Audits and examination reports issued on January 17, 2018 by NYS Comptroller Thomas P. DiNapoli

Audits and examination reports issued on January 17, 2018 by NYS Comptroller Thomas P. DiNapoli 

Click on text highlighted in color to access the full report

State Education Department: Kennedy Child Study Center: Compliance with the Reimbursable Cost Manual (2017-S-7)Kennedy is a New York City-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of three and five years. During the 2013-14 school year, Kennedy served about 345 students. The New York City Department of Education (DoE) refers students to Kennedy and pays for its services using rates established by SED. The DoE is reimbursed by SED for a portion of its payments to Kennedy. For the three fiscal years ended June 30, 2014, auditors identified $612,781 in reported costs that did not comply with state guidelines for reimbursement.
       
Public Service Commission: Pipeline Safety Oversight (Follow-Up) (2017-F-20)
An initial report issued in March 2016 found Department of Public Service (DPS) staff working under the Public Service Commission did not verify the accuracy of the information on employee/contractor qualifications maintained by individual operators. DPS staff rely on this data during field audits. In addition, DPS had not set up a process to identify instances where operators failed to notify them of specific gas-related incidents as required. In a follow-up, auditors determined DPS officials made significant progress in addressing the issues identified in the initial audit.

New York City Department for the Aging: Congregate Meal Services for the Elderly (2016-N-5)
Auditors found that DFTA officials could not demonstrate that they contracted with optimally located senior centers to ensure the maximum number of eligible senior citizens can take advantage of the congregate meals being offered. DFTA did not perform any analysis to determine whether the costs submitted by sponsors were reasonable.  Auditors also reviewed the sponsors’ administrative costs for four randomly selected senior centers and found that one overstated its February 2016 invoice by $12,006, and may have received $120,570 in overpayments during the fiscal year ended June 30, 2016.

New York State Health Insurance Program: United HealthCare (UHC): Improper Payments for Medical Services Designated By Modifier Code 59 (Follow-Up) (2017-F-23)
An initial audit report released in January 2015, identified 13 claims out of a sample of 245 that were overpaid by $39,345 because a distinct or independent service was not provided as required even though the services were designated as such with modifier 59. Based on statistical sampling techniques, auditors estimated that UHC overpaid between $1.6 million and $5.2 million for services that included modifier 59 during the one-year period ending Aug. 31, 2013. In a follow-up, auditors found UHC officials made significant progress in addressing the issues identified in the initial audit. UHC also recovered $29,856 of the $39,345 in identified overpayments.

State University of New York: Compliance With Payment Card Industry (PCI) Standards (Follow-Up) (2017-F-24)
An initial audit report issued in June 2016 found that although SUNY schools were generally knowledgeable about PCI compliance and the need to protect credit card data from unauthorized access, a range of weaknesses were found. In a follow-up, auditors found SUNY schools and the SUNY System Administration have made significant progress in implementing the recommendations identified in the initial report.

Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances

Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances
Page v Liberty Cent. Sch. Dist., 2017 NY Slip Op 08921, Appellate Division, Third Department

Angela Pageapplied for and was awarded workers' compensation benefits in 2004 based upon her claim for hypersensitivity reaction to the presence of fungi at her worksite. A Workers' Compensation Law Judge [WCLJ] subsequently determined that Page had a causally-related permanent total disability.

The Workers' Compensation Board reversed the WCLJ's finding of a permanent total disability, crediting the opinion of an impartial specialist selected by the Board to examine Page. The specialist had found that Page "had no continuing causally-related disability."

Page initiated a number of appeals and ultimately the Appellate Division affirmed the Board's decision on procedural grounds, finding that Page's failure to timely appeal a Board decision in 2012 precluded her from challenging the Board's finding of no further causally-related disability.

However, in 2014, a physician, Jeffrey Newton, evaluated Page for the purpose of assessing her "psychological treatment needs in connection with her longstanding multiple chemical sensitivity syndrome." Newton diagnosed Page as suffering from consequential adjustment disorder with anxious and depressed mood. Based upon Newton's opinion, Page requested a hearing to address her claim for benefits based on her alleged consequential psychological injury.

A WCLJ found prima facie evidence for consequential depression and directed the employer to obtain an independent medical examination on this issue. Upon review, however, the Board reversed the WCLJ, finding that further development of the record was not proper inasmuch as its December 2012 decision "established that Page did not have a further causally-related disability, without which there could be no consequential condition." Page appealed  the Board's ruling.

The Appellate Division reversed the Board's determination explaining that as a general rule "...the Board's determination of whether or not to allow further development of the record on a particular issue will not be disturbed absent an abuse of discretion," held that in this instance the Board holding that further development of the record was improper because it had determined in 2012 that [Page] no longer suffered from a causally-related disability and, without a further causally-related disability, there could be no disability from which a consequential condition could arise" constituted an abuse of discretion.

The court said that the record reflects that Page's claim was amended to include multiple chemical sensitivity in 2006. Further, in its 2012 decision the Board noted that, although its medical expert "was of the opinion that multiple chemical sensitivity is not a medically-recognized condition, he credibly testified that he was capable of independently determining, based upon a physical examination, whether [Page] was disabled."

Although the Board ultimately relied its medical expert's physical examination in concluding that Page no longer suffered from a causally-related disability, in so doing the Board made no findings suggesting that Page did not suffer from a causally-related disability from 2004 to 2011.

Accordingly, the Appellate Division concluded that the Board's finding that, as of 2012, Page no longer had a causally-related disability did not preclude Page from raising the issue of a psychological injury consequentially related to her prior established claims of hypersensitivity reaction to fungi and multiple chemical sensitivity.

As the record indicated that Page was diagnosed and treated for psychological injuries during that time and that, with regard to the issue of causation, Page's "psychological condition is clearly causally related to [her] . . . work place originating condition," the Appellate Division concluded that the Board abused its discretion by finding that further development of the record on this issue was improper based upon its 2012 decision.

The court reversed the Board's decision and remanded the matter to a WCLJ for the "further development of the record."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08921.htm

Administrative due process in disciplinary actions

Administrative due process in disciplinary actions

Jacobson v Blaise, 2018 NY Slip Op 00205, Appellate Division, Third Department

Although this litigation concerned student discipline at a State University of New York campus, a number procedural issues are addressed that are but rarely focused on in considering matters involving administrative due process. The following are among the issues considered:

1. Constitutional due process rights: The New York State Department of Education has said that the student disciplinary process outlined in Education Law §6444(5)(b) "... should not be read to extend to private colleges the constitutional due process rights that apply to public colleges."

2. Presumption of innocence: Throughout the proceedings an accused student enjoys "the right to a presumption that [he or she] is 'not responsible' until a finding of responsibility is made" (Education Law §6444[5][c][ii]).[1]

3. Discovery: Citing Matter of Weber v State Univ. of N.Y., Coll. at Cortland, 150 AD3d 1429, the Appellate Division said there is no "general constitutional right to discovery in . . . administrative proceedings."

4. Cross-examination: The Appellate Division explained that, in general, there is a limited right to cross-examine an adverse witness in an administrative proceeding [see Matter of Weber v State Univ. of N.Y., Coll. at Cortland, supra, at 1432], and citing Winnick v Manning, 460 F2d 545, the Appellate Division noted that "[t]he right to cross[-]examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings."[2]

5. Credibility: The court indicated that it found it troubling that the hearing panel "duty bound to determine who to believe when faced with competing versions of events," resolved this fundamental credibility issue "without having had the opportunity to directly gauge ... [a witnesses]  credibility" and citing Doe v University of Cincinnati, 872 F3d at 404, the Appellate Division opined that when hearsay testimony is involved "there is no doubt that allowing [the accused] to confront and question [the accusing party in] the truth-seeking process and reduced the likelihood of an erroneous deprivation."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00205.htm

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[1] Another issue, not raised directly in this case, concerns the need of an employee charged with incompetency or  misconduct submitting an answer to §75 disciplinary charges.  

Should an accused fail to file an answer to the charges and specifications may the appointing authority impose the proposed penalty without holding a disciplinary hearing? In the opinion of the author of this summary, Harvey Randall, no. Although Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing, this simply provides that, but does not mandate, the employee have at least eight days in which to prepare and submit an answer to the charges. As Section 75 is silent as to when the accused individual is required to file his or her answer, this suggests that the individual may remain mute -- i.e., decline to file an answer to the charges -- without jeopardizing any of his or her Section 75 rights to administrative due process. In other words, the failure of an employee to file a pre-hearing written answer to the disciplinary charges, appear at the disciplinary hearing or his or her even refusing to defend himself or herself against the charges at the hearing, does not excuse the employer of its duty to prove the employee’s incompetence or misconduct, and where the employee fails to appear at the hearing, by holding the hearing in absentia, before making a determination as to guilt and then, if the accused is found guilty, imposing an appropriate disciplinary sanction. 

[2] The opportunity to cross-examine an adverse witness is guaranteed by statute in situations where a public agency is obliged to hold an adjudicatory hearing (see State Administrative Procedure Act §§ 102 [3]; 306 [3]). A hearing is not required under the minimum requirements set by Education Law §6444(5)(b) (see Matter of Doe v Skidmore Coll., 152 AD3d at 934), rendering the protections of the State Administrative Procedure Act inapplicable (see Matter of Gruen v Chase, 215 AD2d at 481; Matter of Mary M. v Clark, 100 AD2d at 43).

Informal Opinions of the Attorney General

Informal Opinions of the Attorney General

Informal Opinion No. 2017-1  [December 13, 2017]   

A change in the use of municipal parking spaces on parkland must be authorized by special legislation.

Informal Opinion No. 2017-2 citing Town Law §§176(11), 176-a, 176-a(1), 189-a(2)(d); Executive Law §23 [December 13, 2017]    

The positions of assistant fire chief of a joint fire district and county director of emergency services are compatible. [December 13, 2017]

Police officer terminated following being found guilty of downloading and possessing child pornography

Police officer terminated following being found guilty of  downloading and possessing child pornography

2017 NY Slip Op 09243, Appellate Division, First Department

A New York City police officer [Petitioner] was found guilty of accessing, downloading, and possessing child pornography. The penalty imposed: termination from his employment.  

The Appellate Division unanimously confirmed the determination that Petitioner was guilty of downloading and possessing child pornography as it was supported by substantial evidence and the Hearing Officer was entitled to consider Petitioner's demeanor during his testimony at the disciplinary hearing into account when assessing Petitioner's credibility

The court also noted that Petitioner's behavior during the execution of the search warrant at his home provided circumstantial evidence of his guilt as to both charges.

As to the possibility of considering mitigating circumstances with respect to the penalty imposed, dismissal from the position, the Appellate Division opined that notwithstanding Petitioner's tenure with the police department since 1999, the absence of any formal disciplinary record, and the fact that he had been awarded several medals, terminating Petitioner for downloading and possessing child pornography did not shock the court's sense of fairness.

Other cases of involving alleged involvement with pornography that resulted in disciplinary action being taken against the employee include:

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U);
Phelps-Clifton Springs CSD v Nicot, Supreme Court, Ontario County, Index #103465;
Davis v DMNA, 291 A.D.2d 778, Schnaars v Copiague UFSD, 275 A.D.2d 462; and
Shurgin v Ambach, 56 NY2d 700

The decision in chief is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09243.htm

Concluding that "reasonable minds might disagree" with the arbitrator's determination insufficient to justify a court's vacating or modifying an arbitration award

Concluding that "reasonable minds might disagree" with the arbitrator's determination insufficient to justify a court's vacating or modifying an arbitration award

Bolt v New York City Dept. of Educ., [No. 51 SSM 34]; Matter of Beatty v City of New York, et al., [No. 52 SSM 35 ]; and Matter of Williams v City of New York, et al.,  2018 NY Slip Op 00090, Court of Appeals [No. 53 SSM 36]

In Matter of Bolt v New York City Dept. of Education and Matter of Beatty v City of New York, and Matter of Williams v City of New York, the Court of Appeals reversed the Appellate Division's reversal of the Supreme Court's dismissal of the challenges to the penalty imposed in the course of disciplinary arbitration and reinstated the Supreme Court's determination dismissing of each of the three petitions challenging the arbitration award.

Citing City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, the Court of Appeals explained that the fact that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty," and in so doing found that the Appellate Division "exceeded its authority by reweighing the evidence and substituting its judgment for that of the hearing officer."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00090.htm

Municipal and school district audits released by State Comptroller DiNapoli on January 9, 2018

Municipal and school district audits released by State Comptroller DiNapoli on January 9, 2018

Click on text highlighted in color to access the full report

 

Aurora-Colden Fire District No. 6 – Financial Activity (Erie County)
Officials generally provide adequate oversight to ensure financial activity is properly recorded and district money is safeguarded. The district, however, did not solicit competition, or retain evidence of soliciting competition, for 97 purchases totaling $171,013 that were subject to its purchasing policy.

Columbia-Greene Community College – Information Technology (2017M-213)
The board has not adopted comprehensive written procedures for managing system access. The college did not adopt a breach notification policy and has never tested its disaster recovery plan; therefore, information may not be adequately safeguarded.

Village of Croton-on-Hudson – Payroll (Westchester County)
Auditors found that timesheets did not have employees’ signatures or show actual hours worked. Payroll records for the Department of Public Works revealed five employees were overpaid a total of $902. In addition, the village under-budgeted for overtime in the 2016-17 fiscal year by $284,608 or 43 percent.

Town of Dannemora – Part-Town Activities (Clinton County)
The town’s accounting records did not include a part-town (PT) general fund. General fund PT revenues and expenditures were not properly allocated. As a result, the town unnecessarily taxed town residents residing within the village which subsequently lowered tax rates for town residents living outside of the village.

East Islip Public Library – Cash Receipts (Suffolk County)
Cash was not always properly collected or deposited in a timely manner. Library staff did not issue adequate receipts for all collections and did not properly account for attraction tickets purchased in bulk and sold at a discount to cardholders. The library’s account clerk performed incompatible financial duties.

County of Franklin Solid Waste Management Authority – Solid Waste and Recycling Charges and Host Community Fees (2016M-418)
Officials had not established adequate procedures over solid waste and recycling charges to ensure customers were accurately charged and the corresponding amounts collected were deposited in a timely manner. Auditors found customers were charged varying rates for disposal of the same type of waste.

Town of Greece – Information Technology (Monroe County)
Town officials did not adopt a comprehensive online banking policy or adequately segregate online banking duties. In addition, the board did not adopt a comprehensive disaster recovery plan. As a result, the town has an increased risk that its IT data and components may be lost or misused and that the town will be unable to resume critical operations if a system failure occurs.

Johnsonville Fire District – Claims Processing (Rensselaer County)
Except for minor exceptions which we discussed with district officials, all of the claims reviewed by auditors were supported by sufficient documentation and for appropriate purposes.

Town of Nanticoke – Financial Condition Management (Broome County)
The town board did not effectively manage fund balance. From 2014 through 2016, budgeted appropriations exceeded expenditures, resulting in the accumulation of excess fund balance in the general fund. As of Dec.31, 2016, the fund balance in the general fund had increased 75 percent, to over $482,000, from approximately $275,000 in 2014. The board has not developed a fund balance policy or comprehensive multiyear financial and capital plans specifying the town’s objectives and goals for using the accumulated funds.

Town of Marbletown – Financial and Capital Planning (Ulster County)
The board does not have a comprehensive multiyear financial and capital plan or reserve policy to address the town’s operational and capital needs, including the replacement of vehicles and equipment, infrastructure or the aging highway garage. The board also has not adopted an adequate fund balance policy, which resulted in the town accumulating excessive fund balance in the general fund.

Municipal Parking Structures (2017MS-3)
The local governments reviewed have varying processes in place to inspect and monitor their parking structures. Although available reports indicate that the structures do not have any urgent repair needs, most units could improve their internal controls over parking structures and elevators. For example, the lack of periodic inspections has resulted in three Buffalo, two White Plains and possibly two Ithaca parking structures not having inspections conducted by structural engineers within the last 10 years.

City of Sherrill – Payroll and Community Activity Center Cash Receipts (Oneida County)
City officials accurately paid employees’ salaries and wages. However, officials need to improve controls over payroll preparation and processing. There is no independent certification of payroll prior to the distribution of payroll checks. In addition, city officials have not formalized policies and procedures over the community activity center’s cash collections.

Walden Fire District #2 – Purchasing (Erie County)
District officials did not obtain quotes in accordance with the district’s procurement policy during the audit period for 27 purchases totaling $77,044.

West Niles Fire Company – Financial Activities (Cayuga County)
The board has not established written policies and procedures for cash receipts, cash disbursements and fundraising activities or adopted a code of ethics to guide officers and members regarding expected standards of conduct, as required. Additionally, the bylaws provide limited guidance on the board’s responsibilities and the company treasurer’s duties.

Aloma D. Johnson Charter School – Leave Accruals (Erie County)
School officials did not maintain accurate, complete and supported leave accrual and use records. Auditors compared the 2015-16 leave balances for all 62 employees to the 2016-17 beginning leave balances recorded in the employee leave records and found that 12 of these employees’ leave carryover amounts were overstated by 47 days.

Center Moriches Union Free School District – Medicaid Reimbursements (Suffolk County)
The district did not claim $117,670 in costs for individual education plan-related services provided to Medicaid-eligible students because it did not obtain prescriptions, parental consent was not obtained or service providers did not meet certain qualifications for reimbursement or did not provide the proper documentation for claiming reimbursement.

Colton-Pierrepont Central School District – Financial Duties (St. Lawrence County)
Salaries and wages were accurately calculated and paid. However, the district clerk’s duties are not adequately segregated because she processes all non-payroll and payroll disbursements with limited oversight.

Kendall Central School District – Capital Project (Orleans County)
Officials did not present a district-wide capital improvement project to the public in a transparent manner. Because the project’s actual cost ended up being below the maximum amount authorized by the voters, officials had an opportunity to spend significantly less than anticipated. However, district officials decided to complete additional work and expand the project scope without informing the voters.

Madison-Oneida Board of Cooperative Educational Services (2017M-239)
Employee salaries and wages were accurately paid. However, payroll access rights were not adequately restricted to employees based on job duties. In addition, duties related to the payroll certification process were not properly segregated.

South Country Central School District – Information Technology Inventory (Suffolk County)
The district does not have a complete and accurate inventory of information technology (IT) equipment. District officials have not adequately accounted for IT assets and they have no assurance that the assets have been adequately protected from loss, theft or misuse. Further, in the event of a disaster, district officials would be unable to provide its insurance company with an accurate list of IT assets to replace.

Ticonderoga Central School District – Transportation State Aid and Extra-Classroom Activity Funds (Essex County)
The district did not apply for all transportation state aid for new bus acquisitions. As a result, the district was in danger of potentially losing $194,852 in state aid. In addition, club collections were not supported by adequate documentation and were not always deposited in the amounts received.

Wellsville Central School District – Financial Management (Allegany County)
The district’s unrestricted fund balance has exceeded the statutory limit for the past three fiscal years by amounts ranging from $1.5 million to nearly $3 million. District officials have also allowed the unemployment reserve balance to accumulate to an excessive level and have not used funds from the retirement contribution reserve as budgeted.

Westmoreland Central School District – State Transportation Aid (Oneida County)
District officials did not apply for state transportation aid within one year of purchase for 18 buses purchased during our audit period. During the audit, the district business manager prepared and submitted state aid forms to the New York State Department of Education for the 18 buses, and the district should receive approximately $1.3 million in transportation aid for these buses through 2021-22.

Making an appointment to a position to take effect on a specified date in the future

Making an appointment to a position to take effect on a specified date in the future
Farrell v City of Kingston, 2017 NY Slip Op 09214, Appellate Division, Third Department

In 2015, Shayne Gallo, the City of Kingston's then-Mayor, appointed Robert Farrell to the position of sergeant, effective January 10, 2016, and Kirk Strand to the position of lieutenant effective January 3, 2016.

On January 1, 2016, Steve Noble was sworn in as the City's new mayor and on January 2, 2016, the City's Police Citizens Advisory Board [PCAB] met and voted to rescind the Strand and Farrell appointments as invalid.

On January 9, 2016, Noble appointed three other officers, Richard Negron, Andrew Zell and Brian Lowe, as sergeants but did not make an appointment to the lieutenant position.*

In April 2016, Strand and Farrell [Petitioners] commenced this combined CPLR Article 78 proceeding and plenary action, contending, among other things, that the PCAB's rescission of their respective appointments should be vacated. Petitioners alleged that the Gallo  appointments should be deemed valid on the ground that Mayor was the appointing authority pursuant to the City of Kingston Charter and thus the PCAB  action was, in effect, ultra virus, without lawful authority, to rescind those appointments.**

Supreme Court granted the City's motion in its entirety, dismissing Petitioners' first three causes of action for failure to join certain necessary parties and dismissing Petitioners' employment discrimination cause of action for failure to file a notice of claim. Petitioners appealed.

Citing Morgan v de Blasio, 29 NY3d 559, the Appellate Division held that Supreme Court ruling that Negron, Zell, Lowe, Robertson and Burkert were necessary parties to the subject proceeding, explaining that  "any individual or entity who might be inequitably affected by a judgment in a proceeding, or who ought to be a party if complete relief is to be accorded between those who are parties to the proceeding, shall be named as a necessary party." The Appellate Division pointed out that were Farrell to obtain an annulment of the rescission of his appointment as sergeant and be reinstated to that position, either Negron, Zell or Lowe stand to be displaced from their promotion to sergeant.

By the same token, the Appellate Division opined that should Strand prevail with respect to his appointment to lieutenant and be reinstated to that position, Burkert and Roberston, as two of the top three candidates listed for promotion to the position of lieutenant "would lose their right to consideration for that post" and thus they are necessary parties with respect to an appointment to the position of lieutenant.

The Appellate Division also ruled that because Negron, Zell, Lowe, Robertson and Burkert are necessary parties and are subject to Supreme Court's jurisdiction insofar as they were employees of the City of Kingston Police Department at the time of commencement of this proceeding, the court should have ordered them joined and remitted the matter to Supreme Court to order Negron, Zell, Lowe, Robertson and Burkert to be joined as necessary parties.

It should be noted that [1] Robert Farrell was appointed to the position of sergeant effective January 10, 2016, and [2] Kirk Strand was appointed to the position of lieutenant effective January 3, 2016 and [3] that these Petitioners contend that City's Police Citizens Advisory Board's [PCAB] vote to rescind the Strand and Farrell appointments was invalid.

On February 9, 2016, Noble appointed three other officers, Richard Negron, Andrew Zell and Brian Lowe, as sergeants. Assuming that there were only three vacancies of Sergeant on February 9 and appointments to these vacancies were made prior to the effective date of Farrell's appointment, it could be argued that Farrell's appointment effective January 10 was rescinded by Noble's actions appointing  Negron, Zell and Lowe sergeants effective February 9.

In Remus v Tonawanda City School Dist., 277 A.D.2d 905, affirmed, 96 N.Y.2d 271, the court held that a Board of Education resolution that grants tenure to a teacher effective on a specified future date does not entitled the teacher to the benefits of tenure until the effective date specified in the resolution. See, also, Shaffer v Schenectady City School Dist., 96 N.Y.2d 271, to the same effect.

Strand's appointment to the position of lieutenant effective January 3, 2016, however,  raises a different issue.

If, as he contends, the City's Police Citizens Advisory Board's  [PCAB] vote to rescind his appointment was invalid, and Strand was otherwise eligible for permanent appointment to the position of lieutenant from the appropriate eligible list for Lieutenant, his appointment to the vacancy matured on January 3 as it appears that no valid substitute appointment to the position was made prior to January 3 by the appointing authority, nor was the appointment cancelled or withdrawn by the new mayor, Steve Noble.

Assuming, but not deciding, that such is the case, Strand was permanently appointed to the position of lieutenant subject to his satisfactory completion of any required probationary period effective January 3. If, on the other hand, Strand's appointment was initially made as a contingent permanent appointment, as a provisional appointment or as a temporary appointment by the former mayor, Shayne Gallo, Strand's appointment and  continuation in the lieutenant position would be controlled by the relevant provision or provisions of the Civil Service Law.

* Strand and two other officers, Brian Robertson and Anthony Burkert, were the only three officers on a certification of eligibles for appointment to the lieutenant position. However, although the appears to be a mandatory eligible list for appointment to the vacant lieutenant position, the appointing authority is not mandated to fill such a vacancy but only required to make an appointment to the vacancy from the eligible list if the position is to be filled absent other lawful appointment opportunities  for the appointing authority to appoint an eligible individual to the vacancy.

** Petitioners also alleged that they had been subjected unlawful discrimination within the meaning of Labor Law §201-d "for politically supporting Gallo."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09214.htm

Withdrawing a resignation delivered to an appointing authority

Withdrawing a resignation delivered to an appointing authority

Buffolino v New York City Dept. of Educ., 2017 NY Slip Op 09231, Appellate Division, First Department

The New York City Department of Education [DOE] accepted* a letter of resignation submitted by Christine Buffolino dated December 2, 2015 and allegedly to take effect December 14, 2015. Buffolino subsequently denied having sent the letter of resignation to the Superintendent of the school [sic] and on December 17 and 18, 2015, sought to withdraw and, or, rescind the letter.

DOE terminated Buffolino from her teaching position effective December 14, 2015 and she initiated a "hybrid proceeding" pursuant to CPLR Article 78 and 42 USC §1983 in Supreme Court seeking a court order annulling DOE action. Supreme Court dismissed the Article 78 petition and Buffolino appealed.  

The Appellate Division modified Supreme Court's ruling "on the law" with respect to the Article 78 action but vacated Supreme Court's dismissal of Buffolino's 42 USC §1983 claim and converted the proceeding into a "plenary action."

With respect to the §1983 claim, the court held that "[i]n the absence of a motion to dismiss the 42 USC §1983 claim, conversion of this proceeding to a plenary action is warranted."

Turning to the Article 78 action, the Appellate Division, citing Matter of Gil v Department of Educ. of the City of N.Y., 146 AD3d 688, explained that the Article 78 petition was properly dismissed by Supreme Court as premature, as it was brought prior to the conclusion of the grievance procedure set forth in the collective bargaining agreement entered into between Buffolino's union and her employer

* Some comments and observations concerning an individual's effort to withdraw a resignation:

Except as otherwise provided by law, rule or regulation, or by the terms of a collective bargaining agreement, a resignation need only be delivered to the appointing authority, or the appointing authority's designee, prior to receipt of a notice that the individual has rescinded or withdrawn it to be effective. Acceptance of the resignation is not required for it to be operative [Hazelton v Connelly, 25 NYS2d 74]. 

Courts, however, typically rule that the receipt of a withdrawal of a resignation by the appointing authority [or designee] before the resignation itself is delivered effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

An example of a situation where acceptance of a resignation is mandated by statute: §2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

In contrast to an individual's efforts to withdraw his or her resignation, an appointing authority may elect to ignore a lawfully delivered resignation. 

For example, 4 NYCRR 5.3(b), which applies to employees of the State in the classified service as the employer,  provides that in the event “… charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation" [emphasis supplied]. Many political subdivisions of the State have adopted a similar provision.

Presumably an appointing authority could elect to disregard an employee's “retirement” from his or her position under similar circumstances [See Mari v Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61].

Another possible situation that may triggered in a "resignation situation" concerns §1133.1 of the State Education Law. §1133.1 provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09231.htm

Independent contractor not an “employee” within the meaning of Title VII

Independent contractor not an “employee” within the meaning of Title VII

Isom v Valey Forge Insurance Co., USCA, 5th Circuit, No. 17-60014

Source: Selected reports posted by WK Workday

The full summary of this decision by Lorene D. Park, J.D. is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/title-vii-plaintiff-not-employee-under-liability-policy-so-4m-settlement-not-covered/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

A “contract employee” physician who worked as an anesthesiologist claimed a surgeon and the medical practice of which he was CEO refused to work with the physician because he is black. The EEOC’s investigation of his charge ended after the agency concluded he was an independent contractor. He filed a Title VII race discrimination suit and the defendants filed claims with their insurers under policies providing employment practices liability (EPL) coverage and Businessowners liability coverage. The insurers refused to defend or indemnify, arguing the claims were not covered by the policies. The parties settled the discrimination suit for $4 million, but instead of paying damages, the surgeon and his practice assigned the physician their right to sue the liability insurers for indemnity.

The physician filed suit alleging a breach of contract claim against the insurers for breaching their duty to defend and indemnify under the policies and a claim for breach of implied covenant of good faith and fair dealing. The insurers moved for summary judgment, arguing that the claims in the underlying suit were not covered by any policy which they issued and, because there was no breach, there could not have been a breach of implied covenant of good faith and fair dealing. The district court granted the insurer's motion for summary judgment and the Circuit Court of Appeals affirmed.

The 5th Circuit's decision is posted on the Internet at

http://hr.cch.com/eld/IsomValley122917.pdf