Selected Reports issued by the Office of the State Comptroller during the week ending January 9, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending January 9, 2016

Click on text highlighted in color to access the full report

Former Wallkill fire district chair sentenced in $240,000 theft

State Comptroller Thomas P. DiNapoli reported that on January 8, 2016 former Wallkill Fire District board chair Michael Denardo was sentenced in Ulster County Court for stealing nearly $240,000 from the district. He pleaded guilty to grand larceny in the third degree, a class D felony, and three counts of criminal tax fraud in the fifth degree, a misdemeanor. He was sentenced to 2 1/3 to 7years in prison and to pay $239,622 restitution. 

Denardo;s three-year scam was initially revealed in an audit and investigation by DiNapoli’s office, which found that Denardo convinced the treasurer to give him blank checks and another board member to sign them. He deposited the checks, laundered the money through his wife's account and submitted fake bills to the district.

Ulster County District Attorney Holley Carnright thanked the Comptroller and his staff “for their diligent work on this case [as] a valued partner in our efforts to combat fraud crimes in Ulster County.”

The Comptroller’s audit concluded that Denardo could not have committed his crimes if the fire district board enforced proper controls. DiNapoli recommended that the district. The Fire District officials agreed with the audit findings and submitted a 14-point corrective action plan to the Comptroller’s office.
 
The Comptroller findings and the fire district’s full response are in the final audit report, which can be viewed by clicking on the URL set out below.

http://osc.state.ny.us/localgov/audits/firedists/2016/wallkill.pdf.

Theft of State Pension Benefits
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of Terence Fitzpatrick, 53, of Monmouth County, N.J., following his guilty plea in November 2015 to the crime of Attempted Grand Larceny in the Second Degree, a class D felony, in Albany County Court. Fitzpatrick was sentenced to six months in jail and five years of probation.

http://www.osc.state.ny.us/press/releases/jan16/010716a.htm?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010716arelease

NYC Pre-K Special Education Provider claimed almost $3 million in ineligible expenses
A Brooklyn preschool special education provider, Yeled v’Yalda Early Childhood Center, claimed nearly $3 million in ineligible expenses for reimbursement, according to and audit released by the Comptroller.

http://www.osc.state.ny.us/press/releases/jan16/010616b.htm?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616brelease

 

Municipal Audits Released

Central NY Regional Market Authority – Internal Controls Over Selected Fiscal Operations

http://www.osc.state.ny.us/localgov/audits/schools/2015/piseco.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Town of Coeymans – Financial Condition

http://www.osc.state.ny.us/localgov/audits/towns/2015/coeymans.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

Village of Green Island – Water Fund Financial Condition

http://www.osc.state.ny.us/localgov/audits/villages/2015/greenisland.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

  

Town of Peterburgh - Internal Controls Over Selected Fiscal Operations and the Justice Court

http://www.osc.state.ny.us/localgov/audits/towns/2015/petersburghjc.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

  

Village of Pomona – Financial Condition

http://www.osc.state.ny.us/localgov/audits/villages/2015/pomona.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

Seneca County Industrial Development Agency – Project Approval and Monitoring

http://www.osc.state.ny.us/localgov/audits/ida/2015/senecaco.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

School Audits Released

Johnson City Central School District – Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2015/johnsoncity.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Kings Park Central School District – Fuel Inventory

http://www.osc.state.ny.us/localgov/audits/schools/2015/kingspark.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Menands Union Free School District - Payroll

http://www.osc.state.ny.us/localgov/audits/schools/2015/menands.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Nanuet Union Free School District – Payroll

http://www.osc.state.ny.us/localgov/audits/schools/2015/menands.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Piseco Common School District – Claims Auditing
http://www.osc.state.ny.us/localgov/audits/schools/2015/piseco.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

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Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Gakhal v Kelly, 2016 NY Slip Op 00003, Appellate Division, First Department

Supreme Court dismissed Paramjit Gakhal’s Article 78 petition seeking an order annulling the NYC Police Pension Fund’s determination rejecting her application for accidental disability retirement (ADR) benefits.

The Appellate Division, Judge Sweeny dissenting,* reversed the Supreme Court’s determination “on the law” and remanded the matter to the Fund for a “new determination” consistent with the majority’s decision.

Gakhal’s injury occurred on the first day of her learning to ride a motor scooter as part of her normal police training. She lost control of the scooter while navigating on a motor scooter obstacle course and “crashed into a metal barrier at a speed of 40 miles per hour.” The barrier and scooter then both fell on top of Gakhal.

The Appellate Division, noting that an accident for the purposes of claiming eligibility for ADR is defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," and that the commanding officer of the training unit characterized the incident as "unexpected," concluded that Gakhal’s injury was the result of an event that qualified her for ADR benefits.

The court, citing Becker v Ward, 169 AD2d 453, explained that while injuries sustained during routine training exercises typically may not qualify for ADR benefits, ruled that in Gakhal’s case the loss of control of the scooter she was operating, coupled with the scooter's acceleration, “appears to have ‘been sudden and out of the ordinary,’” and remanded the matter to the Fund for a “new determination” consistent with the majority’s decision.

* Judge Sweeny, in his dissent, said “although the commanding officer's subjective observation that the incident was ‘unexpected’ is favorable for [Gakhal], there is credible objective evidence that the incident was not an ‘accident’” and opined that “the Board's determination must stand.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00003.htm

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Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Faisal v New York State Dept. of Motor Vehs., 2015 NY Slip Op 09431, Appellate Division

Muhammad Faisal brought an Article 78 action to review a determination of the New York State Department of Motor Vehicles Appeals Board confirming a determination of an administrative law judge [ALJ]. The ALJ, after a hearing, found that Faisal violated Vehicle and Traffic Law §1180(d), speeding, and revoked his driver license.

The Appellate Division confirmed the Appeals Board ruling on the merits, explaining that the Board’s determination was supported by substantial evidence.

The court noted that the ALJ had “properly relied on the police witness's testimony concerning his visual estimate of the speed of the petitioner's vehicle as well as the reading of the radar device.”

The Appellate Division noted that there was a significant difference between the posted speed limit, which was 40 miles per hour, and the 70 miles per hour at which the police witness visually estimated the speed of Faisal’s vehicle, an estimation that was promptly confirmed by a radar indication that the actual speed was 71 miles per hour.

In the present action Faisal raised certain evidentiary objections that the court said were not raised at the administrative hearing, “when any alleged error might have been cured” and thus these arguments were unpreserved for review.

Also noted were the alleged “minor gaps and errors in the hearing transcript” but, said the court, such alleged omissions do not preclude meaningful review of the hearing.

Faisal’s petition alleged that a police sergeant was the sole witness at the hearing. In contrast, said the court, there is no indication anywhere in the record that Faisal was sworn in as a witness.

However, even assuming that the transcript of the hearing omits certain unsworn statements supposedly interjected by Faisal at some point during the course of the hearing, as alleged in his affidavit submitted to the Appeals Board, the Appellate Division ruled that those statements would not affect the validity of the determination under review.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09431.htm

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim  

Idolor v Board of Coop. Educ. Servs. of Nassau County, 2015 NY Slip Op 09284, Appellate Division, Second Department

The Board of Cooperative Educational Services of Nassau County [BOCES] filed disciplinary charges against one of its employees, Lucky Idolor. The disciplinary hearing officer found that Idolor was guilty of misconduct and insubordination. BOCES adopted the findings of the hearing officer and dismissed Idolor from his position.

Idolor filed a CPLR Article 78 petition challenging BOCES’ action. BOCES, contending that Idolor petition was untimely because he had failed to comply with the notice of claim requirements set out in Education Law §3813(1), moved to have Idolor’s petition as untimely. Supreme Court granted BOCES’ motion and dismissed Idolor’s petition, whereupon Idolor appealed the Supreme Court’s ruling to the Appellate Division.

The Appellate Division sustained the lower court’s ruling, explaining that the filing of the §3813(1) notice of claim within three months after Idolor’s claim arose was a condition precedent to his bringing a timely Article 78 action, an action in which he petitioned the court for both [1] equitable relief and [2] for damages.

In Sephton v Board of Education of the City of New York, 99 AD2d 509, [motion for leave to appeal denied, 62 NY2d 605], the Sephton court noted that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights.” However, the court said that the Sephton plaintiffs were seeking “to recover back pay due to the allegedly improper restructuring of their salaries,” and “[s]uch a claim seeks vindication of private rights" and a [timely §3813(1)] notice of claim was a condition precedent to the maintenance of their action seeking to recover back pay. Again, in Mills v County of Monroe, 59 NY2d 307, the court ruled that where a plaintiff seeks private relief, damages, or reinstatement to his or her former position, in this instance for alleged unlawful employment discrimination in violation of the Executive Law, the filing of a timely notice of claim was a condition precedent to Mills' maintaining the lawsuit.

However, a timely appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law as the court ruled in Mennella v Uniondale UFSD, App. Div., 2nd Dept., 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602.

 

N.B. Another “statute of limitations” to be remembered: §3020-a.5.a of the Education Law, Appeal, provides as follows: “a. Not later than ten days after receipt of the hearing officer's [§3020-a ] decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding.” Further, subdivision b of §3020-a.5 provides “b. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09284.htm

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Work performed by an attorney does not necessarily mean that the resulting work product demanded in the course of discovery is privileged under the attorney-client rule

Work performed by an attorney does not necessarily mean that the resulting work product demanded in the course of discovery is privileged under the attorney-client rule

State of New York, ex rel. Murray v Baumslag, 2015 NY Slip Op 08942, Appellate Division, First Department

Supreme Court, New York County, denied John T. Murray motion for a subpoena requiring Mary Kennedy Baumslag to produce certain records. Murray appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling on the law and the facts and in the exercise of discretion and granted Murray’s motion.

In a complaint made to the director of the Office of Internal Audit and Management Services [Internal Audit] of nonparty City University of New York [CUNY], Murray alleged that Gilbert Baumslag, a former professor at CUNY, had used public education monies for improper purposes. Internal Audit had conducted an investigation concerning the matter, which resulted in a report with recommendations. A redacted version of the report was provided to Murray.

In an action brought on behalf of the State pursuant State Finance Law §187, New York’s False Claims Act,* to recover allegedly falsely procured and misspent funds, Murray was provided a redacted copy of a report made by Internal Audit. The redacted copy of the report provided Murray had omitted several recommendations and Murray asked for the production of the unredacted version of the report, as well as investigators' notes of their interviews with CUNY and CUNY professors, including Gilbert Baumslag, named in the report.

Murray contended that the redacted material was relevant because it identified the actions recommended by the report and taken by CUNY on the basis of the results of the investigation.**

CUNY claimed that the material sought was “work product” and thus privileged.

The Appellate Division was not persuaded by CCNY’s contention, explaining that CCNY’s “conclusory statement is insufficient to invoke the work-product privilege.” The court also noted that although the director of Internal Audit testified that he is an attorney, he was not an attorney for CUNY and the report which he wrote with a CUNY examiner, who is not an attorney, contains nothing that reflects "legal research, analysis, conclusions, legal theory or strategy."

The court then said that “[t]he investigators' notes are not protected by the work-product privilege since there is no evidence that the investigators conducted their interviews with Baumslag and other professors allegedly involved in the improper spending in anticipation of litigation.”

CUNY also argued that the material sought by Murray was, “in any event,” not relevant. The Appellate Division ruled that CCNY failed to establish that the discovery sought is "utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious.”

* §188, Definitions, of Article 13 of the State Finance Law, New York’s False Claims Act essentially defines the term “claim” as any request or demand, for money or property that is presented to an officer, employee or agent of the state or a local government while the term “false claim” means “any claim which is, either in whole or part, false or fraudulent.”

** For example, Murray alleged that Baumslag had used public education monies for improper purposes and the Director of Internal Audit had testified that the recommendations may have included asking Baumslag for "reimbursement of expenses."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08942.htm

The employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing officer to resolve

The employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing orfficer to resolve

Durudogan v City of New York, 2015 NY Slip Op 08947, Appellate Division, First Department

The New York City dismissed Agah Durudogan, a New York City police officer, from his position following a disciplinary hearing. This action also had the effect of denying him eligibility for vesting retirement benefits.*

Durudogan appealed and Supreme Court, New York County, granted City of New York’s motion to dismiss his Article 78 petition. The Appellate Division subsequently vacated the lower court’s ruling and treated the proceeding as if it had been transferred to it for a “de novoreview pursuant to CPLR 7804(g),” explaining that Durudogan petition had raised an issue of substantial evidence and should have been initially so transferred to it.

Reviewing the matter de novo, the Appellate Division found that substantial evidence supported the City’s determination that Durudogan was guilty of numerous violations demonstrating his inability to conform his conduct to police department regulations.

Durudogan's contention that "the hearing officer improperly relied on hearsay evidence in finding him guilty of engaging in a verbal and physical domestic dispute" is unavailing said the court, finding that the hearing officer's determination was based on Durudogan's inconsistent statements in that his testimony at the hearing differed from the statements that he gave during an investigative interview. Accordingly, said the Appellate Division, the administrative decision was based on the hearing officer's credibility findings which are entitled to deference.

Further, the Appellate Division noted that “an administrative tribunal can rely upon credible hearsay evidence to reach its determination,” citing Muldrow v NYS Dept. of Correction and Community Supervision, 110 AD3d 425.

Citing Kelly v Safir, 96 NY2d 32, the court then found that dismissing Durudogan from the New York City police force was "not shocking to one's sense of fairness” in view of the record which indicated that Durudogan was brought up on five separate charges, based on events that occurred over a three-year period, and he was found guilty of nine of the specifications charged following a hearing.

Considering the possibility of mitigating of the penalty imposed by the City, termination, the Appellate Division concluded that although Durudogan was a decorated officer, with eighteen years of service, who often received high ratings on department evaluations, he also was previously disciplined for insubordination and placed on one-year dismissal probation.

The Appellate Division also noted the ruling in Vecchio v Kelly, 94 AD3d 545, leave to appeal denied 20 NY3d 855, in its decision. 

In Vecchio the court had annulled the Commissioner’s decision to terminate Vecchio in view of the fact it had dismissed certain of the charges brought against him and the remanded the proceeding for the Commissioner's determination of a new penalty. That court further directed that if the Commissioner adhered to imposing the penalty of termination, Vecchio  "should be permitted to apply for vested interest retirement benefits so as to avoid a punishment disproportionate to the offense, namely the extreme financial hardship to his innocent family." The Appellate Division explained that “In Vecchio, unlike here, [that court] found circumstances that warranted restoring Vecchio to a status that made him eligible to apply for the deferred retirement allowance as provided by Administrative Code §13-256(a), (b).

Upon completing its de novoreview the Appellate Division unanimously confirmed the City’s action and dismissed Durudogan petition.

* As Durudogan had less than 20 years of serve at the time of his termination, he lost his entitlement to deferred vested retirement rights upon his dismissal from City's the police force. §13-256 of the Administrative Code of the City of New York explicitly excludes a police officer having less than 20 years of service at the time he or she is discontinued as the result of his or her dismissal, death or retirement from applying for a deferred retirement allowance unless he or she filed an application for a deferred retirement allowance at least 30 days prior to the date of his or her discontinuance from service.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08947.htm

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This 800+ page electronic handbook for administrators, union officials and attorneys focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. 

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Record failed to support employee’s claims that the hearing officer refused to permit spouse testify and refused to receive a police report into evidence

Record failed to support employee’s claims that the hearing officer refused to permit spouse testify and refused to receive a police report into evidence

Matter of Pellicano (Department of Labor), 2015 NY Slip Op 09161, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled, among other things, that Stephen J. Pellicano, a teaching assistant, was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Following an incident in which Pellicano allegedly failed to appropriately handle a fight among students he was directed to attend a meeting with the school superintendent to discuss possible disciplinary sanctions. Pellicano did not attend the meeting and ultimately was terminated after a disciplinary hearing.

Pellicano appealed, contending that the ALJ improperly denied his request to have his wife testify at the hearing and did not receive the police report into evidence at the hearing.

The Appellate Division rejected his allegations concerning his request to have his spouse testify, noting that the record indicated that Pellicano stated at the onset of the hearing that he did not have any witnesses. As to Pellicano’s claim that the ALJ improperly refused to receive into evidence the police report of the student altercation, the court said that Pellicano [1] did not offer it and [2] it was not relevant to Pellicano’s termination from his position with the school district.

The Appellate Division sustained the Board’s determination and dismissed Pellicano’s appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09161.htm

Improper, immoral and insubordinate behavior “on-the-job” may constitute disqualifying misconduct for the purposes an individual’s eligibility for unemployment insurance benefits

Improper, immoral and insubordinate behavior “on-the-job” may constitute disqualifying misconduct for the purposes an individual’s eligibility for unemployment insurance benefits

Matter of Brown (Commissioner of Labor), 2015 NY Slip Op 08679, Appellate Division, Third Department

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 20, 2014, which ruled that claimant was eligible to receive unemployment insurance benefits.

A teacher [Teacher] was placed on administrative leave in March 2012 and, shortly thereafter, was served with disciplinary charges pursuant to Education Law § 3020-a and proposed termination as the penalty to be imposed. The Hearing Officer found Teacher guilty of a number of the charge but rather than imposing dismissal as the penalty, directed that Teacher be suspended without pay for the second half of the school year.

Teacher then applied for, and obtained, unemployment insurance benefits during the suspension period without pay.

The appointing authority appealed and an Unemployment Insurance Administrative Law Judge [ALJ], acknowledging that the factual findings made by the Hearing Officer were entitled to collateral estoppel effect, nevertheless concluded that the conduct for which Teacher was disciplined, although "serious," did not rise to the level of disqualifying misconduct that would preclude him from receiving unemployment insurance benefits. The Unemployment Insurance Appeal Board [Board] affirmed the ALJ’s ruling and the appointing authority appealed.

With respect to the question of whether Teacher committed disqualifying misconduct, the Appellate Division noted that this "is a factual issue for the Board to resolve, and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of [disqualifying] misconduct."

That said, the Appellate Division said that Teacher was found to have committed numerous instances of improper, immoral and insubordinate behavior, as well as conduct unbecoming a teacher including making inappropriate, demeaning and sarcastic comments to students, and sending  unprofessional emails to staff and parents. Characterized as a “notable example” of Teacher’s “cavalier treatment of students” the court described an incident in which Teacher improperly confiscated a student's cell phone and impersonated that student in order to learn what another student thought of his teaching abilities.

In addition, said the Appellate Division, Teacher disregarded his employer's policy regarding the use of multimedia tools in the classroom, despite having previously discussed that policy with administrators, and elected to show a violent movie to his students without obtaining parental consent to do so.

The Appellate Division, noting that an employee’s actions that were contrary to established policies and that have a detrimental effect upon the employer's interests have been found by courts to constitute disqualifying misconduct, said that this includes insubordinate conduct and unprofessional behavior that is detrimental to the interests of the employer.

As the Hearing Officer had found that Teacher’s repeatedly engaged in such types of behavior and, under the circumstances presented by this case, the Appellate Division ruled that the Board’s holding that Teacher’s behavior reflected nothing more than "poor judgment . . . is erroneous and is not supported by substantial evidence.”

The Appellate Division reversed the Board's determination and remanded the matter to it "for further" proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08679.htm

Although a Civil Service Commission is vested with the authority to establish minimum qualifications for job titles such determinations are not immune from oversight or review in an arbitration proceeding

Although a Civil Service Commission is vested with the authority to establish minimum qualifications for job titles such determinations are not immune from review in an arbitration proceeding

Matter of City of Lockport (Lockport Professional Firefighters Assn., Inc.), 2015 NY Slip Op 08581

The City of Lockport [Lockport] and Lockport Professional Firefighters Association, Inc., Local 963 [Association] are parties to a collective bargaining agreement [CBA] that defines grievance as including "all claimed violations of any contract existing between [Lockport] and the employees covered by" the CBA. After Lockport's Civil Service Commission [Commission] created a new position within the Lockport Fire Department, -- Municipal Training Officer [MTO] – the Association and Lockport negotiated the terms and conditions of employment and the job duties applicable to that position which resulted in a Memorandum of Agreement [MOA] that provided that employees in the position of MTO "shall only be eligible for future promotional consideration to a Line Officer's position pursuant to existing civil service rules, regulations, and procedure beginning with Fire Lieutenant."  

The Commission subsequently amended the job specifications for Fire Chief to make the MTO eligible for promotion to Fire Chief. The Association filed a grievance and a demand for arbitration based upon Lockport's alleged violation of the MOA, and Lockport commenced this proceeding seeking a permanent stay of arbitration. Supreme Court granting Lockport’s petition and the Association's appealed that court’s ruling. The Appellate Division unanimously reversed the lower court’s ruling and Lockport appealed.

Lockport, for first time, raised in its appeal the argument that arbitration of the instant dispute was contrary to the Civil Service Law and public policy. The Appellate Division said that while such a contention may be raised for the first time on appeal, it concluded that the argument lacked merit. The court explained that New York State has a strong public policy favoring arbitration of public sector labor disputes and, citing NYC Transit Authority v Transport Workers Union, 99 NY2d 1, observed that "judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships."

The court continued, holding that “The instant dispute does not fall within the narrow scope of that exception, inasmuch as the provision of the MOA at issue concerns promotion, a term or condition of employment that is a proper subject for negotiation and agreement between the parties.”

The Appellate Division also rejected Lockport's argument that granting the remedy sought by Association -- enforcement of the MOA -- would violate public policy and conflict with the Civil Service Law because it would interfere with the Commission's authority to establish the qualifications for appointment to the position of Fire Chief. The court, quoting from Matter of Ulster County Sheriff’s Employees Association, 100 AD3d 1237, said "While the [Commission] undoubtedly had the authority to establish minimum qualifications for job titles in [City] government (see Civil Service Law §§50, 52), it does not follow that such determinations are immune from oversight or review" in an arbitration proceeding.”

Further, the Appellate Division was not persuaded by Lockport's claim that the Association's dispute was with the Commission and the Commission “cannot be bound by an arbitration award,” said this argument goes to "the merits of the grievance [which] are not the court[']s concern."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08581.htm

Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges

Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges

Click on link in highlighted in color to access the text of the decision

New York City Correction Officer found guilty of off-duty misconduct

OATH Index No. 1349/15

Astrid B. Gloade, an OATH Administrative Law Judge, found that an off-duty New York City correction officer brandished his firearm while intoxicated during an altercation outside of a night club and failed to cooperate with the police during his arrest was guilty of misconduct.

Noting that in a disciplinary proceeding the charging party bears the burden of proving the alleged misconduct by a preponderance of the credible evidence, Judge Gloade found that the employer met its burden with respect to most of the charged violations.

The ALJ recommended that the appointing authority terminate the correction officer from his position.

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1349.pdf

Employee improperly modified New York City school bus routes

OATH Index No. 2135/15

A quality assurance specialist assigned to manage school bus routes was charged with incompetence and insubordination when, on multiple occasions, he improperly modified New York City school bus routes and failed to communicate changes to school and bus personnel.

The specialist's mistakes resulted in students missing a day of classes and in multiple routers working overtime to correct his errors.

OATH Administrative Law Judge John B. Spooner sustained all of the charges and recommended the termination of the specialist's employment.   

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2135.pdf

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When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice

When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice

Matter of City of Rochester (Rochester Police Locust Club), 2015 NY Slip Op 08580, Appellate Division, Fourth Department

Supreme Court granted the City of Rochester’s [Rochester] CPLR Article 75 application to vacate an arbitration award in favor of the Rochester Police Locust Club [Union]. The Union appealed but the Appellate Division affirmed the Supreme Court’s ruling.

The genesis of the grievance leading to the arbitration was a determination by Rochester denying a police sergeant's request for a vehicle to use on the job and take home. The Unionfiled on behalf of the sergeant and ultimately the arbitrator issued an award directing Rochester to provide the sergeant with a vehicle. The arbitrator ruled that the arbitrator Rochestermust provide the sergeant with a take-home vehicle “based solely on the [Rochester’s] past practice, which included providing such a vehicle to the two predecessors in his position.”

In sustaining the Supreme Court’s decision vacating the arbitration award the Appellate Division noted that the provision in the collective bargaining agreement governing arbitration provided, in relevant part, that "[t]he authority of the arbitrator shall be limited to matters of interpretation or application of the express provisions of this Agreement and the arbitrator shall have no power or authority to alter, add to or subtract from or otherwise modify the terms of this Agreement as written."

Citing Buffalo Teachers Federation v Board of Education, 50 AD3 1503, the court observed that "It is well settled that an arbitration award may be vacated if it exceeds a specifically enumerated limitation on an arbitrator's power [and that] an arbitrator exceeds his or her authority by granting a benefit not recognized under a governing collective bargaining agreement."

In this instance the Appellate Division said that the controlling provision was contained in a memorandum of agreement between Rochesterand the Union. This provision required Rochester to provide a vehicle to police "investigator[s] who are assigned to the Major Crimes Unit."

There was no question that the sergeant who had requested the vehicle was not an investigator nor was he assigned to the Major Crimes Unit. Notwithstanding this, the arbitrator concluded that Rochester must provide him with a take-home vehicle based solely on Rochester’s past practice, which included providing such a vehicle to the two predecessors in the Sergeant’s position.

This, said the court, was error explaining that although past practices may be considered by an arbitrator when interpreting a specific contractual provision, an arbitrator may not rewrite a contract by adding a new clause based upon a past practice.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08580.htm

Tenured teacher dismissed after being found incompetent and ineffective following a disciplinary hearing held pursuant to Education Law §3020-a

Tenured teacher dismissed after being found incompetent and ineffective following a disciplinary hearing held pursuant to Education Law §3020-a

Reed v Department of Educ. of the City of N.Y., 2015 NY Slip Op 09193, Appellate Division, First Department

Supreme Court, New York County dismissed Lisa Reed's the petition seeking to vacate and, or, modify the opinion and award that resulted in the termination of Reed’s employment as a tenured teacher with the New York City Department of Education. The Department had served charges and specification pursuant to Education Law §3020-a on Reed alleging that she was “incompetent and ineffective during three school years.”

Reed appealed the Supreme Court’s ruling but the Appellate Division affirmed the lower court decision, noting that the charges filed against Reed were supported by adequate evidence showing that she had failed to plan and execute lessons, as observed on multiple enumerated dates.

The Appellate Division also said that ‘The evidence shows that [Reed] continually refused to accept responsibility for her failure to deliver effective instruction. In particular, she failed to implement the school administration's professional development recommendations with regard to lesson planning preparation and execution, proper pacing of lessons, ensuring students stay on task, and assessing students' progress, among other things.”

As to the penalty imposed on Reed by the Department, termination, the court said that dismissing Reed from her position “does not shock [its] sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09193.htm

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Union’s application to confirm an arbitration award granted but the Supreme Court’s sanction of attorney’s fees for the employer’s “frivolous conduct” subsequently vacated

Union’s application to confirm an arbitration award granted but the Supreme Court’s sanction of attorney’s fees for the employer’s “frivolous conduct” subsequently vacated

Matter of Civil Serv. Empls. Assn., Inc. (Board of Educ. of Syracuse City Sch. Dist.), 2015 NY Slip Op 08570, Appellate Division, Fourth Department

An arbitrator, following a hearing, determined that the Syracuse City School District [District] had violated the collective bargaining agreement between it and the Civil Service Employees’ Association [CSEA] when it terminated the employment of one of the employees in the negotiating unit represented by CSEA. The arbitrator directed the District to [1] reinstate the employee to his former position; [2] credit him with the seniority to which he would have been entitled had his employment not been wrongly terminated; and [3] pay him "back pay for the salary and other benefits [he] lost as a result of [his] improper termination," retroactive to 30 days before he filed his grievance.

CSEA initiated a CPLR Article 75 proceeding to confirm an arbitration award in its favor while the District cross motioned the court to vacate the award contending that the award is not final and definite, and thus subject to vacatur  because the arbitrator did not specify whether it was entitled to an offset based on funds the employee had received following his termination from unemployment insurance and other employment.

The Appellate Division rejected the District’s contention explaining that “An arbitration award is nonfinal or indefinite "only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy" and sustained the arbitration award.

In this instance, said the court, the award sufficiently defined the parties' rights and obligations notwithstanding its failure to address the offset issue. As to the District’s argument regarding the “offset” it claimed, the court said that there was no indication in the record that the District asked the arbitrator for such an offset at the hearing and, although the arbitrator retained jurisdiction "with respect to the remedy” for about six weeks after the award was rendered, the District did not seek clarification of the award regarding such an offset during that period.

On another issue -- Supreme Court’s awarding CSEA attorneys' fees as a sanction for the District’s “frivolous conduct” -- the Appellate Division said the Supreme Court had made the award without issuing a written decision setting out the “frivolous conduct” on which the award is based and the reasons why the court found such conduct to be "frivolous." Accordingly, the Appellate Division modified the Supreme Court’s order by vacating its award of attorneys' fees.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08570.htm

Tests applied by courts in determining if a public officer should be removed from his or her office pursuant to §36 of the Public Officers Law

Tests applied by courts in determining if a public officer should be removed from his or her office pursuant to §36 of the Public Officers Law
Hayes v Avitabile, 2015 NY Slip Op 08693, Appellate Division, Third Department

Gary R. Hayes initiated legal action pursuant to Public Officers Law §36 in an effort to have the Appellate Division remove Matthew A. Avitabile from the office of Mayor of the Village of Middleburgh.

Explaining the "Public Officers Law §36 was enacted to enable a town or village to rid itself of an unfaithful or dishonest public official" and that removal from office is a drastic remedy reserved for conduct "'plagued by self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust,” the Appellate Division concluded that Hayes’ allegations, if proved, did not constituted such action.

Hayes had alleged that Avitabile had abused the authority vested in him by the office of Mayor by simultaneously holding the position of Village Constable, appointing unqualified candidates to various positions in his administration, “published an email attempting to defame his character” and “improperly refused to reimburse him for sewer rent charges.”

Although Avitabile conceded that he assumed the duties of Village Constable upon his election to the position of Mayor, the decision notes that some five months later he “immediately ceased all duties as Village Constable when he was advised by the Village Attorney that holding both positions simultaneously could present a conflict of interest. The Appellate Division said that Avitabile’s initial decision to serve in that dual capacity may have been imprudent, it did not amount to “unscrupulous conduct or gross dereliction of duty or conduct that connotes a pattern of misconduct and abuse of authority.”

Addressing the allegedly defamatory email involving Hayes, the court said that such conduct cannot be deemed an abuse of official power since it occurred prior to Avitabile’s assumption of public office. As to Hayes’ other allegations, the Appellate Division held that they, at best, reflected "minor neglect of duties, administrative oversights and violations of law" that do not warrant removal from office.

Concluding that the alleged conduct did not rise to the level required for removal of a public officer from his or her office, the court said that Avitabile was “entitled to a summary determination dismissing [Hayes’] petition on the merits.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08693.htm