June 30, 2021

Finding of unlawful discrimination supported by substantial evidence results in imposition of a civil fine and the payment of compensatory damages to the employee

The New York State Division of Human Rights [DHR], adopting the findings and recommendation of an Administrative Law Judge determined following a hearing, held that the New York State Unified Court System, Office of Court Administration [OCA] had unlawfully discriminated against one of a staff member [Employee] based on a disability and directed OCA to: 

1. Cease and desist from subjecting the Employee to blanket exclusions from the court officer-trainee job title based on hearing loss or the use of hearing aids;

2. Pay a civil fine and penalty of $30,000; and

3. Pay Employee $5,000 in compensatory damages.

OCA appealed DHR's decision.

The Appellate Division unanimously confirmed DHR's decision and dismissed OCA's appeal finding that DHR's finding of unlawful discrimination was supported by substantial evidence.

Noting that the Employee had established a prima facie case that OCA discriminated against him because of his hearing and "sufficiently demonstrated that upon the provision of reasonable accommodation, the use of a hearing aid, he can perform in a reasonable manner the essential functions of a court officer-trainee."

The record indicated that Employee had passed the written test for the court officer-trainee position and was conditionally hired. However, OCA bans the use of hearing aids on the job or for the audiometric test to medically qualify for the position of court officer-trainee. Further, opined the Appellate Division, Employee was not obligated to be evaluated for and purchase a hearing aid, and to retake the audiometric test, at his expense, to further make his prima facie case as OCA had made clear it still would deem him unqualified and reject such test results.

Citing Pimentel v Citibank, N.A., 29 AD3d 141, the Appellate Division observed that permitting court officers to wear a hearing aid is a reasonable accommodation and would not, as OCA argued, impose undue hardship on OCA by posing any "direct threat," i.e. "a significant risk of substantial harm to the . . . safety of the employee or others."

Addressing OCA's argument that the physical demands of the job and the risk that a hearing aid could become dislodged in a scuffle or fail to operate in an emergency, the court held that OCA's argument is undermined by its own policy permitting court officer-trainee candidates to meet its vision standard with or without corrective lenses or glasses, which could be lost or become dislodged in a scuffle.

Noting "OCA's preference for those with a minimal amount of hearing acuity" might be a bona fide occupational qualification the Appellate Division held that OCA's "preference for hearing acuity without the use of a hearing aid is not."
As to the $30,000 civil penalty imposed on OCA, the Appellate Division, observing that Executive Law §297[4][c] provides that a civil penalty below $50,000 may be assessed if an entity is found to have committed an "unlawful discriminatory act", concluded that considering OCA blanket policy barring hearing-impaired persons from employment as court officers and its failure to accommodate Employee who had an asymmetric hearing loss, the civil penalty of $30,000 was correctly assessed.

Similarly, the court found that the record contains substantial evidence to support DHR's finding that Employee was entitled to a compensatory damages award of $5,000.

Click HERE to access the Appellate Division's decision.


June 29, 2021

Important changes involving the Workers’ Compensation Board's operations

In light of the expiration of the State of Emergency necessitated by the COVID-19 pandemic, the Workers’ Compensation Board [Board] returned to more regular operations on June 29, 2021.  All of the guidance and modifications provided on the Board’s webpage relating to the State of Emergency are lifted, with the following exceptions:

  • The suspension of the Labor Market Attachment requirement will expire on August 16, 2021. Visit the Board's website to view the guidance. 
  • Relief from the original signature requirements on 27 Board prescribed forms will continue until August 16, 2021.
  • Board offices remain closed for the time being and contact with Board employees will be by phone and email only.
  • Remote-only attendance at hearings will continue, with parties and witnesses appearing by video through the Virtual Hearing Center or, as an option for claimants only, by telephone.
  • Consideration of requests for the extension of the 30-day filing requirement will continue for appeals and rebuttals post-marked through July 6, 2021.
  • Personal service on the Board still will not be permitted. Service will continue to be by mail only.
  • Telehealth will remain in effect by Emergency Regulation. A permanent telehealth regulation is expected to be released for public comment shortly.

This information is also available on the Board’s website.

Questions? Email OfficeofGeneralCounsel@wcb.ny.gov.

Retired former police officer denied a "retiree service letter" which would assist in obtaining a special pistol carrying permit

Retired police officers often request a "retiree service letter" [RSL]to assist the retiree in obtaining a special pistol-carrying permit. 

In this CPLR Article 78 action, a retiree [Plaintiff] sought a court order annulling his former employer's [Agency] determination which denied Plaintiff's request for a RSL and asked the court to issue an order compelling that such a letter be issued. Supreme Court dismissed Plaintiff's petition and he appealed the court's ruling.

Citing Peckham v Calogero, 12 NY3d 424, the Appellate Division unanimously affirmed the lower court's ruling, without costs, holding that the Agency's denial of Plaintiff's request was neither arbitrary nor capricious.

The Appellate Division explained that Plaintiff conceded that he was not authorized to carry a firearm at the time of his separation from employment, as he had earlier surrendered his firearm due to an injury, and he had not sought reinstatement of such authorization. Accordingly, said the court, Plaintiff "had no right to issuance of" the RSL "since his authority to carry firearms had been revoked ... and had not been restored at the time he retired"

Further, opined the court, the Agency's decision not to issue the RSL did not violate Plaintiff's Second Amendment rights, since it did not preclude him from applying for a permit under normal legal procedures set out in §400.00 on New York State's Penal Law.

In addition, the Appellate Division observed that:

1. Assuming there is a private right of action under the Law Enforcement Officers Safety Act of 2004, Plaintiff "cannot demonstrate that he met the qualification standards within one year of retirement";

2. Plaintiff cannot demonstrate a violation of the Americans with Disabilities Act based on his former agency's refusal to issue the RSL as he concedes that his injury rendered him unable to perform his duties as a law enforcement officer; and

3. There is no factual basis to conclude that the Agency's decision refusing to provide Plaintiff with a RSL was made in bad faith rather than as part of an across the board policy.

Click HERE to access the Appellate Division's decision.

 



June 28, 2021

Live Webinar addressing continuity of goverment in a crisis

Government Technology has scheduled a Webinar addressing Continuity of Government: Maintaining Constituent Services and Employee Collaboration in a Crisis to be held on Tuesday, June 29 | 2:00pm Eastern.

Noting that today’s headlines are filled with reports of increasingly sophisticated and disruptive cybercrimes, Government Technology observes that "government agencies have become primary targets for ransomware attacks that lock up vital systems and data", and that:

"A new wave of supply chain exploits presents serious threats to public sector organizations that rely on growing numbers of partners and service providers to perform their missions. 

"And, of course, many state and local jurisdictions face greater cyber risk due to expanded adoption of remote work and digital service delivery, coupled with a greater dependence on their IT infrastructure."

Click here to Register to attend.

 

 

The disability finding of the Social Security Administration is not dispositive of the Retirement System's Medical Board's disability determination

The determination to deny petitioner's application for accident disability retirement was not arbitrary and capricious, and was supported by some credible evidence (see Matter of Merlino v Teachers' Retirement Sys. of the City of N.Y., 177 AD3d 430, 430 [1st Dept 2019], citing Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996]). The finding of respondent's Medical Board that petitioner was not disabled was supported by its physical examination and interview of petitioner (see Matter of Fusco v Teachers' Retirement Sys. of the City of N.Y., 136 AD3d 450, 451 [1st Dept 2016]). Upon examination, petitioner was able to move around unassisted, had normal strength and range of motion in his shoulders, elbows, wrists, and hips, and had little or no tenderness in his neck and back. 

In addition, the Medical Board noted that petitioner had not had standard of care epidural injections, trigger point injections, or any other procedures to improve his current complaints. Petitioner claims that the Medical Board ignored his medical history, but resolution of conflicting evidence was for the Medical Board to resolve (see Matter of Athanassiou v Kelly, 101 AD3d 517 [1st Dept 2012]; Matter of Bell v New York City Employees' Retirement Sys., 273 AD2d 119, 120 [1st Dept 2000], lv denied 96 NY2d 701 [2001]).

The disability finding of the Social Security Administration was not dispositive of the Medical Board's disability determination (see Fusco, 136 AD3d at 451, citing Matter of Barden v New York City Employees' Retirement Sys., 291 AD2d 215, 216 [1st Dept 2002]). Nor did the [*2]finding of the medical arbitrator, who examined petitioner after the Medical Board made its determination, warrant article 78 relief (see id.).

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_01256.htm

 


June 26, 2021

Audits and reports issued during the week ending June 26, 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 June 26, 2021.

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

 MUNICIPAL AUDITS

Brasher-Winthrop Consolidated Fire District – Board Oversight (St. Lawrence County) The board did not provide adequate oversight of district financial activities. The board did not establish compensating controls over the work of the treasurer, who was responsible for receiving and disbursing cash, signing district checks and maintaining the accounting records. The board also did not audit district claims prior to payment and conduct an annual audit of the treasurer’s records. In addition, the board did not ensure the treasurer filed required annual financial reports for 2017 through 2019 and they did not complete mandatory fiscal oversight training. Auditors reviewed all $44,227 disbursements made during the audit period and found that they were for proper district purposes.

City of Dunkirk – Billing Enforcement (Chautauqua County) The city treasurer did not properly enforce and the common council did not properly monitor delinquent water, sewer and tipping fee balances. The treasurer did not follow the enforcement procedures prescribed by the city code.

Town of Morris – Justice Court Operations (Otsego County) The justice collected, deposited, disbursed, recorded and reported the fines and fees we reviewed in an accurate and timely manner. During the audit period, the justice deposited cash receipts totaling $25,398 and made disbursements totaling $30,398. Auditors reviewed a sample of 42 cash receipts totaling $7,307 and all disbursements totaling $30,398.

Town of Pawling – Procurement (Dutchess County) Town officials did not always use a competitive process to procure goods and services. Officials did not develop detailed procedures for procuring professional services in their procurement policy. Auditors also found officials did not seek competition for professional services obtained from eight service providers. In addition, officials did not competitively bid for sanitation services totaling $186,821.

Theresa Fire District – Board Oversight and Financial Management (Jefferson County) The board did not provide adequate oversight to ensure that financial activities were properly recorded and reported. They did not properly manage fund balance. The treasurer did not maintain adequate accounting records or provide regular financial reports to the board. She also did not file required annual financial reports with the Office of the State Comptroller in a timely manner. The 2017 through 2019 annual reports were filed between 331 and 1,018 days late. The board did not audit all claims prior to payment and did not annually audit the treasurer’s records. In addition, the board did not adopt realistic budgets based on historic trends. The district ended 2019 with $345,000 in surplus fund balance – enough to fund nearly two years’ of expenditures. Auditors project the district will end 2020 with a surplus of about $308,800 (177% of 2021’s budget).

Town of Wolcott – Financial Management (Wayne County) The board did not effectively manage the town’s financial condition. They did not have a clear understanding of the laws governing the finances of the general fund tax bases and did not have an understanding of the finances for the closed landfill. In addition, the board did not treat taxpayers equitably when budgeting for and allocating certain revenues and expenditures in the “town-wide” and “town-outside-village” general funds. Town-wide funds are used for the benefit of residents of the entire town, including the village. Town-outside-village funds are used only for the benefit of residents in the portion of the town that lies outside of the village. The board also adopted unrealistic budgets and did not maintain reasonable levels of fund balance. They also did not adopt a multiyear financial and capital plan or detailed reserve plan. The board’s ability to effectively manage the town’s financial condition is further hampered by not requiring regular financial reporting.

Town of Wolcott – Information Technology (Wayne County) The board did not ensure that information technology (IT) assets were adequately safeguarded. The board also did not adopt any IT policies or a disaster recovery plan. They did not provide users with cybersecurity awareness training. In addition, the board did not ensure the financial software, town clerk’s software and justice court software had the necessary controls to maintain data integrity. Sensitive IT control weaknesses were communicated confidentially to officials.

SCHOOL DISTRICT AUDITS

Argyle Central School District – Medicaid Reimbursements (Washington County) The district did not maximize Medicaid reimbursements by submitting claims for all eligible Medicaid services provided. The district lacked adequate procedures to ensure Medicaid claims were submitted and reimbursed. Claims were not submitted for 1,251 eligible services totaling $26,637. Had these services been claimed, the district would have realized revenues totaling $13,319 – 50% of the reimbursement.

Greenwich Central School District – Extra-Classroom Activities (Washington County) District officials did not ensure that extra classroom activity (ECA) funds were adequately safeguarded or that the collections were always properly supported. ECA disbursements were properly accounted for. The faculty auditor did not adhere to the district’s ECA policy, which resulted in insufficient oversight of and inadequate reviews of their collections and records. The student treasurers did not maintain adequate supporting documentation for 69% of the collections reviewed – 32 of the 70 collections totaling $30,970 – which prevented district officials from determining whether the collections were remitted intact and in a timely manner. Student treasurers also did not maintain adequate supporting documentation for three of the seven fundraising events reviewed. This prevented district officials from ensuring all the ECA clubs’ fundraising activities collections were properly supported.

Jefferson Central School District – Procuring Services (Delaware County and Schoharie County) District officials did not always seek competition for services. Officials paid $135,000 to 10 of the 14 service providers reviewed without seeking competition. Officials also paid $6,410 to an employee’s private business for lawn care services without public written disclosure of his interest in the contract with the district.

New Lebanon Central School District – Network User Accounts (Columbia County) Officials did not establish adequate controls over the district’s network user accounts to protect against unauthorized use, access and loss. Officials also did not disable 26 unneeded generic accounts of the 48 generic network accounts examined. They did not ensure acceptable use policy compliance. In addition, officials did not monitor the use of the information technology (IT) resources. They did not provide IT security awareness training to all employees using IT resources. Sensitive information technology (IT) control weaknesses were communicated confidentially to officials.

Smithtown Central School District – Claims Processing and Travel-Related Expenses (Suffolk County) The board ensured the claims auditors reviewed were adequately documented, for appropriate purposes and properly audited and approved prior to payment. However, the board could have saved the district $1,855 by adopting federal per diem rates for travel expenses.

Valley Central School District – Information Technology (Orange County and Ulster County) The board and district officials did not ensure information technology (IT) systems were adequately secured and protected. District officials did not monitor compliance with the district’s computer acceptable use policy. The district also did not have a contingency plan to recover in the event of a significant service interruption. In addition, the Board did not physically control access to or establish environmental controls over the server room. Sensitive IT control weaknesses were communicated confidentially to officials.

West Canada Valley Central School District – Non-Payroll Disbursements (Herkimer County and Oneida County) District officials did not implement adequate internal controls to ensure that non-payroll disbursements were authorized and proper. The business manager/treasurer did not control when her electronic signature was used by another employee to sign checks. The claims auditor did not approve medical, vision, and dental insurance claims totaling $3.9 million. The board also did not develop an online banking policy or procedures to verify that transactions are proper.

Whitesville Central School District – Information Technology (Allegany County and Steuben County) District officials did not adequately secure access to the network and information systems. District officials also did not disable six unnecessary user accounts. They did not establish written policies or procedures to monitor shared accounts or for adding, modifying or disabling user permissions to the network and information systems. District officials also did not establish a written agreement with the Erie 1 Board of Cooperative Educational Services (BOCES) to define information technology services to be provided. In addition, sensitive IT control weaknesses were communicated confidentially to officials.

June 25, 2021

Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department

Rudolph W. Giuliani, Esq. challenged the Attorney Grievance Committee for the First Judicial Department's seeking a court order pursuant to Judiciary Law §90(2) and the Rules for Attorney Disciplinary Matters (22 NYCRR) §1240.9(a)(5), immediately suspending him from the practice of law based upon his alleged violations of rules 3.3(a); 4.1; 8.4(c) and 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0) (Rules of Conduct or RPC).

Concluding that there was uncontroverted evidence that Mr. Giuliani communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump's failed effort at reelection in 2020, the Appellate Division opined that "These false statements were made to improperly bolster respondent's narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client."

Conceding that interim suspension is a serious remedy, available only in situations where it is immediately necessary to protect the public from the respondent's violation of the Rules, the Appellate Division held that Mr. Giuliani's conduct "immediately threatens the public interest and warrants interim suspension from the practice of law." 

Accordingly, the court granted the Attorney Grievance Committee's motion and suspended Mr. Giuliani from the practice of law in the State of New York "until such time as disciplinary matters pending before the Committee have been concluded, and until further order of this Court."

Click Here to access the court's decision.


June 24, 2021

Employee's workers' compensation claim for alleged work-related stress and post-traumatic stress disorder rejected

A police officer [Claimant] responded to a call that resulted in the arrest of three individuals. Several weeks later Claimant was interviewed concerning that incident as part of an Internal Affairs investigation. The following day Claimant was suspended from his position and informed that he would receive a written notification of charges.

Claimant thereafter sought mental health treatment stemming from the incident and his resulting suspension. Ultimately Claimant filed a workers' compensation claim alleging his stress, anxiety and post-traumatic stress disorder was caused by an allegedly unlawful disciplinary action.

A Workers' Compensation Law Judge determined that the claim was not compensable as Claimant's psychological injury was "a direct consequence of a lawful personnel decision involving a disciplinary action."*

Claimant then submitted an administrative appeal in which he contended "the disciplinary action was unlawful." The Workers' Compensation Board [Board] affirmed the decision of the Workers' Compensation Law Judge.

Claimant next initiated a judicial appeal in which he contended that the Board's decision was not supported by substantial evidence because his suspension did not constitute a disciplinary action, or another personnel action, within the meaning of §2(7) of the Workers' Compensation Law.

The Appellate Division sustained the Board's determination, noting that the record indicated that the Claimant argued, both at the administrative hearing and at the subsequent administrative review that followed, that his suspension was a disciplinary action.

The court explained that to the extent that Claimant "now advances a contrary argument for the first time on appeal," that claim "is unpreserved for [its] review."

* See https://publicpersonnellaw.blogspot.com/2011/09/depression-resulting-from-being-served.html

Click HERE to access the Appellate Division's ruling.

 

June 23, 2021

Judicial review of a denial of an application for accidental disability retirement benefits

In this appeal challenging the denial of the Plaintiff's application for accidental disability retirement benefits, the Appellate Division noted that:

1. In order to be entitled to accidental disability retirement benefits, "the burden is on the applicant to demonstrate that his or her incapacitation was the natural and proximate result of an accident sustained while in service";

2. The law is settled that the Comptroller "is vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while in service, and if supported by substantial evidence, the determination must be upheld"; and

3. The determination with respect to whether an applicant was in service at the time he or she suffered the injury turns on whether "he or she was performing job duties at the time of the injury."

The situation before the Appellate Division in this action involved a police officer [Plaintiff] on limited duty as the result an incident that occurred in 2000 that led to her being assigned to desk duty at her precinct.

In 2011, and still on "limited duty," the Plaintiff accompanied a fellow officer to pick up breakfast for the precinct. Returning to the precinct after picking up the breakfast meals, Plaintiff was injured when she slipped on ice in the precinct parking lot.

Plaintiff applied for accidental disability retirement benefits as the result of the injuries sustained in 2011 and the 2000 incident that triggered her "limited duty" assignment. Her application for accidental disability retirement benefits was initially denied as the Retirement System's determined that neither the 2000 incident* nor the 2011 incident constituted an accident within the meaning of Retirement and Social Security Law §363.

Ultimately a Hearing Officer sustained the Retirement System's denial of Plaintiff's application for accidental disability retirement benefits, finding that the Retirement System had already determined that the 2000 incident did not constitute an accident and that Plaintiff was not in service at the time of the 2011 incident.

The State Comptroller adopted the Hearing Officer's findings of fact and conclusions of law whereupon Plaintiff initiated a CPLR Article 78 proceeding  challenging the Comptroller's determination.

Addressing the merits of Plaintiff's claim, the Appellate Division said:

The record indicated that a fellow officer in the precinct at the time volunteered to go to get the breakfast and asked Plaintiff to accompany him to help carry the large order. With the permission of her supervisor Plaintiff and the other officer went for the breakfast order and Plaintiff testified that she slipped on ice in the precinct parking lot while returning with the food for the precinct staff.

The Appellate Division said that, in its view, in going out to pick up a breakfast order for the precinct "at the behest of her supervisor, Plaintiff was performing a work duty rather than engaged in a personal activity at the time she suffered her 2011 injury." 

However, as the Comptroller did not reach the issue as to whether the 2011 incident constituted an accident within the meaning of Retirement and Social Security Law §363, the court remitted the matter for the Comptroller's consideration of that element of Plaintiff's claim.

* As Plaintiff's brief did not address Comptroller's finding with respect to the 2000 incident, the Appellate Division deemed that claim abandoned by the Plaintiff. 

Click HERE to access the Appellate Division's decision.

 

June 22, 2021

Administrative Law Judge recommended the employee's termination as the appropriate disciplinary penalty under the circumstances

New York City Office of Administrative Trials and Hearings Administrative Law Judge Kevin Casey recommended that a laboratory supervisor [Supervisor] at a New York City Hospital [Employer] be terminated from employment following a hearing on disciplinary charges filed against the Supervisor by the Employer.

Evidence in the disciplinary hearing record described more than 50 acts of misconduct spanning a 16-month period that the Employer alleged justified Supervisor being terminated from his employment at the facility.

The disciplinary charges and specification included allegations that the employee:

1. Repeatedly refusing to perform assigned tasks;

2. Falsified time-sheets;

3. Sent discourteous emails to[other] supervisors;

4. Was guilty of "excessive absence and lateness;"

5. Ignored orders;

6. Failed to attend scheduled meetings;

7. Changed shifts without approval; and

8. Had been absent without leave.

In recommending termination of Supervisor's employment, ALJ Casey noted that Supervisor had earlier been disciplined by the Employer and found guilty of charges alleging "similar misconduct."

Click HERE to access Judge Casey's decision. 

_____________ 

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. 

Click on http://booklocker.com/books/7401.html for more information.

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June 21, 2021

Election Workers Webinar

The Internal Revenue Service's Tax Exempt and Government Entities Division invites interested readers to click here toregister to watch a free webinar that explains which workers should be treated as election workers and when taxes should be withheld from the wages of such personnel. 

The webinar will also cover what should be included in earnings.

For more information, see Webinars for Tax Exempt & Government Entities.

Liberal construction to be given to a remedial statute

The Workers' Compensation Board ruled, among other things, that a New York State Trooper [Plaintiff] assigned to a vehicle checkpoint was not a participant in the World Trade Center [WTC] rescue, recovery and cleanup operations and denied Plaintiff's claim for workers' compensation benefits based on his alleged exposure to toxins at the WTC site as untimely.

The Appellate Division said it agreed with the Board's finding that Plaintiff did not sustain an occupational disease, explaining:

1. "An occupational disease derives from the very nature of the employment, not a specific condition peculiar to an employee's place of work, nor from an environmental condition specific to the place of work;" and

2. "To establish an occupational disease, the claimant must demonstrate a recognizable link between his or her condition and a distinctive feature of his or her employment".

The Appellate Division, conceding that toxic substances were present in Plaintiff's work environment at WTC, the indicated the Plaintiff's "alleged disability arose from a specific condition peculiar to his place of work and not from a distinctive feature of his employment as a state trooper."

Turning to Plaintiff's argument that his claim was within the ambit of Workers' Compensation Law Article 8-A, the Board then treated the claim as one for accidental injury and disallowed the claim, finding it untimely.

The Appellate Division said that Article 8-A was enacted "to remove statutory obstacles to timely claims filing and notice for latent conditions resulting from hazardous exposure for those who worked in rescue, recovery or cleanup operations following the [WTC] September 11th, 2001 attack." Accordingly, the court held that "this legislation was intended to be liberally construed to provide a potential avenue of relief for workers and volunteers suffering from ill health as a result of their efforts in the aftermath of the terrorists attacks."

Noting that Plaintiff had testified that his duties at the checkpoint included stopping traffic and clearing routes for emergency and construction vehicles traveling to and from ground zero, the Appellate Division found that Plaintiff's "activities had a tangible connection to the rescue, recovery and cleanup operations at the WTC site."

The court then opined that "in light of the liberal construction afforded this remedial statute, "the Board's determination that Workers' Compensation Law Article 8-A does not apply because [Plaintiff] did not participate in the rescue, recovery and cleanup operations at ground zero is not supported by substantial evidence and, therefore, the claim should not have been disallowed as untimely under Workers' Compensation Law §28".

The Appellate Division then remitted the matter to the Workers' Compensation Board "for further proceedings not inconsistent with this Court's decision."

Click HERE to access the Appellate Division's opinion. 

 

Processing the application of an employee of Civil Service Law Section 71 accidental disability leave seekikng to return to duty

An employee [Plaintiff] employed by a state agency [Department] suffered a work-related injury and was placed on workers' compensation leave pursuant to Civil Service Law §71. Plaintiff regularly submitted medical documentation supporting her assertion that she was unfit to return to her employment. Department then notified Plaintiff that as she had been absent for one cumulative year, she would be terminated from her position. Department also advise Plaintiff that she could apply for restoration to duty if she was medically fit and directed her "to submit medical documentation clearing her to return to work before an examination was scheduled."

Plaintiff, however, ignored this directive and scheduled the medical examination on her own.* Upon learning of this, the Department, apparently relying on 4 NYCRR 5.4(d)(1),** cancelled the appointment and subsequently terminated Plaintiff 's employment after she declined to submit the requested medical documentation to the Department for review.

Plaintiff then commenced a CPLR Article 78 proceeding alleging that:

[1] the Department violated the Civil Service Law and its regulations;

[2] her termination was arbitrary and capricious;  and 

[3] her due process rights were violated. 

Ultimately Supreme Court dismissed Plaintiff's petition finding that it was not unreasonable, irrational or arbitrary for the Department to request certain medical information prior to making its preliminary determination as to petitioner's medical fitness to perform the duties of her position and that Plaintiff failed to demonstrate that the Department's request for medical documentation was an error of law.

Plaintiff appealed the Supreme Court's judgment, contending that 4 NYCRR 5.9 places no duty upon her to submit medical documentation in order to return to work. 

The Appellate Division disagreed, opining that 4 NYCRR 5.9(c)(2) provides that an  employee on §71 leave has a "right to apply to the appointing authority pursuant to subdivision (d) of this section for reinstatement to duty if medically fit" (emphasis added by the court).

The Appellate Division explained that the requirement that employee then on §71 leave to initially produce medical documentation showing the employee is medically fit to return to work "prior to scheduling a medical examination promotes an efficient procedure, in a fiscally sound manner, that is rationally related to the Department's interest in returning only medically fit employees to their duties."

Noting that the record indicated that Plaintiff never asserted that she was medically fit to perform her duties prior to her termination and that the only medical documentation presented to the Department for over one year consisted of statements from Plaintiff's own physician attesting that she was unable to return to work, the Appellate Division concluded that the Department's determination was not arbitrary and capricious or irrational.

Addressing Plaintiff's claim that the Department's failure to provide her with a medical examination violated her due process rights, the Appellate Division said that the record indicates that Plaintiff "received a pretermination notice that set forth the reasons she was being terminated, explained that she could apply for reinstatement if medically fit, requested her to produce medical documentation showing that she was fit and informed her that she was entitled to a pretermination meeting." 

Thus, said the court, Plaintiff's  due process rights were satisfied as she was provided [1] with an explanation of the grounds for discharge; [2] given an opportunity to respond prior to her actual termination; and [3] did in fact participate in a pretermination meeting.

* §71 of the Civil Service Law further provides that an individual terminated from the position pursuant to §71 may, within one year after the termination of the disability, make application to the civil service department or municipal commission having jurisdiction for a medical examination.

** 4 NYCRR 5.4(d)(1), Restoration to duty from workers' compensation leave, provides "(1) Upon request by the employee, the appointing authority, if satisfied that the employee is medically fit to perform the duties of the position, shall restore the employee to duty. If not satisfied that the employee is medically fit to perform the duties of the position, the appointing authority shall require the employee to undergo a medical examination, by a physician designated by the appointing authority, before the employee may be restored to duty. Prior to the medical examination, the appointing authority shall provide the designated physician and the employee with a statement of the regularly assigned duties of the position from which the employee is on leave."

Click HERE to access the text of the Appellate Division's decision. 

 

June 18, 2021

The Juneteenth National Independence Day Act established June 19th as a federal holiday.

Juneteenth, the federal holiday commemorating the end of slavery in the United States, is observed on June 19. President Joe Biden "signed the new holiday into law" on Thursday, June 17, 2021.

As it falls on a Saturday in 2021, Juneteenth is being observed by Federal employees on a workday, Friday June 18, 2021. 

On June 14, 2020, New York State Governor Andrew M. Cuomo signed into law legislation designating Juneteenth as an official public holiday in New York State. The Governor earlier issued an Executive Order recognizing Juneteenth as a holiday for New York State employees.

Other jurisdictions have designated Juneteenth as holiday by proclamation. 

For example, then Massachusetts Gov. Deval Patrick signed a proclamation recognizing Juneteenth as a holiday in Massachusetts in 2007 while Maryland Governor Larry Hogan  has announced that Maryland State government agencies and offices will be closed on Friday, June 18, 2021, in observance of Juneteenth National Independence Day and West Virginia's Governor Jim Justice issued a proclamation on June 18, 2021, officially declaring Juneteenth a State holiday in West Virginia.

 


June 17, 2021

Local law authorizing a "Police Accountability Board" to conduct police officer disciplinary hearings held invalid

A CPLR Article 78 proceeding initiated by the Rochesterpolice union, its president, and an individual Rochesterpolice officer [Plaintiffs] challenged the City of Rochester's Police Accountability Board's [PAB] authority to conduct disciplinary hearings and discipline officers of the City of Rochester Police Department." Supreme Court, among other things, declared parts of Local Law No. 2, which authorize and empower the PAB to conduct such hearing and discipline Rochester police officers, "void and unenforceable."

Supreme Court had agreed with the Plaintiffs and held the City's Local Law No. 2 violated the Taylor Law, Civil Service Law §75, and Unconsolidated Laws §891. The court also, sua sponte, "referred [Local Law No. 2] back to the Rochester City Council "to be reconciled and made compliant with New York State law and the Rochester City Charter."* The City Council appealed the Supreme Court's ruling.

The Appellate Division, noting that "the Rochester City Charter has been amended to grant virtually all authority for disciplining police officers to a new entity called the 'Police Accountability Board' [PAB]," opined that although "the politics swirling around this provision are weighty and fraught ... its legality is not" and held that Supreme Court "properly invalidated Local Law No. 2 insofar as it imbues PAB with disciplinary authority over Rochesterpolice officers without regard to collective bargaining."

The Appellate Division's decision explores the events leading to the establishment of the PAB, relevant law and court decisions, including two procedural issues, and the merits of the Plaintiffs' challenges to Local Law No. 2. 

* The Appellate Division held that Supreme Court "erred by referring Local Law No. 2 "back to the Rochester City Council to be reconciled and made compliant with New York State law and the Rochester City Charter."

The text of the Appellate Division's decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_03787.htm.

 

June 16, 2021

Determining if a grievance involving a provision in a collective bargaining agreement is subject to arbitration

Supreme Court denied the petitioner's [Employer] CPLR §7503 application to permanently stay arbitration of a grievance between the Employer and the employee organization [Union] initiated pursuant to the collective bargaining agreement [CBA] between the parties. The grievance involved determining the correct amount of the employees' contributions for health insurance coverage. 

Although the Employer contended the grievance was not subject to arbitration, Supreme Court held that the grievance was arbitrable. Employer appealed the ruling.

Observing that the court's role in reviewing applications to stay arbitration is limited, the Appellate Division explained that the threshold issue is to determine whether the subject matter of the grievance is arbitrable. This, said the court, involves a two-part inquiry into whether there is [1] "any statutory, constitutional or public policy prohibition against arbitration of the grievance" and if no such prohibition is found, whether [2] the parties in fact "agreed to arbitrate the particular dispute" by examining the relevant collective bargaining agreement.

Noting that the Employer did not contend that arbitration of the grievance was prohibited by law or public policy, the court said that its inquiry distills to whether the parties agreed to arbitrate this particular grievance.

In the words of the Appellate Division, "[if] the CBA contains a broad arbitration clause, 'an agreement to arbitrate will be found by the court as long as there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA'".

Citing the relevant provisions set out in the CBA, the Appellate Division opined that as the grievance involves health insurance benefits, which are an employee benefit and an express provision of the CBA, the "grievance falls within the scope of disputes that the parties agreed to submit to arbitration." Further, the fact that the substantive clauses of the contract might not support the grievances is irrelevant on the threshold question of arbitrability and "it] is for the arbitrator, and not the courts, to resolve any uncertainty concerning the substantive rights and obligations of the parties."

Addressing the Employer additional argument in support of dismissing the Union's Article 75 petition contending that the grievance was untimely filed, the Appellate Division said "[A]ny argument concerning compliance with the grievance process, including any time limitations thereunder, is likewise a matter for the arbitrator to decide".

Accordingly, the Appellate Division concluded that Supreme Court properly denied the Employer's application to permanently stay arbitration.

Click HERE to access the Appellate Division's decision.

 

June 15, 2021

Hearing officer recommends dismissal of disciplinary charges after finding the employee did not used his position with his employer for personal or financial gain

New York City Office of Administrative Tribunals and Hearings [OATH] Administrative Law Judge Faye Lewis recommended that disciplinary charges against a Human Resources Administration [HRA] employee [Respondent] be dismissed as HRA failed to establish that the Respondent used his position in the agency for personal or financial gain.

HRA contended that the Respondent, a case manager assigned to a center in the Bronx, violated HRA rules and the City Charter by asking former colleagues to give his phone number to public assistance clients who might be interested in renting an apartment from him.

ALJ Lewis determined that HRA employees are permitted to rent property that they own or manage to public assistance recipients if they first submit a questionnaire for approval and that they do not work at the center providing the client’s benefits.

Respondent, said Judge Lewis, followed that procedure in that Respondent did not work at the center providing the client's benefit, and HRA had approved Respondent's request.

In addition, the ALJ noted that Respondent presented "unrefuted evidence that landlords who are not HRA employees have regular contact with case managers and could tell a case manager that they have available apartments to rent."

Accordingly, the Administrative Law Judge concluded that HRA did not establish that Respondent had violated its rules, nor those set out in the City Charter with respect to the rental of the property in question, that triggered the disciplinary charges served on the Respondent.

To access the text of Judge Lewis' decision, click HERE!

 

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