Hearing officer considers failed efforts at “progressive discipline” in setting disciplinary penalty

Hearing officer considers failed efforts at “progressive discipline” in setting disciplinary penalty

OATH Index No. 1721/16

The New York City Human Resources Administration (HRA) served disciplinary charges against Carey Bryant, a clerical associate, alleging Bryant was guilty of being late to work excessively, several instances of discourtesy, threatening and disruptive conduct, and making a false statement in a supervisory conference.

OATH Administrative Law Judge ALJ Noel A. Garcia held that HRA proved that Bryant was late on 53 occasions, had engaged in discourteous conduct on three occasions, was disruptive during a training class, and made a false statement during a supervisory conference.

Judge Garcia, however, found that HRA failed to prove its allegations that Bryant had engaged in other instances of discourteous conduct. The ALJ explained that HRA did not provide any corroboration to support the statements it alleged Bryant had made nor did not specify Bryant’s words or actions it alleged were discourtesy or threatening.

The ALJ requested and received Bryant’s personnel history.* The record indicated Bryant had been served with disciplinary charges on a number of occasions resulting, respectively in [1] a 5-day suspension without pay for using obscene and abusive language directed towards a supervisor; [2] a 10-day suspension  without pay for using “obscene and abusive language, oral threats and discourteous conduct; [3] a 45-day suspension without pay for using abusive language, discourteous conduct, making oral threats, insubordination, and failing to comply with time and leave regulations; and, ultimately, [4] a 60-day suspension without pay for using obscene or abusive language, making oral threats, and discourteous conduct.

Judge Garcia found that Bryant had repeatedly engaged in discourteous, threatening and unprofessional conduct. Despite accepting longer and longer suspensions for such behavior, Bryant conduct did not improve. Further, said the ALJ, “Even when [Bryant] admitted at trial to making statements that undermined his superiors, or to making inappropriate comments regarding potential workplace violence, [Bryant] never took any responsibility for any of his actions, or expressed any regret.

According, due to Bryant’s poor disciplinary history and his continued unwillingness to follow agency rules or behave in a professional manner, Judge Garcia recommended Bryant’s termination from his position as the appropriate penalty for his misconduct.

* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if [1] the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and [2] the employee is given an opportunity to submit a written response to any material he or she deemed “adverse” contained in the record or an opportunity to offer “mitigating circumstances.”

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1721.pdf

_____________
 

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums

School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums
Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., Supreme Court, Broome County, 2010 NY Slip Op 20360, Decided on September 3, 2010, Supreme Court, Broome County, Judge Philip R. Rumsey

The Chenango Forks Central School District discontinued reimbursing its Medicare-eligible retirees and their dependents participating in its health insurance plan the premiums they were required to pay for participating in Medicare.

The District’s Health Insurance Plan was underwritten by “Blue Cross/Blue Shield” [Plan] that did not require that eligible individuals enroll in Medicare. However, the Plan would not cover services that would be provided to a Medicare recipient by Medicare even if an eligible individual or his or her covered dependent failed to enroll in Part B.*

Theodora Q. Bryant and a number of other school district retirees or the survivors of such retirees brought an Article 78 action in an effort to annul the School District’s failure to reimburse them for the Medicare premiums that were required to pay for their Medicare coverage. Bryant contended that the District’s action violated the statutory moratorium against reducing the health insurance benefits of school district retirees, or the contributions made to obtain such benefits, in the absence of a similar decrease in benefits or contributions for active employees.**

All petitioners are 65 years of age, or older, and are eligible to receive Medicare benefits, including Part B, which provides coverage for physician and outpatient services. A monthly premium for Part B coverage is deducted from the Social Security benefits payable to an enrolled individual. In 1987 and 1988, in accordance with a collective bargaining agreement, respondent provided health insurance to teachers and eligible retirees through NYSHIP, New York’s health insurance plan for State officers and employees and the officers and employees of political subdivisions of the State electing to become “participating employers.”

NYSHIP required Medicare-eligible individuals to enroll in Medicare as NYSHIP but reimburse the Medicare premiums that they were required to pay in accordance with the provisions of Civil Service Law §167-a.

In 1988, the collective bargaining agreement between the District and the Chenango Forks Teachers Association replaced NYSHIP with a Blue Cross/Blue Shield Plan (Plan), which does not require that eligible individuals enroll in Medicare. However the Plan did not provide benefits services that would be provided to a Medicare recipient in the event a Medicare-eligible participant failed to enroll in Medicare. Although the new collective bargaining agreement was silent with respect to the District reimbursing Medicare premiums to the Medicare-eligible participants, the District reimbursed such retirees for their Medicare premiums continuously since at least 1980.

The District discontinued making such reimbursements effective July 1, 2003.

Bryant, however, contended that the Moratorium precluded any diminution in health insurance benefits provided to retirees or their dependents, or contributions made toward the payment of retiree health benefits, "unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees, [emphasis Judge Rumsey's]. Judge Rumsey agreed and, annulling the District’s discontinuing it practice of reimbursing Medicare-eligible retirees their Medicare premiums and directed it to pay Bryant and her co-litigants “the amounts of such premiums that would have been so reimbursed, in the absence of the challenged determination.”

* The State’s NYSHIP health insurance plan incorporates a similar limitation in that its health insurance plan does not pay for those services that would be otherwise paid by Medicare on behalf of a Medicare-eligible individual thereby requiring such an individual and his or her dependents to enroll in Medicare and pay the premiums required for such Medicare coverages in order to have such coverages.

** Initially enacted in 2003 (see Chapter 48 of the Laws of 2003), the prohibition was periodically extended and made permanent in 2009 [Chapter 504, Laws of 2009, §14(b)].

The Byrant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20360.htm

For additional information concerning the issues concerning reimbursing Medicare-eligible retirees for their Medicare premiums, please go to:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html
.

Workers’ compensation leave pursuant to Civil Service Law Section 71

Workers’ compensation leave pursuant to Civil Service Law Section 71
Bryant v City of New York, App. Div., 3rd Dept, 252 A.D.2d 777, Motion for leave to appeal denied, 92 N.Y.2d 813

Section 71 of the Civil Service Law, commonly referred to as “workers’ compensation leave,” requires a public employer to give an employee who is injured on the job and as a result is unable to perform his or her duties a leave of absence for at least one year unless he or she is permanently disabled. The standard applied: the employee’s disability must result from an occupational injury or disease as defined in the Workers’ Compensation Law [WCL].

Many Taylor Law agreements provided for workers’ compensation leave, incorporating by reference the provisions of Section 71 of the Civil Service Law. However, not every injury or disease suffered at work that prevents an individual from performing the duties of the position is an “occupational injury or disease” within the meaning of WCL. As the Court of Appeals held in Mack v Rockland County, 71 NY2d 1008, for the purposes of determining eligibility for workers’ compensation benefits, “an occupational disease derives from the very nature of the employment, not a specific condition peculiar to the employee’s place of work.”

The Bryant case illustrates the fact that not every disease or injury arising in the work place is an occupational injury or disease for the purposes of receiving workers’ compensation benefits and thus such a claim does not automatically trigger eligibility for workers’ compensation leave.

Meridie Bryant, a word processor employed by the City of New York, applied for workers’ compensation benefits claiming that neck, shoulder and back ailments she suffered were caused by the physical layout of her work site and the chair in which she sat while at work. The Workers’ Compensation Board rejected her application on the grounds that she had not suffered an occupational injury or disease within the meaning of the Workers’ Compensation Law.

Byrant’s appeal from the Board’s ruling was rejected by the Appellate Division.

The court, citing the Court of Appeals’ decision in Mack, said that in order to be eligible for workers’ compensation benefits, the applicant “was required to demonstrate a recognizable link between the disease from which [he or] she allegedly suffers and some distinctive feature of [his or] her employment.”

The Appellate Division decided that Byrant’s condition related to her particular work area and not the “very nature of her employment.” Accordingly, the court upheld the Board’s determination rejecting Byrant’s workers’ compensation claim and dismissed her appeal.

The practical effect of this for the purposes of Section 71, however, is not as drastic as it might appear. Section 71 leave is provided as a leave without pay, although the employee may be continued on the payroll using his or her leave credits in order to continue to be paid.

If the individual viewed as being on workers’ compensation leave by the employer is later found not to have suffered an occupational injury or disease as was the situation in Bryant’s case, all that need be done is to amend the employee’s personnel record to show that he or she is on Section 72, rather than Section 71 leave.

Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in WCL. Again employees are entitled to such a leave of absence without pay as a matter of law. As is the case in a Section 71 situation, “an employee on such leave of absence shall be entitled to draw all accumulated, unused sick leave, vacation, overtime and other time allowances standing to his [or her] credit” while on such leave.

There is, however, one significant difference between Section 71 leave and Section 72 leave. The one-year leave period allowed under Section 71 is determined on the basis of the individual’s cumulative absence while the minimum leave period under Section 72 is based on the employee’s consecutive absence for one year.

In other words, under Section 72, the employee may be terminated pursuant to Section 73 of the Civil Service Law if he or she has been absent from work for an uninterrupted period of at least one year. On the other hand, an employee absent on Section 71 leave may be terminate after he or she has been absent for a cumulative total of at least one year, even if such absences are intermittent whereby the employee returns to work and then goes on Section 71 leave again because of the same injury or disease.

It should be remembered that under both Section 71 and Section 72, separating an employee from service after the employee has been absent for the minimum period mandated for such leave is discretionary and the appointing authority is not required to terminate the employee.

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan
Bryant v Board of Educ., Chenango Forks Cent. Sch. Dist., 2013 NY Slip Op 04379, Appellate Division, Third Department

Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.*

The Public Employment Relations Board directed the School District to rescind its June 2003 memorandum in which it notified employees and retirees that it was terminating its practice of reimbursing Medicare Part B premiums.

In a companion case PERB ruled that the school district must reinstate its former practice of reimbursing retirees for Medicare Part B premiums** -- the same relief sought in the current proceeding.

The Appellate Division noted that PERB's order in the companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op 04039 (2013)]. Accordingly, Bryant received the full relief challenged by School District in the current appeal as a result of that determination, . Accordingly, the court ruled that the instant appeal is now moot.

As to argument advanced under color of an exception to the mootness doctrine, the Appellate Division held that the claimed exception “does not apply in that, although the issue advanced herein may recur and is significant, it is not likely to evade review.”

* The underlying facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134 [2005]) and in the companion case brought by the Chenango Forks Central School District (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the Internet at http://publicpersonnellaw.blogspot.com/search?q=bryant

** The reason for reimbursing retirees for Medicare Premiums that they are required to pay is explained in a “comment" in NYPPL’s summary of Munger v Board of Educ. of the Garrison Union Free School Dist., 85 AD3d 747, posted on the Internet at:  http://publicpersonnellaw.blogspot.com/2009/12/city-to-pay-100-of-cost-of-health.html

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan

Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.* 

The Public Employment Relations Board directed the School District to rescind its June 2003 memorandum in which it notified employees and retirees that it was terminating its practice of reimbursing Medicare Part B premiums.

In a companion case PERB ruled that the school district must reinstate its former practice of reimbursing retirees for Medicare Part B premiums -- the same relief sought in the current proceeding.

The Appellate Division noted that PERB's order in the companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op 04039 (2013)]. Accordingly, Bryant received the full relief challenged by School District in the current appeal as a result of that determination, . Accordingly, the court ruled that the instant appeal is now moot.

As to argument advanced under color of an exception to the mootness doctrine, the Appellate Division held that the claimed exception “does not apply in that, although the issue advanced herein may recur and is significant, it is not likely to evade review.”

* The underlying facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134 [2005]) and in the companion case brought by the Chenango Forks Central School District (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the Internet at http://publicpersonnellaw.blogspot.com/search?q=bryant

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm

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

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

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

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

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

 

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

2021 NY Slip Op 03318

Decided on May 26, 2021

Appellate Division, Second Department

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

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

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

2019-08292
(Index No. 70427/18)

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

v

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

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

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

 

DECISION & ORDER

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

ORDERED that the judgment is affirmed, with costs.

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

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

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

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

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

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

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

2019-08292 DECISION & ORDER ON MOTION

N.B.

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

v Board of Education of the Chappaqua Central

School District, et al., appellants.

(Index No. 70427/18)

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

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

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

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

ENTER:

Aprilanne Agostino

Clerk of the Court

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 03700, Appellate Division, Third Department

The Chenango Forks Central School District distributed a memorandum to its faculty and staff represented by the Chenango Forks Teachers Association announcing that it would discontinue its longstanding practice of reimbursing retirees' Medicare Part B premiums.

While the relevant collective bargaining agreement (CBA) between the parties did not explicitly obligate the school district to make such reimbursements, it had done so since at least 1980 when such reimbursement was required by the Empire Plan, the health insurance plan provided to employees up until 1990.

In 1990 the parties entered into a new CBA, and health insurance coverage was changed to Blue Cross/Blue Shield, which did not require the reimbursement of Medicare Part B premiums. Chenango Forks, however, continued to make such reimbursements.

The Association filed a grievance alleging a violation of the CBA.* At the same time, the Association filed an improper practice charge with the Public Employment Relations Board (PERB) alleging that Chenango Forks had violated Civil Service Law §209-a(1)(d) when it failed to negotiate the discontinuance of reimbursement of Medicare Part B premiums.**

PERB’s Administrative Law Judge (ALJ) found that school district's practice of reimbursement had "giv[en] rise to a reasonable expectation by current employees that they proceed under a promise of post-retirement [reimbursement]" and, thus, Chenango Forks’ unilateral decision to discontinue reimbursement violated its collective bargaining obligations under Civil Service Law §209-a(1)(d).

Ultimately PERB affirmed the ALJ's  conclusions regarding the school district's obligations under Civil Service Law §209-a(1)(d). The district filed an Article 78 challenging PERB's determination.

Rejecting the school district’s argument that reimbursement of Medicare Part B premiums is not a "term and condition of employment" subject to mandatory negotiation, the Appellate Division said that health benefits for current employees are a form of compensation, and thus a term of employment that is a mandatory subject of negotiation.

Although Civil Service Law §201(4) prohibits negotiation of certain retirement benefits, the Appellate Division pointed out that the continuation of health insurance payments to current employees after their retirement is not a retirement benefit within the meaning of that provision, citing Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398, 404 [1979]; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d 801, 802 [1995], lv denied 87 NY2d 812 [1996].

The court explained that such health insurance benefits, although paid after retirement, constitute a form of compensation earned by the employee while employed. Thus, noted the Appellate Division, as the Court of Appeals has held, and PERB rationally concluded, here that Chenango Forks "ha[d] a duty to negotiate with the bargaining representative of current employees regarding any change in a past practice affecting their own retirement health benefits," citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d at 332 [emphasis omitted]; see Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d at 404; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d at 802; Matter of Corinth Cent. School Dist. [Corinth Teachers Assn.], 77 AD2d 366, 367 [1980], lv denied 53 NY2d 602 [1981].

As to the question of whether a binding past practice was established, the Appellate Division said that the issue before PERB was whether, irrespective of any contractual obligation in the parties' CBA, a past practice of reimbursing retirees for Medicare Part B premiums was established such that Chenango Forks was barred from discontinuing that practice without prior negotiation with the Association.***

As to the merits of its past practice determination, the Appellate Division found that PERB had determined that there was a reasonable expectation by unit employees that they would receive reimbursement of Medicare Part B premiums upon their retirement, which finding was “supported by the stipulated facts that [the school district had] reimbursed Medicare Part B premiums to active employees and retirees since at least 1980 and that, despite the fact that the health insurance coverage provided under the CBAs subsequent to 1990 did not require such reimbursement, [the school district had] continued to do so until July 2003.”

Significantly, the Appellate Division said that it could not conclude that, by entering into a new CBA for the 2004-2007 period, which is silent regarding the reimbursement of Medicare Part B premiums, the Association waived its right to negotiate a change in [school district’s] practice of providing Medicare Part B reimbursement, explaining that. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it . . . Such a waiver must be clear, unmistakable and without ambiguity."

As a final point, the Appellate Division stated that the “reimbursing active employees for Medicare Part B premiums does not constitute an improper gift of public funds (see NY Const, art VIII, § 1), as the reimbursements represent compensation earned by employees while employed and in consideration for a benefit furnished to [the school district].”

* A group of school district retirees also commenced a CPLR Article 78 proceeding to annul the district's decision to discontinue Medicare Part B premium reimbursements (Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134 [2005]). This action wast remitted to Supreme Court for further record development to determine whether there had been a "corresponding diminution of benefits or contributions" effected by petitioner from active employees (Chapter 48 of the Laws of 2003; see Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1137-1138). The instant proceeding before the Appellate Division, in contrast, involved current, active employees of school district.

** PERB conditionally dismissed the charge subject to a motion to reopen the matter after the conclusion of the grievance procedure. When the grievance proceeded to arbitration, an arbitrator determined that petitioner was under no contractual obligation to continue the payments.

*** In contrast, the specific issue before the arbitrator was whether school district was under a contractual obligation to make Medicare Part B reimbursement payments to retirees.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03700.htm

As Plaintiff received inpatient and rehabilitative treatment for more than two months following an accident he was found to have a reasonable excuse for the delay in his motion to serve a late notice of claim

 

Matter of Talavera v New York City Tr. Auth.

2024 NY Slip Op 03098

Decided on June 06, 2024

Appellate Division, First Department

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

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

Decided and Entered: June 06, 2024
Before: Kern, J.P., Moulton, Friedman, González, Pitt-Burke, JJ.

Index No. 155051/23 Appeal No. 2443 Case No. 2024-00448

In the Matter of Angel Talavera, Petitioner-Respondent,

v

New York City Transit Authority et al., Respondents-Appellants.

Anna J. Ervolina, MTA Law Department, Brooklyn (Theresa A. Frame of counsel), for appellants.

Mischel & Horn, P.C., New York (Lauren E. Bryant of counsel), for respondent.

Order, Supreme Court, New York County (Denise M. Dominguez, J.), entered January 17, 2024, which, to the extent appealed from as limited by the briefs, granted petitioner's motion to serve a late notice of claim, unanimously affirmed, without costs.

Supreme Court providently exercised its discretion in granting petitioner leave to file a late notice of claim (General Municipal Law § 50-e[5]). Petitioner served respondents only two days after expiration of the 90-day time limit and made the application for leave to file a late of claim less than a week later. Not only was the delay minimal, but plaintiff received inpatient and rehabilitative treatment for more than two months following the accident, and therefore had a reasonable excuse for the delay (see Matter of Rijos v New York City Tr. Auth., AD3d , 2024 NY Slip Op 02510 [1st Dept 2024]; Matter of Mejia v New York City Tr. Auth., 224 AD3d 546, 546 [1st Dept 2024]). Moreover, neither party disputes that respondents were aware of the accident, which was witnessed by the train conductor and investigated by a New York City police officer in the transit branch. Thus, respondents had the opportunity to timely investigate the essential facts (id.).

We reject respondents' contention that the motion court should not have considered petitioner's medical records. The medical records, which petitioner submitted at the court's direction, constituted evidence to corroborate his application, not to improperly advance a new argument or theory of liability.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 6, 2024

 

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‘We Were Here Before Fort Worth’: The Struggle to Preserve Historic Black Settlements  North Texas settlements from the 19th century have been threatened for decades by urban development. A group of university professors and students are working to preserve what’s left. READ MORE

 

10 Mayors Transforming Their Cities with Tech-enabled Public Transit  These mayors saw transportation challenges and took action to implement new microtransit services from scratch. [CONTENT PROVIDED BY VIA TRANSPORTATION] LEARN MORE

 

AI Ethics Council to Begin Expert Briefings Next Month  The group, announced in December, is co-chaired by Sam Altman, CEO of OpenAI, and Atlanta entrepreneur and nonprofit founder John Hope Bryant. Its first report is slated to arrive in December. READ MORE

 

Americans Love Their Cars, Even If It Means Sitting in Traffic  Despite the staying power of remote work, traffic congestion in the United States remains stubbornly high, with New York City ranking as the single most congested city in the world. READ MORE

 

Amid Labor Shortages, More Companies Pay Kids’ Way Through College
Nebraska’s Jump Start Scholarships program offers up to 100 percent tuition reimbursement along with signing bonuses for high school graduates to pursue degrees. READ MORE

 

An Interstate Effort to Address Healthcare Shortages  A dozen states have joined a compact to give physician assistants a universal license. It's not a complete solution for the shortage of primary care doctors, but it should help. READ MORE

 

Arkansas Raises Pay for New Teachers, Angering Veterans  Arkansas gave a significant pay boost to new hires, making it easier for rural districts to attract talent. This has caused resentment among experienced teachers who now feel unrewarded for their long service. READ MORE

 

Arlington Mayor: Microtransit Supported 3 Taylor Swift Concerts Flawlessly  Mayor Ross highlights how the Via-powered transit network manages major events, including Taylor Swift concerts.[CONTENT PROVIDED BY VIA TRANSPORTATION] LEARN MORE

 

As Budgets Tighten, States Weigh Whether to Tap Rainy Day Funds  Despite reserves bulging and revenues receding, many lawmakers remain reluctant to spend savings. READ MORE

 

Audit: Denver Lacks Comprehensive Approach to Cybersecurity The city’s approach can best be described as informal, the auditor said, particularly when it comes to oversight of independent city agencies or cultural facilities that operate on subnetworks. READ MORE

 

Best Practices For Strengthening Mobility and Connectivity With a Public-private Approach  For agencies focused on service delivery, getting the right connectivity approach in place is essential to meet current and future demands of public service. [CONTENT PROVIDED BY T-MOBILE FOR GOVERNMENT® ] LEARN MORE

 

Better Cities Start with Better Transit
Big city, small town, anywhere in between: Via-powered public transit brings everything within reach. [CONTENT PROVIDED BY VIA TRANSPORTATION] LEARN MORE

Birmingham Pilot Blossoms into a Lifeline to Jobs, Housing  Birmingham's microtransit boosts job access by 79%, delivering over 300K rides with Birmingham On-Demand. [CONTENT PROVIDED BY VIA TRANSPORTATION ] LEARN MORE

 

California Directs $45M in Grants to Central Coast Internet  The California Public Utilities Commission has awarded $45 million in grant funding to three regional Internet service providers, the Monterey Bay Economic Partnership announced recently. READ MORE

 

California Looks to AI for Health, Social Services Translation  Timing and cost are not yet clear, but the state is seeking bids from vendors to harness artificial intelligence to translate a range of documents and websites around “health and social services information, programs, benefits and services.” READ MORE

 

California Voters Prefer Term Limits for Local Offices  A new poll found that roughly three-quarters of registered voters would like to see term limits enacted or shortened for county supervisors, district attorneys and sheriffs. READ MORE

 

Car-free Living Becomes a Reality in this Utah Community  The region's new transit network connects downtown with the surrounding mountains, and residents are raving. [CONTENT PROVIDED BY VIA TRANSPORTATION] LEARN MORE

 

Carnegie Mellon Police Department Replaces LMR System  The university’s police department is switching to a P25-compliant digital simulcast system after experiencing difficulties with coverage when communicating via the existing system with other local agencies. READ MORE

 

Comcast Awards $1.5M Worth of Digital Equity Grants to Cities  The grants range between $75,000 and $150,000 each, and they are spread out between 10 different cities across the country, many of which are working to boost digital skills training. READ MORE

 

Craig Orgeron, Veteran Mississippi Tech Lead, Returns as CIO  The nine-year state CIO and leader of the Mississippi Department of Information Technology Services, who stepped down in 2020, will return in both roles starting Monday. READ MORE

 

Create a Seat at the Policymaking Table for Young Americans  There are strong models for combating youthful disillusionment. San Francisco’s Youth Commission should be replicated across the country and a White House Office of Young Americans could address issues that affect everyone. READ MORE

 

Cybersecurity Exec Sentenced in Medical Center Hacking  An Atlanta cybersecurity executive who hacked the Gwinnett Medical Center’s computer system in an alleged attempt to boost business for his company has been sentenced to two years of home detention. READ MORE

 

Denver Lacks Comprehensive Approach to Cybersecurity, Auditor Finds  The city’s approach to cybersecurity risks is at best “informal,” according to Denver’s auditor. Mandatory training is often skipped and oversight of some facilities is lax. READ MORE

 

Education 'Miracle' Worker Seeks Success in a Second State  As Mississippi's schools chief, Carey Wright lifted test scores faster than any other state in the nation. Now she needs to show results in Maryland. READ MORE

 

Election Disputes Have Torn a California County Apart  A Shasta County supervisor was nearly recalled and the county’s longtime elections chief stepped down last month, with stress from death threats causing her heart problems. READ MORE

 

Enhance Public Sector Services with Generative AI  Take the new Microsoft Learn course to discover how AI can enhance productivity, improve cognition, and accelerate discovery in public sector organizations. [CONTENT PROVIDED BY MICROSOFT] START THE COURSE

 

Florida Supreme Court Allows Judicial Candidates to Campaign on Ideology
The decision bars judicial hopefuls from declaring partisan affiliation but not positions. “To describe oneself as a ‘conservative’ does not signal bias, pro or con, toward anyone or on any issue,” the court found. READ MORE

 

For Transit Agencies, On-Demand Services Can Fill the Gaps  Providers around Fort Worth, Texas, and the San Francisco Bay Area are using technology to expand on-demand options for riders. The availability can help connect first- and last-mile areas that lack service. READ MORE

 

Former Missouri CIO to Lead Des Moines, Iowa IT Department  Jeffrey Wann, the former CIO of Missouri, has returned to the public sector as leader of the IT department for the city of Des Moines, Iowa. Wann has more than 30 years of IT experience in the public and private sectors. READ MORE

 

Frederick County, Md., Appoints Ty Howard as Next CIO  Howard's past experience includes years of working in public-sector technology for several local governments throughout Arizona, including stints in Goodyear, Mesa and Gilbert. READ MORE

 

General Services Administration Launches AI-Focused Cohort  The federal oversight agency has launched its first cohort focused on artificial intelligence for its Presidential Innovation Fellows program, aiming to create a talent pipeline for AI in government. READ MORE

 

Get the Latest 5G Devices For the Front LinesGet the Latest 5G Devices For the Front Lines  Stay connected when it matters most with Verizon Frontline. [CONTENT PROVIDED BY VERIZON] LEARN MORE

 

Governments Empower Citizens by Promoting Digital Rights  Two local governments have taken steps to make residents aware of their digital rights. Experts argue that cities actually have a responsibility to do so. READ MORE

 

Highway Projects in Minnesota Must Now Consider Climate Effects  A recently-expanded law covers more than 12,000 miles of road that account for 60 percent of all miles driven in the state. As part of its climate strategy, Minnesota hopes to reduce driving 20 percent by 2050. READ MORE

 

Hospitals stuck with unpaid bills will sometimes sell to debt collectors at a discount. The county’s investment could erase 100 times as much in medical debt. READ MORE

 

How 7 Cities Funded Their New Microtransit Services See the federal, state, and local grants that turn public transit dreams into reality. [CONTENT PROVIDED BY VIA TRANSPORTATION] LEARN MORE

 

How California Lawmakers Are Trying to Regulate AI  California legislators are rushing to address concerns through roughly 50 AI-related bills, many of which aim to place safeguards around the technology, which lawmakers say could cause societal harm. READ MORE

 

How Mayors Use Microtransit to Transform Their Communities  Better transit drives economic development and spurs opportunities. It's easier to launch than you think. [CONTENT PROVIDED BY VIA TRANSPORTATION] LEARN MORE

 

How to Navigate IT Challenges in Government  The public sector faces some unique challenges when it comes to IT management. Here’s what government IT organizations are doing to tackle problems and deliver a great user experience. READ MORE

 

How Will AI Impact Your Organization?  Introducing Generative AI to your workforce opens the door to new levels of productivity. Download Microsoft's CIO Guide on how to introduce and manage AI in your government organization. [CONTENT PROVIDED BY MICROSOFT] GET THE CIO STRATEGY GUIDE

 

Illinois Creates a New Department of Early Childhood  The new agency will combine programs that provide services for children under 6, which had primarily been divided among three different departments. READ MORE

Inside the Participatory Budget Project in Cambridge, Mass.  The city has launched a digital map so the public can track progress for community improvement projects that they approved through the city’s participatory budgeting process. READ MORE

 

Keeping First Responders Safe: The Latest Tools and Strategies  This paper from Verizon details how network upgrades, additional data and artificial intelligence applications are set to change how agencies respond to emergencies and keep first responders safe. DOWNLOAD

 

Less Big Three, More Gen Z: Michigan’s Growth Strategy  Michigan is betting its future on a sought-after natural resource — people — guided by one person in particular. Hilary Doe, the first state chief growth officer anywhere, discusses what’s next. READ MORE

 

Medicaid Systems in Many States Plagued by Errors  Deloitte has Medicaid contracts with half the states worth at least $5 billion. Critics charge the company with errors that have delayed care. READ MORE

Michigan County Restores 80 Percent of Systems After Cyber Attack  The computer-aided dispatch system for Grand Traverse County's 911 service is also officially back online following a cyber attack that disabled the system and many other governmental services. READ MORE

 

Michigan Senate Votes to Apply Open Records Law to Governor and Legislators  Breaking a years-long impasse, the Senate voted overwhelmingly to increase transparency for the governor and lawmakers. The bill still offers them some loopholes, however. READ MORE

 

Navigating the CISO Role: Common Pitfalls for New Leaders  What are the top mistakes that I see new security leaders continue to make in 2024 as they start their CISO careers or take on new roles? How can these challenges be addressed? READ MORE

 

Need Access to Housing and Jobs? Jersey City Delivers a One-two Punch  Via Jersey City sets new microtransit standard: 2M rides, 40% to affordable housing, 150% job access boost. [CONTENT PROVIDED BY VIA TRANSPORTATION] LEARN MORE

 

New App Looks to Smooth Service Delivery to Reno’s Homeless  The application, DROPS, or Direct Resource Outreach and Placement Service, enables city staff to create and track digitized case files. It’s intended to streamline access to resources and avoid disconnections in the process. 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. [CONTENT PROVIDED BY T-MOBILE FOR GOVERNMENT®] LEARN MORE

 

New Haven, Conn., Notifies Hundreds That Personal Info Breached  Officials are notifying more than 400 people that personal information could have been compromised during a cyber attack that led to the city’s Board of Education being defrauded out of nearly $6 million. READ MORE

 

New Vermont Fee Will Help Pay for EV Charging Infrastructure  Vermont will charge $89 a year for registered electric vehicles, directing revenue to more charging stations. It’s among a handful of states with both incentives and fees for EV owners. READ MORE

 

New York City Gets More Aggressive About Building Inspections  The City Council passed a bill requiring “proactive” inspections for high-risk buildings, following two devastating collapses last year. READ MORE

 

Only True Independents Still Make Up Their Own Minds About Issues  Political independents — those who don’t vote consistently for one party or the other — have views that align with their lived experience. Democrats and Republicans? They just follow the party line. READ MORE

 

Opinion: Teachers Need the Support of Formal AI Policies  The founder of the Learning Engineering Virtual Institute makes the case for giving teachers structured guidance and ongoing support to experiment with artificial intelligence tools and incorporate what works. READ MORE

 

Oregon DMV Cuts Wait Times With New Lobby Management System  The Oregon Department of Motor Vehicles is using a new real-time customer management system known as Next in Line in 59 field offices, helping to improve wait times for more than 3 million. READ MORE

 

Oregon Launches New Public Defender Division to Stem Crisis  A federal judge has ordered the state to release unrepresented defendants, with about 2,500 now out of custody as a result. The state is now hiring more attorneys rather than relying on contracts with private defenders. READ MORE

 

Outdoor Tech Firm Kalkomey Acquired by PE Firm Macquarie  Kalkomey, previously owned by a Boston-based private equity firm, sells outdoor certification and safety education tools to all U.S. states and Canadian provinces. Macquarie is increasingly active in gov tech deals. READ MORE

 

Permitting Tech Firm Clariti Raises $10M After Acquisition  The capital, which closely follows another fundraising round, will help the company’s ongoing integration of Camino Technologies. A Clariti executive explains what’s going on and what the future holds. READ MORE

 

Phishing Attack May Impact L.A. County Public Health Data  The February cyber attack may have compromised personal information belonging to roughly 200,000 clients, employees and others, the Los Angeles County Department of Public Health said last week. READ MORE

 

Schools and Law Enforcement Get on the Same Page  Critical Response Group has taken the floor plans of nearly 14,000 schools, updated them and integrated that data with local law enforcement systems, developing a solution that helps when seconds count. READ MORE

 

Seattle Libraries Network Outage Nears a Month A ransomware attack that has impacted the Seattle Public Library and its 27 branches continues to be felt nearly a month after its discovery May 25. E-book access has been restored, but computer networks remain down. READ MORE

 

Senate Proposal Would Set Government AI Procurement Standards  A bipartisan bill now under consideration would require each federal agency to create a chief artificial intelligence officer position. The measure would also require systems be graded on risk, from low risk to unacceptable. READ MORE

 

Senate Proposal Would Set Government AI Procurement Standards  A bipartisan bill now under consideration would require each federal agency to create a chief artificial intelligence officer position. The measure would also require systems be graded on risk, from low risk to unacceptable. READ MORE

 

Silicon Valley Takes a Bite Out of Congestion with Microtransit  City leaders improve first- and last-mile connectivity to get commuters out of private cars (and it worked). [CONTENT PROVIDED BY VIA TRANSPORTATION ] LEARN MORE

 

Small Businesses Aren’t Getting Enough Defense Work. Here’s How to Help Them.  State and local economic development organizations can ease barriers to defense contracting for local businesses, benefiting both companies and communities. READ MORE

 

States Falling Behind on Data? This Tool Aims to Help With AI rapidly transforming government, state leaders are scrambling to improve their data governance and management practices. The Beeck Center's new self-assessment tool offers a comprehensive checkup for states. READ MORE

 

States Need Stronger Identity Verification as Online Services Grow New research shows reliance on outdated identity verification methods. READ MORE

 

Supreme Court Limits Bribery Law Used in Chicago Corruption Cases  Justices found that a federal statute that bans bribery does not apply to “gratuities” paid to elected officials for past acts. The case pertained to a former mayor but has implications for charges against former Illinois House Speaker Michael Madigan. READ MORE

 

The 15-Minute City: Hope, Hype and Hostility The concept of having most needs met within walking distance remains beguiling as an urbanist vision, but it hasn’t gotten very far in the U.S. READ MORE

 

The Agency-by-Agency Strategy Government Needs for Its Workforce Crisis  In the midst of a “skills tsunami,” agencies and their workers understand the problems better than central HR offices do. And workforce planning should focus on local labor markets. READ MORE

 

The Factors Driving Housing Costs to All-Time Highs  Prices increased last year in 97 of the nation's 100 largest markets. Home insurance costs are soaring and rent is increasingly unaffordable, contributing to growth in homelessness. READ MORE

 

The Roads That Tear Communities Apart  Urban interstate highways displaced hundreds of thousands of households, destroyed neighborhoods and enforced racial segregation, and they continue to harm low-income communities. We need to ameliorate this tragic history. READ MORE

 

The Role Dark Money Plays in Local Races  Last year’s contest for Allegheny County, Pa. executive drew $1 million in funds from secretive groups that skirted disclosure requirements. READ MORE

 

Transforming and Scaling Your Optimal Resident Experience  This eBook provides an in-depth exploration of the role of constituent experience in community growth and development. It examines the challenges municipalities face in delivering seamless services and the importance of digitizing service delivery. DOWNLOAD

 

Traverse City, Mich., Still Grappling With Ransomware Fallout  After last week's ransomware attack shut down the network for Grand Traverse County and Traverse City operations, staff are continuing to implement "creative workarounds" to get government work done. READ MORE

 

Uncontested: The Surprising Political Invulnerability of Sheriffs  Sheriffs argue that being elected makes them directly accountable to voters, but the reality is that few face real competition. READ MORE

 

Updates to the CJIS Security Policy – What You Need to Know  Join our July 11 webinar to learn about the new baseline security standards and changes in the CJIS Security Policy.  REGISTER NOW

 

What’s New in Digital Equity: NTIA Reports on Minority Access Plus, the USDA is providing $25 million for rural broadband; Pennsylvania offers $20 million worth of devices; Raleigh, N.C., gets a state grant; and more. READ MORE

 

Who Should Be on Your State AI Task Force?  Washington state’s attorney general has announced the members of its Artificial Intelligence Task Force. Here's how Washington’s approach aligns with, and differs from, other state efforts. READ MORE

 

Why Taxpayers Get Stuck With the Bill for Nuclear Power Plants  Construction of nuclear plants is often only feasible thanks to public subsidies that mitigate risk. Then that risk gets shifted back onto government. READ MORE