Challenging a central school district's decision to discontinue reimbursements for certain Medicare Part B premium surcharges

In various collective bargaining agreements [CBA] between the Chappaqua Central School District [District] and the Chappaqua Congress of Teachers [CCT], an association representing certain District employees, the District agreed to provide healthcare benefits for active and retired employees and their spouses and dependents. Retired employees over age 65 were required to enroll in a Medicare Part B program [Part B] and, in keeping with the provisions set out in the several CBAs, the District reimbursed retirees the cost of Part B coverage. 

Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium, the so-called "income-related monthly adjustment amount" [IRMAA]. Prior to August 2018, the Districtreimbursed retirees for IRMAA surcharges in addition to the standard Medicare premium cost.

The CCT challenged the District's action. Supreme Court granted CCT's petition, annulled the District's determination, and directed the District to reinstate reimbursement for the Medicare Part B surcharges.  

In response to the District's appeal, the Appellate Division sustained the lower courts ruling. The text of its decision is set out below:

 

Matter of Bailenson v Board of Educ. of the Chappaqua Cent. Sch. Dist.

2021 NY Slip Op 03318

Decided on May 26, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 26, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
ANGELA G. IANNACCI, JJ.

2019-08292
(Index No. 70427/18)

[*1]In the Matter of Myrna Bailenson, et al., respondents,

v

Board of Education of the Chappaqua Central School District, et al., appellants.

Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, NY (Mark C. Rushfield of counsel), for appellants.

Robert T. Reilly, New York, NY (Oriana Vigliotti of counsel), for respondents.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Education of the Chappaqua Central School District dated August 16, 2018, which discontinued reimbursements for certain Medicare Part B premium surcharges, the appeal is from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated May 20, 2019. The judgment granted the petition, annulled the determination, and directed the respondents to reinstate reimbursement for the Medicare Part B surcharges.

ORDERED that the judgment is affirmed, with costs.

Pursuant to collective bargaining agreements (hereinafter CBAs) between the Chappaqua Central School District (hereinafter the district) and the Chappaqua Congress of Teachers (hereinafter the CCT), an association representing district employees, the district agreed to provide healthcare benefits for active and retired employees and their spouses and dependents. Retired employees over age 65 were required to enroll in a Medicare Part B program (hereinafter Part B) and, in keeping with the CBAs, the district reimbursed retirees the cost of Part B coverage. Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium, known as the income-related monthly adjustment amount (hereinafter IRMAA). Prior to August 2018, the district reimbursed retirees for IRMAA surcharges in addition to the standard premium cost.

On August 16, 2018, the district informed retirees that it would no longer reimburse them for IRMAA surcharges. In response, the petitioners commenced this CPLR article 78 proceeding against the Board of Education of the Chappaqua Central School District, the district, and Christine Ackerman, as superintendent of the district, seeking to annul the August 16, 2018 determination on the ground that it violated chapter 729 of the Laws of 1994 (as amended by L 2007, ch 22), known as the Retiree Health Insurance Moratorium Act (hereinafter the moratorium statute), and seeking reinstatement of the reimbursements.

The Supreme Court agreed that the district's discontinuation of reimbursements violated the moratorium statute, granted the petition, and directed the district to reinstate the reimbursement, including retroactive reimbursements. This appeal ensued.

The moratorium statute sets "'a minimum baseline or "floor" for retiree health benefits'" which is "'measured by the health insurance benefits received by active employees. . . . In other words, the moratorium statute does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees'" (Matter of Altic v Board of Educ., 142 AD3d 1311, 1312, quoting Matter of Anderson v Niagara Falls City Sch. Dist., 125 AD3d 1407, 1408). Thus, a school district may not diminish retirees' health insurance benefits unless it makes "a corresponding diminution in the health insurance benefits or contributions of active employees" (Matter of Baker v Board of Educ., 29 AD3d 574, 575). The purpose of the moratorium statute is to protect the rights of retirees who "'are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired'" (Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134, 1135, quoting Assembly Mem in Support, 1996 McKinney's Session Laws of NY at 2050; see Matter of Jones v Board of Educ. of Watertown City School Dist., 30 AD3d 967, 970).

Here, it is undisputed both that the CBAs between the district and the CCT did not address Part B or IRMAA reimbursements and that the district in fact provided such reimbursements, even if, as it claims, the reimbursements were made inconsistently. Thus, the reimbursements were "retiree health insurance benefits that were voluntarily conferredas a matter of school district policy" (Kolbe v Tibbetts, 22 NY3d 344, 358). Accordingly, the Supreme Court correctly concluded that the discontinuation of IRMAA reimbursements was a matter subject to the moratorium statute (see Matter of Anderson v Niagara Falls City Sch. Dist., 125 AD3d at 1408-1409; Matter of Baker v Board of Educ., 29 AD3d at 575; Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1136; see generally Matter of Albany Police Officers Union, Local 2841, Law Enforcement Officers Union Dist. Council 82, AFSCME, AFL-CIO v New York Pub. Empl. Relations Bd., 149 AD3d 1236, 1238; Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479, 1480-1481, affd 95 AD3d 1479).

Like the Supreme Court, we find unpersuasive the district's claim that IRMAA reimbursements were disbursed for a decade as the result of an administrative error without the district becoming aware of the error. However, even if proved, the district has pointed to no authority suggesting that this alleged error removes the matter from the scope of the moratorium statute. Similarly, the court correctly rejected as "circular reasoning" which was "entirely inconsistent with the legislative intent" of the moratorium statute the district's claim that the new policy would cause a corresponding diminution in active employees' benefits since, upon retirement, they, too, would not receive IRMAA reimbursements. The purpose of the moratorium statute was to tie retiree benefits to active employee benefits so that retirees could benefit from the collective bargaining power of the active employees. To accept the district's argument would eviscerate that purpose (see Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1135; Assembly Mem in Support, 1996 McKinney's Session Laws of NY at 2049-2050). Accordingly, the court correctly determined that discontinuation of IRMAA reimbursements violated the moratorium statute and properly granted the petition.

LASALLE, P.J, CHAMBERS, AUSTIN and IANNACCI, JJ., concur.

2019-08292 DECISION & ORDER ON MOTION

N.B.

In the Matter of Myrna Bailenson, et al., respondents,

v Board of Education of the Chappaqua Central

School District, et al., appellants.

(Index No. 70427/18)

Motion by the petitioners to strike footnote 2 on page 5 of the appellants' reply brief on the ground that it refers to matter dehors the record. By decision and order on motion of this Court dated July 31, 2020, the motion was held in abeyance and referred to the panel of Justices [*2]hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is granted, and footnote 2 on page 5 of the appellants' reply brief is deemed stricken and has not been considered in the determination of the appeal.

LASALLE, P.J, CHAMBERS, AUSTIN and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

Setting the compensation to be paid the Governor and Lieutenant Governor of the State of New York

In April, 2019, the New York State Legislature passed a concurrent resolution increasing the Governor's and Lieutenant Governor's annual salaries retroactive to January 1, 2019. Plaintiff challenged the Legislature's action, alleging that "the concurrent resolution ran afoul of NY Constitution, Article XIII, §7." As relevant here, Supreme Court granted the Comptroller's [Defendant] motion to dismiss the complaint. Plaintiff appealed.

The Appellate Division reversed Supreme Court's granting the Defendant's motion for summary judgment and denied the motion. The full text of the Appellate Division's decision is set out below:

 

Robert Arrigo, Appellant,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.

Calendar Date:March 25, 2022
Before:Garry, P.J., Lynch, Aarons, Colangelo and Ceresia, JJ.

Government Justice Center, Inc., Albany (Cameron J. Macdonald of counsel), for appellant.

Letitia James, Attorney General, Albany (Victor Paladino of counsel), for respondent.

Garry, P.J.

Appeal from a judgment of the Supreme Court (McDonough, J.), entered January 8, 2021 in Albany County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint.

Pursuant to matching provisions in the NY Constitution, the annual salaries of the Governor and Lieutenant Governor are "fixed by joint resolution of the [S]enate and [A]ssembly" (NY Const, art IV, §§ 3, 6). In April 2019, the Legislature passed a concurrent resolution increasing the Governor's and Lieutenant Governor's annual salaries retroactive to January 1, 2019 (hereinafter the concurrent resolution). The concurrent resolution also provided that those officials would receive two additional increases to their annual salaries on January 1, 2020 and January 1, 2021 but conditioned each increase "upon the timely legislative passage of the budget for the preceding year" (seeL 2018, ch 59, § 1, part HHH, § 2 [4]; see also Legislative Law § 5 [3]).

Plaintiff, a resident and taxpayer of this state, commenced this action pursuant to State Finance Law §§ 123-b and 123-e, alleging that the concurrent resolution ran afoul of NY Constitution, article XIII, § 7, which provides that "[e]ach of the state officers named in this constitution shall, during his or her continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he or she shall have been elected or appointed; nor shall he or she receive to his or her use any fees or perquisites of office or other compensation." Plaintiff sought an order (1) declaring that the concurrent resolution was "null and void" for having violated the NY Constitution, (2) permanently enjoining defendant from paying the Governor and Lieutenant Governor the rates set by the concurrent resolution, and (3) awarding him counsel fees and costs. Defendant's answer asserted, among other things, that plaintiff failed to join the Governor and Lieutenant Governor as necessary parties and requested that Supreme Court dismiss the complaint or declare that the concurrent resolution "ha[d] not been shown to be unconstitutional."

Defendant moved for summary judgment dismissing the complaint and for such a declaration or, in the alternative, joinder of necessary parties. Plaintiff cross-moved for summary judgment. Supreme Court granted defendant summary judgment dismissing the complaint, issued the declaration requested by defendant, and denied plaintiff's cross motion. Plaintiff appeals.

We first address the joinder issue. CPLR 1001 (a) provides that "[p]ersons . . . who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants." When such a person "has not been made a party and is subject to the jurisdiction of the court, the court shall order him [or her] summoned" (CPLR 1001 [b]). This requirement protects the right to due process by providing such a person the opportunity to be heard before his or her interests are adversely affected (see Matter of Martin v Ronan, 47 NY2d 486, 490 [1979]; Mahinda v Board of Collective Bargaining, 91 AD3d 564, 565 [2012]; Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 AD2d 155, 160 [2002]). Parties may be added by leave of court at any stage of the action (see CPLR 1003), including, "in the first instance, on appeal" (Matter of New York State Assn. of Plumbing-Heating-Cooling Contrs. v Egan, 86 AD2d 100, 105 [1982], affd on opinion below 60 NY2d 882 [1983]).

The Governor and Lieutenant Governor have an interest in their own salaries (see e.g. Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Pataki, 259 AD2d 826, 827-828 [1999], lv dismissed and denied 93 NY2d 993 [1999]; Matter of McGuinn v City of New York, 219 AD2d 489, 490 [1995], lv dismissed and denied 87 NY2d 966 [1996]; Matter of Cassidy v New York City Dept. of Correction, 95 AD2d 733, 734-735 [1983]; Matter of Serth v New York State Dept. of Transp., 79 AD2d 801, 802 [1980]).^[FN1]Although those salaries are subject to change, CPLR 1001 does not speak of, and is not limited to, vested rights or interests (see Matter of Basha Kill Area Assn. v Town Bd. of Town of Mamakating, 302 AD2d 662, 664 [2003]; Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 AD2d at 160). The interests of the Governor and Lieutenant Governor could be inequitably affected if we declare that the concurrent resolution is void and enjoin defendant from paying their salaries at the rates set in that resolution (see Matter of Jim Ludtka Sporting Goods, Inc. v City of Buffalo School Dist., 48 AD3d 1103, 1104 [2008], lv denied 11 NY3d 704 [2008]; Matter of Romeo v New York State Dept. of Educ., 41 AD3d 1102, 1104 [2007]; Matter of Boston Culinary Group, Inc. v New York State Olympic Regional Dev. Auth., 18 AD3d 1103, 1104 [2005], lv denied5 NY3d 712 [2005]; Matter of Basha Kill Area Assn. v Town Bd. of Town of Mamakating, 302 AD2d at 664). "[T]he possibility that a judgment rendered without the omitted party could have an adverse practical effect on that party is enough to indicate joinder" (Matter of Nemeth v K-Tooling, 163 AD3d 1143, 1144 [2018] [internal quotation marks and citations omitted]; see Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 AD2d at 160).

Contrary to plaintiff's argument, the interests of the Governor and Lieutenant Governor are not necessarily being represented or protected by defendant and his counsel — the Attorney General, who would also typically represent those other state officials (see Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v Pataki, 259 AD2d at 828). We cannot determine whether the Governor and Lieutenant Governor will necessarily support and integrate defendant's argument that the resolution is constitutional; indeed, they may argue against its constitutionality, to establish precedent that would prevent a potential future intra-term diminution of their salaries. Accordingly, and as the Governor and Lieutenant Governor are subject to its jurisdiction, Supreme Court should have granted defendant's request that those officers be joined as necessary parties and ordered them summoned (see CPLR 1001 [b]; 1003; Matter of Alexy v Otte, 58 AD3d 967, 967-968 [2009]; see also State Finance Law § 123-b [2] [permitting a plaintiff in an action concerning a wrongful expenditure of state funds to "join as a party defendant the recipient of such a wrongful expenditure"]).

Plaintiff has expressly limited his argument for relief to seeking a declaration that the concurrent resolution is unconstitutional and that defendant prospectively stop paying the Governor and Lieutenant Governor at the higher salary rate. However, "the fundamental duty" of defendant's office is "to 'superintend the fiscal concerns of the state'" (Matter of Martin H. Handler, M.D., P.C. v DiNapoli, 23 NY3d 239, 246 [2014] [brackets and citation omitted], quoting State Finance Law § 8 [1]); as the state's chief fiscal officer, he has "legally mandated duties to prevent unauthorized payments and overpayments" of state monies (Matter of Martin H. Handler, M.D., P.C. v DiNapoli, 23 NY3d at 247; see NY Const, art V, § 1; State Finance Law § 8 [1], [2], [2-b], [3], [7]). Considering that defendant "has long been viewed as having authority to confirm that payments already made were proper," if it were to be held that defendant had been making payments that were unconstitutional, defendant would then be authorized to recoup any state funds illegally paid (Matter of Martin H. Handler, M.D., P.C. v DiNapoli, 88 AD3d 1187, 1190 [2011], affd 23 NY3d 239 [2014]); see Matter of Signature Health Ctr., LLC v Hevesi, 13 Misc 3d 1189, 1192 [Sup Ct, Albany County 2006]). Indeed, some of the statutorily enumerated forms of relief under State Finance Law § 123-e are "a declaration that a proposed disbursement . . . would be illegal" and "restitution to the state of those public funds disbursed" (State Finance Law § 123-e [1]). Therefore, despite plaintiff's attempt to limit the relief he seeks in this action, if plaintiff is successful, defendant may seek to recoup any state monies illegally paid under the concurrent resolution retroactively, back to January 1, 2019. Thus, former Governor Andrew M. Cuomo — who was authorized to receive a salary under the concurrent resolution from January 2019 until August 2021 — may also be adversely affected and should similarly be joined as a necessary party.

Following plaintiff's service of the initiatory papers upon the Governor, Lieutenant Governor and former Governor, they will have an opportunity to respond and raise any applicable defenses. Supreme Court will then be able to consider this action "with the benefit of participation by all necessary parties" (Matter of Romeo v New York State Dept. of Educ., 41 AD3d at 1105).

Lynch, Aarons, Colangelo and Ceresia, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as granted defendant's motion for summary judgment; said motion denied and the Governor, Lieutenant Governor and former Governor Andrew M. Cuomo are joined as defendants, plaintiff is ordered to serve the summons and complaint adding said parties within 20 days of the date of this Court's decision, and matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Footnotes

Footnote 1: After the date of oral argument, the Lieutenant Governor resigned from office. Our decision is not affected by this development, as he still retains an interest in his salary from his time in that office. Any further references to the Lieutenant Governor should be read to include the recent occupant of that office.

 

 

Seeking access to materials claimed to be protected by the Attorney-Client Privilege

The term "Attorney-client privilege" is typically applied to the work product of an attorney that may be claimed to be confidential legal communications between a client and the client's attorney's. The privilege is usually asserted by the client's attorney when confronted with a demand for the communication. Additionally, the "privilege" belongs to the client and may not be waived by the attorney absent the client's consent. 

In this appeal the Appellate Division held that the motion court, following an in camera review,* "providently exercised its discretion in directing various communications to be produced by the defendants [Defendants] and delivered to the complainant [Plaintiff]. The court concluded that the Defendants' internal correspondence concerning the item "at the heart of this litigation are not materials uniquely the product of a lawyer's learning and professional skills, such as those reflecting an attorney's legal research, analysis, conclusions, legal theory, or strategy, and are thus not privileged," citing Gottwald v Sebert, 172 AD3d 445.

Additionally, the court explained, emails between the Defendant in this action and an attorney representing a third party "are not privileged as their substance was clearly in connection with the attorney's representation of the third party, whose position at that time was adverse to defendant."

Secondly, opined the Appellate Division, "correspondence between the public relations manager of [a former client of Defendants and the Defendants] was not in furtherance of either parties' legal positions but in response to a disagreement over a Tweet" and "cannot reasonably be characterized as confidential communications made for the purposes of legal advice."

Addressing Defendants' communications demanded by Plaintiff between Defendants and their public relations firm, the court said that such communications did not "reflect a discussion of legal strategy relevant to the pending litigation but, rather, a discussion of a public relations strategy," and thus are not protected by the attorney-client privilege.

* The term “in camera” refers to a closed and private session of a court or some other tribunal. As used here, it refers to the review of the documents in question by the court in his or her chambers, the public being excluded from that proceeding.

Click HEREto access the Appellate Division's ruling.

 

Arbitration award challenged in a CPLR Article 75 proceeding confirmed

The Appellate Division unanimously reversed a Supreme Court's decision granting Plaintiff's petition challenging an arbitration award and remanding the matter for a new hearing before a different arbitrator. The court then reinstated initial arbitrator's determination and penalty imposed "on the law".

The Plaintiff in the instance action was the subject of a prior disciplinary action involving charges of violating his employer's attendance rules. These charges were resolved by a written stipulation and agreement. The stipulation provided that [1] the charges were sustained; [2] that the Plaintiff would accept a "30 day suspension";  [3] agreement constituted a final warning "on time and attendance violations" and [4] the authority of the arbitrator adjudicating "any time and leave violations occurring within eighteen (18) months of the [date of the] stipulation," would be "limited to review of the charged misconduct, which if sustained would result in dismissal."

Prior to the expiration of this 18 month period Plaintiff was charged with [1] failing to report to work for 12 days and [2] abandonment of his position, in violation of his employer's Time and Leave Rules, which require that employees obtain prior approval for all leaves of absence, "except for such emergencies as death in immediate family and other substantiated unforeseeable occurrences."*

At the hearing which followed the Plaintiff testified that he was absent to care for his daughter who is bipolar and had  attempted suicide on previous occasions.

However, the arbitrator found that the documents offered by the Plaintiff in justification of his absences consisted of [1] a note signed by a physician indicating  that the Plaintiff's daughter sought treatment at an urgent care on the dates of Plaintiff's absence; and [2] did not include a diagnosis or any specific supervision or treatment recommendations other than Plaintiff's daughter should "refrain from going to work and school for a certain number of days."

This, said the arbitrator, neither serve to substantiate the level of care Plaintiff's daughter required nor that she needed his constant presence.

The Appellate Division held that under these circumstances, "there was a plausible basis for the arbitrator's finding that Plaintiff's] excuse for his prolonged absence without prior approval was not sufficiently substantiated, despite the challenging circumstances presented by his daughter's mental health."

* Although Plaintiff "called in" to report he would be absent from work each day, he did not obtain prior approval for any of these absences.

Click HEREto access the text of Appellate Division's ruling.

 

A writ of mandamus seeking to compel a public officer to perform a certain act will not be issued if the act is discretionary in nature

Plaintiffs, who are teachers and professional staff employed by a school district [Respondent], commenced this CPLR Article 78 proceeding seeking a writ of mandamus*to compel Respondent to offer courses and sequences in the arts during the school day and equitably throughout the school district "in accordance with regulations promulgated by the New York State Commissioner of Education.

Supreme Court dismissed Plaintiffs' petition and Plaintiffs appealed.

The Appellate Division, noting that a writ of mandamus "is available to compel a governmental entity or officer to perform a ministerial duty, explained that the writ "does not lie to compel an act which involves an exercise of judgment or discretion" and citing Matter of Brusco v Braun, 84 NY2d 674, explained that such a writ is "an extraordinary remedy that is available only in limited circumstances."

In this instance, opined the court, Supreme Court "properly determined that mandamus to compel does not lie" as the regulations relied on by Plaintiffs provide, in relevant part, that a school district "shall offer students the opportunity to complete a three- or five-unit sequence in ... the arts and must provide that opportunity beginning in ninth grade."

In the words of the Appellate Division: "Although the regulations provide that the District must offer students the opportunity for an arts sequence, [Respondent] may exercise discretion in how to do so." The court then explained that "because the actions that [Petitioners] seek to compel are not ministerial in nature but discretionary, mandamus to compel does not apply."

Accordingly, the Appellate Division sustained Supreme Court's ruling.

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of  “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. New York State's Civil Practice Law and Rules [CPLR] sets out the modern equivalents of the surviving ancient writs.

Click HERE to access the Appellate Division's decision posted on the Internet.

Educator pleads guilty to submitting false time cards

On May 6, 2022, New York State Comptroller Thomas P. DiNapoli and the Onondaga County District Attorney William Fitzpatrick announced that a teacher [Educator] employed in a school district's "after-school program" [The Twilight Program] to assist students in need of support to graduate "on time" plead guilty to corrupting the government in the 3rd Degree, admitting his having submitted submitting false time cards to the school district.*

This investigation was the result of the coordinated efforts of the New York State Comptroller’s Office and the Onondaga County District Attorney’s Office.

“Abuse of public funds should never be tolerated, but is particularly egregious when an educator takes funds meant to improve students’ lives,” said Comptroller DiNapoli.  “I thank District Attorney Fitzpatrick for his continuing partnership in combating public corruption and for holding [Educator] accountable.”

Teachers participating in the district’s Twilight Program receive additional compensation for teaching classes to Twilight participants. As the program coordinator, Educator was in charge of the Twilight teaching schedule and also received additional compensation for his services at Twilight.

From 2016-2018, Educator regularly left his Twilight position early but submitted time cards that inflated the number of hours he had actually worked at Twilight. He also directed certain Twilight teachers to submit false time sheets that reported that  they were at work when they were not. 

Educator was arrested in May of 2021, together with two Twilight teachers. The  cases involving these other Twilight teachers are still pending.

* Educator also agreed to resign from his employment with the school district. 

New York Public Personnel Law Handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

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 about this e-book click HERE.

 

 

A public retirement system of New York State is required to correct errors made in its administration of retirement benefits

Judgment, Supreme Court, New York County (W. Franc Perry, J.), entered May 11, 2021, denying the petition to annul a determination of respondent Board of Trustees of New York City Employees' Retirement System (NYCERS), which reclassified petitioners from Tier 4 to revised Tier 3/Tier 6 membership, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner in the CPLR Article 78 action were members of various New York State stage and local had left their previous jobs within the various retirement systems and were hired as uniformed sanitation workers by the City of New York after April 1, 2012. These petitioners became sanitation workers and were placed in Tier 4 of the New York City Employees' Retirement System [NYCERS] based on their prior participation in public employee retirement systems.

In 2016, NYCERS determined that it had made an error, and reclassified Petitioners' memberships in NYCERS from the Tier 4 Sanitation 20-Year retirement plan [SA-20] pursuant to Retirement and Social Security Law Article 15 to the revised Tier 3/Tier 6 Sanitation 22-Year retirement plan [SA-22] pursuant to Retirement and Social Security Law Article 14.

The Appellate Division rejected Petitioners' contention that the doctrine of "equitable estoppel" barred NYCERS placing in SA-22. The court explained that NYCER "is mandated by statute to correct errors in administration of retirement benefits," and held that "estoppel may not be invoked to prevent [NYCERS] from reclassifying Petitioners' memberships in SA-22", noting that reading these provisions together determines whether a sanitation worker is subject to the SA-20 or SA-22 plan, based on the date that he or she becomes a sanitation member.

In the words of the Appellate Division, "The legislative history of the amendment supports the conclusion that "new . . . uniformed sanitation . . . members" such as petitioners, who were not sanitation members before April 1, 2012, would be given the "modified Tier 3 police/fire benefits" provided in SA-22."

Further, said the court, "The Retirement and Social Security Law transfer provision, which applies to two of the five individual petitioners, entitles them to credit for prior service. It does not affect the date that they became uniformed sanitation members...."

Finally, opined the Appellate Division, Petitioners' membership reclassification did not violate Article V, §7 of the New York State Constitution which, in pertinent part, provides that "After July first, nineteen hundred forty, 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", since "petitioners were never entitled to [SA]-20 benefits to begin with and, thus, did not have a contractual right to those benefits."

Click HEREto access the Appellate Division's posted on the Internet.

 

Audits and reports issued by the New York State Comptroller during the week ending May 6, 2022

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending May 6, 2022:

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

Municipal Audits

City of Amsterdam – Budget Review (Montgomery County) City officials did not implement all recommendations in the previous budget review letter when preparing the 2022-23 proposed budget. As a result, certain significant revenue and expenditure projections in the 2022-23 proposed budget continue to be unreasonable. 

 

Chenango County Industrial Development Agency – Project Approval and Monitoring (2022M-10)  Although the board evaluated projects prior to approval, it did not adequately establish and document their evaluation and approval process. In addition, the board did not properly monitor the performance of businesses receiving financial benefits. 

 

Town of Dix – Justice Court Operations (Schuyler County) The justices did not ensure all collections were properly collected, recorded, deposited, reported and remitted in a timely and accurate manner, or that all adjudicated cases were reported. They did not provide adequate oversight of the clerk or ensure she was properly trained. Neither the justices nor the clerk prepared monthly accountabilities to ensure that all collections were accurately accounted for, and discrepancies could be promptly identified. As a result, recording and reporting errors occurred, causing the court to owe the Office of the State Comptroller’s Justice Court Fund (JCF) $21,204, victims $1,701 and defendants $439. 

 

Town of North Greenbush – Town Clerk (Rensselaer County) The clerk did not record, deposit, disburse or report all money collected in a timely and accurate manner. As of Dec. 31, 2015, more than $16,000 in cash was collected but not deposited. In 2016, over $13,500 in cash was deposited but not recorded. Remittances to the supervisor were late ranging from one to four months after due. The clerk also did not perform monthly accountabilities to ensure sufficient assets to cover liabilities.  

 

 

Ontario County Four Seasons Development Corporation – Procurement (2021M-197) Corporation officials did not always seek competition or maintain adequate documentation of purchasing processes when procuring goods and services. Auditors reviewed payments totaling $305,033 to nine vendors and found officials made purchases from two vendors totaling $58,375 without seeking competition. Auditors reviewed payments totaling $298,044 to 13 professional services vendors and found officials did not follow a competitive process when selecting two professional service providers, paid a total of $40,253, and did not document the rationale for the process that was followed.

 

Village of Port Jefferson – Justice Court Operations (Suffolk County) The justices did not provide adequate oversight of court operations. As a result, errors and irregularities were found in the court’s records. Bank records provided by the senior court clerk were altered and there was a cash shortage of $2,096. The senior court clerk deposited 12 personal checks totaling $2,096 in place of missing cash and deposited receipts totaling $6,525 into a neighboring village’s bank account and transferred it back two months later without notifying the justices. These findings were referred to outside law enforcement for review.  

 

Village of Sherman – Treasurer’s Cash Receipts (Chautauqua County)  The former treasurer did not record and deposit collections in an accurate manner. The board did not provide adequate oversight of the treasurer and did not annually audit the former treasurer’s records and reports. The former treasurer did not deposit more than $20,000 in recorded real property taxes, water, sewer and general fund receipts collected during the period July 1, 2012, through August 3, 2016. The board and village officials did not establish adequate written policies and procedures over the cash receipt collection process.   

 

Village of Suffern – Budget Review (Rockland County) Auditors found that significant revenue and expenditure estimates in the tentative budget were reasonable, and the village’s tentative budget includes a tax levy of $12,029,454, which is within the limit established by law.

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An employee cannot be found guilty of disciplinary charges not included in the notice of discipline or a timely amendment to such notice

The employee [Petitioner] was terminated from his position following an investigation conducted by the Inspector General's office into his alleged misconduct and ultimately was served with a notice of disciplinary charges pursuant to Civil Service Law §75. The notice of discipline set out nine charges of purported official misconduct in violation of Penal Law §195.00. Petitioner's answer denied all of the charges and Petitioner requested a hearing.

A §75 disciplinary hearing was held, after which the Hearing Officer recommended dismissal of all of the charges preferred against Petitioner. 

The appointing authority [Director] adopted the Hearing Officer's recommendation to the extent of dismissing all charges except Charge 3. The Director sustained Charge 3 and imposed the penalty of dismissal of Petitioner from his position with the employer. 

Petitioner next commenced a CPLR Article 78  proceeding seeking a court order annulling the Director's determination with respect to Charge 3, contending, among other things, that the Director erred as a matter of law and abused her discretion in finding Petitioner guilty of acts of misconduct that were not alleged in the charge.

Supreme Court transferred the matter to the Appellate Division, which said, "we must annul [the Director's] determination as to [Charge] 3" because it believed that the Petitioner's due process rights were violated.

Charge 2 had alleged that Petitioner had "accosted a particular ... employee with unwanted and inappropriate conversation" while at an after-hours social gathering at a restaurant. The language of Charge 3 addressed Petitioner's behavior toward the same employee at "similar after-hours social functions" as set out in Charge 2.

In addition to denying all of the charges in the notice of discipline, Petitioner requested that the charges be particularized and that he be provided with the names of the employees referred to in the charges. In response to the request for particularization, the employer  served Petitioner with an amended notice of discipline which, among other things, amended Charge 3 to specify that, at these same after-hours social functions, Petitioner inappropriately referred to the employee's sexual orientation but the Charge was "otherwise unchanged."

At the disciplinary hearing, the female employee testified that the conversation described in the amended Charge 3 occurred in the workplace rather than at an "after-hours social function." The Director determined that Charge 3 had proven implicitly and "amended by the testimony of [the female employee] during the hearing." The Appellate Division observed that this "implicit amendment" was first pronounced in the Director's decision, well after the close of proof, for the purpose of conforming the Charge 3 to the proof, which in effect changed the location of Petitioner's alleged misconduct conduct from an after-hours social function to the workplace.

The Appellate Division opined that the Petitioner's due process rights were violated by, in essence, convicting him of uncharged conduct and imposing the severe penalty of termination based on such uncharged conduct. The court noted that the standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence and the first fundamental of due process is "notice of the charges made." 

This principle, said the court, equally applies to an administrative disciplinary proceeding "for even in that forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged," citing Matter of Murrayv Murphy, 24 NY2d 150 and other court decisions. In the words of the court: "Fundamentally, the determination made in a disciplinary proceeding 'must be based on the charges made' and it is error to find a public employee guilty of uncharged specifications of misconduct and impose a penalty thereon."

In some circumstances, however, the Appellate Division noted that amendments of the charges filed against the individual are allowed, calling attention to the fact that "a minor amendment to a charge, made 'part way through [a] hearing, and at a time when [the] petitioner had ample opportunity to respond to the amendment, did not deprive [the petitioner] of due process'."

In contrast, however, the court found that Petitioner was afforded no such opportunity as the amendment was made by the Director in her decision "after the proof was most assuredly closed and the Hearing Officer's determination referred." This was characterized as a "fatal flaw in this argument" as the testimony that was elicited at the hearing essentially amounted to a new charge based on a totally different context: conduct that allegedly took place at an after-hours social functions "was transported to the formal office setting."

Also noted by the court was the fact that the record is void of any request by the employer, "formally or informally, before or during the hearing, to amend the charge to give [Petitioner] notice that the behavior complained of was committed in the workplace."* Further, opined the Appellate Division, "the onus is not upon the employee to make the employer's case for it by objecting when hearing testimony strays from the conduct charged [and the] employee has the right to assume that such testimony will be properly rejected, as the Hearing Officer indicated here."

Accordingly, the Appellate Division found that the portion of the determination sustaining Charge 3 should be annulled.

* The Appellate Division also rejected the employer's argument that the challenged amendment was proper because no objection was made to the "amending" testimony given by the witness at the disciplinary hearing.

Click HERE to access the Appellate Division's posted on the Internet.

New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

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 HERE.

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 HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

 

 

Awarding attorney's fees and costs pursuant to the Freedom of Information Law

In a CPLR Article 78 seeking to compel the production of certain records pursuant to the Freedom of Information Law (Article 6 of the Public Officers Law) and for an award of attorney's fees and litigation costs, Supreme Court denied that branch of the petition that sought such an award, and, in effect, dismissed that portion of the proceeding. Petitioner appealed the Supreme Court's ruling.

Citing Matter of Cook v Nassau County Police Dept., 140 AD3d 1059, the Appellate Division noted that the State Legislature, "[in] order to create a clear deterrent to unreasonable delays and denials of access [and thereby] encourage every unit of government to make a good faith effort to comply with the requirements of FOIL", provided for the assessment of an attorney's fee and other litigation costs in FOIL proceedings.

Reasonable attorney's fees and other litigation costs reasonably incurred by such person "in which such person has substantially prevailed and the court finds that the agency had no reasonable basis for denying access" are typically award such fees pursuant to Public Officers Law §89. Further, a petitioner is deemed to have "substantially prevailed" within the meaning of §89(4)(c) when the commencement of the "CPLR Article 78 proceeding ultimately succeeds in obtaining the records responsive to the FOIL request, whether by court order or by voluntary disclosure."

In this action the Supreme Court denied the Petitioner's request for attorney's fees and litigation costs, finding that Petitioner had not substantially prevailed and that the Respondents "demonstrated a reasonable basis on the ground of privilege for denying the [FOIL] request." 

Petitioner appealed the Supreme Court's ruling and the Appellate Division found that the Petitioner had "substantially prevailed" as the result of initiating an Article 78 action. Reversing the Supreme Court's order that "denied that branch of the petition seeking an award of attorney's fees and litigation costs," the Appellate Division held that such fees and costs should have been granted to the Petitioner. The court then remitted the matter to the Supreme Court "for a determination of the amount of an award of reasonable attorney's fees and litigation costs" to the Petitioner.

The Appellate Division explained the Respondents did not timely respond to the Petitioner's FOIL request and its initial response consisted of four pages of materials that failed to address three of the four enumerated categories of material Petitioner sought. "It was not until after the commencement of this proceeding that the Respondents provided a significant number of additional documents responsive to the [Petitioner's] FOIL request" [emphasis supplied by the Appellate Division in it opinion]. Under the circumstances of this case, said the court, "the [Petitioner] was the 'substantially prevailing' party."

The Appellate Division's decision also opined that the Respondents "did not have a reasonable basis for initially denying the [Petitioner] access to the responsive materials." Although a limited amount of material was reasonably withheld based on attorney-client privilege, the "[Petitioner's] legal action ultimately succeeded in obtaining substantial unredacted post-commencement disclosure responsive to h[is] FOIL request."

Click HEREto access the Appellate Division's decision posted on the Internet.

 

Authority to determine that there is "probable cause" to file disciplinary charges pursuant Education Law §3020-a against an individual

The principal of a New York City Department of Education [DOE] school filed disciplinary charges pursuant to Education Law §3020-a against a tenured teacher [Educator] employed at the school alleging Educator was guilty of "various instances" of incompetence, misconduct, and neglect of duty.

At the §3020-a disciplinary hearing Educator moved to dismiss the disciplinary charges on the ground that they were "defective as they fail to adhere to Education Law §3020-a(2)(a)." Educator relied on the fact that the finding of probable cause to file the disciplinary charges was made by the Educator's school principal rather than by the "employing school board."*

The §3020-a hearing officer (1) denied Educator's motion to dismiss the charges; (2) sustained the charges and specifications alleged by the school principal; and (3) determined that the appropriate penalty to be imposed on the Educator was dismissal from the position. 

Educator appealed the hearing officer's determination pursuant to CPLR Article 75 while DOE moved to dismiss Educator's appeal and to confirm the hearing officer's findings, determination and award.

Supreme Court denied DOE's to dismiss Educator's appeal and ultimately granted Educator's petition, explaining that "DOE's failure to submit the charges against [Educator] to the employing board to determine whether probable cause existed [to go forward with the disciplinary action] constitutes a procedural defect depriving [the] Hearing Officer ... of jurisdiction to consider the charges." In the words of the Supreme Court: "[The] Hearing Officer ...  rejected [Educator's] argument, but this Court does not."* DOE appealed the court's ruling.

CPLR 7511(b) sets grounds for vacating an arbitration award. The Appellate Division said that as relevant here, "[t]he award shall be vacated on the application of a party who ... participated in the arbitration ... if the court finds that the rights of that party were prejudiced by ... an arbitrator" who "exceeded his [or her] power."

Rejecting the argument advanced by Educator, the Appellate Division held that "the absence of a vote on probable cause by the 'employing board' (Education Law §3020-a[2]), did not deprive the hearing officer of the jurisdictional authority to hear and determine the underlying disciplinary charges." Rather, as the hearing officer determined, the Chancellor was vested with the authority "[t]o exercise all of the duties and responsibilities of the employing board as set forth in [Education Law §3020-a]."

Further, the Appellate Division determined that "Supreme Court erred to the extent that it concluded, in effect, as an alternative ground for its determination in the order ... that the DOE was required to submit evidence to prove that the Chancellor actually delegated the relevant authority to the principal of [Educator's] school. That issue was not raised before the hearing officer in [Educator's] motion to dismiss, was not asserted in the petition, and was not properly before the Supreme Court."

Under the circumstances, the Appellate Division concluded that "in the absence of any cognizable basis for relief asserted in [Educator's] petition [Supreme Court] should have granted the DOE's motion pursuant to CPLR 404(a) and 3211(a)(7) to dismiss the petition and, pursuant to CPLR 7511(e), to confirm the arbitration award."

* The Appellate Division's decision notes that the hearing officer concluded that a probable cause determination need not be made after a vote by the employing board on probable cause and §2590-h of the Education Law provides the Chancellor of the DOE with "the statutory authority to make a probable cause determination, and to delegate that authority to subordinate individuals within the DOE, including, as relevant here, to the principal of a school."

Click HERE to access the Appellate Division's decision.