New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 23, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 23, 2017 
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Audit of State Agencies Recommends Better Tracking of Food Purchases from Local Farmers
The Department of Agriculture and Markets and the Office of General Services are now directing all state agencies to submit better reporting of their purchases of New York produced foods according to an auditby State Comptroller Thomas P. DiNapoli found numerous problems. 

 Former Treasurer Arrested in Village of Millport Theft
Former Village of Millport Treasurer Dawn Haverley was arrested for felony grand larceny after an investigation and audit found she allegedly stole more than $4,000 in public funds.


New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the 

Town of Carlisle – Fund Balance (Schoharie County)
The board has not developed a fund balance policy or comprehensive long-term financial and capital plans specifying the town"s objectives and goals for using accumulated funds. General fund balance totaled $623,000 at the end of 2016, more than 950 percent of the tax levy and approximately three times actual expenditures that year. 

Keeseville Volunteer Fire Department – Financial Operations (Clinton County)
Department officials did not deposit or account for all donations received or deposit money received from fundraisers and lounge sales. Deposits totaling approximately $158,300 were not supported by adequate documentation. Department officials did not approve 499 disbursements totaling $63,010 before payment was made. 

City of Niagara Falls – Financial Condition (Niagara County)
The city did not maintain a multiyear financial plan and has continued to rely on unreliable revenues and one-time funding sources. From fiscal years 2014 through 2017, city officials balanced the budget using primarily casino revenue, averaging $9 million, and fund balance, averaging $2.9 million. By the end of 2017, auditors project that the city will deplete available fund balance. Assuming no additional casino revenue is received, the city will have a projected general fund budget gap of $12 million for 2019.

Village of Sagaponack – Claims Processing (Suffolk County)
The board did not perform an effective claims audit or establish an adequate process to ensure that transactions were properly authorized and approved, complied with statutory or village requirements or that claims were for proper village purposes. As a result, the board does not have adequate assurance that goods and services are purchased at the best price.

Determining a claimant's exclusion with respect to his or her eligibility for unemployment insurance benefits pursuant to Labor Law §565(2)(d)

Determining a claimant's exclusion with respect to his or her eligibility for unemployment insurance benefits pursuant to Labor Law §565(2)(d) 
Matter of Clemons (Village of Freeport--Commissioner of Labor), 2017 NY Slip Op 04333, Appellate Division, Third Department

Labor Law §565[2], in pertinent part, provides for certain exclusions from eligibility for unemployment insurance benefits. In addition to services not included pursuant to the provisions of §511 the Labor Law, the term "employment" does not include services rendered for a governmental entity by a person serving on a temporary basis in case of fire, storm, snow, earthquake, flood or similar emergency.

The Village of Freeport, Nassau County, [Village] sustained extensive damage as a result of Hurricane Sandy and was declared a major disaster by federal, state and local governments and ultimately received federal funding to assist it with its clean-up and restoration efforts. Village hired two individuals [Claimants] as temporary laborers to help with these clean-up and restoration efforts.

Following the end of their employment by the Village, Claimants filed applications for unemployment insurance benefits, and, over Freeport's objection, the Department of Labor issued initial determinations finding that the wages paid to Claimants were not excluded under Labor Law §565(2)(d) and thus Claimants were entitled to receive unemployment insurance benefits. Ultimately the Unemployment Insurance Appeal Board sustained the Department's determinations and Freeport appealed.

Freeport challenged the Unemployment Insurance Appeal Board ruling that the two Claimants were eligible to receive unemployment insurance benefits because they were not employees of Freeport within the meaning of Labor Law §565(2)(d). Freeport, on the other hand, argued that Claimants fell within the ambit of this statutory exclusion and thus were ineligible for unemployment insurance benefits.

The Appellate Division affirmed the Board's determination, explaining that for the  purposes of determining a claimant's exclusion with respect to his or her eligibility for unemployment insurance benefits pursuant to Labor Law §565(2)(d), "Whether this exclusion applies presents a mixed question of law and fact, and the Board's determination in this regard will be upheld if it has a rational basis"

It was not disputed that Claimants were hired on a temporary basis because of the damage caused by the hurricane. The court said that "the controverted issue is whether the cited exclusion applies and, more specifically, whether the services provided by . [an] emergency."

Claimants had been hired on a temporary basis using federal grant money received as a result of the damage caused by the hurricane. However, they both, performed routine maintenance duties, including cutting grass, raking leaves, shoveling snow, driving trucks and cleaning municipal parking lots. In determining that the services performed by Claimants were related to the hurricane clean-up efforts but "not performed in case of an emergency," the Board also noted that the Claimants were hired almost a year after the hurricane and at a time when "there was no need for immediate action."

The Board, said the Appellate Division, also relied upon a Program Letter issued by the United States Department of Labor [DOL] that provided the DOL's interpretation of the exclusion from unemployment insurance coverage of governmental services performed in case of emergency. Letter No. 22-97 stated that "the urgent distress caused by the emergency . . . must directly cause the need for the services to be performed" and that, if the services performed occur "after the need for immediate action has passed, they are not necessarily performed in case of emergency.

As Claimants were employed by Freeport  nearly a year after the hurricane, the court found that there was a rational basis for the Board's decision that the exclusion did not apply and that the services performed by Claimants "were in covered employment" and thus they were eligible for unemployment insurance benefits.

Accordingly, the Appellate Division said that it found "no reason to disturb the decisions of the Board" regarding Claimants.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_04333.htm

Disciplinary action follows employee's disrespectful and intimidating behavior towards superiors

Disciplinary action follows employee's disrespectful and intimidating behavior towards superiors

OATH Index No. 2307/17

A New York City job opportunity specialist [Specialist] was served with disciplinary charges pursuant to Civil Service Law §75 for allegedly having engaged in disrespectful and intimidating behavior directed towards her superiors.

The Office of Administrative Trials and Hearings Administrative Law Judge Ingrid M. Addison found that on one occasion the Specialist had "loudly confronted the director of her work location to complain about her supervisor," using inappropriate and offensive language. The Specialist also refused to leave the director’s office after she was instructed to do so.

The ALJ found that on another occasion the Specialist "snatched a document from, pointed her finger, and yelled at her supervisor."

In addition, Judge Addison found that the Specialist's employer established that the Specialist failed to follow her supervisor’s instructions on three occasions.  

Considering that the Specialist had had no prior discipline action taken against her, the ALJ said "This tribunal has generally applied the principles of progressive discipline, which aims to achieve employee behavior modification through increasing penalties for repeated or similar misconduct."

Noting that the employer sought to have the Specialist suspended without pay for 35 days, ALJ Addison said that she found such a penalty "excessive" and  recommended the Specialist be given a 20-day suspension without pay as the penalty for the Specialist's proven misconduct.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2307.pdf

___________________________ 

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses 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/7401.html

___________________________  

Controverting a claim based on an alleged false statement or representation by the claimant in his or her application for workers' compensation benefits

Controverting a claim based on an alleged false statement or representation by the claimant in his or her application for workers' compensation benefits

2017 NY Slip Op 06490, Appellate Division, Third Department

A school district employee [Claimant] sustained work-related injuries that caused him to eventually stop working and filed a claim for workers' compensation benefits. He was subsequently classified as having a permanent total disability and was awarded benefits accordingly.*

School district and its workers' compensation carrier [Carrier] subsequently "controverted the claim" alleging that Claimant violated of Workers' Compensation Law §114-a** based upon video surveillance footage allegedly showing Claimant performing activities that Carrier contended demonstrated Claimant's ability to work. A Workers' Compensation Law Judge ultimately ruled that there was no violation of Workers' Compensation Law §114-a. which ruling was affirmed by the Workers' Compensation Board. Carrier appealed the Board's decision.

Workers' Compensation Law §114-a (1) provides that a claimant who "knowingly makes a false statement or representation as to a material fact . . . shall be disqualified from receiving any compensation directly attributable to such false statement or representation."

Citing Cirrincione v Scissors Wizard, 145 AD3d 1325, the Appellate Division said that Board "is the sole arbiter of witness credibility, and its determination as to whether a claimant violated Workers' Compensation Law §114-a will not be disturbed if supported by substantial evidence."

Carrier had submitted video surveillance footage showing Claimant's activities at sporting events involving an amateur football team that was organized by Claimant's wife and another individual. Claimant was videotaped walking around the concessions and merchandise areas, helping to move a popcorn machine on one occasion and assisting his disabled daughter take money at the secondary admission gate on another occasion.

Claimant's wife testified that the team was a nonprofit organization and that the money collected through admission, merchandise and concessions was used to cover fixed expenses such as liability insurance and the field rental. She stated that the team relied on the efforts of volunteers and that Claimant did not have specific duties, but was present at the games to support the team. Claimant also testified that he attended the games to support the team and did not work, although he acknowledged that he had assisted his disabled daughter collect money at the back gate.

The Appellate Division said considering this testimony the Board could reasonably conclude that Claimant's activities were minimal and not inconsistent with the representations that he made on the questionnaires provided to the carrier.

Holding that substantial evidence supported the Board's finding that Claimant did not violate Workers' Compensation Law §114-a, the Appellate Division declined to disturb the Board's decision.

* The Workers' Compensation Board subsequently modified this decision and ruled that Claimant sustained a permanent total industrial disability.

** § 114-a of the Workers' Compensation Law provides for the "Disqualification for false representation" as follows: "1. If for the purpose of obtaining compensation pursuant to section fifteen of this chapter, or for the purpose of influencing any determination regarding any such payment, a claimant knowingly makes a false statement or representation as to a material fact, such person shall be disqualified from receiving any compensation directly attributable to such false statement or representation. In addition, as determined by the board, the claimant shall be subject to a disqualification or an additional penalty up to the foregoing amount directly attributable to the false statement or representation. Any penalty monies shall be paid into the state treasury."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06490.htm

Claimant for unemployment insurance benefits penalized for making willful misrepresentations to obtain benefits

Claimant for unemployment insurance benefits penalized for making willful misrepresentations to obtain benefits

2017 NY Slip Op 06489, Appellate Division, Third Department

Claimant, a part-time employee, certified that she had not earned more than $405 before taxes as a result of such employment. The Department of Labor, however, determined that Claimant was ineligible to receive unemployment benefits for specified weeks on the basis that she was not totally unemployed and her earnings exceeded the statutory limitation of $405 a week. As a result, Claimant was found to have received an over-payment of benefits and emergency benefits, which were recoverable. As a result, Claimant's right to receive future benefits was reduced by a specified number of effective days and the Department imposed specified monetary penalties on the basis that she made willful misrepresentations to obtain benefits.

Ultimately the Board reviewed the record and determined that Claimant had made a willful misrepresentations to obtain benefits for certain period of her unemployment and sustaining the charges imposed as the result of over-payments, the reductions of her right to receive certain payments in the future and the monetary penalties imposed that were associated with those misrespresented periods of unemployment. Claimant appealed.

The Appellate Division found that substantial evidence supports the Board's determination that Claimant made willful false statements to obtain certain benefits, explaining that "[i]t is well settled that the question of whether a claimant ha[s] made . . . willful misrepresentation[s] to obtain benefits is a factual issue for the Board to resolve and will be upheld if supported by substantial evidence." Significantly, the court observed that "there is no acceptable defense to making a false statement . . . and a claim that the misrepresentation was unintentional is not sufficient."

The court noted that the record shows that Claimant had received an unemployment insurance handbook that specified that she was eligible to receive partial benefits as a part-time worker if, among other things, she earned less than $405 in a week. It rejected her contention that she relied on a formula provided by a Department of Labor representative in order to calculate her weekly wage — rather than simply dividing the amount shown on her biweekly pay stub by two. The Appellate Division characterizing Claimant's argument as "unavailing," considering that "at no point did Claimant inform the representative that she was receiving biweekly pay stubs that showed that she was, in fact, earning amounts greater than $405 per week."

Finding that "[u]nder these circumstances, substantial evidence supports the Board's determination" that Claimant made willful misrepresentations, the Appellate Division affirmed the Board's decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06489.htm

Reimbursement for wages paid to workers' compensation claimant's employer for wages paid during the employee's period of disability

Reimbursement for wages paid to workers' compensation claimant's employer for wages paid during the employee's period of disability

Collins v Montgomery County Sheriff's Dept., 2017 NY Slip Op 06487, Appellate Division, Third Department

A Montgomery County deputy sheriff [Claimant] sustained a work-related injury. His claim for workers' compensation benefits was ultimately established and he was awarded disability benefits.

The Montgomery County Sheriff Department [Department] a "self-insured workers' compensation employer" paid Claimant his full weekly wages for the period November 29, 2011 through May 30, 2012 and filed a timely reimbursement request with the Workers' Compensation Board. The Department and Claimant then entered into a stipulation establishing that Claimant had sustained a 21% schedule loss of use of his right leg, payable from November 28, 2011 to February 16, 2012 at the temporary total disability rate, with the balance payable at the permanent partial disability rate and the Department was "to take credit for all prior payments."

Claimant then requested a hearing to address whether, pursuant to the terms of the parties' stipulation, the Department was entitled to reimbursement out of his schedule award for the full wages previously paid or whether a late payment penalty should be imposed against the Department for an underpayment of compensation.

A Workers' Compensation Law Judge [WCLJ] determined that the language of the stipulation permitted the Department to obtain reimbursement for the full wages paid to Claimant during compensable lost time and that there was no underpayment. The WCLJ also denied Claimant's request for imposition of a penalty. The Workers' Compensation Board affirmed the WCLJ's ruling and Claimant appeal the Board's decision.

The Appellate Division affirmed the Board's decision, noting that Workers' Compensation Law §25 (4)(a) provides that, "[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid instal[l]ment or instal[l]ments of compensation due, provided [the employer's] claim for reimbursement is filed before [an] award of compensation is made."

In addition, said the court, "it is well settled that, where a claimant receives a schedule loss of use award, the employer is entitled to full reimbursement of the payments made during the period of disability."

As to Claimant's argument that the Board had "departed from prior precedent without explanation.," the Appellate Division explained that:

1. The Board was not required to explain the different holdings in the various cases cited by Claimant;

2. Here, in contrast to the Board holdings in prior cases cited by Claimant, "the parties' stipulation specifically indicated that the [Department] was 'to take credit for all prior payments' [emphasis by the Appellate Division] — without any distinction drawn between wages, awards or compensation;"

3. At the Workers' Compensation Board hearing before the WCLJ at which the stipulation was executed, Claimant indicated that he was aware that the Department was entitled to take credit for any prior indemnity payments that he had received; and

4. The WCLJ order directed the Department to "take credit for prior payments."

Although, said the Appellate Division, "[a] statutory or regulatory right may generally be waived by a stipulation or by conduct evincing an intent to forgo that right," in this instance the Board's reading of the parties' stipulation that the Department did not intend to waive its right to reimbursement is supported by substantial evidence. Accordingly, the court declined to "disturbed" the Board's determination and affirmed its decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06487.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 16, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 16, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Division of Housing and Community Renewal (DHCR): Administration of Mitchell-Lama Waiting Lists (2016-S-46)
The majority of sampled new admissions, internal transfers and successions were selected from an automated wait list (AWL) and approved by DHCR. However, in most cases, neither DHCR nor the development maintained the documentation required to confirm that tenants were selected in the order they appeared on the wait list. One development did not request or receive DHCR approval for eight of the nine succession apartments it awarded and granted three apartments to individuals who were not on the AWL. Four of the five developments did not comply with the required 3:1 internal/external ratio when offering apartments to applicants. As of July 31, 2016, one development had 51 vacant units, even though it had applicants on its internal and external AWLs. Ten of these units were vacant for as long as five years.

Department of Labor (DOL): Examination of Unemployment Insurance Benefits 2016 Annual Report (2017-BSE4-01)
Based on a selection of 57,000 transactions, auditors identified 4,864 overpayments totaling more than $1.6 million. Based on the overpayments identified, DOL assessed $217,290 in monetary penalties to 137 claimants. As the result of the current and prior years’ findings, DOL also recovered $247,483 in forfeited UI benefits from claimants who DOL determined made false statements or representations to obtain benefits to which they were not entitled. Auditors worked with DOL to identify another $238,792 in potential recoveries for past UI overpayments from 130 state employees hired during 2016.

Department of Taxation and Finance: Child and Dependent Care Credit (2017-BSE8-01)
During the period of the examination, the department processed 444,127 returns containing credits totaling $177.1 million. Auditors found it processed 29,102 personal income tax returns for tax year 2015 that contained potentially inappropriate credits valued at $18.3 million.

State Education Department: Adirondack Helping Hands, Inc., Compliance with the Reimbursable Cost Manual (2016-S-88)
For the fiscal year ended June 30, 2014, auditors identified $37,643 in ineligible costs that Adirondack reported for reimbursement for special education programs. The ineligible costs included: $22,215 in other than personal service costs that consisted and $15,428 in excess personal service costs.

New York State Insurance Fund (NYSIF): Incarcerated and Death Matches (2017-SIF)
Auditors examined $1.4 billion in payments for more than 17 million in medical and other service charges the NYSIF made on behalf of nearly 215,000 individuals during the period January 2014 through February 2017. Under state law, any person incarcerated upon conviction of a felony is ineligible for all benefits. NYSIF will not pay for medical and other service charges that occur subsequent to a claimant’s date of death.  Based on the match results and observations of the payment process, auditors concluded NYSIF has established reasonable controls to minimize the risk of improper payments in these areas. 


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

Town of Barrington – Financial Management 

Village of Homer – Purchasing and Credit Cards

Plattekill Library – Budgeting Practices

Town of Scriba – Board Oversight

Terryville Fire District – Treasurer’s Duties 


Former Town of Minerva Clerk Sentenced to Prison for Embezzling Town Funds
Jordan Green, the former clerk to the supervisor for the town of Minerva, was sentenced in Essex County Court to 1 1/3 to 4 years in state prison and ordered to pay restitution.

Bedford-Stuyvesant is on the Rise
The Bedford-Stuyvesant neighborhood has experienced strong population, business and job growth in recent years, according to a report by New York State Comptroller Thomas P. DiNapoli. 

Comptroller DiNapoli's Proposal to Help Local Governments Negotiate Better Fire Protection Contracts Signed Into Law 
Bill increases transparency relating to the contract negotiation process for fire protection contracts between incorporated fire companies and districts, towns or villages.

 

 

An arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power

An arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power

Subway Surface Supervisors Assn. v New York City Tr. Auth., 2017 NY Slip Op 06444, Appellate Division, Second Department

The Subway Surface Supervisors Association [Association] and the Transit Supervisors Organization, Local 106 [Local 106] both claimed to represent certain New York City Transit Authority employees working at a bus depot [Depot] in Manhattan.

Both employee organizations filed grievances with the employer, the New York City Transit Authority [TA] under their respective collective bargaining agreements. The Association then participated in a mediation effort with Local 106 and the TA, but the mediation effort failed to resolve the conflict.

The Association next filed a "Petition for Unit Clarification and/or Unit Placement" with the New York State Public Employment Relations Board [PERB]. The petition, however, was deemed withdrawn and the matter closed. The Association agreed to arbitrate the dispute and was involved in the selection of the arbitrator.

TA sent a letter to the arbitrator indicating the parties' agreement to submit "to a tri-party arbitration ... to resolve all current disputes between the parties, including jurisdiction and representation issues involving supervisory personnel" related to the Depot. All the parties participated in the initial arbitration hearing after which the arbitrator issued an award dated December 4, 2014.

Subsequently, "by consent of all parties," Association participated in a second arbitration hearing before the arbitrator. The arbitrator issued a supplemental award dated January 29, 2015 and following the issuance of the second arbitration award the Association "participated in three telephone conferences with the arbitrator concerning additional issues that arose between the parties."

The Association then initiated a CPLR Article 75 proceeding seeking a court order vacating the arbitration award dated December 4, 2014 on the grounds that the award "violated public policy considerations embodied in the Taylor Law" [Civil Service Law Article 14] and that the arbitrator had exceeded his power under the collective bargaining agreement between the Association and the TA. The Supreme Court denied the petition and the Association appealed.

The Appellate Division, noting that a party seeking to overturn an arbitration on one or more of the grounds stated in CPLR 7511(b)(1) "bears a heavy burden," and, citing Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 14 NY3d 119, noted that in that action the Court of Appeals indicated it had recognized "three narrow grounds that may form the basis for vacating an arbitrator's award—that it violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."  

The Appellate Division decided that the Association failed to meet the "strict standards for overturning arbitration awards on public policy grounds."

The Appellate Division further opined that "under the circumstances of this case, the [Association] waived any argument that the award exceeds a specifically enumerated limitation on the arbitrator's power," concluding that Supreme Court had properly denied the petition to vacate the arbitration award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06444.htm

Making false entries in an official record

Removal from public office by operation of law

Munroe v Ponte, 2017 NY Slip Op 02041, Appellate Division, Second Department

§30(1)(e)  of the Public Officers Law mandates the automatic removal of the incumbent from his or her public office "by operation of law" in the event he or she is found guilty of a felony or the violation of his or her oath of office. In effect, the public office is deemed vacant automatically upon the public officer's conviction of a felony or a crime involving a violation of his or her oath of office.*

The Commissioner of the New York City Department of Correction [Commissioner] summarily terminated a correction officer [Officer] pursuant to Public Officers Law §30(1)(e) following his conviction of a misdemeanor -- falsifying business records in the second degree. Officer filed an Article 78 action challenging the Commissioner's action. Supreme Court granted the Commissioner's motion to dismiss Officer's petition and Officer appealed.

Officer had been served with disciplinary charges pursuant to Civil Service Law §75 alleging various acts of misconduct included making "false entries in the . . . enhanced security post logbook." Subsequently indicted on a number of criminal charges, including falsifying business records in the second degree and attempted assault in the third degree, he was subsequently convicted of falsifying business records in the second degree in violation of Penal Law §175.05[1].

Advised that he had been terminated pursuant to Public Officers Law §30(1)(e), Officer commenced a CPLR Article 78 proceeding alleging, among other things, that the termination of his employment was arbitrary and capricious.

Pursuant to Public Officers Law § 30(1)(e), an office is deemed vacant upon an officer's "conviction of a felony, or a crime involving a violation of his [or her] oath of office."

The Appellate Division dismissed Officer's appeal, ruling that under the circumstances of this case, the Officer's petition "failed to set forth allegations sufficient to make out a claim that his termination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.

Addressing a procedural matter concerning the Commissioner's contention that Officer's Article 78 petition was untimely,  the Appellate Division noted that the four-month statute of limitations did not begin to run when Officer was personally served with a copy of the letter advising him that he had been terminated from his position in accordance with the mandate of §30(1)(e) of the Public Officers Law.

Rather, said the court, as the Commissioner was on notice that Officer had retained counsel to represent him in connection with the disciplinary charges, "once counsel has appeared" the Statute of Limitations or time requirement "cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed."

*  Police officers and correction officers are "public officers” for the purposes of §30 of the Public Officers Law. Further, in Graham v Coughlin, 72 NY2d 1014, the Court of Appeals upheld the removal of a state correction officer following his conviction of a felony under federal law. The Appellate Division had ruled that Section 30.1(e) applied in cases of the officer’s conviction of a felony under any jurisdiction. Although all public officers are public employees, not all public employees are public officers.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02041.htm

The Doctrine of Collateral Estoppel does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

The Doctrine of  Collateral Estoppel does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

Mehulic v New York Downtown Hosp., 2017 NY Slip Op 06416, Appellate Division, First Department

Following a number of adverse administrative rulings, Surana Mehulic brought an Article 78 action against her former employer, New York Downtown Hospital [Hospital] alleging it had impermissibly retaliated against her for whistle blowing. Supreme Court dismissed her amended complaint, ruling that Mehulic's retaliation claim under Labor Law §741 "is completely barred by [the doctrine of] collateral estoppel".*

The Appellate Division unanimously reversed the Supreme Court's ruling explaining that with respect to the earlier administrative determinations "there was no express or implied ruling that [Hospital], in terminating Mehulic, "had impermissibly retaliated against her for whistle blowing."

The court explained that the issue of whether the Hospital terminated Mehulic because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding. Accordingly, said the Appellate Division, the issue of alleged retaliation "was not necessarily decided in the prior proceedings."

The earlier proceedings were initiated by the Department of Health's Office of Professional Medical Conduct to determine whether Mehulic, then a not yet licensed second-year medical resident, should be able to pursue a medical license in New York, and under what conditions.

Although, said the Appellate Division, the prior administrative rulings determined that Mehulic had engaged in professional incompetence on three occasions, there was no express or implied ruling that Hospital had terminated Mehulic's employment on the basis of that incompetence, or whether, in terminating her, Hospital had impermissibly retaliated against her for whistle blowing.

Citing Mehulic v State Board of Professional Medical Conduct, 107 AD3d 1066,  appeal dismissed 22 NY3d 911, the Appellate Division ruled that although Mehulic is precluded from relitigating the three instances of incompetence found in the prior proceedings, the Doctrine of Collateral Estoppel does not otherwise bar the litigation of her retaliation claims. Her defense, noted the Appellate Division, to Hospital's prima facieshowing that the "termination of [Mehulic's] employment was predicated upon grounds other than her exercise of any rights under Labor Law," she had "submitted evidence sufficient to raise triable issues of fact."

* §75-b of the Civil Service Law bars retaliatory action by public employers against a public employee for his or her alleged whistle blowing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06416.htm

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Decisions of the Commissioner of Education, Decision No. 17,166

In this appeal the School District contended, among other things, that the Petitioner's application was untimely, constituted a "class appeal," and that the Petition had not been properly verified. In addition, with respect to Petitioner's reply, the School District claimed that it "should not be considered to the extent it raises new assertions or contains new exhibits."

The School District's objection to a "class appeal"

Addressing the issue of a "class appeal", the Commissioner said Petitioner's attempt to bring this appeal on behalf of individuals who “either reside or own properties within" the School District, such an appeal may only be maintained on behalf of a class where [1] the class is so numerous that joinder of all members is impracticable and [2] where all questions of fact and law are common to all members of the class.

The Commissioner denied class status, explaining that other than identifying the proposed class as residents or property owners within the district, Petitioner’s pleadings did not include any allegations meeting the requirements for a class appeal set out in 8 NYCRR §275.2.  In particular, the Commissioner noted that the Petitioner failed to identify the number of class members and offered no explanation of how all questions of fact and law would be common to all residents and property owners of the School District.

The School District's Objection to the verification of the petition

With respect to the School District 's claim that the petition was not properly verified, the Commissioner, citing 8 NYCRR §275.5[a], said that such a petition must be verified by the oath of a petitioner. However, in this instance the petition had been verified by the attorney for the Petitioner and the attorney was not a party to the appeal. Accordingly, said the Commissioner, the verification was improper.

The School District's objection to the Petitioner's reply

As to the School District's objections with respect to Petitioner's reply, the Commissioner said the Petitioner's “Reply Affidavit” included additional facts and exhibits concerning the School District that were not in the petition.

A reply, said the Commissioner, "is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition." Accordingly, the Commissioner said that she would not considered those portions of the reply that contained "new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer" in her review of Petitioner's reply.

Finally, the Commissioner ruled that the petition was timely but that even had not be dismissed on procedural grounds, "it would be dismissed on the merits."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17166

Court of Appeals to determine whether the Taylor Law trumps Second Class Cities Law with respect to negotiating police disciplinary procedures

Court of Appeals to determine whether the Taylor Law trumps Second Class Cities Law with respect to negotiating police disciplinary procedures

Appeal of Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 1086

N.B. The Court of Appeals reversed the Appellate Division's ruling in 134 AD3d 1086. See City of Schenectady v New York State Pub. Empl. Relations Bd., 2017 NY Slip Op 07210, Court of Appeals, Decided on October 17, 2017.

The City of Schenectady [Schenectady], under color of §133 of Article 9 of Second Class Cities Law, announced that it would no longer be bound by negotiated police disciplinary procedures then set out in a collective bargaining agreement between Schenectady and the Schenectady Police Benevolent Association [PBA].

PBA filed an improper practice charge with Public Employment Relations Board [PERB] alleging that Schenectady violated Civil Service Law §209-a(1)(d) of the Public Employees' Fair Employment Act [Article 14 of the Civil Service Law], the so-called “Taylor Law," and ultimately the Appellate Division held that the Taylor Law trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures.* 

Citing 46 PERB 3025, the Appellate Division said "PERB aptly noted in its decision" that §4 of the Second Class Cities Law  states that a provision of this statute  "such as article 9 containing its police disciplinary procedures shall apply only until such provision is superseded pursuant to the municipal home rule law, was superseded pursuant to the former city home rule law or is or was otherwise changed, repealed or superseded pursuant to law" and that such language "reveals a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation."

Schenectady appealed the Appellate Division's ruling, which appeal was argued before the Court of Appeals on September 6, 2007.

In Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFLCIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 19 NY3d 1066, the Court of Appeals said that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town, apparently rejecting characterizing such negotiations as a "non-mandatory subject of collective bargaining" within the meaning of the Taylor Law.**

It should be noted that the State's authority for supplementing, modifying or replacing Civil Service Law §75 disciplinary procedures pursuant agreements negotiated with an  employee  organization  pursuant  to the Taylor Law with respect to State officers and employees of the State as the employer is set out in §76.4 of the Civil Service Law.***

§76.4, however, is silent with respect to authorizing a political subdivision of the State as the employer to negotiate supplementation, modification or replacement of  Civil Service Law §75 in the course of collective bargaining between the political subdivision of the State and  an  employee  organization with respect to the political subdivision's  employees in collective bargaining units pursuant to the Taylor Law.

Typically legislation addressing public officers and employees of the State of New York as the employer with respect to personnel matters such as health insurance does not automatically extend to officers and employees of a political  subdivision of the  State and  a political subdivisions of  the State is typically given the option of electing to extend such personnel matters to its officers and employees.

For example, §161.1 of the Civil Service Law authorizes the president of the New York State Civil Service Commission to establish a health benefit plan, commonly referred to as the New York State Health Insurance Program [NYSHIP], for state officers and employees, retirees and their dependents and the employees, retirees and their dependents of certain other entities such as the Statutory Contract Colleges at Cornell and Alfred Universities.

In contrast, §163.4 of the Civil Service Law permits "[a]ny public authority, public benefit corporation, school district, special district, district corporation, municipal corporation, or other agency, subdivision or quasi-public organization of the state to elect to participate in NYSHIP." This is accomplished by the municipality's governing body adopting a resolution "and, in the case of any municipal  corporation where a resolution of its governing body is required by law  to be approved by any other body or officer, such resolution shall also  be approved by such other body or officer."

How do you think the high court will decide Schenectady's appeal, and why? Will it follow its ruling in Town of Wallkill v Civil Serv. Empls. Assn., Inc., 19 NY3d 1066,**** in which it held that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town" or will it sustain the ruling of the Appellate Division, holding that the PERB was correct in concluding that Taylor Law trumps the Second Class Cities Law when negotiating police disciplinary procedures are concerned?

* The decision, City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 1086, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_00729.htm

** NYPPL's summary of this ruling is posted on the Internet at:

https://publicpersonnellaw.blogspot.com/2012/10/negotiating-disciplinary-procedures.html

*** §76.4 provides: Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter. Where such sections are so supplemented, modified or replaced, any employee against whom charges have been preferred prior to the effective date of such supplementation, modification or replacement shall continue to be subject to the provisions of such sections as in effect on the date such charges were preferred.

**** See, also, Patrolmen's Benevolent Assn. of City of N.Y., Inc. v PERB., in which the Court of Appeals held that "police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials." posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_02288.htm