Is it a health insurance claim or a workers compensation claim?

Is it a health insurance claim or a workers compensation claim?

Source: CFO Daily Alert

The CFO Daily Alert reports that for some common ailments, like soft-tissue back, knee, or shoulder pain, it’s often not clear whether the injury was work-related or non-occupational. Physicians are given a degree of discretion under workers’ compensation law to make that determination, which creates a conflict of interest, because they usually end up benefiting financially by classifying the injury as work-related. An ongoing shift to the “capitation” model for reimbursing medical providers leads them to classify more injuries as work-related.

This is because workers’ compensation reimbursement rates are established by law, and they are almost always at higher rates than rates contracted with insurers or self-insured employers.

The article is posted on the Internet at:

http://ww2.cfo.com/workers-compensation/2015/10/trendy-health-care-payment-scheme-hikes-workers-compensation-costs/?utm_campaign=CFODailyAlert&utm_nooverride=1&utm_source=CFO-email&utm_medium=email&utm_content=CFODailyAlert_Thursday_2015-10-8&utm_term=workers-compensation&mkt_tok=3RkMMJWWfF9wsRonvarPZKXonjHpfsXw6uwoXK%2Bg38431UFwdcjKPmjr1YEJSsdlI%2BSLDwEYGJlv6SgFT7TFMaxo0bgJWRM%3D

Application of a former police officer removed from the position by operation of law for reinstatement to the position denied

Application for reinstatement of a former police officer removed from the position pursuant to Public Officers Law §30(1)(e) denied

Roth v Town of Newburgh, 2015 NY Slip Op 07033, Appellate Division, Second Department

Public Officers Law §30(1)(e) is a self-executing statute which provides that a public office is deemed vacant upon incumbent’s conviction of a felony, or a crime involving a violation of his or her oath of office.

However, a public officer, other than an individual elected to public office, removed from his or her public office pursuant to §30(1)(e) "may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy."

§30(1)(e) further provides that upon the receipt of an application for reinstatement from an officer who had been so removed “by operation of law,” "the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted."

Roger S. Roth submitted an application for reinstatement to his former position as a police officer following his removal from his position pursuant to §30(1)(e).

A hearing was held and the hearing officer recommended that Roth’s application for reinstatement to his former position be denied. The appointing authority adopted the findings and recommendations of a hearing officer, denying Roth’s application for reinstatement to his position as a police officer. Roth appealed the denial of his application for reinstatement.

The Appellate Division sustained the appointing authority’s determination, holding that the denial of Roth’s application for reinstatement to his position as a police officer was supported by substantial evidence in the record and dismissed Roth’s appeal “on the merits.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07033.htm

_________________

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

  _________________

A “memorandum of understanding” that is characterized as an “agreement to agree” is not an enforceable contract

A “memorandum of understanding” that is characterized as an “agreement to agree” is not an enforceable contract

Offit v Herman, 2015 NY Slip Op 07056, Appellate Division, First Department

Michael Offit contended that a memorandum of understanding [MOU] that the parties had signed was a "Type II" agreement under federal case law,* requiring Julian M. Herman to negotiate in good faith to finalize a settlement of various lawsuits among the parties.

Citing IDT Corp. v Tyco Group, 13 NY3d 209, the Appellate Division said the New York Court of Appeals has rejected "the rigid classification into Types'" in favor of asking "whether the agreement contemplated the negotiation of later agreements and if the consummation of those agreements was a precondition to a party's performance."

The MOU at issue stated that the parties had reached an "agreement in principle, subject to documentation acceptable to the parties and court approval." However, noted the Appellate Division, in prior motion practice, counsel for Offit admitted that the MOU was merely "an agreement to agree."

* The differences between Type I preliminary agreements and Type II preliminary agreements as applied by the federal courts is considered at:

http://www.insidecounsel.com/2013/03/14/litigation-preliminary-agreements-may-not-be-as-pr

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07056.htm

Employer directed to reconsider the penalty imposed following the annulment of some, but not all, of the disciplinary charges and specifications filed against the employee

Employer directed to reconsider the penalty imposed following the annulment of some, but not all, of the disciplinary charges and specifications filed against the employee

Graham v New Hampton Fire Dist., 2015 NY Slip Op 06917, Appellate Division, Second Department

The New Hampton Board of Fire Commissioners adopted, in part and rejected in part the recommendation of a hearing officer, made after a disciplinary hearing and found Daniel Graham, a member of the fire department, guilty of insubordination, misconduct, incompetence, and conduct unbecoming of a member of the fire department. The Fire District imposed the penalty of termination of Graham’s employment with the district.

Graham appealed and the Appellate Division vacated the penalty imposed, termination, because it annulled some, but not all of the charges, filed against Graham. The court then confirmed the determination with respect to the remaining charges and specifications and remanded the matter the New Hampton Board of Fire Commissioners for to determine the appropriate penalty to be imposed in consideration of the charges that survived the Appellate Division’s scrutiny and to then impose that penalty.*

The court explained that judicial review of an administrative determination made after a hearing at which evidence is taken is limited to consideration of whether that determination is supported by substantial evidence. While the Board's determination as to Specification One of Charge One is supported by substantial evidence in the record, the Appellate Division said that the Board's determination that Graham was guilty of the misconduct alleged in Specification Two of Charge One must be annulled because it was “duplicative of the Board's determination in connection with Specification One of Charge One, citing Levi v Lauro, 58 AD3d 851.

The court found that with respect to Specification One of Charge Two, the Board's determination was supported by substantial evidence.** The Appellate Division noted that the Board had credited one witness's testimony that was based in part upon the statements and observations of her children. However, said the court, hearsay statements are admissible in administrative proceedings, and may form the basis for an agency's determination.

Observing that certain testimony conflicted with other testimony and that such conflicting testimony presented issues of credibility, the Appellate Division explained that, in the works of the court, “Where room for choice in administrative fact finding exists, a reviewing court may not weigh the evidence or reject a rational credibility determination made by the administrative decision maker,” citing Berenhaus v Ward, 70 NY2d 436.

* The Board had imposed a penalty of termination of Graham’s membership in the District's fire department upon a finding that he was guilty of Charges One and Two. As the court dismissed Charge One, Specification Two and Charge Two Specification Two, the penalty imposed was annulled and the matter returned to the Board to consider the appropriate penalty to be imposed upon Graham with respect to the surviving charges and specifications, Charge One, Specification One and Charge Two, Specification One.

** As to the Board's determination with respect to Specification Two of Charge Two, the Board conceded that its determination was not supported by substantial evidence and thus was annulled.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06917.htm

______________

A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

______________

                                                    

A two-step test is used by New York court to determine if a grievance is arbitrable

A two-step test is used by New York court to determine if a grievance is arbitrable

Incorporated Vil. of Floral Park v Floral Park Police Benevolent Assn.,2015 NY Slip Op 07026, Appellate Division, Second Department

The Floral Park Police Benevolent Association [PBA] filed a grievance alleging that its members, who worked during and in the aftermath of Superstorm Sandy, from October 29, 2012, through November 5, 2012, were entitled to additional compensation from the Incorporated Village of Floral Park pursuant to their Collective Bargaining Agreement. Unsuccessful in the three-step grievance procedure, the PBA demanded that the grievance be submitted arbitration.

The Village commenced an Article 75 action seeking a court order to stay the arbitration, whereupon the PBA filed a cross-petitioned to compel arbitration. The Supreme Court granted the Village's petition and the PBA appealed.

The Appellate Division reversed the Supreme Court action, on the law, granted the PBA’s petition to compel arbitration is granted. The court ordered the parties to proceed to arbitration noting that public policy in New York favors arbitral resolution of public sector labor disputes.

However, the Appellate Division explained, a dispute between a public sector employer and employee is only arbitrable if it satisfies a two-prong test. First the court must determine if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If it passes this test, the court must then determine whether the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

The Village did not claim that arbitration of this grievance was prohibited by statute or public policy, nor did the Appellate Division find that such a prohibition, in fact, existed.

As to the second test, did the parties agreement to submit the focus of the grievance to arbitration, the court said that was only necessary to determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. In this instance the court said that relevant provisions of the collective bargaining agreement were broad, as they provide for arbitration of any grievance, defined as "any claimed violation, misinterpretation or inequitable application of this Agreement," which remains unresolved following completion of step three of the grievance procedure. 

The Appellate Division found that there was a reasonable relationship between the subject matter of the dispute, which involves compensation over a specific time period, and the general subject matter of the CBA, and thus was arbitrable.

As to defects alleged by Village, [1] that the evidence did not support the grievance and that [2] the PBA failed to comply with the time limits for bringing the grievance, the Appellate Division said that both issues were for the arbitrator to determine.

The Appellate Division said that the "threshold determination of whether a condition precedent to arbitration exists and whether it has been complied with, is for the court to determine" In contrast, "[q]uestions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

Here the CBA does not specify that a grievance must be personally pursued by an aggrieved member as a condition precedent to arbitration. Thus the issue as to whether the PBA complied with the grievance process is one of procedural arbitrability to be resolved by the arbitrator.

Finding that the PBA complied with the requirement that a grievance be presented to and discussed with a supervisor "within fifteen (15) days of an alleged grievance," and that the PBA president timely discussed the grievance with his supervisor after the Village first informed him that members of the Village's police department would not receive additional compensation for time worked from October 29, 2012, through November 5, 2012, the Appellate Division ruled that Supreme Court should have denied the Village's petition to stay arbitration and granted the PBA's cross petition to compel arbitration, and directed the parties to proceed to arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07026.htm

The reasons that would support the vacating of a disciplinary penalty imposed by the arbitrator following a disciplinary hearing are limited

The reasons that would support the vacating of a disciplinary penalty imposed by the arbitrator following a disciplinary hearing are limited

Esteban v Department of Educ. of the City School Dist. of the City of N.Y., 2015 NY Slip Op 06965

The New York City Department of Education [DOE] had filed disciplinary charges against Damian Esteban, a teacher employed by DOE, which were submitted for adjudication to an arbitrator pursuant to Education Law §3020-a. The arbitrator sustained certain of the charges and specifications and determined that the appropriate penalty for Esteban's misconduct was dismissal.

Esteban filed a petition to seeking a court order vacating that portion of a disciplinary arbitrator's decision that imposed the penalty of termination of his employment as a public school teacher. Supreme Court granted Esteban’s petition and remanded the matter for the imposition of an appropriate lesser penalty.

DOE appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling on the law and dismissed the proceeding.

Citing Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, the court explained that an arbitration award determining an employment dispute in public education may not be vacated unless "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The Appellate Division held that the penalty of dismissal was not irrational and was not against public policy. Nor, said the court, was it ultra vires* for the arbitrator to determine that Esteban's public possession of heroin warranted the penalty of dismissal.

Citing Lackow v Department of Education, 51 AD3 563, the court then held that imposing termination of employment as a penalty for such misconduct not "so disproportionate to the offense as to be shocking to the court's sense of fairness."

* An "ultra vires" act refers to an act or action that was beyond the scope of the authority of the arbitrator to perform. Here the court concluded that the penalty imposed on Esteban was not ultra vires.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06965.htm

______________

A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

______________

Selected reports issued by the State Comptroller during the week ending October 3, 2015

Selected reports issued by the State Comptroller during the week ending October 3, 2015

Source: Office of the State Comptroller

Click on the text in color to access the Comptroller’s report.

Top Retirement System staff appointed
New York State Comptroller Thomas P. DiNapoli has named Colleen Crawford Gardner as Executive Deputy Comptroller and Melanie Whinnery as Deputy Comptroller of the New York State and Local Retirement System (NYSLRS).

http://www.osc.state.ny.us/press/releases/sept15/093015.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=093015release

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the municipal units of government:

Barnard Fire Department

http://www.osc.state.ny.us/localgov/audits/firedists/2015/barnard_dept.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Barnard Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/barnard_dist.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Orange Lake Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/orangelake.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Village of Silver Springs

http://www.osc.state.ny.us/localgov/audits/villages/2015/silversprings.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Southern Cayuga Lake Intermunicipal Water Commission

http://www.osc.state.ny.us/localgov/audits/jointacts/2015/southerncayugalake.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

and the

Town of Westport

http://www.osc.state.ny.us/localgov/audits/towns/2015/westport.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease 


MTA Faces $9.8 Billion Capital Plan ShortfallWhether the Metropolitan Transportation Authority (MTA) will be able to limit future fare and toll increases to 4 percent as planned will depend on the amount of capital funding made available by New York state and New York City, and whether the economy continues to grow without interruption as anticipated by the MTA, according to a report released by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/sept15/092915.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=092915release 


New York Medicaid Costs for Diabetes more than $1.2 BillionApproximately 460,000 New York Medicaid recipients diagnosed with diabetes received diabetes-related services costing more than $1.2 billion in state fiscal year (SFY) 2013-14, according to a report released by State Comptroller Thomas P. DiNapoli detailing the statewide costs of the disease.

http://www.osc.state.ny.us/press/releases/oct15/100215.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215release


Tentative Schedule for the Sale of State Obligations

New York State Comptroller Thomas P. DiNapoli announced a tentative schedule for the planned sale of obligations for the state, New York City, and their major public authorities during the fourth quarter of 2015.

http://www.osc.state.ny.us/press/releases/oct15/100115.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100115release

Finding an individual guilty of disciplinary charges and imposing a penalty must be supported by substantial evidence

Finding an individual guilty of disciplinary charges and imposing a penalty must be supported by substantial evidence

2015 NY Slip Op 06924, Appellate Division, Second Department

An employee was served with disciplinary charges pursuant to Civil Service Law §75  alleging excessive absence and abuse of the employee’s leave privileges by the employee’s utilization of sick and personal leave on days that fell immediately before or after weekends, holidays, vacations, or other pre-approved absences on leave.

The hearing officer who conducted a hearing on the charges recommended that all of the charges and specifications be dismissed, and that the employee's 30-day suspension be nullified with full back pay. The employer, however, rejected the findings and recommendation of the hearing officer and determined that the employee was guilty of one charge of misconduct and neglect of duty.* The penalty imposed: suspension without pay for 30 calendar days.

The employee was served with disciplinary charges alleging excessive absence, abuse of leave privileges “utilizing sick and/or personal leave on days that fell immediately before or after weekends, holidays, vacations, or other pre-approved leave.

The employee initiated a CPLR Article 78 proceeding against the employer contending that the employer’s determination was not supported by substantial evidence. The Appellate Division agreed.

The Appellate Division explained that a court’s review of a determination rendered by an administrative body following "a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record." Citing 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, the court said that substantial evidence, "consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably—probatively and logically."

Noting that “the quantum of evidence that rises to the level of substantial' cannot be precisely defined, the court indicated that the inquiry is whether in the end “the finding is supported by the kind of evidence on which responsible persons are accustomed to rely in serious affairs."

The court decided that the employer’s determination that the employee had engaged in misconduct and neglect of duty by abusing her leave time privileges, and was excessively absent from work was not supported by substantial evidence.

Accordingly, the Appellate Division granted the employee’s grant the petition, annulled the employer’s determination, vacate the penalty imposed on the employee, and remit the matter to the employer to determine the amount of back pay and benefits owed to the employee.

* Presumably the allegation of “neglect of duty” was recited in the charges and, or, specifications served on the employee as an individual cannot be found guilty of allegations not set out in the charges or the specifications. Case law has long held that an employee may not be found guilty of acts of alleged misconduct or incompetence that have not been charged [see, for example, Shuster v Humphrey, 156 NY 231].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06924.htm

_________________

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

  _________________

Imposing the penalty of termination must not be so disproportionate to the offense committed as to be shocking to the court's sense of fairness

Imposing the penalty of termination must not be so disproportionate to the offense committed as to be shocking to the court's sense of fairness

Monahan v City of Glen Cove, 2015 NY Slip Op 06920, Appellate Division, Second Department

An employee of the City of Glen Cove, Kevin Monahan, was served with disciplinary charges.  The City adopted the findings of a hearing officer, made after a hearing, that Monahan was guilty of fraud and offering a false instrument for filing. The penalty imposed: terminated of Monahan's employment.

Monahan appealed his dismissal from his position with the City, contending that a lesser penalty should have been imposed.

The Appellate Division said that a judicial review of an administrative determination made after a trial-type hearing directed by law is limited to whether the determination is supported by substantial evidence. Further, said the court, in the event there is conflicting evidence or different inferences may be drawn from the evidence in the record, "the duty of weighing the evidence and making the choice rests solely upon the [administrative tribunal]. The courts may not weigh the evidence or reject the choice made by [such tribunal] where the evidence is conflicting and room for choice exists."

The Appellate Division then noted that any “credibility issues were resolved by the hearing officer, and [it found] no basis upon which to disturb the hearing officer's determination, which, the court noted, was supported by substantial evidence.

As to the penalty imposed by the City, the court cited the so-called “Pell Doctrine”* and found that “Contrary to the [employee's] contention, under the circumstances presented, the penalty of termination of his employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness.”

* Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06920.htm

­­­­­­­­­­­­­­­­­______________

A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

______________

Failing to follow the established procedures for conducting annual employee performance rating undermines the integrity and fairness of the process

Failing to follow the established procedures for conducting annual employee  performance rating undermines the integrity and fairness of the process

Murray v Board of Educ. of the City School Dist. of the City of N.Y., 2015 NY Slip Op 06866, Appellate Division, First Department

Juanita Murray, a school social worker employed by the New York City Department of Education [DOE] petitioned Supreme Court to annul the unsatisfactory performance rating and the denial of her appeal of that rating for the 2010-2011 school year. Supreme Court granted DOE’s motion to dismiss Murraypetition and Murrayappealed.

The Appellate Division unanimously reversed the lower court’s decision, on the law, granted Murray’s petition to the extent of annulling the U-rating.

Murray’s principal, Robert Mercedes, had rated her unsatisfactory in seven categories in her 2010-2011 Annual Professional Performance Review:  attendance and punctuality; professional attitude and professional growth; resourcefulness and initiative, where he wrote that she lacked initiative and growth; analysis and interpretation of assessment data; translates assessment findings into educationally relevant goals and objective; appropriateness and flexibility of counseling approaches; and submitting assessment reports.

Noting the Murray, as was her right under the parties' collective bargaining agreement, appealed her U-rating to the Chancellor of the DOE the court said that although both Murray and Mercedes testified at the hearing, no transcript was included in the record. The court said the DOE respondents “rely on the report of the hearing issued by the Chancellor's Committee, which described the parties' arguments, made findings of fact, and recommended that the U-rating be sustained.”

Having exhausted her administrative remedies, Murrayfiled a timely CPLR Article 78 petition challenging the U-rating given her in its entirety, contending that DOE had not adhered to its own procedures nor to the relevant procedures set out in the relevant collective bargaining agreement. On this point the Appellate Division, citing DOE Special Circular No. 45, observed that “as a pedagogical employee, [Murray] was to be given at least one full period of review during the school year by her principal, followed by a meeting with the principal to discuss her strengths and any areas in need of improvement. Additionally, as a social worker employed at a school, she should have been evaluated by the school principal in consultation with the in-discipline supervisor, in accordance with the collective bargaining agreement.”

Also of “great concern” the Appellate Division was the fact that an in-discipline supervisor did not critique Murray's work as required by the collective bargaining agreement and in the absence of a transcript of the Chancellor's Committee hearing, it only had the statements Murray’s made in her underlying papers and again on appeal, that Principal Mercedes admitted to not having the experience or qualifications to evaluate her without input from the in-discipline supervisor prior to asking Murray for certain documents. Further, the court said that there was no evidence that Murraywas notified before the end of the school year in June 2011 that her work was considered unsatisfactory.

The court said that “The record is clear that [Murray] was deprived of her substantial rights in the review process culminating in her U-rating when measured against the methodology followed in other such case, citing Cohn v Board of Education, 102 AD3d 586. The Appellate Division found that “the instant record does not show that [Murray] was provided with support, or formal constructive criticism, of any kind.” Indeed, the court said that the DOE respondents “have not demonstrated by competent proof that they gave [Murray], who was tenured, any feedback of any kind.”

In the words of the Appellate Division, “… the complete absence of constructive criticism and warnings during the entire school year, compounded by the lack of a formal observation and accompanying feedback during the school year, ‘undermined the integrity and fairness of the process’." 

Accordingly, the Appellate Division reversed the ruling of the Supreme Court and granted Murray’s petition to the extent of annulling the U-rating.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06866.htm

A political subdivision of the State may provide for the defense and indemnification of its officers and employees sued in state or federal court involving the performance of official duties

A political subdivision of the State may provide for the defense and indemnification of its officers and employees sued in state or federal court involving the performance of official duties

Bonilla v Town of Hempstead, 2015 NY Slip Op 06916, Appellate Division, Second Department

Former Hempstead Town Clerk Mark A. Bonilla initiated an Article 78 action seeking a court order compelling the  Town of Hempstead to provide him with a defense and indemnification in an action entitled Smith v Town of Hempstead, CV-134985, pending in the United States District Court for the Eastern District of New York as mandated by the Town Code.

The relevant section of the Town Code, §11-2(A), provides as follows:

The town shall provide for the defense of an employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties or which is brought to enforce a provision of Section 1981 or 1983 of Title 42 of the United States Code; provided, however, that the duty of the town to defend or save harmless shall be conditioned upon: 

1. Delivery to the Town Attorney at his offices by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with such document. Such delivery shall be deemed a request by the employee that the town provide for his defense pursuant to this chapter 

2. The full cooperation of the employee in the defense of such action or proceeding and in the defense of any action or proceeding against the town based upon the same act or omission and in the prosecution of any appeal.

Supreme Court granted Bonella’s petition and the Town appealed.

The Appellate Division affirmed the Supreme Court’s ruling, noting that §11-2(A) of the Code of the Town of Hempstead provides, in relevant part, that the Town "shall provide for the defense of an employee [or former employee] in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is [alleged] to have occurred while the employee was acting within the scope of his [or her] public employment or duties or which is brought to enforce a provision of [42 USC §1981 or 42 USC §1983]."* 

As the underlying federal complaint seeks to recover damages for civil rights violations pursuant to 42 USC §1983 and neither the parties nor the Supreme Court addressed the provision of Town Code §11-2(A) directing the Town to defend an employee in any action seeking to enforce a provision of 42 USC §1983, the Appellate Division focused “only on the question of whether the federal complaint sufficiently alleged that the harassment occurred while [Bonilla] was acting in the scope of his employment.”

The court explained that the duty to defend an employee or former employee is broader than the duty to indemnify and it is triggered if the civil complaint includes allegations that the employee was acting within the scope of his or her employment at the time of the alleged wrongdoing. In this instance the federal complaint included allegations that Bonilla committed act constituting sexual harassment while acting in the scope of his employment as the Town Clerk, that the Town facilitated a hostile work environment, and that the Town failed to prevent workplace harassment.

Supreme Court determined that the allegations in the federal complaint were sufficient to trigger the Town's broad duty to defend Bonilla notwithstanding the Town’s argument to the contrary and the Appellate Division sustained the Supreme Court’s ruling. Thus, said the court, Supreme Court properly granted the petition to the extent of directing the Town to provide a defense for Bonilla in the federal action.

* With the exception of the provision regarding actions brought to enforce a provision of 42 USC §1981 or 42 USC §1983, the language contained in Town Code §11-2(A) is similar to language set out in Public Officers Law §18 and was enacted as Local Law No. 2-1980, adopted January 8, 1980, effective January 11, 1980.  In contrast to §18 of the Public Officers Law, §17.2(a) of the Public Officers Law provides for “Defense and indemnification of state officers and employees” in civil and federal actions, including actions brought pursuant to 42 USC §1981 or 42 USC §1983.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06916.htm

An individual must have standing to bring a proceeding pursuant to Education Law §306

An individual must have standing to bring a proceeding pursuant to Education Law §306

Matter of Luciano, Decisions of the Commissioner of Education, Decision No. 16,828

The critical issue in this appeal concerned the residence of the individual filing a  proceeding pursuant to §306 of the Education Law as, in the words of the Commissioner of Education, “a non-resident does not have standing to bring a proceeding pursuant to Education Law §306 to remove a school official in a district in which he or she does not reside.”

Antonio Luciano file an application seeking to have the Commissioner remove certain members of the school board from their respective positions. The Commissioner found that Luciano lacked standing to file such an application.

The Commissioner explained that an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights and only persons who are directly affected by the action being appealed have standing to bring an appeal.

The decision states that Luciano’s application failed to allege that he was a resident of the district but merely stated that he is “a taxpayer and resident of Rockland County, and a citizen of the State of New York” and that his child “formerly attended schools” within the district. The school district raised the issue of Luciano’s “non-resident” status as an affirmative defense, contending that Luciano application must be dismissed for lack of standing.  Significantly, Luciano failed to file a reply refuting the school district’s affirmative defenses.

On this point the Commissioner noted that §275.14 of the Commissioner’s regulations states that [1] a petitioner shall reply to each affirmative defense; and [2] the result of a petitioner’s failure to do so is that the facts alleged are deemed to be true. However, said the Commissioner, the Commissioner was not required to accept a respondents’ legal conclusions regarding the affirmative defenses; and a legal analysis of the admitted facts with respect to the affirmative defenses must be performed.

In his legal analysis of the matter, the Commissioner found that when Luciano filed his memorandum of law, he also requested permission to file an affirmation by counsel which included new documentary evidence in further support of his application.  One of the documents was an affidavit by Luciano in which he claims residency within the district. The school district, however, objected to the submission of this additional material arguing that Luciano should not be permitted to bolster his defective application “this late in the process.”

The Commissioner agreed, ruling that the “procedural rules set forth an orderly process for framing the relevant issues” and the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer. Further, a reply is to be served within 10 days after service of the answer to which it responds.

The Commissioner found that while Luciano was given an opportunity to timely file a reply containing any exhibits or evidence required to refute respondents’ affirmative defenses, he elected not to do so.  Instead, Luciano waited until he filed his memorandum of law to respond to the affirmative defenses by requesting permission to file additional papers, including his affidavit.  

  

The Commissioner noted that [1] any such additional affidavits, exhibits and other supporting papers “may only be submitted with the prior permission of the Commissioner,” citing 8 NYCRR §276.5 and [2] although this provision permits the submission of additional evidence, “it cannot be used to buttress allegations in the petition.”

The Commissioner found that Luciano offered no explanation or excuse for his delay in filing the additional papers; that his affidavit was executed and dated “an entire month before it was even submitted for consideration.” Because Luciano did not demonstrate good cause for his delay in submitting the additional documentation, the Commissioner ruled that “it is not accepted for consideration.”

In any event, said the Commissioner, “Even if I were to accept the additional papers, [Luciano’s] affidavit fails to prove that he is a district resident with standing to maintain this proceeding. Although his residency is a disputed issue, the affidavit is devoid of any specificity or particulars whatsoever. In the affidavit, [Luciano] offers blanket statements that he has been a resident of the district for 21 years and pays taxes in the district.”

As Luciano failed to provide his address or any documentary evidence establishing his residency within the district, other than his own conclusory statement, and without any evidence of his residence, the Commissioner ruled that his application “must be dismissed for lack of standing.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16828