Department not liable for injury to police officer using gym equipment during his or her lunch hour that it had not provided

Department not liable for injury to police officer using gym equipment during his or her lunch hour that it had not provided

2014 NY Slip Op 50158(U), Supreme Court, Queens County [Not selected for publication in the Official Reports]

In an action to recover damages for personal injuries allegedly sustained by a police officer [Plaintiff] when he fell due to an allegedly insufficient amount of space between the exercise equipment in the gym of a New City Police Department precinct [NYPD], State Supreme Court Judge Phyllis Orlikoff Flug noted that New York General Municipal Law (GML) §205-e provides a police officer with the right to recover for injuries sustained "while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police department."

Judge Flug concluded that GML §205-e was not relevant in this instance and granted the City’s motion to dismiss Plaintiff’s claim.

The court noted that in his deposition Plaintiff said that the accident occurred while he was using the gym in the precinct during his lunch break and that he was not under any duty to use the gym. Thus, explained the court, “Plaintiff fails to raise a triable issue of fact in opposition [to the City’s motion and] the mere fact that he was wearing his uniform and [was] ‘on call’ at the time of the accident does not demonstrate that he was injured while in the discharge or performance of a duty imposed on him.”

The court also ruled in favor of the City with respect to Plaintiff's common law negligence cause of action.

Here, said Judge Flug, a defendant seeking summary judgment in a slip-and-fall case has the initial burden of making a prima facieshowing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

The City had established that it did not create the allegedly defective condition by submitting the deposition testimony of a police officer employed in the building maintenance section of the NYPD who stated that, in his experience, “the precinct gyms are set up by individual officers on a voluntary basis, not the NYPD or the City.”

As Plaintiff failed to raise a triable issue of fact in opposition, the court ruled that as the police officers were acting on a voluntary basis in setting up the gym, the City cannot be held liable for their actions in allegedly creating the defective condition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_50158.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 1, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 1, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli Tuesday, February 25, 2014  announced his office completed audits of:

the Town of Clarence;

the Town of Clarkson;

the Village of Monticello;

the Orleans County;

the Village of Oxford;

the Town of Reading;

the Richmond Fire District;

the Rotterdam Princetown No. 5 Fire District;

the Town of Scio;

the Town of Sheridan; and

the Snyder Fire District.

DiNapoli: Governor Cuomo’s Proposed Budget Continues Fiscal Progress

The Executive Budget continues efforts to control costs while tackling tough issues, according to a reportreleased Monday, February 24, 2014, by State Comptroller Thomas P. DiNapoli. The report also points out that details are lacking on spending changes required for balance in the coming years.

DiNapoli and Schneiderman Announce Arrest in $87K Contractor Theft

State Comptroller Thomas P. DiNapoli and Attorney General Eric Schneiderman Friday, February 28, 2014 announced the arrestof Department of Health contractor George Dunkel for stealing more than $87,000 by padding bills to pay for hotels, education credits and other expenses.

DiNapoli Audit Finds Problems with Arts Education in NYC Schools

New York City public high school students are not getting the arts education required by state regulations, according to an auditreleased Friday, February 28, 2014 by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Local Sales Tax Collections up $739 Million in 2013

Local sales tax collections of $14.9 billion grew by $739 million in 2013, an increase of 5.2 percent from 2012, according to a reportissued Thursday, February 27, 2014 by State Comptroller Thomas P. DiNapoli. The increase outpaced annual growth rates of 3.3 percent in 2012 and 5 percent in 2011, as well as the 15–year annual average growth of 4.5 percent.

DiNapoli: After–School Provider Misused $194,320 in Public Funds

The SCO Family of Services, a provider of extended school day programs for the State Education Department, submitted $194,320 in reimbursement claims for expenses that were unnecessary, not allowable or unrelated to its programs, according to an auditreleased Wednesday, February 26, 2014 by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Announces State Contract & Payment Actions for January 2014

State Comptroller Thomas P. DiNapoli announced Tuesday, February 25, 2014 his office reviewed 2,126 contracts valued at $13.9 billion and approved more than 1.5 million payments worth more than $10 billion in January 2014. His office also rejected 191 contract transactions valued at $348.7 million and 1,735 payments valued at nearly $1.1 million due to fraud, waste or other improprieties.
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2014 editions of electronic books [e-books] focusing on New York State and Municipal Public Personnel Law published

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 600+ page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1100+ page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

Delay in terminating an employee

Delay in terminating an employee
2014 NY Slip Op 00265, Appellate Division, Third Department

In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez, a probationary employee, on the payroll after the maximum period of his probation until the end of payroll period for administrative convenience did not result in his attaining tenure in the position.

The Court decided that, under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that it was of a short duration; was for "administrative convenience;" and Mendez had been provided with timely prior notice of that he would be terminated at the end of his probationary period.

In Cappello the Appellate Division applied a similar rationale in overturning a decision by the Unemployment Insurance Appeals Board granting an individual [Claimant] unemployment insurance benefits.

According to the decision, the employer dismissed Claimant after determining that she had violated the employer's policy and committed theft. Claimant was initially disqualified from receiving unemployment insurance benefits on the ground that she lost her employment through misconduct, and this decision was upheld by an Administrative Law Judge following a hearing.

The Unemployment Insurance Appeal Board, however, reversed this decision and found that claimant was entitled to receive benefits. The Board ruled that Claimant did not lose her employment due to misconduct because the employer delayed in terminating her after learning of her actions and did not provide a reasonable excuse for the delay.

The employer appealed and the Appellate Division vacated the Board’s ruling.

The Court explained that the Board’s conclusion was not supported by the record as upon the employer becoming aware of Claimant's inappropriate conduct it immediately proceeded to conduct an investigation, obtaining a statement from one employee and subsequently obtained a statement from Claimant about a month later  “as part of its continuing investigation.” Less than two weeks after obtaining Claimant’s statement the employer terminated for violating the employer’s policy.

The Appellate Division said that “[u]nder the circumstances presented” it did not find that the employer had engaged in an inordinate delay in terminating Claimant such that it could not rely upon her misconduct as the reason for her discharge.

Noting that it is well settled that an employee's dishonesty or failure to comply with an employer's policy and procedures constitutes disqualifying misconduct, here, said the Appellate Division, the evidence is undisputed that Claimant violated the employer's relevant policy. Accordingly, explained the court, “[g]iven [Claimant’s] misconduct, substantial evidence does not support the Board's decision that she was entitled to receive benefits” and reversed the Board’s decision.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2014/2014_00265.htm

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The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation

The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation

2013 NY Slip Op 52290(U), Court of Claims [Not selected for publication in the Official Reports]

An individual [Petitioner] who worked at a state correctional facility filed a claim “sounding in defamation per se” alleging that an article appeared in the print and the on-line versions of a newspaper included statements attributed to a State official that disparaged Petitioner.

Eventually it was determined that alleged defamatory statements were made by a state employee and had been “acquired by a non-State actor,” which person gave it to one of the newspaper’s reporters.

According to the decision, an Assistant Attorney General involved in the instant matter provided a copy of the employee’s memorandum to an attorney, apparently the alleged “non-State actor,” involved in a related matter then pending in federal court.

The Court of Claims “assumed without deciding” that Petitioner’s proposed amended claim satisfied the threshold jurisdictional requirements of being timely filing and served within the relevant statute of limitations and that it satisfies the substantive pleading requirements of Court of Claims Act §11(b).

The court then denied Petitioner’s motion to amend his claim explaining that the alleged tortious conduct — the Assistant Attorney General’s “publication (or republication) of the [State employee’s] memorandum to [the attorney in the federal action] is not actionable because it was absolutely privileged,”* as “Statements made in the course of judicial proceedings are absolutely privileged … and absolute privilege will attach if the allegedly defamatory statements were ‘pertinent’ to the questions involved in the judicial proceeding.”

Further, explained the court, "Whether a statement is at all pertinent . . . is determined by an extremely liberal test" and  "To be actionable, a statement . . . must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame."

As the Court of Appeals held in Youmans v Smith, 153 NY 214, “The purpose of the absolute privilege afforded to communications made in the course of judicial proceedings is well established and clearly stated: the due process of ‘clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander.’"

Accordingly, said the court, the Assistant Attorney General’s actions in turning over the allegedly defamatory memorandum in the context of ongoing litigation are entitled to the absolute privileged, provided that the alleged defamatory statements were pertinent to the litigation, which, in this instance, the court found were so pertinent.

* The Court of Claims noted that "Absolute privilege has been recognized in a very few situations where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives.” However, in Amato v. Welsh, 2013 ONCA 258, a decision handed down by Canada’s Court of Appeals for Ontario, suggests an exception to the doctrine. The Amato decision suggests that it may be possible for a court to find that the doctrine of absolute immunity yields to the attorney’s duty of loyalty to a client [see paragraphs 61 et seq. set out in the decision].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_52290.htm

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Governor Andrew M. Cuomo announces new appointments within his administration

Governor Andrew M. Cuomo announces new appointments within his administration.
Source: Office of the Governor

Governor Cuomo on Tuesday, February 25, 2014, announced the appointments of Margaret Egan and Linda Cohen to his administration.

Margaret Egan will serve as Assistant Secretary for Public Safety. Ms. Egan served as the Director of Policy & Government Affairs to Cook County Sheriff Tom Dart from 2012 to 2014. In that role Ms. Egan was responsible for developing and managing crime policy, social services and the legislative strategy for the nation’s largest single site jail and one of the largest police departments in Illinois. She developed and led the implementation of the Affordable Care Act for the Sheriff making the Cook County Jail the first jail in the nation to enroll detainees under Medicaid expansion, which has now become a model for jails across the country. Additionally she led efforts to improve correctional based education programming for school aged and adult detainees. She also developed projects around firearms tracing and trafficking throughout suburban Cook County.

Linda J. Cohen, Esq., will serve as Executive Director for the State Commission on National and Community Service. Prior to joining the Commission, Ms. Cohen served for a dozen years as Executive Director of the New York State Corps Collaboration, where she was responsible for one of the nation’s largest AmeriCorps programs. She also served as Executive Director of the New York State Dispute Resolution Association, as a contributing writer for Inside Sports Magazine and in various positions within all three branches of New York state government. She is a graduate of Union College, Albany Law School and the National Law Center at George Washington University.
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Defense for tenured administrators and faculty rated "ineffective" based on “Common Core”student performance proposed

Defense for tenured administrators and faculty rated "ineffective"  based on “Common Core”student performance proposed

Proposed Action: Amend 8 NYCRR 82-1.10(j) with respect to hearings on charges of tenured school employees [I.D. No.EDU-08-14-00020-P]

The following summarizes a proposed amendment to 8 NYCRR 82-1, Hearings of Charges Against Employees on Tenure

Purpose: To allow, under certain circumstances, tenured teachers and principals to raise as a defense in a section 3020-a hearing that their school district failed to timely implement the Common Core in the 2012-2013 and/or 2013-2014 school year.

Summary of the text of proposed rule: Subdivision (j) of section 82-1.10 of the Regulations of the Commissioner of Education is added, effective May 14, 2014, as follows:

(j) Where an expedited hearing brought based solely upon a charge of a pattern of ineffective teaching or performance of a classroom teacher or principal, or a hearing brought on a charge of incompetency, is based on an ineffective rating on the state growth and/or locally selected measures subcomponents of the teacher’s or principal’s annual professional performance review resulting from student performance on the Common Core state assessments administered in the 2012-2013 and/or 2013-2014 school years, the employee may raise as a defense an alleged failure by the employer to timely implement the Common Core by providing adequate professional development, guidance on curriculum or other supports to the employee.

The notice of this proposed amendment in the State Register explains that "the proposed amendment would thus protect tenured teachers and principals from termination based on an ineffective Annual Professional Performance Review (APPR) rating resulting from student performance on the Common Core assessments where they can prove that the district did not provide the professional development, curriculum materials or other supports needed for Common Core implementation during the 2012-2013 and/or 2013-2014 school years.”

The text of proposed rule and any required statements and analyses may be obtained from: Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov

Data, views or arguments may be submitted to: Peg Rivers, State Education Department, Office of Higher Education, Room 979 EBA, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: regcomments@mail.nysed.gov

Public comment will be received until 45 days after publication [February 26, 2014] of this notice.
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Workers’ Compensation Law benefit claims based on "work-related" mental stress

Workers’ Compensation Law benefit claims based on "work-related" mental stress 
2014 NY Slip Op 00916, Appellate Division, Third Department

A police officer [Claimant] was on duty when he was called to the scene of an incident in which an armed suspect was firing shots at passing motorists and law enforcement officers.

Claimant and two fellow officers were assigned to be part of a "contact team," which approached the shooter from behind. The suspect was shot several times and died from those wounds. Claimant began to miss work and then filed an application for workers' compensation benefits. His claim was controverted by the police department.

Claimant was diagnosed with posttraumatic stress disorder related to the incident, which rendered him disabled. A Workers' Compensation Law Judge, however, denied his claim, finding that the events giving rise to Claimant's injury were part of his job description and responsibilities as a peace officer. The Law Judge ruled that Claimant had not sustained an accidental injury in the course of his employment.

The Workers' Compensation Board ultimately affirmed the Law Judge’s decision and Claimant appealed.

The Appellate Division upheld the Appeal Board’s decision, explaining that for a mental injury premised on work-related stress to be compensable, "the stress must be greater than that which usually occurs in the normal work environment."*

Whether the stress experienced by a claimant is more than that normally encountered is a factual question for the Board to resolve, and its finding will not be disturbed when supported by substantial evidence.

In this instance, said the court, although Claimant's supervisor described the particular circumstances of the encounter as "extraordinary," the regular course of duty for a police officer — no matter the size of the department — requires that he or she be on notice each day that deadly force may be required to subdue a suspect who is endangering public safety.

Accordingly, the Appellate Division said that it declined to disturb the Board's decision.

Other claims seeking Workers' Compensation Law benefits in which the individual claim he or she was entitled to benefits due to stress suffered on the job include:

1. Mattoon v Workers' Compensation Board, 284 A.D.2d 667 – employee not eligible for Workers’ Compensation benefits after leaving her job “due to work-related stress that resulted in depression, posttraumatic stress disorder and generalized anxiety disorder.” resulting from employee’s reassignment to anther position.

2. Witkowich v SUNY Alfred State Coll. of Ceramics, 80 AD3 1099 - Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law

3. Veeder v New York State Police Dept. - 86 AD3d 762 - Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

*Section 2(7) of the Workers’ Compensation Law specifically excludes from compensation "an injury which is solely mental and is based on work related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00916.htm
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A showing that a pending arbitration’s award may be rendered ineffectual and there is a likelihood of success is critical to obtaining a preliminary injunction

A showing that a pending arbitration’s award may be rendered ineffectual and there is a likelihood of success is critical to obtaining a preliminary injunction
Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York,2013 NY Slip Op 08033, Appellate Division, First Department

Three members [Petitioners] of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. At the request of the PBA, the Office of Labor Relations (OLR) issued Petitioners Release Time Certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75), which provided for full-time leave with pay and benefits.*

The three Petitioners, however, were subsequently suspended without pay for thirty days pursuant to Civil Service Law §75(3-a) following their indictment by a grand jury in connection with an alleged ticket-fixing scheme. Petitioners were subsequently restored to modified duty. OLR, however, rescinded their Release Time Certificates and offered to issue new Release Time Certificates to three other employees to be chosen by PBA.

PBA rejected the offer and filed a contract grievance. The grievance was denied and PBA filed a demanded for arbitration, contending that the rescission of the Certificates violated the parties' collective bargaining agreement and EO 75.  PBA also filed a petition for a preliminary injunction pursuant to CPLR 7502(c) seeking to have the Petitioner’s Certificates reinstated pending the arbitrator issuing his or her decision and award..

Supreme Court granted the petition, “enjoining respondents from implementing any termination or revocation of ‘Release Time’ leave for the three individual petitioners pending resolution of arbitration proceedings commenced by petitioner Patrolmen's Benevolent Association.”

The Appellate Division vacated the preliminary injunction on appeal in a three to two ruling.**

Noting that CPLR 7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending ... the majority explained such an application may be granted “only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief." Further, said the court, PBA, as the party seeking the preliminary injunction, was required to “demonstrate a probability of success on the merits, danger of irreparable injury in the absence of a preliminary injunction, and a balance of the equities in their favor.”

Applying these standards, and "even assuming that [Petitioner] established that an award in their favor would be rendered ineffectual without provisional relief" as required by CPLR 7502(c), the majority held that PBA “failed to make the requisite showing of a likelihood of success on the merits, and therefore have not established their entitlement to injunctive relief.”

The majority noted that each Release Time certificate stated that it “MAY BE REVOKED, MODIFIED OR CANCELLED” and Petitioners did not suggest any purpose for such language “other than to vest the City with residual authority to rescind a Release Time [Certificate] where warranted.”

Holding that Petitioners' interpretation of EO 75 was not plausible, the majority concluded that Petitioners “have not demonstrated a likelihood of success on the merits,” the Appellate Division granted the appeal.

* With respect to the State as the employer, employee organization leave has been an issue since the adoption of the Taylor Law. In response to demands that State employees elected to a leadership position of an employee organization representing state employees be provided with "paid organization leave," the State agreed to provide for “Employee Organization Leave” and enacted §46 of Chapter 283 of the Laws of 1972 to this end. This law provides that a State employee organization may obtain approval for paid full or part-time leaves of absence of its representatives provided it agrees to fully reimburse the State for the salary and other compensation paid to the individual and, in addition, for all employer contributions for fringe benefits made on behalf of the individual while he or she is on Employee Organization Leave. The individual would continue as a State employee, on the State’s payroll, during this time. Another consideration affecting State employees on Employee Organization Leave: The State Ethics Commission has advised [Advisory Opinion No. 90-1] that “State employees on Employee Organization Leave or State employees on leave without pay who serve as employee organization representatives for CSEA … who have terminated their State service and are now employed by CSEA are subject to the "revolving door" provisions of the Public Officers Law and the corresponding restrictions on post-employment activities.” Presumably this opinion would be applied with respect to State employees on employee organization leave serving with other employee organizations.”

** Judges Tom and Gische dissented in an opinion by Judge Gische.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08033.htm

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Department of Civil Service - Five Year Review of Certain Existing Rules and Regulations

Department of Civil Service - Five Year Review of Certain Existing Rules and Regulations

Source: NYS Register- February 19, 2014

The following notice was published in the February 19, 2014 issue of the State Reporter pursuant to §207 of the State Administrative Procedure Act (SAPA) addressing Rules and Regulations adopted by the New York State Civil Service Commission or by the President of the New York State Civil Service Commission for the calendar years 1999, 2004 and 2009.

Public Comments

There will be a forty-five (45) day public comment period following publication of this notice. Requests for information and public comments regarding the foregoing may be directed to: J . Marc Hannibal, Eaq., Special Counsel, Department of Civil Service, Empire State Plaza, Albany, NY 12239, (518) 473-2624, E-mail address: marc.hannibal@cs.state.ny.us

Below is a brief description of each rule, including the statutory authority for its promulgation; a statement of the justification for the ongoing need for each rule; and the Department of Civil Service’s recommendations for their continuation without modification.

1999

Amendments to Chapter II of Title 4 of NYCRR (Attendance Rules for Employees in New York State Departments and Institutions)

Statutory Authority: Civil Service Law Section 6

Description of the Regulations:

The resolutions added new sections and amended existing sections of the Attendance Rules for non-managerial/confidential (Part 21 of 4NYCRR) and managerial/confidential (Part 28 of 4 NYCRR) employees in New York State Departments and Institutions.

Sections 21.16 and 28-1.18 of the Attendance Rules were adopted to permit appointing authorities to grant overtime ineligible employees who have exhausted military leave with pay provided pursuant to the New York State Military Law, further leave with pay without charge to accruals for any period[s] of less than a workweek during which such employees are ordered to temporary military duty.

Section 21.9 and 28-1.9 of the Attendance Rules were amended to permit agencies to grant overtime ineligible employees leave with pay without charge to accruals for any absence[s] of less than a workweek during which such employees are required to appear as a witness pursuant to a subpoena or other order of court, regardless of whether an

employee is a party to the action.

These rules ensure that the Attendance Rules will be applied to employees serving in overtime ineligible positions consistent with relevant provisions of the federal Fair Labor Standards Act (FLSA).

Action: The rules have functioned consistent with the purposes underlying their adoption and the Department recommends continuation without modification.

Amendments to Chapter V of 4 NYCRR (Regulations of the Department of Civil Service [President’s Regulations])

Statutory Authority: Chapter 534 of the Laws of 1998, amending section 167(2) of the Civil Service Law.

Description of the Regulations:

Chapter 534 of the Laws of 1998 amended section 167(2) of the Civil Service Law to provide that unpaid board members of public authorities shall be eligible to participate in the New York State Employee Health Insurance Program (NYSHIP) after six months of

service.

The regulation added a new subparagraph (iv) to section 73.1(c)(1) and a new paragraph (5) to section 73.1(e) of the President’s Regulations providing that unpaid board members of public authorities may participate in NYSHIP after six months of service and may also

continue their NYSHIP enrollment upon leaving public service with20 years or more of service in such positions.

Action: The regulations have functioned consistent with the purposes underlying their adoption and the Department recommends continuation without modification.

Amendment to Chapter V of 4 NYCRR (Regulations of the Department of Civil Service [President’s Regulations])

Statutory Authority: Civil Service Law, Article XI

Description of the Regulation:

Section 73.3(b)(1) of the President’s Regulations was amended to enable participating agencies (PAs) and participating employers (PEs) in the New York State Health Insurance Program (NYSHIP) to contribute towards health insurance premiums on behalf of employees on leave without pay, provided such benefit is accorded to all employees within a class or category. The amendment provides that upon (60) days prior notice to the Department of Civil Service, PAs and PEs may provide such benefit to an eligible employee for a period of two years. This authorization may be extended for one additional two year period by the State Civil Service Commission for good cause shown and where the interests of government would be served. The amendment further provides that where contributions have been made on behalf of an employee on leave without pay for a two year period, or a four year period where authorized by the State Civil Service Commission, no further extensions may be granted unless the employee returns to his or her position and serves continuously therein for the six month period immediately preceding a subsequent leave of absence. This regulation extends an additional potential benefit to eligible employees and forms a part of the overall “benefit package” that employers may consider when electing to adopt NYSHIP as a health insurance offering.

Action: The regulation has functioned consistent with the purposes underlying its adoption and the Department recommends continuation without modification.

2004

Amendment to Chapter IV of 4 NYCRR (Regulations of the Regulations of the State Civil Service Commission [Commission’s Regulations])

Statutory Authority: Civil Service Law Section 6

Description of the Regulation:

The resolution amended Part 55.2 to provide that a committee on appeals of the State Civil Service Commission shall not consider an examination appeal from a candidate whose score at time of establishment of the eligible list is immediately reachable for appointment as provided in section 61 of the Civil Service Law. However, a committee on appeals will consider timely appeals where a candidate’s reachability for appointment is affected by the committee’s determination of another appeal.

This resolution eliminates the need to consider examination appeals from candidates who are already eligible for immediate appointment pursuant to the Civil Service Law “rule of three.” Based upon public comments received before adoption of the resolution, the rule provides for continued consideration of timely appeals if candidates’ reachability could be impacted by other pending examination appeals.

Action: The regulation has functioned consistent with the purposes underlying its adoption and the Department recommends continuation without modification.

2009

No current amendments to 4 NYCRR were adopted during 2009.

Various amendments to the Appendices to the Rules for the Classified Service (1999 and 2004)

Appendix 1 (Exempt Class)

Appendix 2 (Non-Competitive Class)

Statutory Authority:

Appendix 1: Civil Service Law, Sections 6 and 41; 4 NYCRR 2.1

Appendix 2: Civil Service Law, Sections 6 and 42; 4 NYCRR 2.2

Description of the regulations:

Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from review under Executive Order 20 by the former Governor’s Office for Regulatory Reform (GORR), upon a finding by GORR that review of such rules lacked substantial benefit.

Based upon this determination, and pursuant to SAPA section 207(5), a recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted during calendar years 1999, 2004 and 2009 is hereby omitted.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 22, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 22, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli announced Tuesday, February 18, 2014, the following audits have been issued:

the Tuition Assistance Program;

the Metropolitan Transportation Authority;

the Office of Children and Family Services;

the New York City Department of Education; and

the New York State Health Insurance Program.


DiNapoli: DOT Improperly Paid Employees Working on Tappan Zee Bridge $320,000 for Commuting Expenses

The state Department of Transportation improperly paid nearly $321,000 to eight employees working on the Tappan Zee Bridge project for their commute to work in Tarrytown, even after an internal audit identified it as inappropriate, according to an auditreleased Tuesday, February 18, 2014, by State Comptroller Thomas P. DiNapoli.

DiNapoli: Investment in Rochester Company Returns $6.7 Million to State Pension Fund

5LINX, a telecommunications company located in Rochester, has generated an estimated $6.7 million return, nearly four times the initial investment, and achieved an approximated 21 percent internal rate of return for the New York State Common Retirement Fund (Fund), New York State Comptroller Thomas P. DiNapoli announced Thursday, February 20, 2014. The Fund invested in 5LINX through its In–State Private Equity Program, which seeks profitable investments in New York State–based companies.

DiNapoli: Audit Finds Misuse of Funds in Town of Fishkill

The former recreation director in the town of Fishkill allegedly misused as much as $50,000 generated by the town’s senior center, according to an audit released Friday, February 21, 2014, by State Comptroller Thomas P. DiNapoli. The findings of the Comptroller’s audit and investigation have been referred to Dutchess County District Attorney William V. Grady.

DiNapoli Releases January State Cash Report

State tax collections through the first 10 months of the state’s fiscal year increased 4.2 percent from last year, but were below projections largely due to the timing of Personal Income Tax (PIT) payments, according to the January 2014 cash report released Friday, February 21, 2014, by New York State Comptroller Thomas P. DiNapoli. The Division of the Budget is expected to issue a revised Financial Plan with updated revenue projections next week.
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Hearsay evidence alone may constitute substantial evidence in an administrative hearing

Hearsay evidence alone may constitute substantial evidence in an administrative hearing

2013 NY Slip Op 08169, Appellate Division, Third Department

The arbitrator dismissed disciplinary charges filed against the employee. While the arbitration was pending, the employee’s supervision lodged a complaint against employee alleging violations of certain canons of ethics relevant to the employee maintaining required credentials.

Following a hearing, Hearing Officer recommended that employee’s credentials be revoked, which recommendation the responsible Commissioner accepted and revoked the employee’s credentials. This resulted in the employee’s termination because he now lacked the required certification to be employed in the position. The employee filed an Article 78 petition challenging the Commission’s action.

The Appellate Division annulled the Commissioner’s decision, explaining that there was “serious doubt” concerning the credibility of the employee's accusers and, for that reason, the court did not find that the hearsay evidence presented at the hearing to be sufficiently reliable to support the Commissioner’s determination revoking the employee’s credentials.

Characterizing the primary issue in the appeal as the employee’s complaint that the Commission’s action was not supported by substantial evidence in the record as a whole and “specifically, that the hearsay evidence adduced at the hearing was insufficient to establish the alleged ethical violations,” the Appellate Division explored the terms “substantial evidence” and “hearsay evidence.”

Substantial evidence, said the court, has long been defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact”, citing Matter of Berenhaus v Ward, 70 NY2d 436, and other decisions.

The Appellate Division then noted that an administrative determination may be based entirely upon hearsay evidence “provided such evidence is ‘sufficiently relevant and probative’ or ‘sufficiently reliable’ and is not otherwise ‘seriously controverted.’"

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08169.htm
.