Courts apply a “two-part” test to determine if a dispute founded on an alleged violation of a collective bargaining agreement is arbitrable

Courts apply a “two-part” test to determine if a dispute founded on an alleged violation of a collective bargaining agreement is arbitrable
Matter of County of Greene (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Greene County Unit 7000, Greene County Local 820), 2015 NY Slip Op 04709, Appellate Division, Third Department

In March 2010 the Green County Civil Service Commission (Commission) adopted a resolution amending its rule governing the probationary term required of new employees to provided that the probationary term shall be a minimum of  8 weeks to a maximum of  52 weeks rather than from a minimum of 8 weeks to a maximum of 26 weeks. The Commission's resolution was approved by the State Civil Service Commission in February 2011.*

In February 2012, Green County (County) and Green County CSEA Unit 7000, Local 820 [CSEA], executed a collective bargaining agreement (CBA) pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law.". The CBA, in pertinent part, provided that "[a]n employee in the competitive, noncompetitive or labor classes shall be on probation for a period of twenty-six (26) weeks from the date of appointment."**

Subsequently CSEA filed a grievance contending that the County had violated the CBA by requiring unit members to serve a probationary period in excess of the 26 weeks on unit members. In response to the Greene County Administrator’s denial of the grievance on the grounds that the Civil Service Probationary Rules for Greene Countycontrolled. CSEA filed a demand for arbitration. The County then filed a petition pursuant to CPLR 7503 seeking to stay arbitration; CSEA cross-moved to compel arbitration.

Supreme Court granted the County's application and denied CSEA's cross application. CSEA appealed the court’s ruling.

Citing Chautauqua County v CSEA Local 1000, 8 NY3d 513, the Appellate Division said that "The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act."

The Appellate Division then noted that "[w]hen a county civil service commission, possessing the requisite authority, promulgates a rule establishing the length of a probationary term of service that rule has the effect of law … the public employer and the union cannot negotiate a contrary provision in a CBA.”

The court however, concluded that the provision in the COB did not offend the Commission’s rules, explaining that:

1. The CBA executed by the County and the Union long after the Commission modified the probationary term; and

2. The provision in the CBA “is not inconsistent with the new Commission rule, as the probationary term negotiated by the parties falls squarely within the range promulgated by the Commission.”

As to the first test -- was there a statutory, constitutional or public policy prohibition against arbitration of the grievance -- the Appellate Division said that it discerned “no statutory or public policy bar to arbitration of the grievance in the first instance.”

As to the second test – did the parties actually agreed to arbitrate this particular dispute – the court said that the relevant CBA “contains a broad arbitration clause, which encompasses ‘any claimed violation, misrepresentation or improper application’ of the CBA.” The inclusion of such language, said the Appellate Division, “persuaded [it] that the Union's grievance falls within the scope of disputes that the parties agreed to submit to arbitration.”

The Appellate Division reversed the Supreme Court's order, denying the County's application to stay arbitration and granting the Union's cross application to compel arbitration.

* Civil Service Law §20.2 provides, in pertinent part, that “The rules and any modifications thereof adopted by a county civil service commission or county personnel officer or by a regional civil service commission or regional personnel officer shall be valid and take effect only upon approval of the state civil service commission.”

** This provision in the collective bargaining agreement may prove to be a demonstration of the Doctrine of Unintended Consequences. The CBA language cited in the Appellate Division's opinion provides that a new employee "shall be on probation for a period of twenty-six (26) weeks from the date of appointment." Reading this language narrowly, it could be argued that the minimum period of probation is identical to the maximum period of probation. This would result in the individual having attained "instant tenure" in the position in view of the fact that case law provides that a probationary employee is entitled to "notice and hearing" in the event the appointing authority wishes to terminate the individual during his or her minimum period of probation [see McKee v. Jackson, 152 AD2d 54]. In contrast, a probationary employee may be removed from the position without notice and hearing after completing his or her minimum period of probation and prior to the completion of  his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04709.htm

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The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

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Courts have the power and the duty to make certain that an administrative official or body has not acted in excess of the grant of authority given by statute

Courts have the power and the duty to make certain that an administrative official or body has not acted in excess of the grant of authority given by statute
2015 NY Slip Op 04712, Appellate Division, Third Department

The Civil Service Law §75 hearing officer found the employee [Employee] guilty of two of the three charges of alleged misconduct and recommended that the penalty of termination be imposed. The appointing authority adopted the findings and recommendation of the hearing officer and terminated Employee.

Employee then appealed the appointing authority’s determination to the New York State Civil Service Commission as authorized by Civil Service Law §76(1).* The Commission sustained the appointing authority’s decision and Employee then sought judicial review of the Commission’s decision alleging,  among other things, that “the disciplinary proceedings were untimely." Supreme Court transferred Employee's appeal to the Appellate Division.**

The Commission argued that its determination was not subject to judicial review, citing Civil Service Law §76(3). §76(3), said the Commission, provides that where, as here, an employee has elected to appeal an adverse disciplinary decision by the appointing authority to a State or local civil service commission, "[t]he decision of [the commission] shall be final and conclusive, and not subject to further review in any court."

The Appellate Division, conceding that “Such explicit statutory language” ordinarily bars further appellate review, said it could review the Commission’s ruling as such a “statutory preclusion of all judicial review of the decisions rendered by an administrative agency in every circumstance would constitute a grant of unlimited and potentially arbitrary power too great for the law to countenance,” citing Pan Am. World Airways v New York State Human Rights Appeal Bd., 61 NY2d 542 and Baer v Nyquist, 34 NY2d 291. The court explained that “even when proscribed by statute, judicial review is mandated when constitutional rights are implicated by an administrative decision or ‘when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction.’"

In this instance Employee, presumably a state employee serving in a position designated managerial or confidential pursuant to Article 14 of the Civil Service Law, the Taylor Law, asserted that the Commission acted in excess of its statutory authority, and thus, its jurisdiction, by sustaining disciplining action taken against her by the appointing authority for conduct that occurred more than one year before the disciplinary proceeding was commenced against her. Such action, argued Employee, was, in violation of the limitations period legislatively established by Civil Service Law §75(4).

The Appellate Division, observing that “[T]he courts have the power and the duty to make certain that [an] administrative official has not acted in excess of the grant of authority given . . . by statute or in disregard of the standard prescribed by the legislature," said that it was persuaded that, in view of the circumstances presented here, "this Court must review the determination to the limited extent of determining whether Commission  acted in excess of its authority by disciplining petitioner for time-barred charges."

The court indicated that the relevant provision in the Civil Service Law barred disciplinary action based on alleged misconduct unless it was commenced within "one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges," provided, however, the charges of alleged misconduct are subject to an exception provided within the statute, which states that the limitation period does not apply "where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

The Commission contended that this statutory exception properly applies in Employee’s situation as she had been charged with conduct which constitutes the crime of official misconduct. Official misconduct is committed "when, with intent to obtain a benefit or deprive another person of a benefit . . . [a public servant] commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions, knowing that such act is unauthorized" (Penal Law §195.00 [1]).

The Appellate Division said that the relevant charges brought against Employee “fail to allege that [Employee] acted with the intent to gain a benefit or that she knew that her conduct was unauthorized; both of these mens rea [criminal intent] requirements are essential elements of the crime of official misconduct.” Further, said the court, in determining whether the statutory exception applies only the allegations of misconduct complained of and described in the charges and specifications are considered and the court may not consider any evidentiary proof submitted during later proceedings.

The court then rejected the Commissions argument that a general assertion included elsewhere in the notice of discipline that the misconduct described in the charges violated several criminal statutes, including Penal Law §195.00, cured the deficiency. Accordingly, said the court, “the conduct described in the charge[s] would not, if proven in court, constitute a crime," and thus "the statutory exception does not apply, and the charges are untimely."

The Appellate Division ruled that in affirming the discipline imposed upon Employee for time-barred charges the Commission "acted in excess of the grant of authority given [to it] by statute [and] in disregard of the standard prescribed by the legislature." Accordingly, said the court, the Commission's determination "must be annulled," and the disciplinary charges filed against Employee dismissed as untimely.

* Civil Service Law §76(1), in pertinent part, provides that an individual may appeal an adverse disciplinary determination “either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with the provisions of Article seventy-eight of the civil practice law and rules.”

** See CPLR §7504 [g].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04712.htm

_____________

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

_____________

 

Oral and physical abuse of students results in termination of the educator

Oral and physical abuse of students results in termination of the educator
2015 NY Slip Op 04414, Appellate Division, First Department

Supreme Court sustained an arbitration award that found a teacher [Petitioner] guilty of conduct described in the opinion as oral and physical abuse of students and the oral abuse of one student's parent and the imposition of the penalty of termination of the Petitioner's services. The decision notes that such abuse “continued for a period of three academic years, even after several letters were placed in [Petitioner's] file memorializing the complaints.” Also noted was the fact that one such memorial warned that further incidents could lead to Petitioner’s termination.

The Appellate Division unanimously affirmed the Supreme Court’s determination, commenting that “The termination of [Petitioner's] employment does not shock our sense of fairness” in view of what the court described as Petitioner’s not taking responsibility for his actions, repeatedly denying most of the incidents despite corroborating evidence, and has shown no remorse.

The court said that that the hearing officer, after considering Petitioner's long, otherwise satisfactory tenure and the principle of progressive discipline, properly found that Petitioner's repeated misconduct and the several occasions on which he was warned about it “to no avail” rendered imposing the penalty of termination to be appropriate.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04414.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on

http://booklocker.com/books/7401.html

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli for the Week Ending June 6, 2015 
Click on text highlighted in color to access the report and information

Wallkill Fire District Board Chair charged with stealing $240,00

The chairman of the Wallkill Fire District’s Board of Fire Commissioners was charged Monday morning with stealing nearly $240,000 in a scam that spanned three years, State Comptroller Thomas P. DiNapoli and Ulster County District Attorney Holley Carnright announced. Michael Denardo, 38, of Wallkill, is accused of conning a board member into signing blank checks which he later cashed for personal use. He was arraigned in Shawangunk Town Court.

Posted on the Internet at:

http://www.osc.state.ny.us/press/releases/june15/060115.htm?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060115release

A video about Wallkill and other recent efforts by this office to expose public corruption is posted on the Internet at:

http://www.osc.state.ny.us/investigations/

Former City of Rensselaer Public Works Commissioner found guilt of stealing scrap metal proceeds

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Wednesday announced the sentencing of Thomas Capuano, the former commissioner of the Department of Public Works (DPW) of the city of Rensselaer, for his role in teaming with two DPW employees to divert $46,000 from the city by pocketing the cash from scrap metals acquired as part of their jobs with the city.

Posted on the Internet at:

http://www.osc.state.ny.us/press/releases/june15/060315b.htm?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315brelease

Municipal Audits posted on the Internet

Hamlin Fire Department,

http://www.osc.state.ny.us/localgov/audits/firedists/2015/hamlin.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Islip Terrace Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/islipterrace.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Town of Minden

http://www.osc.state.ny.us/localgov/audits/towns/2015/minden.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Village of Owego

http://www.osc.state.ny.us/localgov/audits/villages/2015/owego.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Taxing Fringe Benefits

Taxing Fringe Benefits

Source: FSLG Newsletter

What: Free Webinar – Taxability of Fringe Benefits Part Three: Other Compensation and Payments to Employees 

When: July 9, 2015; 2 p.m. (Eastern)

How: Register for this event. You will use the same link to attend the event.

Learn about:

• Uniforms and clothing allowances
• Other types of compensation
• Payment of awards and prizes
• Professional licenses and dues

What else: 

Don’t forget to register for the following webinars if you have not already done so:

Backup Withholding and Form 1099 Miscellaneous

• June 25, 2015; 2 p.m. (Eastern)
• Register

Taxability of Fringe Benefits Part Two: Commonly Provided Fringe Benefits

• June 11, 2015; 2 p.m. (Eastern)
• Register

If you have any questions or comments for the IRS please send us an e-mail

Filing a notice of claim required by Education Law §3813(1) not a condition precedent to an action seeking to vindicate a “public interest” in contrast to advancing a private right

Filing a notice of claim required by Education Law §3813(1) not a condition precedent to an action seeking to vindicate a “public interest” in contrast to advancing a private right
2015 NY Slip Op 04675, Court of Appeals

A teacher serving a three-year probationary period [Probationer] was terminated before the end of the probationary period. Probationer brought a CPLR Article 78 proceeding seeking a court order [1] annulling the School District's determination, [2] reinstatement with tenure and [3] back pay.

The School District asked Supreme Court to dismiss Probationer’s petition contending that Probationer had not served a timely notice of claim as required by Education Law §3813(1).

Probationer’s sole argument in opposition to the District’s "affirmative defense" was that such a "[n]otice of [c]laim is not a condition precedent to a special proceeding properly brought pursuant to CPLR [a]rticle 78 seeking judicial enforcement of a legal right derived through enactment of positive law."

Supreme Court agreed with Probationer and directed that the District reinstate Probationer to her position with back pay “pending a hearing to determine whether Probationer was denied tenure and terminated from her probationary employment in bad faith.”

The School District appealed and the Appellate Division reversed the lower court’s determination.

The Appellate Division ruled that the “positive-law exemption” on which Probationer relied “was not relevant to the situation of a probationary teacher seeking to compel a school district to grant tenure.”*

The Appellate Division also commented that in its view Education Law §3813(1) does not apply when a litigant seeks only equitable relief, but observed that Probationer asked for damages in the form of back pay in addition to an equitable remedy and brought the lawsuit “to advance a private right rather than vindicate a public interest.”

The Court of Appeals, after granting Probationer leave to appeal, affirmed the Appellate Division’s ruling, explaining that on appeal to the court Probationer advanced two arguments:

1. The monetary damages that Probationer demands “are merely incidental” to Probationer’s primary claim for equitable relief; and, or,

2. That Probationer seeks to enforce her claim to tenure by estoppel rights.

However, said the Court of Appeals, “Even if the Appellate Division may have considered one or both of these arguments,” Probationer “did not raise them at Supreme Court; therefore, they are unpreserved for our review.”  

* In Sephton v Board of Education of the City of New York, 99 AD2d 509 [appeal denied 62 NY2d 605], the Appellate Division noted that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights,” [citations omitted]. However, said the Sephton court, the Sephton plaintiffs “are seeking to recover back pay due to the allegedly improper restructuring of their salaries. Such a claim seeks vindication of private rights and duties. Thus a [timely §3813(1)] notice of claim was a condition precedent to the maintenance of the action (citations omitted).”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04675.htm

New York Governor Andrew M. Cuomo announces thirteen new appointments to his administration

New York Governor Andrew M. Cuomo announces thirteen new appointments to his administration

Jen McCormick has been appointed First Deputy Commissioner of the Department of Agriculture and Markets. Ms. McCormick previously served as Interim Executive Deputy Director of the Thruway Authority/Canal Corporation and, prior, as Assistant Deputy Director of State Operations for Governor Cuomo, aiding in the development of implementation strategies for the Governor’s initiatives. Before this role, she was Deputy Commissioner in the Division of Business Advocacy and Research for Empire State Development. She also served as Director of the Office of Budget Studies for New York State Comptroller from 2005 to 2007 and was Secretary to the State Senate Finance Committee for the Minority. Ms. McCormick has a B.A. from SUNY Empire State College and an M.P.A. from the University at Albany. 

Linda Lacewell has been appointed as New York State's first Chief Risk Officer. She will design and oversee an enterprise risk management system for state agencies and authorities. Since January, Ms. Lacewell has been building and implementing the first statewide system for ethics, risk and compliance in agencies and authorities, with over a dozen agencies and authorities participating to date. This system will now operate under her as Chief Risk Officer, with the Special Counsels for Ethics, Risk, and Compliance continuing to report to her. Ms. Lacewell will continue her advisory role in the Executive Chamber as Counselor to the Governor. Ms. Lacewell was formerly Special Counsel to the Governor, as well as the architect of OpenNY, a state-of-the-art open data initiative. She was formerly Special Counsel to Attorney General Cuomo, where she oversaw the public pension fund pay-to-play investigation and the out-of-network health insurance investigation, both of which led to nationwide systemic reform. She spent nine years as an Assistant U.S. Attorney for the Eastern District of New York, including two years on the Enron Task Force, and received the Henry L. Stimson Medal and the Attorney General’s Award for Exceptional Service. She earned her Bachelor of Arts degree from New College of the University of South Florida and her Juris Doctor with honors from the University of Miami School of Law. She clerked for a United States District Judge for the Southern District of Florida. She is an Adjunct Professor of Law at New York University School of Law, teaching Ethics in Government, and was formerly an Adjunct Professor of Law at Fordham University School of Law, teaching International Criminal Law.

Camille Joseph Varlack has been appointed Special Counsel to the Superintendent for Ethics, Risk and Compliance for the Department of Financial Services. Ms. Varlack formerly served as a Principal Law Clerk for the New York State Supreme Court and, prior, Assistant Vice President and Counsel at AXA Financial, Inc. Earlier in her career, she was an Assistant District Attorney for the Kings County District Attorney’s Office, Legal Assistant in the Law Department of News Corporation and an Investigative Assistant for the New York State Attorney General. Ms. Varlack has a B.A. from the State University of New York at Buffalo and a J.D. from Brooklyn Law School.

Maureen Coleman has been recommended to serve as General Counsel for the Environmental Facilities Corporation. This recommendation requires approval by the Environmental Facilities Corporation Board. Ms. Coleman previously served as Assistant Counsel to the Governor, focusing on energy and environment, where she advised the Governor and policy staff on legal matters related to the environment, agriculture and energy. Prior to this role, she held a number of roles at the Department of Environmental Conservation, where she served for 13 years, beginning as an Assistant Legislative Counsel and culminating in Bureau Chief of Water and Natural Resources for the Department’s Office of General Counsel. She was also Vice President of Law and Regulation and Assistant Secretary of Seligman Investment Companies at J.W. Seligman & Co. Incorporated. Ms. Coleman has a B.A. from College of Saint Rose, a joint M.S. in Industrial and Labor Relations from Cornell University and Baruch College, and a J.D. from Brooklyn Law School.

Geraldine Reilly has been appointed to serve as Chair of the Unemployment Insurance Appeal Board, of which she is currently a member. Ms. Reilly previously served as Chief of Staff and Counsel to Assemblywoman Catherine Nolan and, prior, was part of the program and counsel staff for the New York State Assembly. She has held a number of labor-related positions, including Labor Relations Liaison for New York State Electric and Gas, Manager of Labor Relations for the Triborough Bridge and Tunnel Authority and Labor Relations Specialist for the New Jersey Transit Rail Operation. Ms. Reilly has a B.A. from Brooklyn College and a J.D. from Seton Hall University School of Law.

Randall T. Douglas has been appointed to serve on the Unemployment Insurance Appeal Board. Mr. Douglas is currently serving an unprecedented sixth term as Essex County Chairman of the Board of Supervisors and 12th year as Town of Jay Supervisor, during which he continues to lead both municipalities through the biggest disaster and recovery efforts in their history following Hurricane Irene in 2011. He also serves as President-Elect of the New York State Association of Counties, is a member of the Board of Directors of the Adirondack Association of Towns and Villages and sits on the resolutions committee for the New York State Association of Towns. He previously served in the Maintenance Department at the Adirondack Correctional Facility in Ray Brook, NY, where he supervised inmate maintenance crews. He was also Vice Chair of the Essex County Democratic Party, a liaison to the Staten Island/Sandy Victims Property Acquisition Committee and a Board Member of the North Country United Way. He studied criminal justice at Clinton Community College and attended the Dennis A. Pelletier County Government Institute.

Tracy McKibben has been nominated as Trustee of the New York Power Authority. Ms. McKibben is currently the Founder and President of MAC Energy Advisors LLC., a consulting company that assists clients on alternative energy, renewable energy, water and clean technology investments. Previously, she was Managing Director and Head of Environmental Banking Strategy for Citigroup Global Markets, and served on the National Security Council at The White House as Director of European Economic Affairs and European Union Relations, as well as various senior advisory roles within the U.S. Department of Commerce. Ms. McKibben holds a B.A. from West Virginia State University and a J.D. from Harvard Law School.

Michael Fascitelli has been nominated as a Commissioner of the Port Authority of New York and New Jersey. Mr. Fascitelli is the Founder of MDF Capital LLC, previously serving as President and Chief Executive Officer of Vornado Realty Trust as well as President of Alexander’s Inc. Mr. Fascitelli continues to serve as a Trustee of Vornado Realty Trust. Prior to joining Vornado, he was a Partner at Goldman, Sachs & Co. Currently, he is a Trustee of Starwood Waypoint Residential Trust, as well as a Board Member at Child Mind Institute, Rockefeller University and Urban Land Institute. Mr. Fascitelli holds an MBA, with highest distinction, from Harvard Business School and a B.S. in Industrial Engineering, Summa Cum Laude, from the University of Rhode Island.

Andrew Stone has been nominated as a Director of the New York Convention Center Operating Corporation (Javits). Mr. Stone is currently the Managing Partner and CEO of Petra Capital Management, and he has been involved in all phases of the firm’s development since its founding. Prior to founding Petra, Mr. Stone was a Managing Director and head of the Principal Transactions Group (“PTG”) at Credit Suisse First Boston where he was responsible for the firm’s worldwide real estate effort, including debt origination, equity investments and securitization. Prior to CSFB, Mr. Stone was Senior Managing Director in charge of the Mortgage, Asset- Backed and Real Estate Securities Group at Daiwa Securities America. Mr. Stone founded the department and was responsible for managing the origination, trading, structuring and sales of all mortgage and asset-backed securities. Prior to Daiwa, Mr. Stone was Managing Director and head of the Mortgage and Asset-Backed Group at Prudential Bache. Mr. Stone received his B.S. from the Wharton School of the University of Pennsylvania with dual majors in finance and entrepreneurial management and his M.B.A. from the University of Chicago with a double concentration in finance and marketing.

Hamilton "Tony" James has been nominated as a Commissioner of the Port Authority of New York and New Jersey. Mr. James is currently the President and Chief Operating Officer of The Blackstone Group. Prior to joining Blackstone, Mr. James was Chairman of Global Investment Banking and Private Equity at Credit Suisse First Boston, and Chairman of the Banking Group at Donaldson, Lufkin & Jenrette. He is a Director of Costco Wholesale Corporation, is a former member of the President's Export Council – Subcommittee on Technology and Competitiveness, and serves as a trustee at many organizations including the Second Stage Theatre, The Metropolitan Museum of Art, Woods Hole Oceanographic, the Wildlife Conservation Society. Mr. James holds his B.A. and M.B.A. from Harvard College and Harvard Business School.

Nicholas Melissinos will be appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance at the Division of Human Rights. Currently, Mr. Melissinos is Assistant Corporation Counsel at the New York City Law Department's Special Federal Litigation Division, and prior, has held roles at private law firms. He volunteers for the LeGaL Foundation to provide guidance for LGBTQ participants and at the NYC Bar Association, where he is a member of the LGBT Rights Committee. Mr. Melissinos holds a J.D. from Brooklyn Law School and a B.A. from George Washington University.

Michael Shollar will be appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance at the Department of Taxation and Finance. For nearly ten years, Mr. Shollar served in the Richmond County District Attorney's Office as an Assistant District Attorney in the Investigations Bureau and the Appeals Bureau. He holds a J.D. from Northwestern University School of Law and a B.A. from the University of Rochester.

Kevin Hickey has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance at the Office of Temporary and Disability Assistance. Mr. Hickey currently serves as the Director of Litigation at the Office of Temporary and Disability Assistance, and has previously worked as Assistant Attorney General in the Office of the New York Attorney General as well as in private law firms. He holds a J.D. from Albany Law School and a B.S. from SUNY University at Albany.

Courts will strictly construe the terms of a disciplinary settlement agreement setting out the reason permitting the employee to be summarily terminated from his or her position

Courts will strictly construe the terms of a disciplinary settlement agreement setting out the reason permitting the employee to be summarily terminated from his or her position

2015 NY Slip Op 01181, Appellate Division, First Department 

Supreme Court denied an Article 78 petition filed by an individual [Plaintiff] seeking to annul the appointing authority’s decision to terminate his employment. The court held that the parties' disciplinary settlement agreement executed in 2012 served to waive Plaintiff's right to appeal or seek judicial review of his termination of employment “in all scenarios.”

The 2012 settlement agreement's introductory paragraph stated that the parties agreed to settle Plaintiff's violation of an earlier disciplinary settlement agreement that addressed Petitioner’s violation of the appointing authority’s policy concerning the "Sales of Goods and Services in Hospital." 2012 settlement agreement provided that should Plaintiff engage in misconduct that was the "same or similar to" that constituting the violation of the prior agreement, to be determined solely by the Director of Labor Relations or her designee, he would be terminated and could not appeal the penalty in any administrative or legal forum.*

The Appellate Division reversed the Supreme Court’s decision and remanded the matter “for further consideration” as the Supreme Court “never reached the merits of Plaintiff’s petition.”

The Appellate Division explained that courts should not "adopt an interpretation that renders a portion of the contract meaningless," citing Wallace v 600 Partners Co., 205 AD2d 202. In this instance, said the court, the appointing authority terminated Plaintiff for allegedly taking leave under color of the Family Medical Leave Act (29 USC §§ 2611 et seq.) without obtaining prior approval from his department or the Office of Labor Relations.

Such conduct is not the "same or similar to" the sale of goods in the hospital  and,  hence, the terms and conditions of set out in Paragraph 1 of the 2012 settlement agreement, including Plaintiff's waiver of judicial review, are inapplicable. The Appellate Division said that to hold otherwise “would be to render superfluous paragraph three, which speaks to the penalty for failing to adhere to policies and procedures generally, but does not include such additional restrictions.”

Further, noted the court, the employer “failed to follow” its own procedures and the terms of the settlement agreement by effectively precluding Plaintiff “from having an opportunity to explain why he should not be terminated.”

Similarly, Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement providing for a disciplinary probation award that provided that the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.”

Taylor was terminated during his disciplinary probationary period without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. However, there was no allegation that he had been intoxicated on the job as a reason for his dismissal as a disciplinary probation employee.

Taylor sued, challenging his dismissal and won reinstatement with back salary. The Appellate Division said that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

* Paragraph three of the agreement separately provided that Plaintiff agreed to adhere to departmental policies and procedures and would be terminated for his failure to do so, but provided no limitation on who would determine his guilt, nor did it waive any judicial review.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2015/2015_01181.htm

_____________

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

_____________

 

Certification to teach in the position sought critical to teacher’s reinstatement from a preferred list following his or her layoff

Certification to teach in the position sought critical to teacher’s reinstatement from a preferred list following his or her layoff

2015 NY Slip Op 04492, Appellate Division, Second Department

A teacher [Teacher] certified to teach Spanish, was appointed as a foreign language teacher in the school district’s elementary school. Teacher taught Spanish and acquired tenure in that position.

The school board [Board] subsequently abolished the elementary school Spanish teacher position for economic reasons and Teacher’s name was placed on a "preferred eligible list" for appointment to any vacancy which may arise in a similar position within seven years from the date that her position was abolished as provided by Education Law §§2510[3][a]; 3013[3][a]).

In 2011, the Board of Education created a new a full-time position of "French/Spanish Teacher 7-12" and appointed an individual who was certified to teach both French and Spanish to fill that vacancy.

Teacher commenced a CPLR Article 78 in the nature of mandamus to compel the Board to appoint her to a position of part-time Spanish teacher. 

Teacher argued that the Board, in effect, had created "a teaching position that is [part-time] Spanish and [part-time] French," and that she was entitled pursuant to Education Law §§2510(3)(a) and 3013(3)(a) to be appointed to the purported part-time Spanish teacher position.

Supreme Court denied the petition and dismissed the proceeding on the merits and Teacher appealed.

The Appellate Division affirmed the Supreme Court’s action, explaining that "[CPLR] Article 78 relief in the form of mandamus to compel may be granted only where a petitioner establishes a clear legal right to the relief requested." In determining whether Teacher is entitled to re-employment pursuant to Education Law §§2510 or 3013 in this action, "the threshold question must be one of certification to teach in the position sought. Absent such certification, re-employment rights cannot attach."

Noting that Teacher did not challenge the propriety of the Board's decision to create a single full-time position encompassing instruction of both French and Spanish, the Appellate Division ruled the her “claim must fail because, as [Teacher] conceded, she lacks the dual certification necessary for [appointment to] the full-time position.”

Thus, held the Appellate Division, as Teacher “failed to demonstrate a clear legal right to the relief sought,” the Supreme Court properly denied the petition and dismissed the proceeding on the merits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04492.htm

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Civil Service Commission overturns agency’s disqualification of applicant for examination

Civil Service Commission overturns agency’s disqualification of applicant for examination

Matter of City of New York v New York City Civ. Serv. Commn., 2015 NY Slip Op 03036

The New York City Civil Service Commission, after a hearing, reversed a determination by the City’s Department of Citywide Administrative Services that an applicant for the examination for “Principal Administrative Associate” did not meet the minimum qualifications for admission to the examination.

The Appellate Division, sustaining the Commission’s determination, found that the Commission's decision was supported by substantial evidence. The court said that the evidence presented by the applicant for the examination at the hearing before the Commission demonstrated that she possessed the requisite supervisory and/or administrative experience to qualify for admission to the examination for appointment to the position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03036.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 30, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 30, 2015

Click on text highlighted in color  to access the full report

Audits of State Agencies:

Department of Agriculture and Markets: Annual Assessment of Market Orders for 2012, 2013, and 2014 (2014-S-58)
The department has adequate procedures in place to ensure that it accurately reports its assessable expenses in all material aspects. However, the department needs to improve its oversight of its Market Order Program, particularly its Apple Market Order, which is administered pursuant to a contract with the New York Apple Association.


Department of Health: Medicaid Claims Processing Activity October 1, 2013 Through March 31, 2014 (2013-S-50)
For the period October 1, 2013 through March 31, 2014. Auditors identified about $3.3 million in inappropriate Medicaid payments, including $1,335,151 in overpayments for hospital claims for which eMedNY did not properly factor Medicare coverage or a lower level of care into the payment; $682,022 in overpayments for pharmacy claims that were not in compliance with various regulations and policies; and $416,314 in improper payments for claims that were not subjected to the appropriate claims processing logic in eMedNY. By the end of the audit fieldwork, auditors recovered about $2 million of the overpayments identified.

Department of Labor (DOL): Wage Theft Investigations (Follow-Up) (2015-F-9)
In an initial report, issued in June 2014, auditors determined DOL was not completing wage theft investigations in a timely manner. As of August 2013, DOL had a caseload of 17,191 cases, including 9,331 active investigations and 7,860 cases pending payment. Of these, 12,938 cases (75 percent) had been open more than one year since the initial claim was received. In a follow-up report, auditors found DOL has made substantial progress in addressing the issues identified in the initial report. For example, DOL is now completing 80 percent of its wage investigations within six months. At the time of this follow up, DOL only had 305 cases that were open for more than one year.

Office of Mental Health (OMH): Assertive Community Treatment (ACT) Program (2014-S-25)
OMH is not effectively overseeing the ACT program to ensure that provider teams are complying with certain important program requirements. Provider teams are not recertified in a timely manner; program data in the CAIRS system is not complete or accurate; some program staff do not receive required training; and program recipients’ treatment plans are not completed on time, with required team leaders’ approvals. As a result, program recipients’ service needs may not be adequately addressed. The office has also not established methods to assess the extent to which it is achieving overall program goals.

Metropolitan Transportation Authority: Selected Aspects of Travel Expenses (2013-S-79)
Auditors found the Metropolitan Transportation Authority’s New York City Transit, MTA Bus Company, and MTA Bridges and Tunnels units should strengthen certain controls over travel to help reduce costs. For trips booked by MTA’s travel agent, auditors projected that 753 hotel stays exceeded the government lodging rates established by the General Services Administration (GSA) and the U.S. Department of State by at least $127,963. Transit paid more than the GSA maximum lodging rate for 12 of 15 rooms booked by a total of $3,962.

Office of the Nassau County Public Administrator (NCPA): Selected Financial Management and Administrative Practices (2013-S-37)
Among several issues noted by auditors, the NCPA did not have documentation to support the hiring and compensation of employees who are paid through the suspense account. The average monthly balance in the NCPA’s suspense account dropped from $241,214 in 2010, to $74,442. Although the NCPA publicly advertised for vendors annually, it did not prepare the required list of preferred vendors until 2013. Additionally, several vendors did not complete the required “Application to Provide Services.” The NCPA also did not maintain written documentation justifying the selection of particular vendors as required and certain estate assets were put up for sale without the documented formal prior approval of the Surrogate’s Court pursuant to statute. Additionally, the NCPA’s annual reports to the State Comptroller did not list non-cash estate assets as required by law. 

Municipal Audits 

Town of Hume,  

Town of Marilla,  

Village of Round Lake,  

Village of Shortsville; and the 

Village of Suffern. 
 

DiNapoli: Canal Corp. Must Address Gaps in Inspection Performance

The New York State Canal Corporation has not performed inspections as required on a significant number of critical structures along the system’s 524 miles of waterways, according to an audit released by State Comptroller Thomas P. DiNapoli.

DiNapoli: Local Governments Should Improve Enforcement of State Fire Code Regulations

A sampling of municipalities from across New York reveals gaps in the review of fire safety plans or evacuation procedures for public buildings such as adult care facilities, hospitals, hotels, preschools, libraries and shopping malls, according to an audit released by State Comptroller Thomas P. DiNapoli. The audit reviewed enforcement of the state’s Uniform Fire Code in seven cities and three villages.

DiNapoli: Former Treasurer Pleads Guilty to Felony in Theft of More than $5,000 in Fire District Funds

The former treasurer for Pulteney Fire District No. 2 pleaded guilty to stealing more than $5,000 in public funds, after an audit and investigation by State Comptroller Thomas P. DiNapoli revealed that she falsified vouchers and paid herself an additional, illegal salary.

DiNapoli: State Needs to Ensure Timely Execution of Contracts with Not-for-Profits

State agencies were late more than 77 percent of the time in approving contracts with not-for-profit providers in 2014, according to a report released by State Comptroller Thomas P. DiNapoli. The late approvals prompted interest payments, mandated under the Prompt Contracting Law, that cost the state $195,663 last year, the report found.

Discrimination against applicants having limited proficiency in English constitutes unlawful discrimination based on national origin

Discrimination against applicants having limited proficiency in English constitutes unlawful discrimination based on national origin

2015 NY Slip Op 04239, Appellate Division, First Department

The Appellate Division held that the New York City Human Resources Administration, the City’s department in charge of the majority of the City’s social services programs, as a “provider of public accommodation,” violated New York City’s Human Rights Law’s* prohibition against discrimination on the basis of national origin by withholding from or denying “accommodations, advantages, facilities, or privileges” from individuals having  limited English proficiency as such action constitutes discrimination based on national origin.

* See Administrative Code § 8-107[4][a]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04239.htm