Notices required to be given to probationary employees

Notices required to be given to probationary employees

A NYPPL reader asks: “Is there a requirement (law or rule) that requires a specific action on part of the Appointing Authority to notify a recently promoted employee he/she completed or failed to complete a probationary period?”

NYPPL’s response: Yes and no, depending on the circumstances.

As to the notice that the appointing authority is required to give to a probationary employee, Subdivision 2 of §63 of the Civil Service Law, Probation, provides as follows: “The state civil service commission and municipal civil service commissions shall, subject to the provisions of this section, provide by rule for the conditions and extent of probationary service.” These rules typically set out the “notice requirements” to be provided to probationary employees by the appointing authority.

With respect to employees of the State as the employer and employees of public entities for which the New York State Department of Civil Service administers the Civil Service Law, 4 NYCRR 5.3(b)(5)(i) provides: “(5)(i) An appointment, promotion or transfer shall become permanent upon the retention of the probationer after his or her completion of the maximum period of service or upon earlier written notice following completion of the minimum period that his or her probationary term is successfully completed or, in the case of a transferee, upon written notice that the appointing authority has elected to waive the serving of the probationary term.”

Clearly written notice that the probationary employee has attained tenure in the position is required only in the event the appointing authority elects to grant the probationer tenure after he or she has completed the minimum period of probation and prior to his or her completion of the maximum period of probation for the position or the appointing authority elects to waive the probationary period for a “transferee.

Requiring such a writing to validate an appointing authority's exercising its discretion to waive or truncate an employee's probationary period avoids the situation considered by the court in Snyder v Civil Service Commission, 72 NY2d 981, a case involving a temporary appointee's claim to contingent permanent appointment status pursuant to Civil Service Law Section 64.4. The court ruled that an individual must specifically appointed as a contingent permanent employee by the appointing authority, which status is granted solely at the discretion of the appointing authority. A writing would clearly demonstrate such an action on the part of the appointing authority.


In any event, it is good personnel practice to notify the probationary employee that he or she has successfully completed his or her probationary period even if not so required by rule or regulation.

With respect to employees of the State as the employer and employees of public entities for which the New York State Department of Civil Service administers the Civil Service Law, 4 NYCRR 5.3(b)(5)(iii) in relevant part provides: (iii) “A probationer whose services are to be terminated for unsatisfactory service shall receive written notice at least one week prior to such termination and, upon request, shall be granted an interview with the appointing authority or his representative” [emphasis supplied]. Municipal Civil Service Commissions and Personnel Officers have adopted similar rules or regulations.*

In the event a probationary employee is continued in the position beyond the maximum period of his or her probation and is not given timely notice that he or she has not satisfactorily completed the required probationary period, or that his or her probationary period has been extended as permitted by rule or regulation, he or she is deemed attained tenure by estoppel,** also referred to as “tenure by acquisition.” In the event the appointing authority wishes to terminate the services or otherwise discipline an employee who has attained tenure by estoppel or acquisition, the employee is entitled to administrative due process, including notice and hearing, as provided by §75 of the Civil Service Law or the disciplinary procedure set out in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, the “Taylor Law.”

What constitutes “timely notice” that the individual has failed to satisfactorily complete his or her probationary employee? The required notice of the termination is to be delivered to the employee before close of business on the last day permitted by the controlling rule or regulation even if the employee's actual removal from the payroll may be effective after this date. In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that as long as the termination of a probationer in the classified service is effected within a reasonable time after the last day of his or her probationary period, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel or acquisition because of his or her continuation on the payroll beyond the last day of his or her probationary period.

On occasion the date of appointment to the position becomes a critical issue. Such was the case in Mallon v Parness, 167 A.D.2d 614. “Mallon contended that he had been promoted to Sergeant, subject to a twenty-six week probationary period, effective July 18, 1988. He claimed that he thus completed his probationary period on January 18, 1989. He offered an affidavit from the former Mayor of Suffern supporting his claim of appointment effective July 18. The employer, on the other hand, submitted documentary evidence showing that Mallon had been promoted to the Sergeant position effective October 26, 1988 in support of its claim that he had not yet completed his probationary period when he was terminated from the Sergeant position. To further complicate the matter, the records of the Rockland County Personnel Office indicated that Mallon was appointed Sergeant effective June 1, 1988.***The Appellate Division remanded the matter to Supreme Court for its determination as to which was the “official” effective date of Mallon’s promotion to Sergeant.

* In Vetter v Board of Educ., Ravena-Coeymans-Selkirk Cent. School Dist., 14 NY3d 729, the Court of Appeals observed that Education Law §3019-a requires school authorities to give probationary teachers written notice of termination at least 30 days before the effective date of termination.

** See, for example, Wamsley v East Ramapo Central School District, 281 A.D.2d 633.

*** In the event there is a conflict as to the effective date of appointment to a position in the Classified Service, typically the date of such appointment recorded in the records of the Civil Service Commission, Department or Personnel Officer having jurisdiction would control.

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Motion to dismiss a cause of action based on a defense of collateral estoppel and res judicata rejected

Motion to dismiss a cause of action based on a defense of collateral estoppel and res judicata rejected

2014 NY Slip Op 02999, Appellate Division, Third Department

A former teacher [Teacher] challenged a decision by the Board of Education [Board] reinstating another former teacher whose name was on the preferred list ahead of Teacher to fill a vacant teaching position.

Teacher complained that the Board had improperly calculated her seniority to her detriment with respect the placement of her name on the preferred list. The Board, however, moved to dismiss the proceeding on grounds, among other reasons, collateral estoppel and res judicata, contending that the dismissal of a prior proceeding challenging the earlier reinstatement of a different former teacher rather than Teacher to fill another vacant position barred the instant proceeding.

The earlier proceeding had been dismissed based on, among other things, Teacher's failure to commence the proceeding within four months of the determination to recall the other teacher. Supreme Court granted the Board's motion to dismiss Teacher’s instant action on collateral estoppel grounds and Teacher appealed.

The Appellate Division reversed the lower court’s ruling, explaining that in order for collateral estoppel to apply, there must be an identity of a decisive issue between the present and prior proceedings which was necessarily decided in the prior proceeding, and the party who will be estopped must have been afforded a full and fair opportunity to litigate the issue in the prior proceeding.

Here, however, although Teacher raised an issue identical to the one she had raised in her earlier action, -- was she is entitled to more seniority credit than the Board gave her -- that issue has never been decided on the merits as it had been dismissed on procedural ground, having been untimely filed.

Citing Town of Oyster Bay v Commander Oil Corp., 96 NY2d 566, the Appellate Division ruled that [b]ecause the issue of whether [Teacher] is entitled to more seniority has not been decided, it is not barred by collateral estoppel and remanded the matter to Supreme Court for further proceedings “not inconsistent with" its ruling.

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Injury suffered on the way to work not typically viewed as “arising out of and in the course of employment”

Injury suffered on the way to work not typically viewed as “arising out of and in the course of employment”

Trotman v New York State Cts., 2014 NY Slip Op 03002, Appellate Division, Third Department

A senior court officer [Officer] was injured shortly before the beginning of his work shift when he slipped and fell on ice. The incident occurred on a public sidewalk that he was traversing to reach the government center after parking his car on the street.

Although the Workers' Compensation Law Judge established the claim, the Workers' Compensation Board denied his ensuing application for workers' compensation benefits, finding that his injury did not arise out of and in the course of his employment. Claimant now appeals.

The Appellate Division affirmed the Board’s determination explaining that "Accidents that occur on a public street away from the place of employment and outside working hours generally are not considered to arise out of and in the course of employment." As Officer’s accident occurred near his place of employment, his claim falls within "a gray area where the risks of street travel merge with the risks attendant with employment and where the mere fact that the accident took place on a public road or sidewalk may not ipso facto negate the right to compensation." 

In contrast, said the court, in order for such an injury come within the ambit of eligibility for workers' compensation benefits, the injury must result from "(1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned."

Further, said the court, the fact that Officer was directed to travel to another court facility after he arrived at work on the day in question “does not compel a different result.”
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California Superior Court Judge holds that California's teacher tenure laws are unconstitutional,

California Superior Court Judge holds that California's teacher tenure laws are unconstitutional

Source: Findlaw – Breaking Legal Documents [By Adam Ramirez, June 10, 2014]

“California's laws on teacher tenure, layoffs and dismissals deprive students of their constitutional right to an education, a Los Angeles Superior Court judge ruled Tuesday, June 10, 2014.*

“The ruling is a serious defeat for teachers' unions that overturns several California laws that govern the way teachers are hired and fired. 

“The 16-page decision (see Internet link below) may set off a slew of legal fights in California and other states, where many education reform advocates are eager to change similar laws.

‘There is ... no dispute that there are a significant number of grossly ineffective teachers currently active in California classrooms,’ Judge Rolf M. Treu wrote. ‘Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students. The evidence is compelling. Indeed, it shocks the conscience’

“Enforcement of the much awaited ruling in Vergara v. California will be delayed pending an appeal by the lawsuit's defendants, the state and California's two major teachers unions.”

Court in New York State have addressed efforts by a number of school districts to “eliminate tenure.”

In Conetta v Patchogue-Medford Union Free School District, 165 Misc2d 329, a New York State Supreme Court Judge ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period because it believed that "that tenure at the elementary and secondary school level [in contrast to tenure granted to college and university faculty] was essentially guaranteed job security ... coupled with automatic salary increases."

Similarly, in Costello v East Islip UFSD Supreme Court** ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period. 

Apparently mindful of the Conetta ruling, East Islip decided to take a different tack in an effort to avoid having to give newly hired teachers tenure upon their satisfactory completion of probation by adopting a resolution providing that all new teachers hired by the School District were to be employed under individual contracts providing for specified terms of employment.

To emphasis the point, the contracts included provisions intended to constitute "waivers" of the probation and disciplinary rights provided to teachers in the Education Law. The court noted that the characterization of the waiver as "voluntary" is questionable since there was no indication that any teacher refusing to agree to such a waiver would be hired.

The Appellate Division affirmed, holding although East Islip was correct that a teacher's rights with respect to tenure are waivable when the waiver is "freely, knowingly, and openly arrived at without the taint of coercion or duress," this does not, however, give the Board the authority to eliminate the tenure system altogether. 

Citing Carter v Kalamejski, 255 App Div 694, aff'd 280 N.Y. 803, the Appellate Division explained that “the tenure system is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom and to protect competent teachers from the threat of arbitrary dismissal.” In contrast, the court observed that providing tenure by contract terminating automatically at the expiration of the contract period as proposed by East Islip was “the very system sought to be eliminated by the enactment of the tenure statutes of the Education Law and the change to a system of permanence.”***

In Conetta, State Supreme Court Judge Lockman suggested that if a school district wishes to stop granting tenure, it could make such a demand in the course of collective negotiations authorized by Article 14 of the Civil Service Law, the Taylor Law.

* The decision is posted on the Internet at:

http://www.scribd.com/doc/229011497/Teacher-Tenure-Laws-Are-Unconstitutional-Shock-the-Conscience-CA-Judge-Rules

** Costello v East Islip UFSD, Supreme Court [not selected for publications in the official reports] Affirmed 250 A.D.2d 846. See, also, Lambert v Board of Educ. of Middle Country Cent. School Dist., 174 Misc.2d 487,

*** In Yastion v Mills, 229 A.D.2d 775, the Appellate Division decided that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

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Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment

Giving of false statements in the course of an official investigation constitute grounds for dismissal from municipal employment

2014 NY Slip Op 03944, Appellate Division, First Department

A New York City police officer [Plaintiff] was terminated from his position based on a finding that he had made false statements regarding his whereabouts to an investigating officer during a department "GO-15"* interview concerning his alleged unauthorized absence from his home while on sick report. Plaintiff admitted that he knew he was required to remain at his residence while on sick report and that he gave a false account of the reason for his absence at the GO-15 interview.

Plaintiff challenged his termination alleging that the penalty of dismissal was excessive and an abuse of discretion. The Article 78 petition filed by his then attorney was dismissed because the attorney had filed to file a timely appeal. Plaintiff then initiated an action against the attorney to “recover damages for legal malpractice” but Supreme Court dismissed Officer’s petition alleging legal malpractice.

The Appellate Division affirmed the lower court’s ruling, explaining that in an action for legal exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty caused his or her plaintiff-client to sustain "actual and ascertainable damages." Further, said the court, to establish causation, the plaintiff-client must show that he or she “would have prevailed in the underlying action or would not have incurred any damages ‘but for’ the lawyer's negligence."

Supreme Court had granted the respondent attorney’s motion for summary judgment after finding this critical "but for" element was missing as Officer would not have prevailed in the underlying Article 78 proceeding challenging his dismissal from his position. The Appellate Division concurred with the Supreme Court’s ruling noting that “The giving of false statements in the course of an official investigation has been upheld as a ground for dismissal from municipal employment," citing Duncan v Kelly, 43 AD3d 297, affirmed 9 NY3d 1024.

As the United States Supreme Court held in Bryson v. United States, 396 U.S. 64 (1969), "Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."

* A GO-15 interview is one conducted "in connection with allegations of serious misconduct or corruption." 
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Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual

Acting on information provided by the employer later proved to be incorrect does not create a right that was not otherwise available to the individual
2014 NY Slip Op 04051, Appellate Division, First Department

A former Court of Claims Judge and acting Supreme Court Justice, relying on the erroneous advice of employees of the Office of Court Administration (OCA) that he was vested in his New York State Health Insurance Program (NYSHIP) resigned from his position. He subsequently learned that he was not eligible to vest his NYSHIP benefits and thus was not eligible for NYSHIP benefits under the law.

Asserting that he would not have resigned from his position when he did if not for this advice, he filed a petition in the Court of Claims seeking a court order reinstating him as a NYSHIP participant or, in the alternative, an order awarding him money damages. The Court of Claims granted OCA’s motion to dismiss the action.

The Appellate Division, affirming the Court of Claim’s ruling, held that notwithstanding the incorrect information provided by the OCA employees, which was ministerial in nature, and which might subject the governmental body to liability, no claim of a “special duty was advanced by the former judge in contrast to his being treated same as any other employee seeking advice or information from OCA.

Accordingly, said the court, OCA may not be estopped from applying the law to the former judge notwithstanding the incorrect information given to him by an OCA employee and upon which he acted to his detriment.

Citing Matter of Grella, 38 AD3d 113, the Appellate Division explained that estoppel may not be invoked to prevent a governmental agency from performing its duty is not applicable here.*In Grella, a case involving eligibility for certain retirement benefits, the court held that even when erroneous advice was given by a Retirement System employee, the Comptroller has the exclusive authority to determine entitlement to retirement benefits and the duty to correct errors and cannot be estopped from exercising such duties in order "to create rights to retirement benefits to which there is no entitlement."

* The decision notes that the “the narrow exception to the rule” barring the application of estoppel to a governmental agency was not applicable in this case. [See, also, 2014 NY Slip Op 03907, Appellate Division, Third Department, summarized at http://publicpersonnellaw.blogspot.com/2014/06/the-consequences-of-withdrawing-from.html]
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Imposing the penalty of dismissal held reasonable under the circumstances

Imposing the penalty of dismissal held reasonable under the circumstances

2014 NY Slip Op 03064, Appellate Division, Fourth Department

A former New York State Trooper [Former], commenced a CPLR Article 78 proceeding seeking to annul the Superintendent's determination finding him guilty of misconduct or, in the alternative, to vacate the penalty of dismissal. Former contended that the determination is not supported by substantial evidence and that the penalty is shocking to one's sense of fairness.

The charges against Former alleged that he knew of certain illegal activities and did not take proper police action to stop them; that he knowingly frequented an establishment where violations of the law existed; that he provided false information during the internal investigation; and that, by his conduct, he brought discredit to the Division of State Police.

The Hearing Board found Former guilty of all of the charges filed against him but one. The Superintendent accepted the findings and recommendations of the Hearing Board and dismissed Former from the Division of State Police.

The standard of review for the Appellate Divisions and the Court of Appeals in such cases is whether there was substantial evidence to support the Hearing Officer's decision" Rejecting Former’s contention to the contrary, the Appellate Division concluded that, we conclude that the Superintendent’s determination was supported by substantial evidence.

Although Former denied having any knowledge of the illegal activities alleged, there was substantial evidence establishing the contrary, i.e., that he was aware of those activities. Further, said the court, Former gave numerous inconsistent statements regarding whether he knew certain facts and evaded answering basic questions. The Appellate Division concluded that the Hearing Board properly determined that such evidence is indicative of a consciousness of guilt.

The Appellate Division explained that although a different finding would not have been unreasonable, "where [, as here,] substantial evidence exists' to support a decision being reviewed by the courts, that determination must be sustained, irrespective of whether a similar quantum of evidence is available to support other varying conclusions' "

Turning to the penalty imposed, dismissal from the Division, the court said that it did not agree with Former that the penalty of dismissal is shocking to one's sense of fairness. "Judicial review of an administrative penalty is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law . . . and a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law."

Further, said the court, "[i]n matters concerning police discipline, great leeway' must be accorded to the [Superintendent's] determinations concerning the appropriate punishment, for it is the [Superintendent], not the courts, who is accountable to the public for the integrity of the [Division of State Police]," citing Kelly, 96 NY2d 32 among other decisions.

Given the nature of the offenses, the "higher standard of fitness and character [that] pertains to police officers," Former's evasive conduct and his refusal to accept any responsibility for his conduct, the Appellate Division concluded that the penalty of dismissal does not shock one's sense of fairness.

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Disciplinary decision vacated as employer failed to cite any law or rule that classified the employee’s alleged actions as misconduct

Disciplinary decision vacated as employer failed to cite any law or rule that classified the employee’s alleged actions as misconduct
2014 NY Slip Op 03958, Appellate Division, First Department

In a §3020-a disciplinary action the arbitrator found a teacher guilty of misconduct and terminating his employment with the New York City Department of Education. Supreme Court confirmed the arbitration award and the teacher appealed.

The Appellate Division unanimously vacated the lower court’s ruling and vacated the arbitration award, explaining that the Department of Education “has not identified any rule or statute that classifies [the] statements and action [alleged] as teacher misconduct." Thus, the court found that, in consideration of the circumstances, the finding that the teacher's actions constituted teacher misconduct was not supported by adequate evidence, and is arbitrary and capricious.

The Appellate Division also noted that the teacher did have “a disciplinary history including findings of non-sexual touching of students, and that two prior disciplinary awards expressly warned him not to touch his students again,” However, said the court, it is undisputed that the teacher did not touch any of his students “in the case at bar” and thus, contrary to the arbitrator's finding, the evidence did not indicate that teacher had failed to heed prior warnings.

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 7, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending  June 7, 2014

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending June 7, 2014.:

Department of Corrections and Community Supervision, Corcraft's Textile Procurement Practices (2012-S-22) 

 
Corcraft is a major component within the Department of Corrections and Community Supervision. Corcraft's mission is to employ offenders in real work situations to produce quality goods and services at competitive prices. Current procurement practices allow one person, the purchasing supervisor, to control almost all of the process for the procurement of textiles. The inadequate separation of incompatible duties and lack of compensating controls increases the risk of favoritism in the award process. Auditors found Corcraft officials awarded contracts without testing all of the required specifications and instead used their own discretion in deciding whether and which specifications were tested. As a result, they did not adequately ensure open competition, and there was limited assurance that contracts totaling $32.3 million went to the lowest responsive and responsible vendors. 

Department of Health, Medicaid Program: Medicaid Payments Made Pursuant to Medicare Part C  (2012-S-133)

 
During the audit period, auditors found Medicaid could have saved up to $69 million if it limited payments of Medicare Part C cost-sharing liabilities such that the total Medicare and Medicaid payment for a service did not exceed Medicaid's normal service fee. Other states already use this approach and New York uses this approach to limit payments for certain other Medicare cost-sharing liabilities. In addition, auditors determined Medicaid made $1.6 million in overpayments for Medicare Part C cost-sharing because recipients were not enrolled in Part C. 

Department of Health, Medicaid Program: Medicaid Claims Processing Activity October 1, 2012 Through March 31, 2013 (2012-S-131)

Auditors identified about $13 million in inappropriate or questionable Medicaid payments, including:

$6,329,458 in questionable payments for claims that were not subjected to the appropriate edits and pricing logic due to eMedNY's incorrect designation of the claim type being processed; $2,965,300 in overpayments for claims billed with incorrect information pertaining to recipients' other health insurance coverage; $2,689,352 in inappropriate payments for lab services claims submitted well beyond the required time frame for submission; $488,837 in overpayments for claims for duplicate billings; $222,806 in overpayments for claims for a dialysis drug billed at 10 times the number of units actually provided; and claims with improper payments for physician-administered drugs, hospital services, medical equipment and dental services. 

By the end of the audit fieldwork, auditors recovered about $3.8 million of the overpayments identified. 

Department of Health, Selected Employee Travel Expenses (2012-S-94)

 
Travel expenses totaling $466,301 for 14 of the 17 DOH employees selected for review were appropriate and adhered to state travel rules and regulations. However, for three employees, auditors identified numerous problems with travel practices and related expenses attributed to inadequate oversight. Of the $121,727 in travel expenses examined for the three employees, auditors found problems with costs totaling $14,870. 

NYC Human Resources Administration (HRA) NYS Office of Temporary and Disability Assistance, Benefit Eligibility Assessment Process (2012-S-51)

 
Auditors found that HRA employees apply a comprehensive assessment process when determining a client's eligibility, and that process is in compliance with governing regulations and procedures. However, procedural revisions are necessary to reduce the number of hearings held, and to reduce the number of HRA determinations that are reversed at hearings. 

 
Office of Information Technology Services, Procurement and Contracting Practices (Follow-Up) (2013-F-24)

 
In an initial audit report issued in February 2012, auditors found a culture at the Office of Information Technology Services (ITS), emanating from the highest levels of the agency, that disregarded the New York State Finance Law, the state's procurement guidelines and the agency's own procurement policies. This did not result in the best value for the taxpayers, but instead led to a waste of substantial public resources. Moreover, in several notable instances, transgressions appeared to have been motivated by personal gain and may have violated the ethics standards contained in the New York State Public Officers Law. In a follow up, auditors found ITS officials have made some progress and continue to make progress in addressing the problems identified in the initial audit. Of the eight prior audit recommendations, one was implemented and seven were partially implemented. 

Office of Mental Health, Sky Light Center Inc.: Supported Housing Program (2012-S-37)

 
Auditors identified $125,302 in unsupported or inappropriate personal service expenses charged to the housing program. These charges included unsupported salary allocations and inappropriate overtime payments to management. Auditors also identified $295,321 in unsupported or inappropriate non-personal service expense items, including expenses associated with the unrelated program facilities, payments to a contractor to enhance his personal property and rental payments for unoccupied apartments. Sky Light officials cannot account for over $75,000 in contingency funds that were to be used specifically for client housing emergencies. Additionally, Sky Light officials did not make all required visits to client apartments. Auditors identified several potential safety issues, including the lack of smoke and carbon monoxide detectors. 

Port Authority of New York and New Jersey, Inspecting Highway Bridges and Repairing Defects (2012-S-34)

 
Auditors found the authority conducted the required biennial inspection of its highway bridges, but does not follow New York state requirements for classifying, reporting and repairing bridge defects. Instead it follows its own method, but does not always satisfy state requirements. As a result, it did not perform 47 interim inspections for priority conditions open more than one year. The authority also did not inspect a highway bridge with an immediate safety concern for 332 days while it awaited repairs. Ten of the 17 safety concerns sampled were not repaired for more than two years, including three which were open for five years. 

State University of New York SUNY at Albany, Selected Employee Travel Expenses (2012-S-74)

 
Expenses for nine of the 10 University employees selected for review were appropriate. For a track coach, however, officials did not enforce Office of State Comptroller and university guidelines limiting travel advance amounts and requiring unspent balances to be returned on a timely basis. The track coach routinely overestimated the amount of advance funds needed for athletic events. As a result, at one point he had over $87,000 in outstanding advances. Also, the coach consistently returned unused advance funds more than two months later than required by the university. University officials allowed this coach to pay back his travel advances in installments – similar to the payback of a loan. The track coach may have violated the Public Officers Law by employing his daughter as a volunteer coach and using state funds to pay for her travel with him and the team to local and national track events. 

Tuition Assistance Program, Medgar Evers College (2011-T-4)

 
Medgar Evers was overpaid $3,398,205 over three academic years because school officials incorrectly certified students as eligible for Tuition Assistance Program (TAP) awards. Incorrect certifications include 29 students who received awards but did not meet the requirements for full-time status, 14 students who did not maintain good academic standing, four students whose accounts were not credited with the TAP payment, three students who were not properly matriculated, two students who enrolled in programs not approved by the State Education Department, one student who did not meet the citizenship requirement, and one student for whom auditors found insufficient proof that she satisfied the New York state residency requirement. 

Tuition Assistance Program, Pratt Institute (2013-T-3)

 
Auditors determined that Pratt's certification procedures substantially complied with the governing Law and Regulations during the audit period for the transactions tested. There is low risk that a significant number of students certified for TAP were not eligible for awards. Nonetheless, tests did disclose 26 awards totaling $38,236 that school officials certified in error. After reviewing the errors, Pratt officials decertified one award for $2,450 and sent another student a $50 refund check.

Labor Department needs to improve wage theft investigations

The state Department of Labor (DOL) doesn’t complete many of its wage theft investigations in a timely manner, allowing thousands of cases to remain unresolved for a year or more, according to an audit released June 6, 2014 by State Comptroller Thomas P. DiNapoli.

Wage theft is the illegal holding of wages or denial of benefits to a worker by an employer. Examples include failing to pay overtime, not giving workers their last paycheck after they leave a job or not paying for all the hours the employee worked.

DiNapoli’s auditors found that, as of August 26, 2013, DOL had more than 17,000 open cases, an increase of about 150 percent from the 7,000 cases on hand at the start of 2008. The current caseload consists of about 9,300 active investigations and more than 7,800 cases pending payment. Of these, almost 13,000, or 75 percent, were at least one year old from initial claim date.

The increasing backlog stems largely from system and process deficiencies that hinder timely investigations, coupled with a limited number of staff to perform the growing amount of work. As of August 2013, auditors estimate that DOL’s 98 investigators were responsible for an average of 95 active investigations each.  According to the audit, resolving the inefficiencies in DOL’s procedures and its use of resources could significantly improve productivity.

DiNapoli’s auditors also found:
 

1. DOL’s Workforce Protection Management System does not provide management with accurate or useful case management reports;
 

2. Employers may be allowed a payment plan for restitution, but DOL has not established criteria to guide eligibility or payment terms; and
 

3. DOL does not maintain a centralized record of all payment plans in effect, and neither the Division of Labor Standards nor its districts have adequate controls in place to track and monitor employer compliance.

During the audit period the division instituted procedural changes to streamline its work and reduce the backlog.

DiNapoli recommended DOL:

1. Continue efforts to close the oldest wage investigation cases and strive to investigate and resolve newer cases faster;

2. Monitor the newly implemented strategies discussed in this report and continue to pursue additional initiatives to reduce the wage investigation case backlog and complete new wage investigation cases sooner;

3. Correct system flaws and develop capability to create meaningful reports to better manage the current cases and backlog;

4. Establish specific payment plan procedures;

5. Develop criteria for investigators to use to determine if a payment plan should be granted;

6. Ensure that each district office follows the payment plan procedures and keeps similar records; and

7. Develop a centralized payment collection system to effectively separate incompatible duties and to manage all payment plan information and transactions.

“It is imperative that DOL do a better job resolving wage theft cases as workers across New York are often waiting too long for the compensation they rightly deserve,” DiNapoli said. “While wage theft investigations are generally complex and time-intensive, any lags pose a risk that complications, such as lost records, could arise and interfere with an investigation and possible settlement.”

DOL officials responded to the audit’s recommendations and indicated the actions they are taking to address them. For a copy of the report, including DOL’s response, click on http://www.osc.state.ny.us/audits/allaudits/093014/13s38.pdf

Court of Appeals deferred to PERB’s expertise with respect to its holding the employer had engaged in an improper employer practice but ruled its remedy was unreasonable

Court of Appeals deferred to PERB’s expertise with respect to its holding the employer had engaged in an improper employer practice but ruled its remedy was unreasonable

Town of Islip v New York State Pub. Empl. Relations Bd., 2014 NY Slip Op 04043, Court of Appeals

The Town of Islip filed a CPLR Article 78 petition challenging the New York State Public Employment Relations Board's [PERB] ruling that Islip violated Civil Service Law §209-a when it when it unilaterally discontinued the practice of permanently assigning Town-owned vehicles to certain employees. 

The employees in question had been permitted to use these so-called "take home" vehicles to travel from home to work and back — i.e., to commute to work. Section 209-a (1) (d) makes it an improper practice for a public employer to refuse to negotiate in good faith with the bargaining agent for its public employees. Likewise, the Court of Appeals concluded that PERB reasonably applied precedent when making its determination, which determination was supported by substantial evidence.*

PERB’s Administrative Law Judge had held that Islip had violated Civil Service Law §209-a (1) (d) by canceling "take home" vehicle assignments without negotiation -- a clear and unequivocal 20-plus year practice -- and had ordered the Town to:

1. Restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008.

2. "Make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the vehicle assignment(s), if any, together with interest at the maximum legal rate"; and

3. To sign and post a notice in the workplace to inform employees of the remedies ordered.

PERB ultimately affirmed ALJ's ruling and the remedy ordered.

The Appellate Division held that "substantial evidence supported PERB's determination that the permanent assignment of Town-owned vehicles to the affected employees constituted a past practice as to a term or condition of employment, a mandatory subject of negotiation, which the Public Employees' Fair Employment Act (Civil Service Law Article 14), known as the Taylor Law, barred the Town from unilaterally discontinuing" [see 104 AD3d 778, (2013)].

As to the remedies imposed by PERB the Court of Appeals said that with, deference to its expertise, "a remedy fashioned by PERB for an improper practice should be upheld if reasonable," although "[i]t is for the courts to examine the reasonable application of PERB's remedies." However the Court of Appeals ruled that PERB's remedial order was unreasonable insofar as it requires the Town to restore vehicle assignments to the affected employees.

In this instance the court concluded that PERB's remedial order requires the Town to "[f]orthwith restore the vehicle assignments for commutation between home and work to those unit member who enjoyed the benefit prior to April 4, 2008." However, notes the decision, a PERB injunction was not sought by the employees’ representative to preserve the status quo ante and Islip had sold some or all of the vehicles formerly permanently assigned to blue- and white-collar unit employees, thus forcing Islip to invest “significant taxpayer dollars to replace these vehicles is unduly burdensome under the circumstances, and does not further the goal of reaching a fair negotiated result.” 

Consistent with this view, the Court of Appeals remanded the matter to PERB so that it “may fashion a remedy that grants commensurate, practical relief to the employees subject to the improper practice without requiring the Town to purchase a whole new fleet of vehicles with an uncertain future.”

Judge Pigott dissented, indicating that, in his view, the issue in this appeal was whether a public employer must collectively bargain its way out of a previous policy that is plainly in violation of a duly-enacted local law.

Judge Pigott noted that the relevant Chapter Islip’s Town Code was adopted in December of 1968 and, “apparently, as amended from time to time by the elected Town Board, has functioned without incident ever since.” Section 14-12 of the Town Code provides in its entirety as follows: "No officer or employee shall request or permit the use of Town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business" (emphasis supplied in the opinion).

Judge Pigott, concluding that PERB’s determination should be annulled and vacated, said:

1. Essentially, PERB's decision trumps a local law and requires the Town to bargain its way out of an illegal activity;

2. This is contrary to law [as] "Illegal past conduct does not, and should not, evolve into binding terms and conditions of employment”;

3. Were it so, sloppy bookkeeping, lax supervision and perhaps, in some cases, rife favoritism could form the basis of a policy by which PERB could overrule a duly-enacted local law; and

4. The conduct engaged in by the Town and its employees was against the law and PERB's determination could not make it legal.

* The Court of Appeals said that the scope of its review in this case was “limited to whether PERB's determination that Islip had engaged in an improper practice was ‘affected by an error of law’ or was ‘arbitrary and capricious or an abuse of discretion’ (see CPLR 7803 [3]) and PERB is accorded deference in matters falling within its area of expertise" such as in "cases involving the issue of mandatory or prohibited bargaining subjects."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_04043.htm

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A disagreement over the penalty assessed by the arbitrator does not constitute a basis for vacating the award

A disagreement over the penalty assessed by the arbitrator does not constitute a basis for vacating the award

2014 NY Slip Op 03627, Appellate Division, First Department

This appeal flows from an arbitration award issued in 2007 that imposed a penalty of six months' unpaid suspension and mandatory counseling on a tenured teacher [Teacher] based on the arbitrator’s finding that Teacher had engaged in inappropriate contact with female students.

Here the New York City Board of Education sought a judgment vacating the award or, in the alternative, modifying the award to impose a penalty terminating Teacher's employment with the New York City School District.

Teacher interposed a motion to dismiss the petition for lack of personal jurisdiction. Teacher’s motion was denied by Supreme Court, which denial was affirmed by the Appellate Division (see 65 AD3d 934).

The Board of Education did not further inquire as to the status of the matter until 2010 when it learned that the assigned Justice had retired. It then asked to have the matter restored to the calendar. A status conference was held in 2011, at which time the Board was directed to retrieve the court file and attempt to reach a settlement with Teacher. No settlement agreement was reached by the parties and ultimately the court issued a sua sponte* order dismissing the proceeding as abandoned in accordance with its earlier order.

The Board next filed a motion, designated as one to “renew and/or reargue,” contending that Supreme Court had "overlooked the entire procedural history of this matter and misapplied the applicable law regarding when a proceeding may be deemed abandoned."

The Board’s motion was dismissed by the Appellate Division as [1] “It is well settled that no appeal lies from an order issued sua sponte; [2] “This Court has repeatedly stated that the proper procedure to be followed to appeal from a sua sponte order is to apply to vacate the order and then appeal from the denial of that motion so that a suitable record may be made and counsel afforded the opportunity to be heard on the issues;” and [3] Alternatively, the aggrieved party may seek permission to appeal.

Here, the Appellate Division noted, nothing in the moving papers identifies the application as one seeking to vacate the Supreme Court's order, nor does it provide the requisite demonstration of the merit of the proceeding.

Significantly the Appellate Division’s decision states that the motion papers do not  indicate that “a disagreement over the penalty assessed by the arbitrator constitutes a basis for vacating the award on a ground specified by statute (see CPLR 7511[b]; [1]) or that there is any ground for modification of the award (see CPLR 7511[c]).”

The bottom line: Noting that the Board had not sought leave to appeal and, given the passage of seven years since the issuance of the arbitration award, the Appellate Division “declined to nostra sponte** grant such relief.”

* The term sua sponteis used to describe the action taken by a court on it’s own motion and not in response to a motion or argument by a party in the matter.

** The term nostra sponte is used to describe an action taken by a panel of judges acting on its own motion and not in response to a motion or argument by a party.
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An alleged ambiguity in the application of a provision in a collective bargaining agreement is to be resolved by the arbitrator

An alleged ambiguity in the application of a provision in a collective bargaining agreement is to be resolved by the arbitrator

New York City Tr. Auth. v Transport Workers Union of Greater N.Y., Local 100, 2014 NY Slip Op 03689, Appellate Division, Second Department

A bus operator [Driver] employed by the New York City Transit Authority for almost 20 years was required to undergo and pass biennial physical examinations which, among other things, required him to have "the ability to recognize the colors of traffic signals and devices showing standard red, green and amber."

An ophthalmic physician examined Driver and determined that Driver "had a history of color-blindness, that Driver identified the color red as black, and that Driver had a "strong red-green color deficit." The physician recommended that Driver undergo a "road test" before it was determined whether he met "the standard required for safe commercial drivers." 

TA decided that Driver should not undergo the road test because it was a non-medical examination that cannot test an individual’s ability to recognize the required colors. Instead it asked the physician to determine whether Driver met the relevant Vehicle and Traffic Law vision requirements.

Driver’s union, the Transport Workers Union of Greater New York, Local 100 (TWU), filed a grievance on behalf of Driver, arguing that the TA's failure to cooperate with the administration of the road test was in violation of the parties' collective bargaining agreement [CBA]. TA denied the grievance and TWU submitted the grievance to binding and final arbitration. The TA then filed a CPLR Article 75 petition seeking a court order permanently staying the arbitration of the grievance. The Supreme Court denied its petition and TA appealed, contending, among other things, that the grievance was not arbitrable.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that in a public sector context, determining whether a grievance is arbitrable requires a court to first determine:

1. Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance; and

2. If there is no such prohibition against arbitration, then the court must determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.”

The court held that, in its view, no statute or public policy absolutely prohibited an arbitrator from deciding whether Driver should undergo a road test before it is determined whether he meets the relevant vision requirements for bus drivers. Further, said the Appellate Division, the parties' agreement to arbitrate this dispute is supported by the terms of the CBA.

In the opinion of the Appellate Division, the relevant arbitration provisions of the CBA were broad and there existed a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. Accordingly, any TA alleged ambiguity in the CBA as to whether the physician could recommend that Driver undergo a road test "is . . . a matter of contract interpretation for the arbitrator to resolve.”
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