Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Seniority for the purposes of layoff set out in the Civil Service Law and the Education Law trump those set out in a collective bargaining agreement

Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 2011 NY Slip Op 07431, Appellate Division, Second Department

In 1999 the New York City Transit Authority (“NYCTA”), its subsidiary, the Manhattan and Bronx Surface Transit Operating Authority (“MABSTOA”) and the Transport Workers Union of America, Local 100 (“TWU”), entered into a collective bargaining agreement that, in pertinent part, provided for “the commingling of personnel, including bus operators,” between NYCTA and MADSTO for the purposes of selecting job assignments within both entities. TWU created a consolidated “seniority list” for bus operators it represented working for NYCTA and MABSOTA.

When TWU was advised that due to a budget shortfall, staff reductions were required that would affect bus operators employed by NYCTA and MADSTO and that at-risk NYCTA bus operators, as civil service employees, would be laid off in civil service seniority order, and at-risk MABSTOA bus operators, who were not civil service employees would be laid off in order of seniority in title, as provided for in the CBA, TWU filed a contract interpretation grievance on behalf of bus operators in the units it represented alleging that the announced method for laying off bus operators violated the surface consolidation agreement and as a remedy, asked for a determination that the bus operators for each be laid off pursuant to the consolidated seniority list used for picking job assignments.

Ultimately NYCTA initiated an Article 75 proceeding to permanently stay the arbitration on the ground that the relief sought was prohibited by the statutory requirements set out in the Civil Service Law for conducting layoffs of employees in the classified service. The Supreme Court granted the petition and permanently stayed arbitration of the grievance. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that “In the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether ‘there is any statutory, constitutional or public policy prohibition against arbitration of the grievance'" and if there is no 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."

NYCTA contended that the subject matter of the grievance was prohibited by law or public policy. In that regard, said the Appellate Division, a dispute is not arbitrable "if a court can conclude without engaging in any extended fact-finding or legal analysis' that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided' by arbitration."

The Appellate Division concluded that “assuming that the surface consolidation agreement affects how [NYCTA is] to conduct layoffs, the particular matter to be decided is prohibited, in an absolute sense, by Civil Service Law §80(1), which provides the sole manner by which an employer may lay off civil service employees in [the] competitive class,” citing Matter of County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d at 521).

Accordingly, layoffs within the title of bus operator in the NYCTA can only be made in inverse order of civil service seniority consistent with the mandates of Civil Service Law §80(1) and not by any other method such as the use of the consolidated seniority list. The Appellate Division concluded that "an arbitrator could not fashion a different remedy for this particular grievance that would not violate statutory requirements or public policy.”

This element – seniority for the purpose layoff – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by the Appellate Division’s decision in City of Plattsburgh v Local 788, 108 AD2d 1045.*

In the Plattsburgh case the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation.

The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

These were the critical events in the Plattsburgh case. The City laid off Mousseau rather than another worker, Racine. While Mousseau, had been employed by the City for a longer period than Racine, Racine had received his permanent appointment before Mousseau was permanently appointed.

The Union grieved, contending that under the seniority provision in the collective bargaining agreement, Racine should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus Mousseau, rather than Racine, had to be laid off first. The Appellate Division ruled that Plattsburgh was entitled to an order barring submitting the Union’s grievance to arbitration. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

As the Court of Appeals said in County of Chautauqua v Civil Service Employees Ass'n, 8 N.Y.3d 513, “Once such an informed decision as to which positions are to be [abolished] is made, §80(1) obligates the employer to respect the seniority rights of its employees." The same it true with respect to layoffs of personnel in the unclassified service.

* Source The Anatomy of a Layoff by Harvey Randall, Esq., Municipal Lawyer, Summer 2009, Vol. 23, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207 © 2009 New York State Bar Association. Reprinted with permission.

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 5, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 5, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

School District and BOCES Audits

Bellmore Union Free School District – Financial Condition

The audit is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/schools/2016/bellmore.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight

Jefferson-Lewis-Hamilton-Herkimer-Oneida Board of Cooperative Educational Services – Separation Payments

The audit is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/schools/2016/jefflewhamherkoneidaboces.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight

Olean City School District – Financial Management

The audit is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/schools/2016/olean.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight                      

Port Washington Union Free School District – Claims Processing and Inventories

The audit is posted on the Internet at:\http://www.osc.state.ny.us/localgov/audits/schools/2016/portwashington.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight

Rensselaer City School District – Financial Condition

The audit is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/schools/2016/rensselaer.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight 

Spencerport Central School District – Financial Condition

The audit is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/schools/2016/spencerport.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20161106&utm_campaign=fiscal+oversight

Other reports issued

Contractor improperly retained $1,498,719 due NYSHIP for prescription drug rebate

A company that was supposed to collect rebates from drug manufacturers on behalf of the New York State Health Insurance Plan failed to turn over nearly $1.5 million in rebates to the state over a four-year period, according to an auditreleased by State Comptroller Thomas P. DiNapoli. 

Volunteer Fire Department’s former treasurer pleads guilty to charges related to his embezzlement from the Patterson, New York Fire Department  

Preet Bharara, the United States Attorney for the Southern District of New York, Shantelle P. Kitchen, the Special Agent in Charge of the New York Field Office of the Internal Revenue Service - Criminal Investigation, William F. Sweeney Jr., the Assistant Director-in-Charge of the New York Field Division of the Federal Bureau of Investigation, Thomas P. DiNapoli, New York State Comptroller, and George Beach, Superintendent, New York State Police, announced that Albert Melin, the former treasurer of the Patterson Fire Department in Patterson, New York (PFD), pled guilty to wire fraud and false subscription to tax returns before Magistrate Judge Judith C. McCarthy in connection with his embezzlement of more than $1.1 million from the PFD.

http://www.osc.state.ny.us/press/releases/nov16/110216b.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20161106&utm_campaign=fiscal+oversight 

Metropolitan Transit Authority failed collect penalty fees from a contractor who

mishandled customer service calls

State Comptroller Thomas P. DiNapoli released an auditrevealing the Metropolitan Transportation Authority did not collect almost $400,000 in penalty fees from Global Contact Services, a contractor who mishandled customer service calls and provided inaccurate travel planning information to customers who utilize the MTA’s Access-A-Ride program.

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The Attorney General and the State Comptroller encourage anyone with information on alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Review of a district attorney’s handling of a criminal proceeding brought before a grand jury

Review of a district attorney’s handling of a criminal proceeding brought before a grand jury

Staten Is. Branch of the N.A. for the Advancement of Colored People v State of N.Y. Grievance Comm. for the Second, Eleventh and Thirteenth Jud. Dists., 2016 NY Slip Op 07124, Appellate Division, First Department

The Staten Island Branch of the N.A.A.C.P. [Staten Island] sought a court review and a disciplinary remedy, alleging that that former Richmond County District Attorney Daniel Donovan had a conflict of interest per se in his handling of a grand jury proceeding in an effort to obtain an indictment against a local police officer.

Supreme Court denied Staten Island’s Article 78 petition seeking an order annulling the Grievance Committee for the Second, Eleventh and Thirteenth Judicial Districts’ [Committee] determination not to reopen an investigation into Staten Island’s disciplinary complaint and dismissing the proceeding.  Staten Island’s appeal of the Supreme Court’s ruling was unanimously denied by the Appellate Division.

The Appellate Division said the Supreme Court’s determination that it lacked jurisdiction over this Article 78 proceeding to challenge an Attorney Grievance Committee decision not to investigate the handling of the grand jury proceeding involving former Richmond County District Attorney Daniel Donovan “is supported by well-settled authority.” The court explained that “the only avenue for review has already been exhausted through the reconsideration process and an application to the Presiding Justice of the Appellate Division, Second Department.”*

The Appellate Division also observed two additional elements that barred Staten Islands Article 78 action: [1] a court review and a disciplinary remedy against a duly elected prosecutor who acted within the discretion of his office “fails under the doctrine of separation of powers” and [2] Staten Island’s contention that “a publicly-elected district attorney is possessed of a conflict of interest per se whenever seeking an indictment against a local police officer was not sufficiently particularized.”

* The Appellate Division noted that an Executive Order of the Governor, Cuomo EO 147, authorizes transferring prosecutorial authority to the Attorney General in future cases involving fatal actions by police officers, which order provides an additional remedy to hold prosecutors accountable for their discretionary conduct as does the electoral process.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07124.htm

Probationary employee has the burden of showing his or her termination was unlawful

Probationary employee has the burden of showing his or her termination was unlawful

Mendez v New York City Dept. of Educ., 2016 NY Slip Op 06947, Court of Appeals

Finding that Diane Mendezdid not establish that the termination of her probationary employment "was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith," the Court of Appeals sustained the New York City Board of Education’s decision to dismiss Mendez from her employment.

The Court of Appeal's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06947.htm

The Trial Court's decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/pdfs/2013/2013_34073.pdf

Viability of claims submitted after the legislative deadline for filing the claim

Viability of claims submitted after the legislative deadline for filing the claim

County of Chemung v. Shah, Court of Appeals, 2016 Slip Opinion 07043

In response to claims filed by municipalities that the State consider and pay claims submitted after the effective date of the legislative deadline for pre-2006 Medicaid reimbursement claims mandated by §61 of the 2012 amendment to the Medicaid Cap Statute, the Court of Appeals held that reimbursement claims filed after April 1, 2012.

Further, said the court, the State was not required to initiate an administrative review of its records to identify and pay for any pre-2006 claims submitted by a municipality.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_07043.htm

A discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer

A discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer

Bevilacqua v DiNapoli, 2016 NY Slip Op 07077, Appellate Division, Third Department

Police Captain Larry A. Bevilacqua applied for accidental disability retirement benefits alleging that he was permanently incapacitated from performing his job duties as the result of an incident that occurred in the course of his investigating an armed robbery.

Captain Bevilacqua testified that he fallen because certain steps had been painted with glossy paint and the top step was sloped in a downward angle. He also testified that, after he fell, he observed that his boots were damp from crossing “the neighbors' lawns.”

However, both the police department's incident report and two other reports signed by Captain Bevilacqua that were created on the day of the incident attribute the fall to his wet boots slipping on the painted porch, with no mention of the sloped step.

The Appellate Division explained that such a discrepancy between the contemporaneous incident reports and disabled individual's testimony at the subsequent hearing presented a credibility issue for the Hearing Officer* and State Comptroller to resolve.

The Hearing Officer denied Captain Bevilacqua’s application, concluding [1] that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law and [2] that the earlier written descriptions of the accident were more credible than Captain Bevilacqua’s testimony attributing his fall to the sloped step. The State Comptroller sustained the Hearing Officer’s determination** and Captain Bevilacqua appealed the Comptroller’s decision.

The Appellate Division sustained the Comptroller’s determination, explaining that “[e]ven accepting [Captain Bevilacqua’s] testimony, the Hearing Officer concluded that [Captain Bevilacqua], who grew up in the area and described the porch as ‘one of those big old North Buffalo porches,’ should have reasonably anticipated that the ‘steps might have not been level.’"

As, in the Appellate Division’s view, substantial evidence supported the Comptroller’s determination that the conditions that caused Captain Bevilacqua 's fall and “the painted surface of the steps, his wet boots and even the sloped step — were readily observable  and that the fall resulted from Captain Bevilacqua 's own misstep or inattention.” The court explained that an application for accidental disability retirement bears the burden of demonstrating his or her entitlement to such benefits and the Comptroller’s determination will be upheld if supported by substantial evidence.

Further, said the court, "an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties."

* A hearing officer’s determinations regarding the credibility of witnesses "are largely unreviewable" by a court [see Board of Educ. of the City School Dist. of the City of New York v Ostrin, 120 AD3d 1105].

** Although Captain Bevilacqua’s application for accidental disability retirement was denied, he was awarded performance of duty disability retirement benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07077.htm

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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A public officer threatening to do something that he or she may lawfully due does not constitute coercion

Public officer threatening to do something that he or she may lawfully do does not constitute coercion

City of Dodge City v Webb, Kansas Supreme Court, #109634

The Kansas Supreme Court sustained the conviction of Orie J. Webb of driving under the influence of alcohol. Webb argued that that he had been unconstitutionally coerced into submitting to a breath test for alcohol because police officers threatened to obtain a warrant to have him submit to a "blood test."  The court said that as Kansas law permits law enforcement officers to to obtain a warrant for a blood draw after a breath test refusal, and therefore, the threat to do so was not coercive.

Sometimes an employee may be threatened with disciplinary action if he or she does not immediately resign from the position. Does such a demand constitute coercion?

In Rychlick v Coughlin, 63 NY2d 643, a case challenging an appointing authority's demand that an employee resign from the position or be served with  disciplinary charges, the Court of Appeals ruled that threatening to do what the appointing authority had a right to do -- file disciplinary charges against the employee -- did not constitute coercion so as to make the resignation involuntary.

New York’s Court of Appeals has also addressed the question of using an employee’s statement made under the threat of dismissal from his or her employment in a criminal action taken against the individual. 

In People v Corrigan, 80 NY2d 326, the court ruled that under both state and federal law any statement made under the threat of dismissal from one's position is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.”

Further, in Kastigar v United States, 406 U.S.441, the Supreme Court held that in the event an employee believes information obtained under threat of disciplinary action is going to be used against him or her in a pending criminal proceeding, he or she may request what is now referred to as a “Kastigar hearing” to determine whether the prosecution made any use of either a compelled, immunized statement or any evidence derived directly or indirectly from such a statement in the criminal action.

The decisions is posted on the Internet at:

http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2014/20140613/109634.pdf

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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

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Civil rights statutes trump collective bargaining agreement’s arbitration clause unless the wording of the clause regarding arbitrating civil rights complaints is “clear and unmistakable”

Civil rights statutes trump collective bargaining agreement’s arbitration clause unless the wording of the clause regarding arbitrating civil rights complaints is “clear and unmistakable”

Lawrence v. Sol G. Atlas Realty Co., Inc., USCA, 2^nd Circuit, Docket 15-3087

If the relevant collective bargaining agreement’s arbitration clause does not include language requiring the arbitration of statutory discrimination or retaliation claims with wording that is “clear and unmistakable,” the employee may seek to vindicate his or her claims of unlawful discrimination or retaliation as provided in the controlling statute or statutes. The court vacated the district court's grant of defendants' motion to compel arbitration and dismissed the complaint.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/78e241c4-286b-4d8d-bad3-ad9edc00d88f/2/doc/15-3087_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/78e241c4-286b-4d8d-bad3-ad9edc00d88f/2/hilite/

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending October 29, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending October 29, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

School DistrictAudits

Caledonia-Mumford Central School District – Online Banking

Caledonia-Mumford

Genesee Valley Board of Cooperative Educational Services– Purchasing

Genesee Valley BOCES

Heuvelton Central School District – Payroll

Heuvelton

Syracuse City School District – Claims Audit Process

Syracuse

Your Home Public Library – Financial Management

Your Home Public Library

 Other audit reports published 

Gingerbread  Learning Center, Inc. – claimed reimbursement for ineligible expenses.

Gingerbread is a not-for-profit organization that provides center-based (full-day, half-day and integrated) preschool programs and Preschool Special Education Services, formerly known as the Special Education Itinerant Teacher (SEIT) program, to children ages three through five years. State Education Department (SED) contracts with Gingerbread to provide these programs to children throughout Staten Island and neighboring boroughs. The State Comptroller said that Gingerbread claimed nearly $1 million in expenses that did not qualify for reimbursement from taxpayers, including bonuses that were never paid to staff, liquor store purchases and holiday parties. The audit report is posted on the Internet at http://www.osc.state.ny.us/audits/allaudits/093017/14s79.pdf.

The Attorney General and the State Comptroller encourage anyone with information on alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Arizona man convicted of theft of over $130,000 in NYS pension benefits intended for his deceased mother

Arizona man convicted of theft of over $130,000 in NYS pension benefits intended for his deceased mother

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in color.

On October 28, 2016, New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the conviction of John H. Eydeler III, 66, a resident of Glendale, Arizona, on his guilty plea to Grand Larceny in the Second Degree, a Class C felony.  

Eydeler admitted to stealing pension payments from the New York State and Local Employees Retirement System intended for his mother, Dorothy Eydeler, a retired nurse who died in October of 1998. Today, he was sentenced to a five-year term of probation and a judgment in the amount of $131,038.60.

“My office has exposed more than $2.75 million in pension fraud in recent years, and we aggressively pursued prosecution in each case,” said State Comptroller Thomas P. DiNapoli. “If you’re stealing from the retirement system, we will track you down no matter where you live and make sure you pay it back. I thank Attorney General Schneiderman for his prosecution of this case and others through our Operation Integrity partnership.”

“The New York pension fund cannot serve as a personal piggy bank for those looking to scam the system,” said Attorney General Schneiderman. “I will continue to work with Comptroller DiNapoli to protect our pension system and send a message that fraudsters who steal from the state will be punished.”

Eydeler concealed his mother’s death in 1998 from the New York State and Local Employees Retirement System. As a result, between October 1998 and January 2010, over $130,000 in pension benefits were deposited into a bank account in the name of Eydeler’s deceased mother. Eydeler then diverted these monies to himself by claiming to have power of attorney for his mother and writing checks to himself every month for over a decade. Eydeler altered his scheme to conceal the theft, and used the monies to prop up a small automotive repair business that he owned in Glendale, Arizona.

In August 2016, the Attorney General filed an indictmentagainst Eydeler charging him with Grand Larceny in the Second Degree, a Class C felony.  Eydeler pleaded guilty to the indictment on October 12, 2016. Today, he was sentenced by the Honorable Stephen W. Herrick in Albany County Court to a five-year term of probation. Eydeler also confessed to a judgment being entered against him for the entire restitution amount of $131,038.60.

This case is the latest joint investigation under the Operation Integrity partnership of the Comptroller and the Attorney General, which to date has resulted in dozens of convictions and more than $11 million in restitution.

 

The Comptroller’s investigation was conducted by the Comptroller’s Division of Investigations, working with the New York State and Local Retirement System.

The Attorney General’s investigation was conducted by Investigator Mitchell Paurowski and Deputy Chief Antoine Karam.  

The Investigations Bureau is led by Chief Dominick Zarrella. This case was prosecuted by Assistant Attorney General John R. Healy of the Criminal Enforcement and Financial Crimes Bureau.  The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chief Stephanie Swenton.

  
The Attorney General and the State Comptroller encourage anyone with additional information on this matter or any other alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Guidelines used to determine if an entity is a “public body that is performing a governmental function” for the purposes of the Open Meetings Law

Guidelines used to determine if an entity is a “public body that is performing a governmental function” for the purposes of the Open Meetings Law

Thomas, et al. v New York City Dept. of Educ., 2016 NY Slip Op 06989, Appellate Division, First Department

The New York City Department of Education [DOE] appealed an order and judgment handed down by Supreme Court, New York County, granting a petition filed by Michael P. Thomas [Thomas] seeking a determination that DOE violated the Open Meetings Law by denying the general public, including Thomas, access to meetings of a New York City public schools School Leadership Team [SLT].

The State’s Education Law requires each New York City public school to have a “school-based management team” [SBMT]. DOE implemented this mandate by establishing SLTs in every school. SLTs have from 10 and 17 members, made up of school parents, teachers, staff, and administrators, and may also include “representatives of Community Based Organizations.” SLTs must meet at least once a month “at a time that is convenient for the parent representatives” and notice of the meeting must be provided in a manner “consistent with the open meetings law.” Its basic mission is to help formulate “school-based educational policies” and ensure that “resources are aligned to implement those policies.”

Thomas, a retired DOE mathematics teacher, asked for permission to attend a meeting of the SLT. Ultimately his request was denied on the ground that although the SLT Bylaws permits “school community members to attend its meetings,” Thomas was “not a member of the school community.” Thomas, wishing to “challenge that policy in court” decided that he needed to be “denied entrance onsite” in order to “have standing.” He attempted to gain entrance to a meeting of a SLT and on presenting himself to security at a DOE school for this purpose, was denied admittance to the SLT meeting.

Thomas contended that the SLT was a “public body” and its refusal to permit him to attend the meeting violated the Open Meetings Law. Supreme Court granted the petition finding that “SLT meetings entail a public body performing governmental functions,” and are thus “subject to the Open Meetings Law.” DOE appealed.

The Appellate Division agreed with Supreme Court’s ruling and sustained its granting Thomas’ petition. The court held that DOE violated the Open Meetings Law by denying the general public, i.e., Thomas, access to a meeting of a New York City public school's SLT. Citing Perez v City Univ. of N.Y., 5 NY3d 522, the Appellate Division said that in enacting the State’s Open Meetings Law, “the Legislature sought to ensure that public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.”

In the words of the Appellate Division, the Open Meetings Law provides that “[e]very meeting of a public body shall be open to the general public.” As to the meaning of the term “public body” it is defined in the law as “any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof.” In addition, the term “meeting” is defined or described as “the official convening of a public body for the purpose of conducting public business.”

In Smith v The City University of New York, 92 NY2d 707, the court said “… a formally chartered entity with officially delegated duties and organizational attributes of a substantive nature . . . should be deemed a public body that is performing a governmental function.” In contrast, in Jae v Board of Education of Pelham Union Free School District, 22 AD3d 581 [leave to appeal denied, 6 NY3d 714 ] the court held that an entity which is “advisory in nature” and “d[oes] not perform governmental functions” will not be deemed to be a “public body” for purposes of the Open Meetings Law.

The Appellate Division rejected DOE’s argument that the SLTs do not perform “governmental functions” characteristic of public bodies under the Open Meetings Law, but rather merely “serve a collaborative, advisory function.” The court explained that “[i]t cannot be disputed that SLTs are established pursuant to state law and are a part of DOE's “governance structure.” The court further opined that it cannot be disputed that SLTs have decision making authority to set educational and academic goals for a school through the CEP, and indicated that “[t]he notion that SLTs merely serve an advisory role is not supported by the regulatory history.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_06989.htm

Administrative Law Judge decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings

Administrative Law Judge decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings

Video tape introduced as evidence of employee’s use of unauthorized force

New York City Admin. for Children’s Services v Patterson, OATH Index No. 904/16

A juvenile counselor, Allen Patterson, employed by the New York City Administration for Children’s Services was served with five disciplinary charges setting out 23 specifications of misconduct pursuant to §75 of the Civil Service Law.

Among these charges and specifications were allegations that Patterson used unauthorized force against four different juvenile residents, made false and misleading statements and used profane and threatening language towards a supervisor.

In support of certain of the charges and specifications, Children’s Services introduced video and audio recordings of exchanges between Patterson and the juveniles in the course of the disciplinary hearing.

OATH Administrative Law Judge Noel Garcia found that although Children’s Services did not prove some of the specifications set out in the several Charges it filed against Patterson, it did prove 15 of those specifications.

Finding that Pattersonconsistently exhibited a pattern of behavior that violated agency rules and that portions of Patterson’s testimony at the administrative disciplinary hearing was not credible, Judge Garcia recommended termination of Patterson’s employment, which recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-904.pdf

Employee found guilty of disrespectful conduct and disruptive and threatening behavior

New York City Admin. for Children’s Services v Yu, OATH Index No. 1924/16

At a disciplinary hearing conducted pursuant to §75 of the Civil Service Law Oath Administrative Law Judge Alessandra F. Zorgniotti found that Laureen Yu engaged in disrespectful conduct towards her supervisor and exhibited disruptive and threatening behavior that caused other employees to feel unsafe.

Yu was alleged to have failed to be courteous and considerate of her fellow employees; sent discourteous text messages and e-mails to certain colleagues; failed to obey lawful orders; engaged in threatening behavior; violated a number of Children’s Services rules prohibiting rude, threatening, insubordinate, and disruptive conduct; and conducted herself “in a manner prejudicial to good order” while at work.

Judge Zorgniotti, noting that Yu had been formally disciplined on five prior occasions for similar misconduct, recommended that Yu be terminated from her employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1924.pdf

Licensed Practical Nurse alleged to have orally and physically abused patient

NYC Health and Hospitals Corp. (Henry J. Carter Specialty Hospital and Nursing Facility) v Johnson, OATH Index No. 1415/16

OATH Administrative Law Judge Noel Garcia found that the Health and Hospitals Corporation failed to prove that Fiona Johnson, a licensed practical nurse, used profane language or was orally and physically abusive towards a patient.

In this administrative disciplinary action brought pursuant to §7:5 of the Personnel Rules and Regulations of the Corporation  Judge Garcia found that the Hospital did not present reliable evidence as to the patient’s injury nor did it prove that Johnson was the person who committed the misconduct alleged. In contrast, said the ALJ, Johnson credibly testified about her interactions with the patient in which she denied any wrongdoing.

The ALJ also explained that the uncorroborated and unreliable “double hearsay” testimony was insufficient to establish that Johnson made threatening remarks towards an employee and a potential witness.

Judge Garcia recommended the charges against Johnson be dismissed and that she be paid for lost wages and benefits that resulted from her pre-hearing suspension without pay. The appointing authority adopted the ALJ’s recommendation.

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Adverse Personnel Decisions:  A766-page E-book focusing challenging penalties imposed following administrative disciplinary action, adverse performance ratings, probationary terminations and the denial of unemployment insurance benefits initiated by officers and employees of New York State as an employer and its political subdivisions. For more information click on http://nypplarchives.blogspot.com/

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