Arbitrating an issue that was not an alleged violation of the relevant collective bargaining agreement

Are tenured public school teachers [Petitioners] bound by the results of an arbitration initiated by their union, the United Federation of Teachers [UFT], pursuant to Civil Service Law §209 to resolve an impasse over the implementation of the COVID-19 vaccine mandate? The relevant abitration "Impact Award", which Petitioners, employees of the New York City Department of Education [DOE], challenged in this hybrid Article 75/Article 78 proceeding, established a procedure for handling requests for religious and medical exemptions from a COVID-19 vaccine mandate.*

UFT had sought to negotiate the mandate's implementation with the DOE pursuant to their "mutual obligation" to "confer in good faith with respect to wages, hours, and other terms and conditions of employment," since the mandate was not part of the collective bargaining agreement [CBA] then in force. Ultimately UFT submitted a declaration of impasse to the State Public Employee Relations Board [PERB] due to several unresolved issues, including placement of unvaccinated employees on leave without pay.

The Appellate Division held that:

1. The Article 75 claims were properly dismissed by Supreme Court as Petitioners (a) lacked standing to challenge the Impact Award and (b) failed to join UFT as a necessary party;

2. The Article 75 claims failed on the merits; and

3. The Article 78 claims failed as Petitioners were unable to show that DOE made an error of law or acted irrationally.

The Appellate Division held that Supreme Court, in each proceeding, properly found the requirement that every DOE employee be vaccinated against COVID-19 - imposed by the vaccine mandate underlying these proceedings, the validity of which petitioners do not challenge here - is a "qualification of employment unrelated to job performance, misconduct, or competency" [citations omitted].

Although PERB appointed a mediator, UFT and DOE continued to disagree on many issues. The parties agreed to arbitrate those issues before their former mediator. The arbitrator issued the Impact Award, noting that the mandate "did not expressly provide for exceptions or modifications for those with any medical counterindications to vaccination or sincerely-held religious objections to inoculation."

Under the Impact Award, an employee granted an exemption or accommodation would be permitted to remain on the payroll, but would not be allowed "to enter a school building while unvaccinated, as long as the vaccine mandate is in effect," and "may be assigned to work outside of a school building ... to perform academic or administrative functions ...." Employees placed on leave without pay continued to be eligible for health insurance, but were prohibited from engaging in gainful employment during the leave period. If they became vaccinated during the leave period and provided proof by November 30, 2021, they would have a right of return to the same school within one week of submitting proof. 

Petitioners are similarly situated teachers employed by DOE. All received notification by email that they were being placed on Leave Without Pay (LWOP) status because they were not in compliance with DOE's COVID-19 Vaccine Mandate.

As a threshold matter, the Appellate Division rejected the dissent's assertion that only the legislature has the authority to impose a vaccine mandate as a condition of employment.

As to Petitioners' claims under CPLR Article 75, that the arbitrator acted in excess of jurisdiction and in violation of public policy, the Appellate Division opined that such claims failed not only on the merits but also due to Petitioners' lack of standing. When a union represents employees during arbitration, only that union - not individual employees - may seek to vacate the resulting award.

In addition, the Appellate Division found that Petitioners also failed to join UFT as a party and because the limitations period for Article 75 proceedings had expired, any action brought now against UFT would be untimely.

Further, said the court, as the arbitrator's authority did not arise from the terms of the existing CBA or from provisions of the Education Law governing disciplinary proceedings but was instead based on the Civil Service Law, Petitioners, who were not parties to the arbitration, cannot challenge the Impact Award because they cannot show that the arbitrator "exceeded his power".

The Appellate Division concluded that placing Petitioners' on leave for failure to prove vaccination, a condition of employment, is "unrelated to job performance, misconduct or competency" and does not constitute "teacher discipline".

Noting that "All concur except for Friedman, J. who dissents in part in a memorandum," the majority of the court held "Because [Petitioners] were given the opportunity to submit proof of vaccination, request religious or medical exemptions and accommodations if immunocompromised, or opt for extended benefits and severance on more favorable terms, their due process rights were not violated" and, in addition, Petitioners "were ably represented by their union in the mediation and arbitration that arose from the vaccine mandate." 

* The mandate was originally issued on August 24, 2021 by the Commissioner of the New York City Department of Health and Mental Hygiene.

Click HERE to access this decision by the Appellate Division posted on the Internet.

See, also, Matter of Athena Clarke, Petitioner-Appellant, et al.,
https://www.nycourts.gov/reporter/3dseries/2023/2023_00945.htm 

 

Summarily terminating an individual serving a "disciplinary probation period"

In Ryan v City of New York, 2023 NY Slip Op 00966, decided on February 21, 2023, the Appellate Division's decision states that an individual in "dismissal probation" status may be terminated without a hearing for any reason, or no reason at all, absent a showing that the individual was dismissed in bad faith or for an improper or impermissible reason. At the time the charges resulting in Ryan's termination were brought, Ryan was on "dismissal probation" pursuant to a negotiated discipline settlement agreement which resolved earlier disciplinary charges brought against him.

Other decisions addressing summarily dismissing an individual serving a period of "disciplinary probation" include:

Taylor v Cass, 122 A.D.2d 885: A County employee won reinstatement with full back salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period. The terms of Taylor’s disciplinary probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” at any time during his disciplinary probationary period. Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours”; and

Wright v City of New York, 192 A.D.2d 411: The Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents. In other words, under the terms of relevant disciplinary probation the individual was to be treated as a "new employee" and he could be summarily terminated for any lawful reason.

In York v McGuire, 63 NY2d 760, New York State's Court of Appeals set out the basic rule concerning the dismissal of probationary employees upon their appointment to a position in the Classified Service as follows: 

After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.  

This reflects the view that the individual should be provided with a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. Should the appointing authority elect to dismiss such a probationary employee before he or she has completed the individual's required minimum period of probation, the individual is entitled to "notice and hearing" otherwise accorded a "tenured employee." 

Another element to consider: New York State's Military Law §243(9) provides, in pertinent part, in the event a probationary employee deployed on military duty before the expiration of his or her maximum period of the individual's probationary, the time he or she is absent on such military duty is to be credited as satisfactory service during such probationary period.

Click HERE to access the Ryan decision posted on the Internet.

Evaluating a defendant's motion for summary judgment in the course of Title VII litigation

The complainant [Plaintiff] in this Title VII action appealed the decision of a United States District Court to grant the Employer and several named employees of the Employer [Defendants'] motions for summary judgment on all of Plaintiff’s claims. 

Plaintiff had alleged that the Defendants had  (1) discriminated against him after one of his coworkers claimed he had engaged in workplace misconduct, including sexual harassment; (2) retaliated against him for appealing, pursuant to his union contract, subsequent adverse disciplinary decisions; and (3) violated his due process rights in the course of investigating and responding to the allegations of his alleged workplace misconduct. 

Reviewing the lower court's decision granting summary judgment to Defendants de novo, the Second Circuit Court of Appeals noted that summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." To establish a due process violation, said the court, a plaintiff must show that he possessed “a protected liberty or property interest” and that he was deprived of that interest “without constitutionally adequate process.” In addition, the Plaintiff must “establish [an individually named] defendant’s personal involvement in the claimed violation in order to hold that defendant liable in his individual capacity.”

The Circuit Court, observing that Plaintiff failed to address the district court’s dismissal of his intentional infliction of emotional distress and defamation claims in his brief, held that Plaintiff waived those issues for purposes of this appeal, citing Norton v. Sam’s Club, 145 F.3d 114. In Norton that Second Circuit Court held that “Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”

Here the Circuit Court concluded that "there is no genuine dispute of material fact and that Defendants are entitled to judgment as a matter of law on each of [Plaintiff's] discrimination, retaliation, and due process claims."

Addressing Plaintiff 's due process claims against individual Defendants, the Circuit Court affirm the district court's ruling on the basis of qualified immunity, explaining the “unlawfulness of their conduct”—if any—was not “clearly established at the time.” With respect to Plaintiff's Title VII retaliation claim, the Circuit Court  affirm the district court's ruling holding that Plaintiff had not been engage in any relevant Title VII-protected activity.

Click HERE to access the Circuit Court's decision posted on the Internet.

Woman arrested for allegedly stealing over $450,000 in New York State pension and Social Security payments

On February 23, 2023, New York State Comptroller Thomas P. DiNapoli, the U.S. Attorney for the Northern District of Georgia Ryan K. Buchanan and the Inspector General for the Social Security Administration Gail S. Ennis announced the arrest of a Georgia resident, Sandra Smith, for allegedly stealing over $450,000  in New York state pension and Social Security payments made to her deceased mother-in-law over a 16-year period.* 

Admitting to investigators that she stole the money, Sandra Smith was charged with 20 counts of wire fraud and 10 counts of theft of government funds. She was arraigned before U.S. Magistrate Judge Justin S. Anand.

“The defendant callously took advantage of her mother-in-law’s death to profit at the expense of New York’s retirement system and the Social Security Administration,” DiNapoli said. “She has now been brought to justice and we will seek full restitution. I thank U.S. Attorney Buchanan and the Social Security Administration Office of the Inspector General for their partnership on this matter.”

“Smith allegedly stole money that taxpayers and government employees paid into both retirement systems,” Buchanan said. “Money she was not entitled to. Through this joint effort, one more person who believed they could game the system has been caught and will be prosecuted.”

“For nearly 15 years, the beneficiary’s death was allegedly concealed by Ms. Smith so that she could illegally obtain Social Security benefits, which is a federal crime. These charges exemplify that my office will continue to pursue those who defraud the Social Security Administration,” Ennis said. “I thank the New York Office of the State Comptroller for investigating with us. I also thank the U.S. Attorney’s Office and Special Assistant U.S. Attorney Diane Schulman for prosecuting this case.”

Sandra Smith’s mother-in-law, Minnie Smith, was a longtime Brooklyn resident who had worked for the State Insurance Fund from 1985 until her retirement in 2005. She subsequently moved to Georgia to be close to family and died on Sept. 14, 2006. Her family did not notify the New York State and Local Retirement System (NYSLRS) or the SSA of her death and the retirement system received a change of address form purportedly signed and dated by “Minnie Smith.”  

At the time of Minnie Smith’s death in September 2006, Sandra Smith was her caretaker and handled her finances. As her caretaker, Sandra Smith had access to Minnie Smith’s bank account. After Minnie Smith died, Sandra Smith did not close the bank account. Instead, she kept Minnie Smith’s bank account open and NYSLRS and SSA continued to deposit funds into the account until early 2021. Sandra Smith knew exactly when those benefits would be deposited each month, and each month she allegedly withdrew the funds from the account almost as soon as they were deposited. 

When Minnie Smith's death was discovered, payments were stopped and the Comptroller DiNapoli’s Division of Investigations coordinated with the SSA-OIG, which was conducting its own review of the fraud.  

A total of $264,700 in retirement system payments and $194,351 in Social Security payments were deposited into Minnie Smith’s bank account from September 2006 through April 2021.

* The Comptroller noted that the charges filed against Sandra Smith in this case are merely accusations and Smith is presumed innocent unless and until proven guilty in a court of law.

###

Since taking office in 2007, Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported to the Comptroller DiNapoli by using the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online using the Internet at https://www.osc.state.ny.us/investigations, or by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Disclosing complaints or allegations of a public officers' misconduct sought pursuant to the New York State Freedom of Information Law

In the Matter of New York Civil Liberties Union [CLU] v New York City Department of Correction [DOC], 2023 NY Slip Op 00930, the Appellate Division noted that the personal privacy exemption in Public Officers Law §87(2)* allows state agencies to protect sensitive matters "which are of little or no public interest, and which may include unsubstantiated allegations," citing Matter of New York Times Co. v City of New York Off. of the Mayor, 194 AD3d 157.

However, cautioned the court, "Public Officers Law §87(2) does not create a categorical or blanket exemption from disclosure for unsubstantiated complaints or allegations of uniformed officers' misconduct ... Documents concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details [citations omitted]."

In this instance the Appellate Division held that DOC did not establish that identifying details in the records or data requested by CLU could not be redacted to prevent an unwarranted invasion of privacy. 

Accordingly, the Appellate Division held that Supreme Court properly required DOC to disclose the requested records, subject to redactions with specific justification under Public Officers Law §87(2). Supreme Court, said the Appellate Division, also properly required that DOC sufficiently document its justification for redactions to facilitate potential in camera** review by Supreme Court.

Addressing CLU's request for an award of attorney's fees and costs, the Appellate Division opined that "as this proceeding at this stage concerns a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme", it cannot be said that DOC had no reasonable basis for denying access to the records at issue.

* See Public Officers Law §89(2), concerning personal privacy exceptions authorized by law. 

** Judicial review of a matter in the privacy of the judge's chambers."

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

See, also, Matter of Puig v New York State Police, https://www.nycourts.gov/reporter/3dseries/2023/2023_00258.htm

School board policy requiring speakers at board meetings to disclose their name and address challenged

A school board's policy requires speakers at board meetings to provide their names and addresses.  Petitioner in this Education Law §310 appeal to the Commissioner of Education sought to avoid giving her last name or street address in order to speak at a school board meeting. Petitioner asked the Commissioner of Education to removal from the school board president for enforcing this policy, which Petitioner alleged violated the board’s Ethics Code.  Petitioner also contended that the Commissioner should invalidate the board’s policy that speakers be required to give their name and address before speaking because it allegedly violated New York State's Open Meetings Law.

The Commissioner dismissed Petitioner's application on number of procedural grounds, including lack of jurisdiction, noting Public Officers Law §107 vests consideration of alleged violations of the Open Meetings Law in the Supreme Court of the State of New York. 

The Commissioner's decision cites Comm on Open Govt OML-AO-5607 (2019) and Comm on Open Govt OML-AO-2717 (1997), advisory opinions issued by Committee staff*, which posit that while the public entity may request an individual to provide his name and address, "a person may not be required [sic] to do so in order to attend, speak or otherwise participate relative to a meeting of a public body".

As the school board indicated that after receipt of the instant appeal it “voted against suspending its policy to conform to ... these opinions" issued by Committee staff, the Commissioner said that she would transmit her decision in this matter "to the Committee on Open Government for appropriate action."

* The Committee's staff prepares written advisory opinions in response to particular sets of facts and circumstances.

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

Self-insured employer's claim for reimbursement for workers' compensation payments it made to a firefighter for a work-related injury rejected

In this appeal the City of Newburgh Fire Department [Department] challenged the Workers' Compensation Board's [WCB] decision that the Department, a self-insured workers' compensation employer, was not entitled to reimbursement or credit for certain payments it made to a Claimant [Firefighter].

Firefighter suffered a disabling work-related injury in the course of his performing his firefighting duties and established a claim for workers' compensation benefits. Ultimately classified as permanently partially disabled, Firefighter was paid his full salary during his period of disability by the Department. The Department filed requests for reimbursement of those wages against any award of workers' compensation benefits.*

In April 2016 Firefighter's application for performance of duty disability retirement pursuant to Retirement and Social Security Law §363-c was approved and provided for a 50% pension. Although full wage payment to Firefighter pursuant to General Municipal Law §207-a(1) were discontinued upon Firefighter's disability retirement, the Department commenced paying Firefighter the difference between the amount received from his pension and the amount of his regular wages under color of General Municipal Law §207-a[2].

In 2019, Firefighter submitted a request for additional benefits, claiming that his "permanency classification" entitled him to retroactive workers' compensation awards from April 2016 and continuing, which payments had been discontinued. The Department sought credit against any workers' compensation awards based upon its supplemental pension payments pursuant to General Municipal Law §207-a(2).

Ultimately Firefighter was awarded benefits "retroactive to April 30, 2016 and continuing". However, the Workers' Compensation Law Judge [WCLJ] found that the Department was not entitled to reimbursement against the workers' compensation awards for pension payments made to Firefighter under General Municipal Law §207-a(2).

The Department appealed but ultimately the WCB affirmed the decision of the WCLJ, noting that "any determination as to the setoff/reimbursement of the workers' compensation payments against the pension supplement the [Department] pays pursuant to General Municipal Law §207-a(4-a) was outside its jurisdiction." The Department's subsequent application "for reconsideration and/or full Board review was denied" and it appealed this ruling by the WCB.

The Appellate Division said was "unpersuaded by the [Department's] contention that because [Firefighter] is receiving a performance of duty disability pension, as opposed to an accidental disability retirement pension, the matter is distinguishable from Matter of Harzinski v Village of Endicott (126 AD2d 56 [3d Dept 1987]) and, as such, [the Department] is entitled — pursuant to Workers' Compensation Law §25(4)(a) or §30(2) — to reimbursement of its General Municipal Law §207-a(2) payments against [Firefighter's] workers' compensation awards."

Workers' Compensation Law §25(4)(a), said the court, provides that in the event an "employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability," the employer "will be entitled to reimbursement out of any unpaid workers' compensation award (emphasis provided by the court in its decision)" and Workers' Compensation Law §30(2) provides for the reimbursement of "any salary or wages paid" to a firefighter pursuant to General Municipal Law §207-a against any workers' compensation award.

Explaining that "because the supplemental retirement benefits paid by the [Department] were not wages, the workers' compensation awards were not reimbursable to the [Department] by way of Workers' Compensation Law §25(4)(a) or §30(2)," the Appellate Division sustained the WCB's determination.

To the extent that the Department argued that limiting "any offset or reimbursement to future General Municipal Law §207-a(2) supplemental payments" as set forth in General Municipal Law §207-a(4-a) is inappropriate and thwarts the statutory scheme,** the court said the Board made no determination with regard to the applicability of that statute, noting that its determination in that regard would be inappropriate. In the words of the court: "The employer does not challenge this finding on appeal and, as such, it is not properly before us."

* Any award of workers' compensation to Firefighter was to be designated reimbursable to the employer.

** General Municipal Law §207-a(4-a) provides that "[a]ny benefit payable pursuant to [General Municipal Law §207-a(2)] to a person who is granted retirement for disability incurred in performance of duty pursuant to [Retirement and Social Security Law §363-c] shall be reduced by the amount of the benefits that are finally determined payable under the workers' compensation law by reason of accidental disability."

 

Click HERE for access to the decision of the Appellate Division posted on the Internet.

 

New York Public Personnel Law E-books available from BookLocker

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.

Advisory Memorandum 23-01, Paid Parental Leave, issued by the New York State Department of Civil Service

The text of Advisory Memorandum 23-01 will be found at:
https://www.cs.ny.gov/ssd/Manuals/SPMM/2800AutoPositPersnl/Advisory 

Advisory Memorandum 23-01, in a PDF format is available at:
https://www.cs.ny.gov/ssd/pdf/AM23-01.pdf.

To view previous Advisory Memoranda issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/Manuals/SPMM/

 

An article posted by The Week Magazine captioned "What are 'copycat layoffs'"?

"They say imitation is the sincerest form of flattery — just not when it comes to job cuts" according an article posted on the Internet by The Week Magazine.

Click HERE to access the article.

Amendments to Section 75 of the Civil Service Law

 Reminder

§75.1(b) of the Civil Service Law has been amended effective April 1, 2023 and §75.2a of the Civil Service Law has been amended effective March 1, 2023.

Audits of public entities issued by the New York State Comptroller on February 15, 2023

On February 15, 2023, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued.

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

 

Metropolitan Transportation Authority – MTA Bus Company and New York City Transit – Management and Maintenance of Non-Revenue Service Vehicles (2020-S-31) New York City Transit (Transit) and the MTA Bus Company (MTA Bus) maintain a fleet of 1,950 non-revenue service vehicles used to support transit operations. Despite an estimated value of $150 million and a replacement cost of $216.7 million, the audit determined the fleet and related costs were not being adequately managed. Routine and annual preventive maintenance inspections were not being performed as required, increasing the risk of a shortened useful life or the need for more repairs. Also, there was no inventory system to track parts purchased for vehicle maintenance, resulting in parts that were missing or untraceable to a vehicle. Notably, for the audit period, maintenance costs totaled more than $50 million, nearly $9 million over budget.

 

State Education Department (Preschool Special Education Audit Initiative) – Cantalician Center for Learning – Compliance With the Reimbursable Cost Manual (2022-S-7) Cantalician, a not-for-profit special education provider serving students from Erie, Genesee and Niagara counties, is authorized by the State Education Department to provide Preschool Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (over 2.5 hours per day) to children with disabilities who are between the ages of 3 and 5 years. For the fiscal year ended June 30, 2017, Cantalician reported approximately $2.23 million in reimbursable costs for these programs. The audit identified $358,254 in costs that did not comply with SED’s requirements for reimbursement.

 

State Education Department (Preschool Special Education Audit Initiative) – Abilities First, Inc. – Compliance With the Reimbursable Cost Manual (2022-S-23) Abilities First, Inc. (AFI) is a not-for-profit special education provider located in Wappingers Falls that serves students from three counties in the Mid-Hudson region. AFI is authorized by the State Education Department to provide Preschool Special Class (over 2.5 hours per day), Preschool Integrated Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (2.5 hours per day) to children with disabilities who are between the ages of 3 and 5 years. For the fiscal year ended June 30, 2019, AFI reported more than $4.41 million in reimbursable costs for these programs. The audit identified $236,209 in costs that did not comply with SED’s requirements for reimbursement.

 

Department of Health – Improper Medicaid Payments for Individuals Receiving Hospice Services Covered by Medicare (Follow-Up) (2022-F-31) A prior audit report, issued in December 2020, identified about $50 million in actual and potential Medicaid overpayments, cost-savings opportunities, and questionable payments for services provided to recipients enrolled in Medicare-covered hospice care. The follow-up found that the Department of Health made some progress in addressing the problems identified, but more actions were needed. Namely, the Office of the Medicaid Inspector General had yet to materially recover the overpayments.

 

Homes and Community Renewal – Housing Trust Fund Corporation – Oversight of the Residential  Emergency Services to Offer Home Repairs to the Elderly (RESTORE) Program (Follow-Up) (2022-F-18) From 2017 to 2019, Homes and Community Renewal (HCR) awarded $6.13 million in RESTORE funds, which benefited about 785 senior citizen housing repair projects. A July 2021 audit found that HCR needed to exercise greater oversight of the program to ensure that funds are awarded appropriately and that program goals are being achieved. For example, flaws in the selection process resulted in some local program administrators (LPAs) being inappropriately awarded funds and others being denied. The audit also found that LPAs were not properly administering the RESTORE program and were not using awarded funds within required time frames to ensure emergency repairs were addressed promptly. Further, the awards served just 36 of the State’s 62 counties. More targeted outreach regarding the RESTORE program could increase statewide participation and result in better distribution of funds. The follow-up determined that HCR made progress in addressing these issues, implementing four of the six audit recommendations and partially implementing two.

Determining terms and conditions of employment for the purposes of collective bargaining within the meaning of the Taylor Law

§50.5 of the Civil Service Law, Application Fees, in pertinent part, provides "(a) Every applicant for examination for a position in the competitive or non-competitive class, or in the labor class when examination for appointment is required, shall pay a fee to the civil service department or appropriate municipal commission at a time determined by it."

The State commenced this CPLR Article 78 proceeding seeking to annul Public Employment Relations Board [PERB] determinations that [1] not charging examination application fees created an enforceable past practice; and [2] PERB's subsequently affirming a second Administrative Law Judge's decision ordering the State to stop requiring employees represented by the respondent employee organization for the purposes of collective bargaining to pay fees for promotional and transitional examinations and to reimburse those employees any money that they paid as a result of the State's unilateral imposition of such examination fees.

PERB had concluded that waiving fees for promotional and transitional examinations  was a term and condition of employment because there was an "economic benefit" to the employees and rejected the State's contention that the issue of its imposition of the fees was a prohibited or permissive subject of collective bargaining. PERB, in contrast, determined that the subject was mandatorily negotiable and that the State had earlier established an enforceable past practice of not charging such fees.

Supreme Court and the Appellate Division, among other things, (1) confirmed PERB's determinations and (2) dismissed the State's petition (see 183 AD3d 1061, at 1064), explaining "the application fee" was a term and condition of employment because "the employees at issue received an economic benefit by not having to pay" that fee. Further, the Appellate Division agreed with PERB that the imposition of the fees was a mandatory subject for the purposes of collective bargaining and that an enforceable past practice to waive such fees existed.

The Court of Appeals reverse these lower court's rulings, holding charging application fees for promotional and transitional civil service examinations [1] was not a term and condition of employment as defined in Civil Service Law §201.4 and [2] the State had no obligation to negotiate those fees pursuant to Article 14 of the Civil Service Law, typically referred to as "The Taylor Law, Civil Service Law, CSL §200 et seq."

Noting:

    [1] The Taylor Law "requires all public employers and employee organizations to negotiate in good faith to determine represented employees' terms and conditions of employment";

    [2] New York's "strong and sweeping public policy in favor of collective bargaining"; and

    [3] "The presumption is that all terms and conditions of employment are subject to mandatory bargaining";

the Court of Appeals determined that a public employer's bargaining obligations extend  only to terms and conditions of employment, a phrase defined by statute as "salaries, wages, hours and other terms and conditions of employment."

Here, said the court, PERB, relying on Matter of Local 237, International Brotherhood of Teamsters [Town of Islip], 44 PERB 3014, has interpreted the statute "to mean — and maintains here — that any 'economic benefit' afforded to employees is a term and condition of employment."

The Court of Appeals said PERB misapprehends its holding" In Matter of Town of Islip. In Islip "we merely acknowledged that PERB had determined that 'employee use of an employer-owned vehicle for transportation to and from work is an economic benefit and a mandatorily negotiable term and condition of employment' (see 23 NY3d at 491)." In the words of the Court of Appeals "PERB erroneously reads this language as adopting a per se rule that any economic benefit is a term and condition of employment."

The court held that PERB's determination in this case "conflicts with Civil Service Law §201(4) and ... precedent". Although certain forms of compensation, including employees' health benefits, qualify under the statute as a term and condition of employment, "to be a term and condition of employment under section 201(4), an economic benefit must have some nexus to the employment".

As an example, the Court of Appeals cited the employees' use of vehicles to commute to their jobs as a term and condition of employment because the employer provided an economic benefit that was plainly related to the employment. With respect to the instant litigation, the Court of Appeals held that "PERB's determination here improperly eliminated the nexus requirement".

The Court of Appeals' decision points out that Civil Service Law §50(5) vests the Department of Civil Service with the power to impose fees to recoup the administrative costs of conducting civil service examinations, not with authority to alter the employer-employee relationship through the imposition of the fees. In the words of the Court of Appeals, "The fees for promotional and transitional exams at issue here are akin to fees imposed by an agency with plenary authority to set fees for licenses that an employer may demand as a job requirement, such as a driver's license or professional license".

Concluding the imposition of the subject fees was not encompassed within the definition of terms and conditions of employment within the meaning of Civil Service Law §201(4), nor did earlier waiver of the fees for State employees render them terms or conditions of employment, the Court of Appeals ruled that "the State had no obligation to negotiate with respect to their implementation." 

Holding that PERB's conclusion to the contrary was error, the Court of Appeals determined that the order of the Appellate Division should be reversed, with costs, and that the State's petition to annul PERB's determinations in this matter should be granted.

Click HERE to access the text of the Court of Appeals decision posted on the Internet.

 

Recent personnel disciplinary decisions issued by the New York City Office of Administrative Trials and Hearings

Click on the text highlighted in color to access the full text of the decision.

Violating the employer's attendance and leave policy

Administrative Law Judge Christine Stecura recommended a 79-day suspension for a sanitation worker charged with 51 complaints of violating his employer’s time and leave policy during a 14-month period, including failing to document emergency leave, providing inadequate documentation, and failing to remain accessible while on sick leave. 

Judge Stecura sustained the charges and recommended suspension in lieu of termination due to substantial mitigating circumstances as most of the sanitation worker’s absences involved caring for his child, who had a serious medical condition, and the worker subsequently obtained approved leave for this purpose.

Dep’t of Sanitation v. D.L., OATH Index No. 2434/22

Video evidence of employee misconduct

Supervising Administrative Law Joan R. Salzman recommended a 30-day suspension for a TLC Inspector who cursed at his supervisors, moved aggressively toward them, and forcibly pushed away a colleague who was trying to stop him. 

The Inspector denied wrongdoing, despite video evidence showing him pushing his colleague. 

Although Inspector had no prior disciplinary history, Judge Salzman found that the gravity of the employee's violent conduct, combined with employee's refusal to take responsibility for his actions, warranted a 30-day suspension.  

Taxi & Limousine Comm’n v. Urena-Santos, OATH Index No. 527/23 (Dec. 23, 2022), adopted, Comm’r Dec. 

Board member alleged to have made false statements on his application for membership

Administrative Law Judge Jonathan Fogel recommended dismissing charges against a community board member because the community board did not prove that the member had made two false statements on his application to become a board member. 

ALJ Fogel declined to dismiss the charges on procedural grounds, however, finding that the charges were properly brought under the New York City Charter and although the application predated the member's service as a board member, it is part of the community board member's personnel file and "his membership on the board".  

Brooklyn Community Board 13 v. Greenberg, OATH Index No. 1574/22

Challenging the holding of a scheduled union election

Supreme Court granted plaintiffs' petition to enjoin AFSCME's Local 983 from holding the duly scheduled election and directed Local 983 to provide a plan, to be reviewed by Plaintiffs for a future election within 30 days. The Appellate Division unanimously reversed the Supreme Court's ruling and dismissed Plaintiff's petition.

The Appellate Division opined that Supreme Court had "improvidently exercised its discretion to enjoin [Local 983] from proceeding with their scheduled election," explaining that as Local 983 is an unincorporated association, the Plaintiff's petition fails because it does not plead "that each individual union member authorized or ratified the [allegedly] unlawful actions", citing Matter of Agramonte v Local 461, Dist. Council 37, Am. Fedn. of State County and Mun. Empls., 209 AD3d 478, and other authorities including Martin v Curran, 303 NY 276.

Further, said the Appellate Division, "even had the Martin requirement not applied, [Plaintiffs] failed to exhaust their contractual remedies before bringing this action," noting  AFSCME's constitution prohibits members from instituting a civil action without first availing themselves of the remedies in its constitution. The remedies available to Plaintiffs' include a procedure to challenge the conduct of an election so that a protesting party has an opportunity to be heard.

The decision also points out that provisions of AFSCME's constitution allow petitioners to "appeal an adverse determination to a judicial panel, then to a full judicial panel, and then again to an international convention." In addition, the Appellate Division commented that the Union's constitution "also gives the union the authority to set aside an election outcome and hold a new election upon a finding of a violation."

In the words of the Appellate Division "Petitioners have not advanced a sufficient reason to excuse them from exhausting that remedial process."

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

Selected key points made in recent decisions of the Commissioner of Education

Improper service of an appeal to the Commissioner of Education

The Commissioner dismissed this Education §310 appeal for improper service, noting that §275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  "If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a], Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). 

As here relevant, the petition was sent by U.S. mail to respondent’s district clerk.  The Commissioner observed that service by U.S. mail "does not constitute valid service of a petition pursuant to Education Law §310" and, therefore, "the appeal must be dismissed."*

The Commissioner then opined that "Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief." The Commissioner also noted that "As [the school district correctly noted], there is no requirement that a board of education conduct a nationwide search for a superintendent."

Petitioner, said the Commissioner, has otherwise failed to demonstrate that the school district acted in an arbitrary or capricious manner in appointing its new superintendent. (see Appeal of S.E., 51 Ed Dept Rep, Decision No. 16,352; Appeal of J.P., et al., 42 id. 226, Decision No. 14,832).

* The Petitioner’s affidavit of service contained the following notation:  “Affidavit of service by mail [s]ince the school district is on Spring Break this week.”  This, said the Commissioner, "does not establish that district offices were closed or that [Petitioner] was otherwise prevented from effectuating personal service."

Click HERE top access the Commissioner's decision.

Determining seniority in the course of abolishing a position

In this appeal the Petitioner appealed the action of the Board of Education in abolishing her position of library media specialist, joining several named individuals as "necessary parties." The Commissioner sustained Petitioner's appeal "to the extent indicated."

Petitioner claimed tenure in the district as a library media specialist.  On June 18, 2020, the school board adopted a resolution abolishing, among others, a library media specialist position, effective June 30, 2020.  The school district then identified Petitioner as the least senior person in the tenure area of library media specialist. 

Addressing the merits of the Petitioner's appeal, the Commissioner observed that at the time of a probationary appointment or appointment on tenure, a board of education must identify “the tenure area or areas in which [a] professional educator will devote a substantial portion of [her or] his time”, i.e. assigned to any tenure area to which she devotes a “substantial portion” of her time, defined as “40 percent or more of [her] total time spent … in the performance of [her or] his duties …” (see 8 NYCRR 30.1 [g]).

The Commissioner opined that "Given the limited and ambiguous information in the record, it is impossible to determine which employee’s services should have been discontinued." The Commissioner then admonish [the appointing authority] to comply with Part 30 of the Rules of the Board of Regents in appointing individuals to tenure-eligible positions. "It is unacceptable that [appointing authority] was unable to produce a single document establishing the tenure area(s) to which [Petitioner] and the named necessary parties were appointed] noting that the failure appointing authority "to identify this information, which is required by 8 NYCRR 30-1.3, now necessitates a recreation of its institutional thought process from several years ago—all while the employment of one or more people hangs in the balance" noted the Commissioner.

Click HERE to access the text of the Commissioner's decision.

Challenging actions taken by members of the staff of the State Education Department

Petitioner in this appeal challenged a determination of the New York State Education Department’s Office of Special Education (“SED”) that she engaged in misconduct and acted incompetently during a special education due process hearing.  The Commissioner dismissed the appeal for "lack of jurisdiction."

The Commissioner explained that "It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department", noting that  "Such actions can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules."

Click HERE to access the decision of the Commissioner.

Extending a probationary period

A probationary teacher [Probationer] taught Social Studies. Subsequently Probationer agreed to serve an additional one-year probationary period, ending February 1, 2022.

By letter dated October 8, 2021, the assistant principal requested a meeting “regarding improper usage of an instructional period.”  The letter informed petitioner that she could bring a union representative because the meeting could lead to disciplinary action. Ultimately the superintendent informed Probationer that her probationary appointment, would end at the close of business on January 31, 2022.

Pursuant to its authority under Education Law §2573(1)(a), the New York City Department of Education [DOE] "may discontinue the services of a probationary teacher 'at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith.'”

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief  and here the Commissioner determined that Probationer "has not proven that [DOE] discontinued her probation in bad faith."

Some technical issues to consider in filing an Education Law §310 appeal to the Commissioner of Education

1. Alleged violations of the Open Meetings Law may not be adjudicated in an appeal pursuant to Education Law §310 as the Commissioner of Education lacks jurisdiction to address the Open Meetings Law allegations raised in such an appeal.

2. Any deficiency in joining a necessary party may be cured during the pendency of the appeal by the joinder of the necessary party.

3. The services of a probationary teacher may be discontinued at any time during the probationary period unless the teacher shows that a board terminated service for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith, and the record of the instant appeal "supports a finding that petitioner’s probationary appointment was discontinued in bad faith."

Click HERE to access the Commissioner's decision.

Commission on Ethics and Lobbying in Government - Adjudicatory Proceedings and Appeals Procedures for "Matters Under the Commission’s Jurisdiction"

Commission on Ethics and Lobbying in Government

I.D. No. ELG-45-22-00024-E
Filing No. 66; Filing Date: 2023-01-23; Effective Date: 2023-01-23

An Emergency Rule amending Part 941 of Title 19 NYCRR was published in the State Register on February 8, 2023 [Vol. XLV, Issue 6] based on a fin of the State Register.
Statutory authority: Executive Law, section 94(1)(a), (5)(a), (10) and (11)

Finding of necessity for emergency rule: Preservation of general welfare.

Specific reasons underlying the finding of necessity: The regulatory
amendments are necessary to conform to the Ethics Commission Reform
Act of 2022, L 2022, ch 56, § 1, Part QQ (“ECRA”) which established the
Commission on Ethics and Lobbying in Government (“Commission”) as
the agency responsible for administering, enforcing, and interpreting New
York State’s ethics and lobbying laws. The regulatory amendments are
necessary to facilitate the expeditious and efficient performance of the
Commission’s investigative and enforcement duties as set forth in Section
94 of the Executive Law, the Commission’s enabling statute.

The emergency rule is necessary for the general welfare to enforce eth-
ics laws that are critical matters of public interest. Therefore, upon Emer-
gency Adoption, these amendments will take effect immediately.
Subject: Adjudicatory proceedings and appeals procedures for matters
under the Commission’s jurisdiction.

Purpose: To conform Part 941 to the new Executive Law section 94
established by the Ethics Commission Reform Act of 2022.

Substance of emergency rule (Full text is posted at the following State
website: https://ethics.ny.gov/proposed-regulations-and-guidance): The
Emergency Re-Adoption amends 19 NYCRR Part 941 to conform the
regulations governing the investigative and enforcement adjudicatory pro-
cess to the new Section 94 of the Executive Law, as established by the
Ethics Commission Reform Act of 2022.

Key changes in the law, as set forth in these amendments, provide that a
Commission vote is no longer required to initiate an investigation. Instead,
Commission staff or the Commission can decide to elevate a preliminary
review into an investigation, and staff will present the matter to the Com-
mission for a vote after it has investigated a potential violation(s) of the
laws under the Commission’s jurisdiction. At that time, the Commission
may vote to proceed to hearing, return the matter to staff for further
investigation, close the matter or authorize resolution of the matter through
guidance.

The regulatory amendments further conform to and clarify statutory
changes relating to the various notices the Commission may send, which
include a Notice of Allegations, Notice of Hearing, and Notice of Closure,
Continued Investigation or Guidance, and the requirements of such
notices.

Furthermore, this rulemaking clarifies provisions relating to the conduct
of hearings and authority of hearing officers and the attorneys for the par-
ties to issue hearing subpoenas.

This notice is intended to serve only as a notice of emergency adoption.
This agency intends to adopt the provisions of this emergency rule as a
permanent rule, having previously submitted to the Department of State a
notice of proposed rule making, I.D. No. ELG-45-22-00024-EP, Issue of
November 9, 2022. The emergency rule will expire March 23, 2023.

Text of rule and any required statements and analyses may be obtained
from: Megan Mutolo, Commission on Ethics and Lobbying in Govern-
ment, 540 Broadway, Albany NY 12207, (518) 408-3976, email:
megan.mutolo@ethics.ny.gov

Regulatory Impact Statement

1. Statutory Authority: Executive Law § 94(1)(a) provides the Commis-
sion on Ethics and Lobbying in Government (“Commission”) with the
responsibility to administer, enforce and interpret New York State’s ethics
and lobbying laws, and Subsection 94(5)(a)(i) and (ii) authorize the Com-
mission to adopt, amend and rescind any rules and regulations pertaining
to the statutes within its jurisdiction and to adopt, amend and rescind any
procedures of the Commission, including procedures for investigations
and enforcement. Section 94(10) further authorizes the Commission to
adopt rules governing the conduct of adjudicatory proceedings and
appeals,. In addition, Part 941 sets forth rules for adjudicatory proceedings
and appeals relating to potential violations of the laws that fall within the
Commission’s jurisdiction, including investigatory matters conducted pur-
suant to and in accordance with Executive Law § 94(10) and (11).

2. Legislative Objectives: To set forth procedures regarding the conduct
of preliminary reviews and investigations in conjunction with adjudica-
tory proceedings and appeals for matters arising under the Commission’s
jurisdiction, as set forth in Section 94 of the Executive Law.

3. Needs and Benefits: This Emergency Re-Adoption amends 19
NYCRR Part 941 to conform to new Section 94 of the Executive Law,
established by the Ethics Commission Reform Act of 2022, relating to the
Commission’s investigative and enforcement process.

4. Costs:

a. Costs to regulated parties for implementation and compliance:
Minimal.

b. Costs to the agency, State and local governments for the implementa-
tion and continuation of the rule: No costs to such entities.

c. Cost information is based on the fact that there will be minimal costs
to regulated parties and state and local government for training staff on
changes to the requirements. The cost to the agency is based on the
estimated slight increase in staff resources to implement the regulations.

5. Local Government Mandates: 

The Emergency Re-Adoption and Proposed Rule does not impose new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district.

6. Paperwork: This regulation may require the preparation of additional
forms or paperwork. Such additional paperwork is expected to be minimal.

7. Duplication: This regulation does not duplicate any existing federal,
state or local regulations.

8. Alternatives: Section 94(10)(o) of the Executive law imposes an af-
firmative duty on the Commission to adopt rules governing the conduct of
adjudicatory proceedings and appeals. Therefore, there is no alternative to
amending the Commission’s existing regulation if the Commission
changes its procedures.

9. Federal Standards: This regulation does not exceed any minimum
standards of the federal government with regard to a similar subject area.

10. Compliance Schedule: Compliance with the emergency regulation
will take effect on the date it is filed with the Department of State. The
Proposed Rulemaking will take effect upon adoption.

 

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis for Small Businesses and Local Govern-
ments is not submitted with this Notice of Emergency Re-Adoption
because the rulemaking will not impose any adverse economic impact on
small businesses or local governments, nor will it require or impose any
reporting, record-keeping, or other affirmative acts on the part of these
entities for compliance purposes. The Commission on Ethics and Lobby-
ing in Government makes this finding based on the fact that the rule imple-
ments current law and, therefore, imposes no new requirements on such
entities.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not submitted with this Notice of
Emergency Re-Adoption because the rulemaking will not impose any
adverse economic impact on rural areas, nor will it require or impose any
reporting, record-keeping, or other affirmative acts on the part of rural
areas. The Commission on Ethics and Lobbying in Government makes
this finding based on the fact that the rule implements current law and,
therefore, imposes no new requirements on such entities. Rural areas are
not affected.

Job Impact Statement

A Job Impact Statement is not submitted with this Notice of Emergency
Re-Adoption because the proposed rulemaking will have limited, if any,
impact on jobs or employment opportunities. This regulation implements
current law and, therefore, imposes no new requirements. This regulation
does not relate to job or employment opportunities.

Assessment of Public Comment

The agency received no public comment since publication of the last as-
sessment of public comment.