Emerging green synergy in the science/religion relationship: from conflict to potentially planet-saving cooperation

The science/religion relationship has proved to be of great interest, given the crushing economic burden of global climate change on the insurance industry, and the close association of science denial and climate change denial in some religious communities.  Below is the abstract of an article by Dr. Robert A. Michaels [bam@ramtrac.com] recently published in the Environmental Claims Journal.  

The full text of the article can be downloaded from ResearchGate.net at no charge, via the following URL:

https://www.researchgate.net/publication/328051664_Emerging_Green_Synergy_in_the_ScienceReligion_Relationship_From_Conflict_to_Potentially_Planet-Saving_Cooperation

Abstract

Nature has inspired awe throughout history, stimulating scientific study often conflicting with theology.  Conflict is manifest as promotion of creationism and its euphemisms in school curricula, and in science denial, recently in the U.S. Government.  Unification, however, is an emerging reality for the science/ religion relationship, driven by convergent evolution of each toward saving our shared planet from ourselves.  No longer can religion deny science, nor science overlook the power of religious institutions toward achieving our common existential goal.  

==================================

Audits issued by the New York State Comptroller during the week ending October 11, 2019

On October 9, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued. Click on the text highlighted in color below to access entire report.

Office of Children and Family Services (OCFS): Financial Oversight of the Advantage After School Program (Follow-Up) (2019-F-27)

A report issued in February 2018 identified a risk that providers could exceed their maximum cost per child if they were serving significantly fewer children and did not reduce their expenditures proportionately. Based on observations of program attendance at selected providers, the cost per child on five contracts ranged from $1,981 to $5,332. Auditors also identified $38,514 paid to six providers for program expenses that could not be supported or included errors. In a follow-up, auditors found OCFS has made progress in addressing the problems identified in the 2018 audit.

Department of Health (DOH): Medicaid Program: Claims Processing Activity October 1, 2018 through March 31, 2019 (2018-S-55)

Auditors identified over $5.7 million in Medicaid payments that require DOH’s prompt attention, including: $1.9 million that was paid for inpatient claims that were billed at a higher level of care than what was actually provided; $1.4 million was paid for newborn birth claims that contained inaccurate birth information; and $1 million was paid for practitioner, pharmacy, inpatient, lab, and clinic claims that did not comply with Medicaid policies.

Thruway Authority: Compliance With Payment Card Industry Standards (Follow-Up) (2019-F-14)

An audit issued in September 2017 found the authority did not have a developed information security policy that addressed all the requirements in the Payment Card Industry Security Standards Council. It could also improve certain other technical safeguards over the cardholder data it processes. In a follow-up, auditors found the authority made significant progress in addressing the issues identified in the initial audit. 

Department of Transportation (DOT): Collection of Special Hauling and Divisible Load Overweight Permit Fees (Follow-Up) (2019-F-24)

An audit, covering the period April 1, 2012through Feb. 5, 2015, found significant weaknesses in the internal controls over the special hauling permits issued by four DOT regional offices. This included poor accountability over permits issued and fees collected, a lack of segregation of duties for permit transactions, and minimal oversight by management at both the central and regional levels. In a follow-up, auditors found that DOT has implemented the recommendations from the original audit.

State University of New York, University at Buffalo: Procurement Practices (2018-S-37)

A review of $8 million in spending between April 2016 and September 2018 uncovered various issues within its procurement processes, leading auditors to question whether $895,839 was spent appropriately and in the best interest of the state. Buffalo’s poor monitoring of spending and contracting practices resulted in potential lost savings and cost avoidance, overcharges by vendors, and purchases that lack support for business need or reasonableness of price.

State University of New York: Upstate Medical University: Human Resource (HR) Practices (2018-S-57)

Insufficient HR monitoring and oversight and poorly enforced policies and procedures have contributed to questionable and weak practices that render Upstate vulnerable to misuse of funds and security risks. For example, Upstate paid 12 employees a total of $4.7 million in additional compensation for work beyond their regular job duties but did not maintain adequate documentation to support either the basis for the dollar amount or the additional duties that employees were tasked with. Upstate has not established policies or procedures for alternate work (off-campus) assignments. Additionally SUNY System Administration continued to pay a former president her presidential salary of $608,000 while she was on leave in the job title of special assistant to the president. 

Professor M. Stanley Whittingham joins other SUNY faculty members who have been awarded the Nobel Prize

On October 9, 2019 New York's Governor Andrew M. Cuomo congratulated SUNY at Binghamton Distinguished Professor M. Stanley Whittingham upon his receiving the 2019 Nobel Prize in Chemistry.

Professor Whittingham won the prize for his work leading to the development of the lithium-ion battery together with John B. Goodenough, Virginia H. Cockrell Centennial Chair in Engineering at the University of Texas at Austin and Akira Yoshino, an honorary fellow for the Asahi Kasei Corporation in Tokyo and a professor at Meijo University in Nagoya, Japan.

The Governor said "Professor Whittingham's work has far-reaching applications, including helping New York reach our goals to reduce carbon emissions and achieve 100 percent zero carbon electricity by 2040."

The names and vita of other SUNY faculty Nobel Laureates are posted on the Internet at https://www.rfsuny.org/rf-news/nobel-laureates/

Hearing officer recommends the dismissal of a food service manager found guilty of failure to properly supervise subordinates and other misconduct

A school food service manager was charged with failure to supervise her staff to ensure that potentially unsafe food was not served to students, and failure to ensure that kitchen equipment was clean and in working condition.

Supervisors on several occasions attempted to help the manager remedy these issues, but she continued to perform unsatisfactorily.

New York City Office of Administrative Tribunals and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls found that the manager failed to take responsibility for exposing students to recalled food and failed to take responsibility for the condition of the school kitchens.

Given the seriousness and persistence of the conduct, Judeg McGeachy-Kuls recommended the manger be terminated.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-494.pdf

____________

Click here to Read a FREE excerpt from NYPER's

A Reasonable Disciplinary Penalty Under the Circumstances

Providing disabled individuals access to the Internet

In Robles v. Domino Pizza, 913 F. 3d 898,*  the United States Court of Appeals held  that Title III of the American With Disabilities Act applies to websites maintained by entities having a physical place of public accommodation.

The United States Supreme Court [Docket 18-1539] denied Domino Pizza's motion for certiorari suggesting that the case will be returned to the District Court for a trial on the merits.

Many disability rights advocates view the Supreme Court's decision as signaling the importance of Internet sites established by governmental entities as well as entities in the private sector providing appropriate accommodations for disabled users even in the absence of guidelines having for this purpose been established by the United States Department of Justice or by Congress.

* The Robles decision is posted on the Internet at:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/15/17-55504.pdf

Do you employ temporary personnel to serve as election workers?

Each election year, thousands of state and local government entities hire workers to conduct primary and general elections. Compensation paid to election workers is income and may be subject to income tax and FICA taxes as well as reporting requirements.

IRS's booklet Election Workers: Reporting and Withholding will help employers  understand their unique reporting and withholding requirements and which election workers may be covered by a Section 218 Agreement.

The IRS will issue a CP2100 or CP2100A Notice if the payee’s name and Taxpayer Identification Number (TIN) on the information return filed does not match IRS records.

This notice informs payers they may be responsible for beginning backup withholding, if they haven’t already done so. Publication 1281, Backup Withholding on Missing and Incorrect Name/TIN(s) (PDF), contains all the information payers need to comply with backup withholding requirements.

Additional resources that may help employers avoid receiving a CP2100 include the following:

About General Instructions for Certain Information Returns helps you file correct Forms 1099

W-9 Saves Time and Money discusses the benefits of securing Form W-9 from service vendors

TIN Matching Video explains the free Taxpayer Identification Number (TIN) On-Line Matching program offered by the IRS

Social Security Number Verification Service

What you need to know about Backup Withholding

New York laws bar asking prospective employees about their salary history and expands the definition of "equal pay for equal work"

In a press release issued October 7, 2019, New York State Governor Andrew M. Cuomo reminded all employers - public and private - who do business in New York State that effective October 8, 2019  New York State law prohibits unequal pay for substantially similar work on the basis of an individual's protected class status, bars asking prospective employees about their salary history and compensation and expands the definition of "equal pay for equal work."

These new measures track two executive orders signed by Governor Cuomo in 2018 prohibiting state entities from evaluating candidates based on wage history and requiring state contractors to disclose data on the gender, race and ethnicity of employees to provide pay transparency and advance pay equity statewide.

In addition, Governor Cuomo called on businesses in New York to conduct internal reviews of their pay policies and make adjustments as necessary in accordance with these new laws. 

Relying on hearsay evidence in an administrative proceeding

Although the New York State and Local Police and Fire Retirement System [System] conceded that the injury suffered by an applicant for accidental disability retirement benefits was an accident within the meaning of the Retirement and Social Security Law, the System rejected a State Trooper's [Trooper] application for such benefits based on a finding that he is neither permanently disabled nor permanently incapacitated.

Following a hearing, a Hearing Officer upheld the System's the denial these  applications. The Comptroller adopted the Hearing Officer's findings and decision and Trooper filed a CPLR Article 78 petition filing the Comptroller determination.

The Appellate Division initially observed that an applicant for disability retirement benefits bears the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law [RSSL], and the Comptroller's determination in this regard will be upheld if supported by substantial evidence. However, this issue was moot as the System conceded Trooper had suffered his injury as the result of an accident within the meaning of the RSSL.

Trooper's board-certified, treating orthopedic surgeon testified that Trooper is permanently disabled and, in his opinion, Trooper "was unable to work as a state trooper."

In contrast the System's board-certified orthopedic surgeon conducted an independent medical examination of Trooper and after a physical examination of Trooper, a review of his medical records and consideration of Trooper's "subjective complaints" opined that Trooper is not permanently disabled or incapable of performing the duties of a state trooper.

In response to Trooper's contention that the hearsay evidence contained in the report of the Retirement System's surgeon "cannot prevail over the credible, sworn testimony of his witness," citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the Appellate Division explained 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"

Further, said the court, "it is not the role of this Court to weigh the evidence and substitute its judgment for that of the administrative factfinder," and as the record as a whole contains substantial evidence to support the denial of Trooper's application, the Comptroller's finding that petitioner is not permanently incapacitated will not be disturbed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07129.htm

New York State Comptroller Thomas P. DiNapoli's audit finds that residents of many long-term care facilities in the state lack access to ombudsman services

Under the federal Older Americans Act of 1965, to be eligible for certain federal grants, each state is required to establish an Office of the State Long-Term Care Ombudsman. In New York, this office is within the New York State Office for the Aging (NYSOFA) and serves as an advocate and resource for the elderly and persons with disabilities who live in long-term care (LTC) facilities.

Among their duties, ombudsmen identify, investigate and resolve complaints made by or on behalf of residents. There are about 1,500 LTC facilities in the state, housing more than 160,000 residents who have a need for ombudsman services, according to NYSOFA.

Many residents of long-term care facilities in New York state lack regular access to ombudsman services due to a decline in the number of volunteers* and a severe shortage of paid staff, according to an audit released October 3, 2019 by State Comptroller Thomas P. DiNapoli.*

DiNapoli’s auditors found that as of January 2019, only about 600 of the state’s LTC facilities have an assigned volunteer ombudsman, leaving the remaining 900 facilities to be covered by just 50 paid local staff, about half the minimum number recommended in NYSOFA’s guidelines, which are based on information from the Institute of Medicine.

Eleven of NYSOFA’s 15 regional programs fell short of the recommended minimum number of staff for the federal fiscal year (FFY) ended Sept. 30, 2018, and about 30 percent of facilities were not visited by an ombudsman during that period. New York City, the region with the highest number of residents and facilities, was recommended to have 28 staffers, but had only five.

New York’s paid staff per 2,000 beds ranked 39th compared to other states as of Sept. 30, 2017.

According to NYSOFA, the number of facilities associated with at least one complaint increased significantly – by about 84 percent – from 247 in the FFY ended Sept. 30, 2016 to 454 in the FFY ended Sept. 30, 2018. Nearly all complaints – 98 percent – arose from facilities that had been visited prior to the complaint, indicating that an ombudsman’s visit plays a role in a key part of the office’s mission: being accessible to residents who wish to air their concerns.

Although ombudsmen may be volunteers or paid staff, NYSOFA relies heavily on citizen-volunteer ombudsmen to visit the LTC facilities and make contact with their residents. Each regional program has a full-time, paid ombudsman coordinator who recruits, trains and supervises its volunteers. Still, recruitment and retention has been a problem. NYSOFA data show a 37 percent decrease in the number of volunteer ombudsmen during the three-year period ending Sept. 30, 2018. NYSOFA officials suggested that a restructuring of the program that resulted in larger service areas for a reduced number of local offices could have contributed to the decline, and cited other recruitment and retention challenges.

To help retain volunteers. NYSOFA said that some regional programs have begun paying a monthly stipend to some volunteers who work at least four hours per week conducting additional facility visits or entering data.

DiNapoli’s auditors also found issues with ombudsman training. A look at training records for 50 volunteers for one calendar year found that 31, or 62 percent, did not meet the annual training requirements. That included 12 volunteers who missed four of the six annually required in-person training sessions.

Office personnel use an electronic system to maintain all information required by the federal Administration for Community Living (ACL) through that agency’s National Ombudsman Reporting System (NORS). This includes information on complaints received and investigated as well as number of facilities covered by the office, number of staff and volunteers in each region, and related training activities.

Auditors determined that certain data maintained in NYSOFA’s computer system may not be reliable. They found, at the individual entry level, incomplete fields and differences with other supporting information – that may limit the data’s usefulness in analyzing results and trends. For example, a comparison of system complaint data to hard copy complaint documentation showed that 46 of the 66 system records reviewed either differed from the complaint form, had incomplete fields, or had both types of issues.

DiNapoli recommended that NYSOFA:

1. Improve the reliability of system-generated office data;

2 .Take steps to identify and understand reasons for the decline in volunteers and differences in regional program results;

3. Develop and implement strategies to improve access to ombudsman services, including access to volunteer ombudsmen;

4. Strengthen efforts to ensure that volunteer ombudsmen receive required annual training; and

5. Develop a long-term advocacy plan that is informed by reliable data and that identifies key advocacy goals and activities.

* Those interested in volunteering for the Long Term Care Ombudsman Program (LTCOP), please  call (855) 582-6769 or visit the NYS LTCOP website at: ltcombudsman.ny.gov. LTCOP will welcome your assistance.

NYSOFA officials agreed with the audit recommendations and indicated the actions they have taken so far to implement them. Their full response is included in the audit. Read the report, or go to: 

https://www.osc.state.ny.us/audits/allaudits/093020/sga-2020-18s48.pdf

Applying the terms of a settlement agreement settling a disciplinary action

During the course of Plaintiff's disciplinary hearing Plaintiff, represented by counsel, entered into a settlement agreement with the appointing authority [Employer] acting "on its own behalf and on behalf of its present and former ... employees." 

The settlement agreement provided that the Employer would discontinue the disciplinary proceeding and remove a letter of disciplinary charges from the Plaintiff's personnel file while Plaintiff agreed to retire from his employment with the Employer and to release the Employer and its employees "from all claims or causes of action he may have or claim to have . . . including any and all claims in any way arising out of, or related to, his employment with the Employer, or his separation from that employment."

Subsequently Plaintiff commenced an action to recover damages for defamation, alleging that the individuals [Defendants] named in his complaint, also employees of the Employer, had falsely accused him of actions that led to the disciplinary charges that were preferred by the Employer against him.

Defendants move to dismiss the complaint, submitting a copy of the settlement agreement that had been executed by the Plaintiff in connection with the discontinuance of the disciplinary proceeding that had been brought against him. Notwithstanding Plaintiff's argument to the contrary, Supreme Court granted the Defendant's motion "for failure to state a cause of action" and Plaintiff appealed.

The Appellate Division explained that [1] the terms of the release contained in the settlement agreement clearly and unambiguously encompass Plaintiff's action and [2] Plaintiff failed to allege any unlawful or wrongful threat by the Employer that could serve as the basis of a claim of duress, which was the only ground the plaintiff alleged to void the release. Thus, opined the Appellate Division, "the release executed by the [Plaintiff] should be enforced according to its terms."

The Appellate Division noted the following elements with respect to a release or settlement agreement that will be enforced by a court:

1. "A release is a contract, and its construction is governed by contract law;"

2.  "A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release";

3 "Where . . . the language of a release is clear and unambiguous, the signing of a release is a jural act 'binding on the parties';"

4.  "Generally, a valid release constitutes a complete bar to an action on a claim which is the subject of the release"; and

5. "Although a defendant has the initial burden of establishing that it has been released from any claims, a signed release shifts the burden ... to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06588.htm

_________________________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. For more information click on http://booklocker.com/books/5215.html

Disciplinary penalty imposed on an individual found guilty of disciplinary charges challenged as being too lenient

Courts frequently are asked to review a penalty imposed by an appointing authority following a disciplinary action. Typically such actions are brought by the employee on the theory that the penalty imposed was too harsh.

In such cases the courts usually apply the so-called Pell Doctrine: was the penalty imposed so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness [Pell v Board of Education, 34 NY^2d 222].

This case is the mirror image of most Pell Doctrine cases: a complaint that the penalty imposed was too lenient!

The case arose when the School District [District] filed disciplinary charges against a teacher prior to the amendment of §3020-a of the Education Law in 1994 [Chapter 691, Laws of 1994].

An (old) §3020-a hearing panel found a teacher guilty of a number of specifications set out in charges alleging "inappropriate remarks and inappropriate physical contact" with female students by the teacher. The penalty imposed: suspension without pay for one and one-half years. The District  challenged the §3020-a hearing panel's decision by asking the New  York State Commissioner of Education to intervene. The District contended that the penalty should have been "more stringent." The Commissioner sustained the penalty imposed by the panel. The District then asked the courts to impose a harsher penalty -- dismissal.

What standard would the courts apply in determining if the penalty imposed is too lenient? The Appellate Division said it would apply same Pell standard that courts use to determine if a penalty is too harsh.*

Finding it neither arbitrary nor capricious, the Appellate Division sustained the Commissioner's ruling. The Court said that the underlying facts, coupled the absence of charges ever having previously been filed against the teacher during his 21-year career, supported the Commissioner's determination that the penalty imposed was proportionate to the offenses for which the teacher was found guilty.

In contrast, in Hickman v Poughkeepsie City School District, 237 A.D.2d 289, the Appellate Division sustained the dismissal of a school custodian found guilty of excessive absence, habitual lateness, falsification of his time sheets and excessive use of the telephone during his working hours as consistent with the Pell Doctrine.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997958237ad2d7211189

Click here to Read a FREE excerpt from NYPER's

A Reasonable Disciplinary Penalty Under the Circumstances

Considering Title VII complaints based on the Continuing Violation Doctrine and allegations of Disparate Treatment

Plaintiff-Appellant [Plaintiff] sued his current employer, the New York State Department of Taxation and Finance [NYSTF] pursuant to Title VII of the Civil Rights Act of 1964 alleging that NYSTF discriminated against him on the basis of race and retaliated against him when it failed to promote him on various occasions from 1997 to 2017.

The District Court properly concluded that Plaintiff’s Title VII claims based on acts alleged to have occurred on or before July 15, 2016 were time-barred as Title VII requires individuals aggrieved by acts of discrimination in states like New York that have state or local employment discrimination enforcement mechanisms to file a charge with the Equal Employment Opportunity Commission [EEOC] within 300 days “after the alleged unlawful employment practice occurred.”*

The majority of the alleged discriminatory acts that Plaintiff alleges in his complaint and supporting documents occurred years before this date. Notwithstanding Plaintiff's argument to the contrary, the district court correctly found that the continuing violation doctrine did not revive the claims based on these acts.

The Circuit Court explained that under the continuing violation doctrine, “if a Title VII plaintiff files an EEOC charge that is timely as to any incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts of discrimination under that policy will be timely even if they would be untimely standing alone.” However, said the court, the continuing violation doctrine does not apply to discrete unlawful acts, even if the discrete acts were undertaken “pursuant to a general policy that results in other discrete acts occurring within the limitations period.”

Holding that “[A]n employer’s failure to promote is by its very nature a discrete act,” the Circuit Court ruled that the District Court correctly concluded that Plaintiff’s complaint, which focused on multiple failures to promote, alleged only a series of discrete acts of retaliation and discrimination, occurring over the course of more than twenty years and often separated by years. Thus the continuing violation doctrine did not revive Plaintiff's time-barred claims.

Considering Plaintiff's "disparate treatment claims based on the NYSTF’s failure to promote him between June 2, 2016 and May 10, 2017," the Circuit Court indicated that at the pleadings stage, Title VII “requires a plaintiff asserting a discrimination claim to allege two elements: (1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin.”

Although a plaintiff may adequately plead this second element “by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination,” the Circuit Court found that the District Court correctly ruled that Plaintiff failed to make this showing because he made only conclusory allegations that he was denied promotions due to racial animus.

Finally, the Circuit Court held that the District Court did not err in dismissing Plaintiff’s retaliation claim for failure to state a claim, explaining that to establish a prima facie case of retaliation, an employee must show:

(1) participation in a protected activity;

(2) that the defendant knew of the protected activity;

(3) an adverse employment action; and

(4) a causal connection between the protected activity and the adverse employment action.”

The District Court, said the Circuit Court, correctly held that allegations that Plaintiff was passed over for promotions in 2016 and 2017 were too attenuated from the protected activity to plausibly allege a causal connection between the two.

* 42 USC §2000e-5(e)(1) claims falling outside this statute of limitations are time-barred unless they are subject to waiver, estoppel, or equitable tolling, or fall within the continuing violation exception to the 300-day rule.

The decision if posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a3712f29-09cf-44d6-a607-af2f13c230a6/1/doc/18-2302_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a3712f29-09cf-44d6-a607-af2f13c230a6/1/hilite/