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. 

Click https://booklocker.com/books/5216.html for more information.

July 4, 2021

NEW YORK PUBLIC PERSONNEL LAW - A Law Blog

N.B.  Only "Blogspot Custom Readers" may access New York Public Personnel Law's more than 6,600 case summaries and commentaries posted on this Law Blog. 

If you are interested in becoming a "Custom Reader", email your name and affiliation to n467fl@gmail.com with "Information" as the subject of the email.