Procedures required to be followed by an appointing authority seeking to place an employee on disability leave pursuant to Civil Service Law §72 involuntarily

The basics with respect to placing an employee on ordinary disability leave pursuant to §72 of the Civil Service Law* involuntarily, except where the appointing authority determines that the individual's continued presence at the job site constitutes a danger to the individual or to his or her coworkers or agency clients within the meaning of §72.5 of the Civil Service Law, are as follows:

1. An employee may not involuntarily be place on leave pursuant to §72.1 of the Civil Service Law by an appointing authority until employee has been first examined by a physician designated by the State Department of Civil Service or the municipal civil service commission having jurisdiction;

2. In the event the physician certifies that the individual is unable to perform the duties of his or her position and the appointing authority decides to place the individual on §72.1 leave, the employee must be notified of this decision and of his or her right to appeal the determination before being placed on such leave and,  except as permitted by Section 72.5, the appointing authority may not place the individual on leave pursuant to §72.1 leave until a final determination is made by the appointing authority; and

3. An individual placed on leave pursuant to §72.1 has the right to appeal the appointing authority's "final determination" placing him or her of such leave to the "civil service commission having jurisdiction."

In contrast, in the event the appointing authority deems the employee's continued presence at the job site to be an immediate danger to the individual or to his or her coworkers or agency clients, the employee may be placed involuntarily on disability leave immediately pursuant to §72.5 of the Civil Service Law.

Section 72, however, places “the burden of proving an employee's mental or physical unfitness on the appointing authority alleging it.” To satisfy this burden, the appointing authority must prove, by a preponderance of the evidence, that:

(i) the employee suffers from a disability unrelated to an occupational injury or disease;

(ii) that she or he is unable to competently perform her or his job duties; and

(iii) his or her inability to so perform is caused by his or her disability.

The focus of the §72 proceeding is on “the employee’s current fitness and ability to perform his or her job duties, not on his or her past condition or work performance” and “[p]ast performance is relevant only to the extent that it is probative of employee’s present condition and future conduct."

In a §72 disability proceeding, while the opinions of medical experts can inform and aid the fact finder in reaching the his or her conclusion, the fact finder is not required to accept the opinions or conclusions of any given expert, but must weigh the evidence in the record and draw his or her own inferences. Weighing the evidence and resolving issues of credibility “is primarily the province of the designated hearing officer, who has had the opportunity to see and hear the witnesses.

The testimony of an expert witness is part of the proof to be considered by the hearing officer and the hearing officer may reject an expert’s opinion if he or she finds the facts to be different from those which form the basis for the expert's opinion.

Absent the employee being immediately place on an involuntary leave pursuant to §72.5 of the Civil Service Law, the employee is continued as an "active employee on the job" until the employee is determined by the appointing authority to be disabled with respect to he or she satisfactorily performing his or her duties of the position. In the event the appointing authority makes a final determination that finds the employee to be disable and unable to satisfactorily perform his or her duties and places the individual on leave pursuant to §72, the appointing authority shall advised the employee of the appointing authority's decision and of the fact that the employee has the right to appeal the appointing authority's decision to the civil service commission having jurisdiction in accordance with §72.3 of the Civil Service Law.**

In this action, adjudicated before the New York City Office of Administrative Trials and Hearings [OATH], the employee had been placed on "pre-trial involuntary leave" pursuant to §72.5 of the Civil Service Law based upon complaints that she failed to perform assigned tasks and engaged in disruptive behavior, including spraying a chemical substance in the air, playing loud music, and singing at her work station. The employee was subsequently examined by a psychiatrist who found her unfit to perform the job due to a mental disability. The employee challenged the finding of medical expert that she was unfit to perform her duties and the need to place her on a "pre-trial involuntary leave."

As OATH Administrative Law Judge Astrid B. Gloade noted, the "complaints" recited by the appointing authority were not "pleading" and the fact that an employee committed the alleged acts "was not an element to be proven at the hearing.”  Rather the employee was diagnosed by the appointing authority's medical expert as having a "delusional disorder" that adversely affected her performance of her duties and the appointing authority was required to prove such "cause and effect."

Explaining that the medical expert's diagnosis introduced by the appointing authority was, in the opinion of the Administrative Law Judge, "unreliable," Judge Gloade observed that even if the appointing authority's evidence satisfied the first prong of its burden, the appointing authority failed to establish a causal connection between the "diagnosed delusional disorder" and employee’s inability to perform her job. In the words of the ALJ, "The fact that an employee may have a psychiatric disorder does not establish that she [or he] is unable to perform the duties of her [or his] position."

With respect to the employee's alleged failed to perform assigned tasks and engaged in alleged disruptive behavior at her work station, the ALJ said that this simply served as written notice of the facts upon which the appointing authority based its determination that the employee is not fit to perform her duties and forms the basis for having the employee medically evaluated.

Turning to the employee having being placed on "Pre-Hearing Suspension" pursuant to §72.5 of the Civil Service Law, the ALJ explained that by having placed employee on an "emergency leave prior to the trial," the appointing authority must further establish that the standard authorizing place the employee on leave under color of §72.5 was satisfied.

§72.5 permits the placement of the employee on involuntary "emergency leave" prior to a hearing only in situations where the agency has probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with agency operations.

Following a three-day hearing, ALJ Gloade found that the appointing authority  did not prove that the employee was currently unfit to perform her duties or that there was a sufficient basis to place her on "pre-trial involuntary leave." The doctor’s report and testimony, said the ALJ, failed to provide the basis for her conclusion that the employee suffers from a mental disability which precludes her from performing her duties.

Addressing the employee's placement on involuntary pre-trial leave, §72.5 allows such leave only in emergency situations where the agency has probable cause to believe the employee’s continued presence on the job represents a potential danger to persons or property or would severely interfere with operations. Here, said the ALJ, the agency did not prove either justification. Judge Gloade opined that in this instance the standard that would justify placing the employee involuntarily on §72.5 was not met, noting that placing an employee in an involuntary emergency leave status is an “extraordinary measure,” due in part to the financial hardship to the employee because there is no limit to the length of such leave.***

Judge Gloade also noted that the appointing authority failed to demonstrate that the agency had probable cause to believe that the employee was dangerous or that her presence in the workplace would “severely interfere with operations.”

Also noted was that the testimony at the hearing indicated that the staff became “very concerned” about the employee’s behavior during the two workdays preceding imposition of the involuntary leave on the employee and additional justification for her placement on leave pursuant to §72.5 were claims that the employee refused to review assigned cases, ignored her supervisor’s instructions, and kept clutter at her desk.

Such behavior, however, was ruled by the ALJ to be insufficient to establish that the employee posed a danger to herself or to others. Nor, said Judge Gloade, did the evidence demonstrate that the employee's behavior would “severely interfere” with the unit’s operations as no evidence was presented by the appointing authority that the employee's conduct during the relevant time period caused any significant disruption to the unit’s functioning sufficient to warrant that she be placed on an involuntary leave pursuant to §72.5.

In the words of the Administrative Law Judge, "In sum, [the appointing authority] lacked probable cause to believe that an emergency leave was warranted between April 26, 2018, and May 29, 2018," and thus the employee was entitled to reinstatement to her position to to the restoration of any lost salary or leave credits used during that period.

Accordingly, ALJ Gloade recommended the appointing authority's petition be dismissed and that the employee be reinstated to her position with back salary, if any was due her, and restoration of any leave accruals the employee used during the period of her pre-trial leave. 

* Employees suffering an occupational injury or disease as defined in the Workers' Compensation Law and are unable to perform the duties of their position are placed on what is commonly referred to as "Worker's Compensation Leave" pursuant to §71 of the Civil Service Law unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position. 

** The final determination of the civil service commission is binding on both the employee and the appointing authority. Either party, or both, however, may seek review of a final determination of a commission in accordance with the provisions of Article 78 of the Civil Practice Law and Rules.

*** Leave pursuant to §72 is "leave without pay" although an individual on such leave may elect use his or her "accrued leave credits" and other available leave credits until all such leave credits are exhausted in order to remain on the payroll. Further, in addition to involuntarily being placed on §72 leave by the appointing authority, when such an action is not initiated by the appointing authority an employee may request to placed on such leave, the approval of such a request to be granted at the discretion of the appointing authority.

N.B. A decision by the Second Circuit, Tooly v. Schwaller, 17‐3564‐cv, addressing  disability leave pursuant to §72 considered a defenses advanced by one of the defendants -- qualified immunity -- was handed down by the court on March 20, 2019. The text of the ruling is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/8e8a8a16-da14-4099-a4c4-311e44cc3be3/1/doc/17-3564_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8e8a8a16-da14-4099-a4c4-311e44cc3be3/1/hilite/

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-74.pdf

An employee serving a probationary period bears the burden of establishing that his or her "dismissal was due to causes unrelated to work performance and/or improperly motivated"

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation* and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

The New York State Office of Children and Family Services [OCFS] had appointed an individual [Probationer] to his position in December subject to his satisfactory completion of a one-year probationary period.** The following November OCFS terminated Probationer without notice and hearing.

Probationer then brought an action pursuant to CPLR Article 78 seeking, among other things, a court order annulling OCFS' decision to terminate his employment. OCFS filed its answer to Probationer's petition and Supreme Court ultimately granted OCFS' motion to dismiss Probationer's petition. Probationer appealed the Supreme Court's ruling.

The Appellate Division affirmed the lower court's decision, explaining "[a] probationary employee ... has no right to challenge his or her [timely] termination of [his or her probationary] employment absent a showing that the dismissal was done in bad faith or for an improper reason." Further, said the court, the probationary employee bears the burden of establishing that his or her "dismissal was due to causes unrelated to work performance and/or improperly motivated."

Further still, the record before the Appellate Division indicates Probationer violated certain policies of the OCFS facility at which he was serving and failed to document an incident when residents at the facility had engaged in prohibited activity and failed to counsel them after the incident. In addition, noted the court, Probationer was rated  unsatisfactory in four out of five categories in a performance evaluation.

The Appellate Division opined that such evidence of Probationer's unsatisfactory performance together with evidence of minor infractions committed by him, indicate that "his termination was made in good faith" and the fact that Probationer "received some favorable recommendations" does not constitute a showing of improper motivation or bad faith by OCFS in its decision to terminate Probationer's employment with it.

Concluding that Probationer "failed to tender sufficient evidence showing that his termination was due to improper reasons or done in bad faith," the Appellate Division ruled that Supreme Court correctly dismissed Probationer's petition.

* In contrast, should an appointing authority elect to terminate a probationary employee prior to the individual completing his or her minimum probationary period, the employee must be afforded “notice and hearing” in accordance with the terms of the controlling law or the relevant disciplinary procedure set out in a collective bargaining agreement. As the Court of Appeals held in York v McGuire, supra, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position.

** Typically an employee's probationary period is established at "not less than X months and not more than Y months. If no minimum probationary period is specified and the appointment is simply made subject to the satisfactory completion of the employee's probationary period the only window of opportunity for termination without initiating disciplinary action occurs at the end of the probationary period. As the Appellate Division characterized Probationer's appointment as being "subject to [satisfactory completion of] a one-year probationary period," presumably his probationary period fell within the ambit of 4 NYCRR 4.5(b)(1) by operation of law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01692.htm

Principles governing judicial review of administrative determinations pursuant to the substantial evidence standard

The Justice Center for the Protection of People with Special Needs [Justice] issued a report setting out an adverse "substantiated finding" involving Petitioner's interactions with an individual with special needs ["Service Recipient"]. Petitioner asked Justice to amend its report to "unsubstantiated" and that it be sealed. The original substantiated finding was sustained by the Justice Center's Administrative Appeals Unit and the matter was referred for a hearing before an Administrative Law Judge [ALJ].

The ALJ conducted two hearings and issued a recommended decision finding that Justice had established by a preponderance of the evidence that Petitioner was guilty of the alleged adverse conduct involving the Service Recipient. A final determination and order was issued adopting the ALJ's recommended decision. The decision denied Petitioner's request to amend and seal the report and directed that Petitioner be permanently placed on the agency's Vulnerable Person's Central Register staff exclusion list. Based on this determination, the New York State Office of Alcoholism and Substance Abuse Services [OASAS] revoked Petitioner's license.

Petitioner filed a CPLR Article 78 proceeding in Supreme Court contending the  determination was not supported by substantial evidence in the record because it was based upon controverted hearsay evidence. As a question of substantial evidence was raised by Petitioner, the proceeding was transferred to the Appellate Division.

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the Appellate Division noted that the Court of Appeals had recently reviewed the principles governing judicial review of administrative determinations under the substantial evidence standard and stated that, as relevant in this action, the high court had emphasized that "the substantial evidence standard is a minimal standard[,] . . . demand[ing] only that a given inference is reasonable and plausible, not necessarily the most probable. . . . [Thus,] [w]here substantial evidence exists, the reviewing court may not substitute its judgment for that of the agency, even if the court would have decided the matter differently."

As to considering hearsay evidence in an administrative hearing, the Appellate Division said that "hearsay is admissible as competent evidence in an administrative proceeding, and if sufficiently relevant and probative may constitute substantial evidence even if contradicted by live testimony on credibility grounds" [see Matter of Watson v New York State Justice Ctr. for the Protection of People with Special Needs, 152 AD3d 1025].*

The Appellate Division opined that the hearsay allegations made by the Service Recipient were sufficiently reliable because they were corroborated by independent evidence and "was consistent with video recordings from the facility's security cameras," noting that the ALJ had also considered evidence regarding the credibility of the Service Recipient and Petitioner.**

With respect to Service Recipient's credibility, Petitioner had argued that the Service Recipient [1] had fabricated her allegations to avoid immediate discharge from the facility based on her previous misconduct and [2] submitted an affidavit that she had executed, recanting her initial allegations. 

The decision reports that the ALJ had disregarded the affidavit because it had been provided to Petitioner's counsel following an interview during which counsel was accompanied by an investigator and the Service Recipient was alone and unrepresented and, further, because the Service Recipient subsequently reconfirmed the truth of her initial allegations in an interview with Justice investigators.  

Explaining that courts "will not weigh conflicting testimony or second guess the credibility determinations of the administrative fact finder" [ see Matter of Stephen FF. v Johnson, 23 AD3d 977], the Appellate Division held that Justice's determination was supported by substantial evidence.

* At the hearing before the ALJ, Justice relied solely upon hearsay testimony to establish the allegations concerning Petitioner.

** The decision indicates that the record also contained evidence relevant to Petitioner's credibility, namely, "his admission that he had violated the facility's code of conduct by maintaining ongoing relationships with former clients after their discharge."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01689.htm

PERB has exclusive jurisdiction to resolve a claim that a public employer committed an improper practice by discontinuing a past practice

In 2008 the City of Albany [Albany] began to implement changes to the health insurance plans it offered to Albany employees. In 2010, the Albany Police Officers Union, Local 2841 [Local 2841], the bargaining representative for police officers and and certain others working for Albany, filed an improper practice charge with the Public Employment Relations Board [PERB] alleging that Albany had changed the health insurance offered to certain retirees by unilaterally discontinuing the practice of reimbursing the retirees their Medicare Part B monthly premiums.

A PERB Administrative Law Judge dismissed the improper practice charge after a hearing. Local 2841 filed an administrative appeal with PERB but PERB sustained the Administrative Law Judge's determination, holding that Local 2841 did not establish that there was a binding past practice with respect to the health insurance benefit claimed by the retirees.

Local 2841 appealed PERB's determination and the Appellate Division, opining  that PERB's determination was not supported by substantial evidence, annulled the determination and granted Local 2841's petition [see Matter of Albany Police Officers Union, Local 2841, Law Enforcement Officers Union Dist. Council 82, AFSCME, AFL-CIO v New York Pub. Empl. Relations Bd., 149 AD3d 1236 [Decision 1]. When Local 2841 asked PERB to "fulfill its statutory duty" and provide a remedy following the Appellate Division's ruling in its favor, PERB declined, taking the position that it did not have an obligation to enter a remedial order because there had been no finding that there was a violation of the Taylor Law.

Local 2841 then commenced this, its second CPLR Article 78 proceeding,  concerning its allegation that Albany had violated Civil Service Law §209-a(1)(d) when it unilaterally discontinuing the practice of reimbursing retirees for their Medicare Part B monthly premiums and asked Supreme Court to compel PERB to issue an appropriate remedial order. PERB, however, contending that Local 2841 had "failed to state a cause of action," asked  Supreme Court to dismiss Local 2841's petition. Supreme Court granted PERB's motion to dismiss the petition and Local 2841 appealed.

Citing Matter of Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd., 21 NY3d 255, the Appellate Division observed that a binding past practice is established where "the practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected bargaining unit employees that the practice would continue" and PERB has exclusive jurisdiction to resolve a claim that a public employer committed an improper practice by discontinuing a past practice.

As the PERB's decision was made after a mandated hearing, the Appellate Division explained that its review of PERB's ruling in Decision 1 was limited to determining whether PERB's decision was "supported by substantial evidence," and it had found that it was not so supported. In contrast, in this action, said the Appellate Division, Local 2841 is seeking a writ in the nature of mandamus to compel PERB to impose a remedy based on the Appellate Division's holding in Decision 1.

While mandamus may be available to a party to compel the enforcement of a clear legal right where a public official has failed to perform a duty enjoined on the official by law, the Appellate Division said that "... while a mandamus is an appropriate remedy to enforce the performance of a ministerial duty, ... it will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion."

The Appellate Division said that in Decision 1 it granted Local 2841's petition "only to the extent of finding that PERB's determination was not supported by substantial evidence." In contrast, the court stated that it had not found that Albany had violated Civil Service Law §209-a(1)(d) and thus Local 2841 has not established a clear right to mandamus relief directing PERB to issue a remedy.

In other words, the underlying issue -- did Albany engage in an improper practice -- has not been resolved. The Appellate Division then ruled that while Local 2841 had not demonstrated a clear legal right to a remedial order, Local 2841 and Albany "are entitled to a final and binding resolution of this issue" by PERB.

Accordingly, the Appellate Division remanded the matter to PERB and directed PERB to resolve "the 2010 improper practice charge in a manner that is not inconsistent with" the Appellate Division's determination in Decision 1.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01699.htm

Courts may not interfere with an administrative tribunal's proper exercise of its discretion

In this appeal Petitioner challenged Supreme Court's dismissal of Plaintiff's Article 78 petition seeking to annul the determination of New York State Division of Human Rights (SDHR) that there was no probable cause to believe that Petitioner's employer, the Roswell Park Cancer Institute Corporation (Roswell), engaged in an unlawful discriminatory practice against her in its entirety.

The Appellate Division affirmed the Supreme Court's dismissal of the Article 78 action, rejecting Petitioner's contention that Supreme Court must determine whether substantial evidence supported SDHR's determination. The court explained that when SDHR renders a determination of no probable cause without holding a hearing, the appropriate standard of review is whether the probable cause determination was arbitrary and capricious or lacked a rational basis."

Citing Matter of Sullivan v New York State Div. of Human Rights, 160 AD3d 1395, the Appellate Division also rejected Petitioner's argument that SDHR was required to hold a hearing on her complaint before it could make a probable cause determination. SDHR, said the Appellate Division, "has the discretion to determine the method to be used in investigating a [complaint], and a hearing is not required in all cases," noting that the record indicated that Petitioner "had a full and fair opportunity to present her case and that [SDHR's] investigation was neither abbreviated nor one-sided." The fact that there was conflicting evidence before SDHR, opined the Appellate Division, did not create a material issue of fact that warranted a formal hearing"

In addition the Appellate Division indicated that:

1. probable cause exists only when, after giving full credence to the complainant's version of the events, there is some evidence of unlawful discrimination;

2. there must be a factual basis in the evidence sufficient to warrant a cautious person to believe that discrimination had been practiced; and

3. the court's standard of review is an "extremely deferential one.

In effect, courts cannot interfere with an administrative tribunal's exercise of discretion "unless there is no rational basis for its exercise or the action complained of is arbitrary and capricious, a test which chiefly relates to whether a particular action should have been taken or is justified and whether the administrative action is without foundation in fact."

The bottom line: The Appellate Division found that Supreme Court properly concluded that SDHR's determination that there was no probable cause to believe that Roswell discriminated against Petitioner was not arbitrary or capricious and had a rational basis in the record.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00780.htm

Claiming absolute privilege or qualified privilege as a defense in litigation involving alleged defamatory statements

The relevant facts in this action were not in dispute. Monroe County terminated Plaintiff from his position and on the same day the Monroe County Executive issued statements to the press that were published in local newspapers. Contending that three of the statements made by the County Executive were defamatory, Plaintiff sued Monroe County, among other named defendants [herein after collectively "Defendants"]. 

Defendants moved for summary judgment dismissing the Plaintiff's cause of action for alleged defamation, claiming an absolute or, in the alternative, a qualified privilege. Supreme Court denied Defendant's motion and the court's ruling was appealed. 

Citing Clark v McGee, 49 NY2d 613, the Appellate Division said that Defendants' statements to which Plaintiff objected "were absolutely privileged" noting that if an absolute privilege defense prevails it affords complete immunity from liability for alleged defamation to "an official [who] is a principal executive of State or local government ... with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties."

Courts typically apply a two-prong test in order to determine if an absolute privilege defense is available to the official based on [1] the status of the individual alleged to have utter the defamatory statement and [2] the subject matter of the statement in terms of it being consistent with the speaker's public duties. In some cases the forum in which the statement was uttered may be a consideration as well.

In this instance the Appellate Division conclude that absolute privilege applied because the speaker was the Monroe County Executive and her statements with respect to Plaintiff's termination concerned matters involving her official duties.*

In alternative, had a defense of absolute privilege not been available to Defendants, the Defendants might have advanced a claim that qualified privilege applied with respect to the County Executive's statements to the press as its defense.**

The qualified privilege defense, explained the Appellate Division "is available when a statement [not within the ambit of absolute privilege] is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned."

Were a qualified privilege defense relied upon in this action, Defendant initially would have had to demonstrate that the County Executive made the  statements object to by Plaintiff  in her role as the Monroe County Executive in the course of discharging her duties and responsibility in order to keep the public informed regarding a sensitive issue that had obtained extensive media attention.

Once this was done, the burden of going forward would have been shifted to Plaintiff, who would have then been required to demonstrate a triable issue of fact existed as to whether the statements of the County Executive were motivated solely by malice.

Another area that may result in litigation is one in which Employee A alleges that he or she was defamed in an internal communications between administrators, or between another employee, Employee B, and an administrator concerning Employee A. 

Murphy v Herfort, 428 NY2d 117, is an example of litigation resulting from statements contained in communications between administrators; Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case where Employee 1 sued another employee, Employee 2, because of the contents of a memorandum from Employee 2 to a superior concerning a “problem” with Employee 1.

As alternatives to claiming absolute immunity or qualified immunity, a public officer or employee involved in a judicial or quasi-judicial proceeding or in an administrative hearing may advance a claim of use immunity or transaction immunity as a defense, while from time to time a governmental entity may cite the Doctrine of Governmental Function Immunity*** as a defense, founded on the principle of the separation of powers and which is intended to ensure that public servants are free to exercise their decision-making authority [see Marbury v Madison, 5 U.S. 137;  Valdez v City of New York, 18 NY3d 69]. 

* The court further opined that because the investigation and the underlying actions of Plaintiff became a matter of public attention and controversy, the form of communication, e.g., statements to the press, was warranted, citing Kilcoin v Wolansky, 75 AD2d 1, affd 52 NY2d 995.

** In Tulloch v Coughlin, 50 F.3d 114, the US Circuit Court of Appeals, Second Circuit, considered the differences between “absolute immunity” and “qualified immunity.”

*** Although New York State has waived Sovereign Immunity as a defense on behalf of itself and its municipal subdivisions, the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00747.htm

Determining the compensation to be included when calculating the final average salary of a New York City Employees Retirement System member

When the New York City Employees Retirement Systems [NYCERS] failed to included the compensation Plaintiff had received from the City University of New York [CUNY] in addition to his compensation from the New York City Housing Authority [Authority] in the calculation of his final average salary for the purposes of determining the pension portion of his  retirement allowance, Plaintiff file a CPLR Article 78 petition naming NYCERS, the City of New York Department of Citywide Administrative Services, and CUNY as respondents [hereinafter jointly Defendants]. 

Plaintiff contended that NYCERS should have included his CUNY compensation in the determination of his final average salary. Supreme Court judgment granted Plaintiff's petition and directed NYCERS to include the salary the Plaintiff received from the CUNY in the calculation of his final average salary. Defendants appealed and the Appellate Division reversed the lower court's ruling, on the law, confirmed NYCERS' determination with respect to its calculation of Petitioner's final average salary and dismissed the proceeding "on the merits."

The Appellate Division's decision indicated that (1) Plaintiff had been employed as a full-time employee by the Authority; (2) as a part-time adjunct lecturer by CUNY; (3) had  joined the NYCERS on January 5, 1981; and (4) had never been a member of the Teachers' Retirement System of the City of New York [NYCTRS].

When Plaintiff filed his retirement application with NYCERS, NYCERS determined his "final average salary" only considering the compensation he received as a result of his employment with the Authority. When asked, NYCERS informed Plaintiff that the title of adjunct lecturer was a "non-eligible NYCERS title" and thus  his earnings while employed with CUNY were not included in the final average salary computation upon which the pension portion of his retirement allowance was based.

The Appellate Division held that contrary to the determination of the Supreme Court, Plaintiff employment with CUNY was not "city-service," as defined by Administrative Code §13-101(3).* The court explained that Supreme Court relied upon language contained in Administrative Code §13-563 which, in relevant part, "extended membership in NYCTRS to all lecturers employed by CUNY who serve on a "per hour, per diem, per monthly or per semester basis, . . . provided however that such lecturers are not members of any other retirement system supported in whole or in part by the city."

The Appellate Division opined that because the Plaintiff had elected to be a member of NYCERS, he was not eligible for membership in NYCTRS notwithstanding Plaintiff's employment with both the Authority and CUNY, concluding that Plaintiff was eligible for membership in either NYCERS or NYCTRS, but not both.

In the words of the Appellate Division, Supreme Court's "interpretation had the effect of rewriting the definition of "city-service" to include any city employee who is both NYCERS and NYCTRS eligible, regardless of which retirement system they choose, and created a new, unpermitted exception to the dual employment provisions in the Administrative Code."

As the maxim "expressio unius est exclusio alterius"** is typically followed by courts when determining the legislative intent or application of a statute, the Appellate Division concluded that "where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded."

The bottom line: the Appellate Division ruled that as "the determination that Plaintiff is not entitled to inclusion of his CUNY earnings in the calculation of his final average salary was not arbitrary or capricious or affected by an error of law, the Supreme Court should have denied the petition and dismissed the proceeding on the merits."

* The Appellate Division observed that because Plaintiff was eligible for membership in NYCTRS, his employment with CUNY was not "city-service" as defined by Administrative Code §13-101(3).

**  A "Law Latin" term meaning when one or more things of a class are expressly mentioned in a statute all others of the same class are excluded.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01593.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending March 8, 2019.

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending March 8, 2019.

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Office of Alcoholism and Substance Abuse Services (OASAS): Problem Gambling Treatment Program (2018-S-39)
OASAS has not conducted a comprehensive needs assessment or social impact study to identify the number or location of individuals in need of problem gambling treatment services since 2006, even though four commercial casinos opened in New York State in 2013. Therefore, auditors could not determine whether OASAS has sufficient treatment programs available for those in need.

Department of Health: Medicaid Claims Processing Activity Oct. 1, 2017 Through March 31, 2017 (2017-S-63)
Auditors identified over $119 million in improper Medicaid payments, including $107.7 million in Medicaid managed care premiums were paid on behalf of recipients with concurrent comprehensive third-party health insurance. By the end of the audit fieldwork, about $6.7 million of the improper payments had been recovered. Auditors also identified 38 active Medicaid providers who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs.

Metropolitan Transportation Authority: Long Island Rail Road: Unexpected Delays and Events (2018-S-30)
Auditors reviewed 49 unexpected delays and events over a 2½-year period and found that, in some cases, the needs of passengers were not adequately addressed. All notifications of delays or unexpected events were not always made, alternative transportation arrangements were not documented, and procedures were not clear.

Metropolitan Transportation Authority Homeless Outreach Program at the Metro-North Railroad (2018-S-36)
In June 2017, Metro-North entered into a five-year contract (totaling $2,142,399) with Bowery Residents’ Committee (BRC) to provide homeless outreach services. Despite the requirement under the contract, Metro-North has not developed any quantifiable performance measures for the BRC contract and, as a result, has no basis for determining whether BRC’s outreach services are meeting expectations for assisting homeless clients. The homeless outreach data BRC reported was not accurate or complete, and Metro-North does not have a process in place to verify reported data.

New York State Health Insurance Program: CVS Health: Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (2016-S-41)
Auditors reviewed the rebate revenue generated from agreements with six drug manufacturers and found that CVS Health did not always properly invoice drug manufacturers for rebates or remit all rebate revenue to Civil Service that it collected. As a result, Civil Service is due $2,052,653 in rebates.

State Education Department (SED): Association to Benefit Children (ABC): Compliance With the Reimbursable Cost Manual (2017-S-28)
For the fiscal year ended June 30, 2014, auditors identified $263,196 in ineligible costs that ABC reported for reimbursement and recommend such costs be disallowed. These ineligible costs included $164,004 in personal service costs, $13,696 in other than personal service costs and $85,496 in depreciation expenses.

State Education Department (SED): Facilities Planning Bureau Project Review (2018-S-2)
SED does not perform project plan reviews timely, and lacks guidelines that define a reasonable time period to review a project. As of August 2018, SED estimated a lag time to begin its architectural and engineering reviews as two to four weeks and 38 to 40 weeks, respectively. While the agency has taken some steps to address this issue, staff vacancies and new responsibilities continue to contribute to the project review backlog.

Cortland County – Claims Audit and Check Printing (2018M-247)
The Cortland County Legislature has not audited claims since 2015. These deficiencies occurred primarily because the legislature did not consider other options available to it by law, such as establishing a comptroller position responsible for auditing claims or retaining the legislature’s claims audit responsibility.

Town of Harrison – Budgeting Practices (Westchester County)
Auditors compared budgeted revenues and expenditures with operating results for 2013 through 2017 and found that expenditure estimates were generally reasonable except for police special detail. However, the board underestimated revenues by an average of $3.08 million each year, for a cumulative total of more than $15.4 million.

Village of Muttontown – Board Oversight (Nassau County)
The board did not annually audit the clerk-treasurer’s records from 2014-15 through 2017-18 to ensure all money was properly accounted for.

Town of Parma – Real Property Tax Exemptions Administration (Monroe County)
The town granted a total of 1,479 non-NYS STAR property tax exemptions for non-municipal-owned property on the 2017 assessment roll, collectively reducing the town’s 2018 taxable assessed value by more than $89.02 million.

Town of Seneca Falls – Town Hall Capital Project (Seneca County)
The board established an initial amount of nearly $2.6 million to be used from its capital reserve for a project to construct a new town hall. However, it did not prepare an itemized project budget and did not appropriately monitor the project. As a result, the town incurred total project costs of approximately $4.55 million.

Town of Woodstock – Information Technology (Ulster County)
The town adopted a computer privacy policy that states that computers are to be used for business purposes only. However, officials did not design or implement procedures to monitor compliance with the policy or determine the amount of employees’ personal use.

Hearing Officer's credibility determination given "due deference" where there is conflicting evidence in the record

Hearing Officer's credibility determination given "due deference" where there is conflicting evidence in the record

Matter of Buckshaw v DiNapoli, 2019 NY Slip Op 00944, Appellate Division, Third Department

The Employees' Retirement System denied the application filed by Petitioner, a police officer, for accidental disability retirement benefits based upon incidents that occurred in January 2014 and November 2014 — both of which allegedly resulted in injuries to Petitioner's left knee on the grounds that neither of the incidents constituted accidents within the meaning of Retirement and Social Security Law §363. 

Petitioner appealed the System's decision and a hearing was held. The Hearing Officer sustained the System's denial of accidental disability retirement benefits, finding that the November 2014 incident did not constitute an accident.* The Comptroller adopted the Hearing Officer's findings and conclusions. Petitioner then initiated a CPLR Article 78 proceeding challenging the Comptroller's determination.

Initially the Appellate Division noted that an applicant for accidental disability retirement benefits bears "the burden of demonstrating that his or her disability arose out of an accident as defined by the Retirement and Social Security Law, and [the Comptroller's] determination in that regard will be upheld if supported by substantial evidence..... " Citing Matter of Stancarone v DiNapoli, 161 AD3d 144, the court then explained that "To be deemed accidental, an injury must not have been the result of activities undertaken in the ordinary course of [the employee's] job duties but, rather, must be due to a precipitating accidental event [that] is not a risk of the work performed."

In his written statement describing the November 2014 incident, Petitioner had indicated that he and another police officer had responded to a residential domestic call involving a mother and her agitated son. According to Petitioner's written statement, the individual struggled until he was restrained on a stretcher and placed in an ambulance for transport. Although the second police officer did not testify at the hearing, "his written statement mirrored the account of the incident set forth in [Petitioner's] written statement" -- specifically, that he and [Petitioner] attempted to restrain the still-struggling individual, whose legs thereafter became entangled with [Petitioner's] legs, resulting in an injury to Petitioner's left knee.

At the hearing, however, Petitioner described a different version of event, i.e., he alone successfully restrained the individual and his resulting injury to his left knee "stemmed not from any entanglement with the individual he was attempting to subdue but, rather, from a defect in the wall-to-wall carpeting in the residence." Further, Petitioner testified that he refused the other officer's offer of assistance because he had the individual "under complete control" prior to attempting to move him from the couch to the floor and that his injury occurred as he planted his left foot on the floor and initiated this transfer whereupon the carpeting buckled and shifted, "causing his leg to slide underneath the couch, at which point his left knee "popped."

The court opined that had Petitioner's account of the November 2014 incident as set forth in his hearing testimony been credited, the Comptroller could have reasonably had concluded constituted an accident for purposes of granting Petitioner accidental disability retirement benefits. However, said the Appellate Division, Petitioner's written statements and his oral testimony are contradictory and this presented a credibility issue for the Hearing Officer and, later, the Comptroller, to resolve.

As summarized by the Appellate Division, the Hearing Officer credited the account of the incident as set forth in Petitioner's written statement and, in so doing, reasonably concluded that Petitioner's injury resulted from restraining an unruly individual, which, in turn, constituted an inherent risk of Petitioner's employment as a police officer rather than "an accident."

Here the court gave "due deference" to the Hearing Officer's credibility determination and thus concluded that the Comptroller's determination was supported by substantial evidence and decline to disturb it. Courts typically accord "great deference" to a hearing officer's credibility determination unless the determination is found to be "irrational or unreasonable."

* A hearing was held at which Petitioner withdrew the January 2014 incident as a basis for his application for accidental disability retirement, going forward only with his claim for benefits based on the November 2014 incident. Ultimately Petitioner applied for, and was granted, performance of duty disability retirement benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00944.htm

An employee found eligible for accidental disability retirement after an accident at work aggravated a dormant medical condition

An employee found eligible for accidental disability retirement after an accident at work aggravated a dormant medical condition

Petras-Ross v DiNapoli, 2019 NY Slip Op 00939, Appellate Division, Third Department

A school crossing guard [Petitioner] employed by the Suffolk County Police Department was assisting a child cross the street when she was struck by a passing vehicle and was knocked to the ground. She got up, continued to escort the child and reported the incident to her supervisor. Subsequently Petitioner obtained medical treatment and underwent physical therapy, eventually returning to full-time work. Continuing to suffer pain while performing her duties, Petitioner ultimately stopped working completely and filed an application for accidental disability retirement benefits pursuant to Retirement and Social Security Law Article 15 claiming that she was permanently incapacitated due to back injuries that she sustained in the accident.

The New York State and Local Retirement System [ERS] denied her application on the ground that her disability was not the natural and proximate result of the accident. A Hearing Officer denied her application on the same ground following a hearing and the Comptroller later adopted the Hearing Officer's findings and decision. Petitioner sued, challenging the Comptroller's denial of her application for accidental disability retirement benefits.

The Appellate Division, noting that both Petitioner and ERS "concede that [Petitioner] is permanently incapacitated from performing her duties," said that the only issue to be resolved is whether Petitioner met her burden of demonstrating that her  back injuries were causally related to the accident.

The court said that the medical experts who examined petitioner all agreed that she suffers from degenerative disc disease of the lumbar spine but provided conflicting medical opinions as to the cause of Petitioner's disabling back condition. 

Noting that the Comptroller retains the authority to resolve conflicting medical opinions and may credit the opinion of one expert over another, the Appellate Division said that the expert medical opinion relied upon by the Comptroller in making the decision must be a "rational and fact-based opinion founded upon a physical examination and review of the pertinent medical records."

In this instance, however, the Appellate Division found that the ERS' medical expert's opinion was not substantiated by the record developed by the Hearing Officer and "documented in the police report, [Petitioner's] disability retirement application and certain medical records." In addition, Petitioner had testified at the hearing that she had sustained trauma to her back and that she felt pain in her back the day after the accident and the medical records reveal that she verbalized her complaints of back pain following the accident.

In the words of the court, "although [ERS' medical expert] correctly observed that [Petitioner] returned to work ... he disregarded the fact that she stopped working completely ... because she continued to experience significant pain in various parts of her body, including her back."

Accordingly, the court found that ERS' medical expert did not provide a rational, fact-based opinion supporting the denial of Petitioner's application for accidental disability retirement, explaining that although the medical evidence suggests that Petitioner suffered from an underlying degenerative back condition that was asymptomatic, "when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability."

Concluding that the Comptroller's determination was not supported by substantial evidence, the Appellate Division ruled that it must be annulled and remitted the matter to the Comptroller "for further proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00939.htm

Termination of employment recommended by the Administrative Law Judge after finding the employee guilty of insubordination and incompetence

Termination of employment recommended by the Administrative Law Judge after finding the employee guilty of insubordination and incompetence

Dep't of City Planning v. Kelly, OATH Index No. 516/19

A New York City city planner was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging multiple instances of insubordination, incompetence, and calling 911 to have police respond to an incident with her supervisor.

OATH Administrative Law Judge John B. Spooner sustained most of the insubordination charges and the incompetence charge. The ALJ, however, noted that "references to insubordination on 'more than one occasion' in charge I, specification 9, without any further date reference, as well as the reference to harassing behavior on 'multiple occasions' in charge II, specification 2, with vague date references to November 2017 and after July 2018, provide more confusion than information as to what specifically is being alleged as misconduct."*

In addition, Judge Spooner found that as the result of the deficient pleading, "one minor act of discourtesy contained in [the appointing authority's] proof cannot be sustained as misconduct."

Ultimately Judge Spooner found that during a four- month period the planner failed to complete three successive assignments, although she was provided with several weeks to do so.

As to the 911 call, the ALJ credited the supervisor's account that she unplugged the employee's earphones without touching her and that this provided no justification for the worker to summon the police.

Judge Spooner recommended that the employee be terminated, explaining that the employee's misconduct in this case demands a severe penalty in consideration of the employee's "hostile and arrogant treatment of her co-workers, supervisors and staff members alike [which] demonstrates a warped and irresponsible attitude toward her job [and the employee's] insubordination and deplorable work performance strongly suggest that she will never be a satisfactory employee." The appointing authority adopted the ALJ's findings and recommended penalty.

* The employee's motion to dismiss was denied as [1] all of the specifications included at least one date and the ALJ ruled that the employee was placed on adequate notice of specific incidents by the discovery provided by appointing authority. In any event, the Judge Spooner noted that "the appropriate remedy for poorly pleaded charges is more typically an order compelling an amended pleading, not dismissal" of charges and specifications.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-516.pdf