Termination of employment of an employee who has been continuously absent without official approval since February 2022 recommended

New York City Office of Administrative Trials and Hearings Administrative Law Judge Orlando Rodriguez recommended termination of employment for a patient care associate [Respondent] who had been continuously absent without approval  since February 17, 2022.

There was no dispute that Respondent's absences were due to her disability and that she could no longer perform her work duties.

The ALJ rejected Respondent’s argument that the Employer’s pursuit of disciplinary action violated the City’s Human Rights Law, finding that such violation may only be found where the employee has been able to demonstrate rehabilitation at the time of disciplinary action.

Judge Rodriguez also rejected Respondent’s argument that the proceeding should be converted to a proceeding under §72 of the Civil Service Law.* The ALJ said "it is well-settled that a government agency may choose to bring disciplinary charges for time-and-leave violations rather than a disability proceeding, even when the misconduct is caused by a disability".

Finding that Respondent has been continuously absent without authorization, the ALJ recommended that the Respondent be terminated from her position.

* NYPPL notes Respondent did not dispute that she has not returned to work since February 17, 2022 and claims she can no longer perform the duties of her position because of "injuries she sustained in a car accident nine years ago, which have worsened over time". 

Section 73 of the Civil Service Law provides for the removal of a tenured employee in the classified service placed on leave pursuant to §72 of the Civil Service Law if he or she has been continuously absent from work for one year or more because of a non-work related injury or illness. Termination pursuant to §73 is at the discretion of the appointing authority. 

Termination following a cumulative period absence of one year or more due to a work-connected injury or illness is controlled by §71 of the Civil Service Law. Again, termination of an individual placed on a §71 leave of absence is at the discretion of the appointing authority. 

N.B. §71 provides "where an employee has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a leave of absence for at least two years".

Click HERE to access to the decision issued by Judge Rodriguez posted on the Internet.

 

New York State Department of Civil Service Classification and Compensation updates posted on the Internet

On February 28, 2024, the New York State Department of Civil Service posted the Classification and Compensation information on the Internet:

• C&C Update June 2023 - February 2024

The text of the Policy Memorandum is posted at C&C Update June 2023- February 2024

The Department noted that it offers a version of this information in PDF format.

To view all updates or Policy Memoranda issued by the New York State Department of Civil Service, visit: https://www.cs.ny.gov/businesssuite/News-and-Advisories/Classification-and-Compensation-Memos/index.cfm

The Department also indicated that replies using email addresses, if any, shown in these postings "will not be read or answered."

 

 

 

New proposed Congressional Map introduced in the New York State Senate and Assembly

Click HERE to view the proposed Congressional Map introduced in the form of a bill by Deputy Majority Leader Michael Gianaris (D) in the New York State Senate and Assemblyman Kenneth Zebrowski (D) in the New York State Assembly posted on the Internet.

 

Workers' Compensation Board's decision that applicant's misrepresentations in applying for Workers' Compensation benefits warranted disqualification sustained by the Appellate Division

Citing Matter of Koratzanis v U.S. Concrete, Inc., 209 AD3d 1075, the Appellate Division noted "Workers' Compensation Law §114-a (1) provides, in relevant part, that a claimant who, for the purpose of obtaining workers' compensation benefits or influencing any determination relative thereto, knowingly makes a false statement or representation as to a material fact shall be disqualified from receiving any compensation directly attributable to such false statement or representation. Further, noted the court, "Whether a claimant has violated the statute lies within the province of the Board," which is the sole arbiter of witness credibility, and its decision will not be disturbed if supported by substantial evidence.

In the instant matter, although Claimant told the examining physician that he retired in 2014, Claimant testified that he has continued to work in a family flooring business and that he had another job conducting movie audits. Although Claimant testified that he does not have full range of motion with his left knee, which he stated does not bend regularly, surveillance videos did not confirm any physical limitations. 

While Claimant testified that he gave his best efforts during an independent medical examination and that he has "good days and bad days," Claimant's testimony regarding whether he was truthful about his physical condition presented "a credibility issue for the Board to resolve." In the words of the Appellate Division, "[Claimant] was also required throughout the underlying proceedings to provide truthful and accurate information regarding his work activities and side jobs."

The court then found that substantial evidence supported the Board's determination that "[Claimant] violated Workers' Compensation Law §114-a" as well as Claimant's material omissions supported the Board's imposing "a mandatory penalty."

The Appellate Division also sustained the Board's disqualification of Claimant from receiving future wage replacement benefits, noting "the Board is vested with the authority — as an exercise of its discretion — to disqualify a claimant from receiving any future benefits" in addition to imposing the mandatory penalty, i.e., rescinding the workers' compensation benefits already paid a claimant. 

The court opined "The imposition of such discretionary penalty typically is reserved for situations where the underlying deception has been deemed egregious or severe, or there was a lack of mitigating circumstances", citing Matter of Koratzanis v U.S. Concrete, Inc., 209 AD3d at 1077.

Pointing out that "Judicial review of the penalty imposed is limited to whether the penalty constitutes an abuse of discretion as a matter of law and, as such, a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law".

In this instance the Appellate Division found "the record supports the Board's finding that [Applicant's] misrepresentations were egregious and severe enough to warrant disqualification" and that the court could not conclude that the penalty imposed by the Board was disproportionate to Claimant's material misrepresentations.

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

 

New York State Comptroller Dinapoli and Manhattan District Attorney Bragg announced the guilty plea of former NYU director of finance for major fraud

On February 26, 2024, New York State Comptroller Thomas DiNapoli and Manhattan District Attorney Alvin L. Bragg Jr. announced the guilty plea of Cindy Tappe for orchestrating an approximately $3.5 million 6-year fraud relating to two New York University [NYU] programs. Tappe used her position as the Director of Finance and Administration for NYU’s Metropolitan Center for Research on Equity and Transformation of Schools [the “Metro Center”] to divert approximately $3.5 million intended for minority and women owned businesses. She ultimately routed $3.3 million to bank accounts held by two shell companies Tappe created, using some of the funds for NYU payments and employee reimbursements, but keeping more than $660,000 to pay for personal expenses, including renovations to her home in Connecticut and an $80,000 swimming pool.

Tappe pleaded guilty to one count of Grand Larceny in the Second Degree. Under the terms of the plea, Tappe will be sentenced to five years’ probation, sign a written waiver of right to appeal, and provide full restitution in the amount of $663,209.07 in advance of sentencing. She will be sentenced on April 16, 2024.

“Cindy Tappe shamelessly used her high-ranking position at NYU to steal more than $660,000 in state funds,” New York State Comptroller Thomas P. DiNapoli said. “Her actions cheated MWBEs out of critical funding opportunities and deprived student programs of key resources meant to aid children with special needs and young English Language learners. I thank District Attorney Bragg for his partnership in uncovering her wrongdoing and for holding her accountable.”

“Cindy Tappe took advantage of her position as the NYU Director of Finance and Administration by diverting funds that were intended to benefit students for her own personal gain. Her fraudulent actions not only threatened to affect the quality of education for students with disabilities and multilingual students, but denied our city’s minority and women owned business enterprises a chance to fairly compete for funding,” said District Attorney Bragg. “In Manhattan, we will continue to root out fraud committed at the expense of our students and businesses. I thank the New York State Comptroller’s Office for its partnership in this investigation.”

According to court documents, statements made on the record in court, and as admitted in the defendant’s guilty plea, between 2011 and 2018, the New York State Education Department awarded NYU $23 million for the Metro Center to administer two New York State programs:

1. The Regional Bilingual Education Resource Network (“RBE-RN”), which helps school districts improve results for English language learners, and

2. The Technical Assistance Center on Disproportionality (“TAC-D”), which addresses disproportionality in special education.

The RBE-RN and TAC-D agreements required that a certain percentage of subcontractors on grant-related projects be awarded to certified minority and women owned business enterprises (“MWBE”), in accordance with state law.

Between February 2012 and December 2018, Tappe was the Director of Finance and Administration for Metro Center. Tappe arranged for three certified MWBE subcontractors to receive the overwhelming majority of MWBE payments. In total, NYU paid the three companies approximately $3.527 million to provide services related to the grants. To justify the payments, the companies submitted fictitious invoices drafted by Tappe and pasted on their letterhead.

None of the companies performed work on the contracts. Instead, they functioned as pass-throughs, taking between 3% and 6% of the invoice amounts as “overhead,” and sending the remainder of $3.352 million to two fictitious shell companies created by Tappe: High Galaxy Inc. [High Galaxy], and PCM Group Inc.[PCM].

A portion of the funds were then used to pay legitimate grant-related expenses, and to reimburse NYU employees for expenses incurred or services rendered without any NYU oversight.

Moreover, Tappe used the High Galaxy and PCM accounts to steal at least $660,000, by using that money to pay her personal expenses. She used the accounts to pay for home renovations – including a new $80,000 swimming pool – and her ordinary living expenses.

In September 2018, an NYU program director confronted Tappe about the payments being made to the MWBE subcontractors. In response, she emailed the head of the RBE-RN and TAC-D programs explaining the role those companies played – without mentioning High Galaxy, PCM, or her relationship with the MWBE subcontractors. Instead, she falsely stated that NYU had “developed good working relationships with these companies,” and that she had “found no other companies that offer the same suite of services for price.”

Soon thereafter, NYU reported the theft to the New York State Department of Education, which relayed the allegations to the Comptroller’s Office. After conducting an investigation, the Comptroller’s Division of Investigations referred the case to the Manhattan D.A.’s Office for prosecution.

Assistant D.A.s Adam Maltz and Jaime Hickey-Mendoza are handling the prosecution of this case under the supervision of Assistant D.A.s Michael Ohm (Deputy Chief of the Rackets Bureau), Judy Salwen (Principal Deputy Chief of the Rackets Bureau), and Jodie Kane (Chief of the Rackets Bureau and Acting Chief of the Investigation Division). Former Assistant D.A. Gilda Mariani, Trial Preparation Assistant Shriya Shinde, and Rackets Investigator David Caban assisted with the investigation.

Comptroller DiNapoli’s Division of Investigations conducted the investigation for the Office for the State Comptroller.

###

Court denies motion to compel arbitration of a grievance as provided by a collective bargaining agreement

In this action to recover damages for an alleged breach of contract, inter alia,* the defendant, [University], appealed from an order of the Supreme Court denying University's CPLR §7503 motion to compel arbitration of the issue in contention and to stay the breach of contract action.

University had employed Plaintiff as a full-time faculty member. It subsequently sent Plaintiff a letter offering him an "administrative appointment," during which time Plaintiff was to be "on a leave of absence from (his) tenured faculty position" with "the right to return to (his) faculty position." University terminated Plaintiff from his administrative position but did not reinstate him in his "tenured faculty position".

Plaintiff then commenced the instant action, alleging, inter alia, that University breached the terms of the "offer letter" by refusing to reinstate him as a faculty member. University, pursuant to CPLR 7503, then moved to compel that the matter then pending before Supreme Court be submitted arbitration and to stay the instant action. University contended that its collective bargaining agreement [CBA] with the union representing the University's "regular full-time faculty members" required Plaintiff's issue be submitted to arbitration. Supreme Court disagreed and denied University's motion, whereupon University appealed.

Citing Lundgren v Kaufman Astoria Studios, 261 AD2d 513, the Appellate Division noted that "Generally, where a collective bargaining agreement containing a grievance and arbitration procedure ... a covered employee may not sue his or her employer directly for breach of the agreement, but must proceed through the union in accordance with the contract."  

Here, however, the Appellate Division opined that "University failed to submit evidence that at the time [Plaintiff's]  employment was terminated [Plaintiff] was a covered employee under the CBA", noting the CBA excluded administrators from being within the ambit of the otherwise relevant provisions of the CBA.

In the words of the Appellate Division, "contrary to the University's contention, the grievance provisions of the CBA, which exclude "substantive matters of appointment, reappointment, promotion, and assignment," do not evince a clear, explicit, and unequivocal agreement to arbitrate all disputes requiring the interpretation of the terms of the CBA." Thus, opined the Appellate Division, "Supreme Court properly denied the University's motion to compel arbitration and to stay the action", citing Wolf v Hollis Operating Co., LLC, 211 AD3d at 771.

* Latin: "Among other things".

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

 

New York Public Personnel Law e-books published by BookLocker

NYPPL e-books concerning laws, rules, regulations, policies, provisions in collective bargaining agreements and court and administrative decisions addressing the employment of individuals in the public service of New York State and its political subdivisions published by BookLocker, Inc.

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State and its political subdivisions set out in an e-book. For more information and access to a free excerpt from this e-book, click here: http://booklocker.com/books/5215.html

 

 A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/7401.html

 
The Layoff, Preferred List and Reinstatement Manual - an e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/5216.html

 

Disability Benefits for New York State and municipal public sector personnel - an e-book focusing on administering the Retirement and Social Security Law, the General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. For more information and access to a free excerpt of the material presented in this e-book, click here: http://booklocker.com/books/3916.html

 

Selected links to items focusing on government operations posted on the Internet during the week ending February 23, 2024

"AI Is Going to Cause the Next Digital Divide" At Net Inclusion 2024, digital equity experts weighed in on the potential inequities inherent to the acceleration of artificial intelligence, offering advice to those wanting to prepare. READ MORE

Active Shooter Defense Classes Gain Popularity in Texas The rising number of gun deaths in Texas has inspired a $3 billion industry of active shooter training, consultants, surveillance technologies and safety infrastructure. Some experts aren’t certain the touted strategies are effective. READ MORE

An Urgent Opportunity to Close the Medicaid Gap Ten states have yet to expand eligibility under the Affordable Care Act. Doing so would save lives, improve financial well-being, save states money and support regional economies. READ MORE

Annual Report: The 2024 State of Online Payments Few utility and local government customer touchpoints are as operationally important as billing and payments. To help understand the preferences of their customer base in 2024, over 2,000 American billpayers were surveyed for insights on trends and general bill payment behaviors. DOWNLOAD PDF

Automating Permit Applications Agencies and businesses desire quicker permit approvals. Automation via low-code tools and open source software streamlines processes effectively. READ MORE

Best Practices in Cybersecurity and Cyber Resilience Discover six best practices to reduce risk, strengthen compliance, and achieve cyber resilience. DOWNLOAD NOW [CONTENT PROVIDED BY COHESITY]

Bridging Communication Gaps in Civic Infrastructure Projects From roads to bridges to drainage systems, a successful civic infrastructure project requires communication among all stakeholders. But communication challenges can arise throughout the life cycle of any infrastructure asset. READ MORE

Chicago Commuter Rail Buys First Battery-Powered Train Chicago’s main metro transit system will purchase eight of the two-car trains for $154 million, and may spend up to $181.4 million extra for more. The trains will run during off-peak times. READ MORE

Coeur d'Alene, Idaho, Finds Malware in City Computers Affected systems have been taken offline as officials work to fix it, and the city's website was inaccessible Monday, with Coeur d'Alene's mayor, Jim Hammond, confirming the city's phone system was down. READ MORE [CONTENT PROVIDED BY COHESITY]

Colorado Public Defender's Office Forced Offline by Cyber Attack A malware attack on the Office of the Colorado State Public Defender has forced it to shut down its computer network. Public defenders are blocked from their work computers and electronic court dockets and filings. READ MORE

County Leaders Lobby for Extension of Affordable Internet Members of the National Association of Counties were in Washington, D.C., to urge Congress to extend funding for a program providing subsidies to help low-income households afford broadband Internet service. READ MORE

Fighting Ransomware: A Deep Dive into the Changing Landscape of Ransomware in 2024 This webcast provides insight into the changing landscape of ransomware and the increasing popularity of intentional remote encryption. [CONTENT PROVIDED BY SOPHOS] REGISTER TODAY

Florida Could Claw $40M for Cyber Grants Back to the State A new proposal in the state Legislature could claw back $40 million in local government cybersecurity grants. The move would be a substantial blow to the state’s Local Government Cybersecurity Grant program. READ MORE

Florida Workers Are Losing Union Representation. What Comes Next? An anti-union bill that passed last year requires most public-sector unions to increase the rate of members paying dues or be disbanded. Some unions, including  police, firefighters and correctional officers, are exempt from the new law. READ MORE

For Universities, More Out-of-State Students Means More Money In 47 states, schools have a higher proportion of students from elsewhere than they did 20 years ago. READ MORE

Generative AI Guardrails: How to Address Shadow AI New terminology and cyber questions about generative artificial intelligence keep popping up. Can AI be governed? How can GenAI be secured? By whom? Using what tools and processes? READ MORE

Global Cyber Threat Report Spotlights Cloud Abuse, Cyber Extortion 2023 saw more cloud-based intrusions and data breach-based extortion. Cyber extortion and ransomware, plus election-related disinformation, are likely to be key concerns in 2024, too. READ MORE

Hackers Remove Threat to Post Stolen Fulton County Data The countdown clock on a website containing screenshots of information stolen from Fulton County, Ga., servers two weeks ago hit zero on Friday, and then mysteriously disappeared. READ MORE

High-Speed Internet Means High-Speed Innovation Fast and reliable internet empowers innovation. America’s cable broadband providers are working hard to ensure every American has robust connectivity. READ MORE [CONTENT PROVIDED BY NCTA]

Honolulu CIO Mark Wong Announces Plans to Retire
Mark Wong, the longtime director of technology for the city and county of Honolulu, plans to retire at the end of the year, according to officials with Mayor Rick Blangiardi’s office. READ MORE

House Establishes a New Bipartisan Task Force on AI This week, House Speaker Mike Johnson and Democratic leader Hakeem Jeffries announced the establishment of a new task force that will help Congress to better understand artificial intelligence and its related risks. READ MORE

How ‘Deep Learning’ Can Predict Where Wildfires Will Start The new machine learning method can produce in 21 hours what existing wildfire prediction models do in months and forecast where fires are likely to strike weeks further in advance.

How Process Automation Improves the Government Experience For state and local government organizations, process automation goes hand in hand with systems integrations efforts to help states, cities and counties create a better, more satisfying government experience (GovX). DOWNLOAD PDF

How to Spot Political Deepfake Ads This Year While deepfakes are evolving and do pose a threat to this year’s elections, they are not without flaws. With a discerning eye, it’s often possible to identify falsified video, photos or audio recordings of politicians. READ MORE

Kansas Unveils Cyber Program to Safeguard Water Systems After a Kansas drinking water treatment facility was compromised through remote access on a former employee's cellphone in 2019, the state is launching a tool to assess the cybersecurity of the agencies in charge of keeping drinking water safe. READ MORE

Massachusetts Establishes AI Task Force by Executive Order This week, Gov. Maura Healey signed an executive order to establish the Artificial Intelligence Strategic Task Force in order to better understand the potential impacts of AI and GenAI. READ MORE

Mastering the Government Experience This guide from the Center for Digital Government highlights key lessons learned, best practices and proven examples from states and localities across the country that are transforming GovX for the communities they serve. DOWNLOAD PDF

More Riders, Fewer Stations for Intercity Bus Lines Intercity bus ridership is up and should return to pre-pandemic levels by 2026. Other trends, including the closure of Greyhound stations in big cities such as Philadelphia, are less positive. READ MORE

National AT&T Outage Downs Phones, Internet With No Known Cause
Customers across the nation reported outages of call, text and Internet service. The incident prompted some emergency and police departments to issue advice to residents who were unable to place 911 calls. READ MORE

New Digital and IoT Solutions are Transforming How Cities Connect and Adapt To navigate the complex web of government operations and unlock city-wide IoT benefits, departments and agencies need the right mix of coverage and capability. LEARN MORE [CONTENT PROVIDED BY T-MOBILE FOR GOVERNMENT®]

North Carolina Moves Ahead With Broadband Equity Project Grants
North Carolina is making $14 million available to nonprofits, government agencies and others as part of the Digital Champion grants to expand digital equity. Some 230 applicants have applied. READ MORE

Ohio Lawmakers from Both Parties Want Crackdown on Deepfakes The Ohio House introduced legislation this month to outlaw the sharing of artificial media — including videos or audio — that impersonates real people in unflattering or compromising depictions. READ MORE

OpenAI CEO Seeks Government Blessing to Raise Billions for Chips OpenAI Chief Executive Officer Sam Altman is working to secure U.S. government federal approval for a massive venture to boost global manufacturing of artificial intelligence chips. READ MORE

Oregon’s Rural Power Utility Has Become a Big Polluter Umatilla Electric Cooperative is responsible for 1.8 million tons of carbon emissions annually despite having just 16,000 customers. One of those customers is Amazon, which has data centers in areas where renewable energy access is limited. READ MORE

Pennsylvania Court Operations Restored After Cyber Attack The Pennsylvania court online operations have returned to normal following a disruptive cyber attack. The attack disabled access to online dockets, PACFile, PAePay and the Guardianship Tracking System, among other disruptions. READ MORE

Public Officials Pressured to Spend Billions on Sports Venues Professional sports teams are on the move and they’re leaning on state and local officials to help them. Subsidies exceeding $1 billion per deal are on the table. READ MORE

Rural Colleges in Colorado Band Together to Request More Funding Adams State University, Fort Lewis College and Western Colorado University are hoping for $3 million per institution from the state to ensure access for students from less populous areas. READ MORE

Securing California's Data with Enhanced Data Management The California Department of Finance (DOF) sought to enhance data security and efficiency. Leveraging Cohesity, the DOF achieved significant improvements in data management, data protection, and cost reduction. LEARN HOW

South Dakota IT Looks Ahead, Prioritizing the Citizen Experience As the state of South Dakota works to transform outdated IT systems, enhance cybersecurity and explore emerging technologies, state IT leadership is keeping the citizens’ experience at the heart of these efforts. READ MORE

South Dakota May Ease Signature Removal from Ballot Petitions State Rep. Jon Hansen has proposed making it easier for people who have signed a ballot initiative petition to be able to remove their signatures, which he says is “practically impossible” now. READ MORE

Stopping Active Adversaries: Lessons From The Cyber Frontline Get key learnings and actionable insights to guide your 2024 security strategy based from major cyber incidents remediated by the Sophos X-Ops team. [CONTENT PROVIDED BY SOPHOS] GET THE GUIDE

Texas Gives $125M to Rural Sheriffs, Prosecutors for Pay Increases The 2023 legislation establishing the grant program also includes new equipment for rural sheriffs. READ MORE

The ‘Visible Power’ of Black Lawmakers A total of eight African Americans are serving as the top chamber leaders in state legislatures. Meanwhile, the fallout from an Oregon Supreme Court ruling that barred some state senators from seeking re-election won't be as great as you might think. READ MORE

The Housing Opportunity Hidden in Plain Sight State and local governments have an opportunity to fill a sizable gap by subsidizing the conversion of market-rate properties into affordable housing. While costly, it's still cheaper than building new. READ MORE

Transforming Community Infrastructure for Water Conservation Local governments can drastically improve water conservation with a comprehensive approach to water management. READ MORE

What Could Entrepreneurs and Government Do Together? The co-author of a new book suggests that when technology, data and collective effort converge, government, the tech industry and higher education can tackle major challenges while bringing a new generation into the workforce. READ MORE

What's New in Digital Equity: Massachusetts Builds Digital Accessibility, Equity Board Plus, Maine is the first state to have its digital equity plan accepted, the NTCA is calling for a more effective challenge process for the national broadband map, and more. READ MORE

Where Will Government Point Its 2024 IT Dollars? The public-sector-facing technology industry convened this week for the Center for Digital Government’s annual Beyond the Beltway event. Highlights included a forecast of how state and local government will invest this year. READ MORE

Will Democrats Ever Embrace Charter Schools Again? They should. Charter schools aren’t magic, and plenty of them are worse than the average public school. But on average, charters are superior. READ MORE