As a general rule, where there is a reasonable relationship of a grievance and the general subject matter of the collective bargaining agreement the dispute is arbitrable

This litigation involved a dispute between the City of Yonkers [City], and Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO [Local 628], concerning a paramedic training course funded by a federal Assistance to Firefighters grant the City had offered its firefighters.

After the City denied Local 628's requests for documents related to the paramedic training course, Local 628 filed a grievance asserting that the City violated, among other provisions, Article 33 of the parties' collective bargaining agreement [CBA]. Exhausting its internal grievance remedies, Local 628 demanded arbitration of the dispute.

The City then initiated a proceeding pursuant to Article 75 of the CPLR seeking a court order permanently staying arbitration. Supreme Court granted City's the petition, ruling that the dispute between the parties was not arbitrable because there was no reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Local 628 appeal and the Appellate Division reversed the Supreme Court's ruling "on the law."

Citing Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.-Long Beach Unit, 8 NY3d 465, the court explained that "[a]s a general rule, public policy in this State favors arbitral resolution of public sector labor disputes."

The Appellate Division, however, cautioned that "[a] grievance may be submitted to arbitration only where the parties agree to arbitrate that kind of dispute, and where it is lawful for them to do so," citing Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273]. Further, said the court, in determining whether a grievance is arbitrable, a court must "first ask whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance," and if there is no such prohibition against arbitration, the court must "then examine the CBA to determine if the parties have agreed to arbitrate the dispute at issue."

As it was undisputed that there is no statutory, constitutional, or public policy prohibition to the arbitration of Local 628's grievance, the only issue to be addressed by the Appellate Division was whether the City and Local 628 had agreed to arbitrate this particular dispute. Finding that the relevant arbitration provision in the CBA was "broad," providing for arbitration of any grievance "involving the interpretation or application of any provision of this Agreement," the Appellate Division opined that a court "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Absent a finding that there is no reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA, the Appellate Division said the court should rule the matter arbitrable, whereafter "the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

Local 628 had contended that the City, by offering a paramedic training course to its firefighters, violated Article 33 of the CBA, which contains various provisions concerning the EMS Program, including a provision stating that the "EMS Program shall mean the level of services provided as of the date of this Agreement."

Finding that a reasonable relationship exists between Local 628's grievance and the general subject matter of the CBA, the Appellate Division concluded that resolving "the question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator."

Accordingly, the Appellate Division held that the Supreme Court should have denied the City's petition to permanently stay arbitration and dismissed the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07776.htm

Courts should not "second guess" the format or the methods used in designing and using civil service examinations where the method chosen meets the mandates of the Constitution and statutes

The New York City Department of Citywide Administrative Services [DCAS]  included 20 "research questions" in an examination for Associate Fraud Investigator. The candidates' answers to these question were not rated for the purposes of establishing their "test score" but were included in an effort to allow DCAS to develop alternate forms of an examination "for a given title that would yield measurably equivalent outcomes" and to provide a means for testing "the validity of examination questions, ensuring that these questions were valid across differing groups of test-takers, regardless of their racial or ethnic background." In addition, the time for taking the examination was extended to provide adequate time to answer all questions.

The Social Services Employees Union Local 371 [Local 371] filed a petition pursuant to CPLR Article 78 seeking a declaration that results of a civil service examination administered by the New York City Department of Citywide Administrative Services [DCAS] were null and void. Supreme Court dismissed Local 371's petition which action was unanimously affirmed by the Appellate Division.

The Appellate Division explained that Local 371 "failed to establish" that DCAS's inclusion of 20 ungraded research questions in an examination administered for the position of Associate Fraud Investigator violated the merit and fitness mandate set out in Article V, §6 of the New York State Constitution or §50(1) of the New York State Civil Service Law* or that DCAS action in including the research questions in the examination was otherwise arbitrary and capricious.

In the words of the Appellate Division, DCAS is "afforded considerable discretion in preparing and administering civil service examinations" and as long as the examination is "reasonable in testing for the skills identified for the position" and " competitive' in the constitutional context," courts should not "second guess the format or the methods of the examination."

Further, said the court, Local 371 failed to "sufficiently allege that the inclusion of these ungraded questions was arbitrary or capricious" as all candidates were scored the same way on the graded questions, and the test did not inherently disadvantage any one candidate. The decision also notes that the candidates were evaluated only on the basis of questions that had already been validated as providing an accurate measure of merit and fitness for the role.

Unanimously affirming the lower court's ruling, the Appellate Division opined that DCAS is not required to adopt Local 371's preferred method of testing proposed examination questions, particularly where the method chosen meets the constitutional and statutory mandates.

* §50.1 of the Civil Service Law provides as follows: "Positions subject to competitive examinations. The merit and fitness of applicants for positions which are classified in the competitive class shall be ascertained by such examinations as may be prescribed by the state civil service department or the municipal commission having jurisdiction."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07993.htm

The Restoration of Honor Act gives certain military veterans denied an honorable discharge from military service the right to apply for New York State veterans' benefits

On November 12, 2019, Governor Andrew M. Cuomo signed legislation enacting The Restoration of Honor Act,* giving LGBTQ veterans who were denied an honorable discharge because of their sexual orientation or gender identity the right to apply to have their New York State veterans' benefits restored. 

Under Don't Ask Don't Tell and similar policies hundreds of thousands of veterans** received less than honorable discharges. As a result of that those individuals are ineligible for veterans' benefits. Although discharge from federal military service decisions can only be formally changed by the federal government, The Restoration of Honor Act allows certain veterans to apply to claim their New York State benefits.

The Restoration of Honor Act also restores benefits eligibility for veterans who received less than honorable discharges as a result of military sexual trauma, traumatic brain injury, or post-traumatic stress disorder.  

The Restoration of Honor Act amends relevant provisions of the Executive Law, the Civil Service Law, the County Law, the Economic Development Law, the Education Law, the Election Law, the General Construction Law, the General Municipal Law, the Military Law, the Correction Law, the Environmental Conservation Law, the General Business Law, the Highway Law, the Insurance Law, the Judiciary Law, the Private Housing Finance Law, the Public Health Law, the Public Housing Law, the Public Officers Law, the Real Property Tax Law, the Social Services Law, the Tax Law, the Town Law, the Vehicle And Traffic Law, and the Workers' Compensation Law.

New York is the first state in the nation to restore the benefits of veterans who received less than honorable discharges from military service either because of these traumas or because of their LGBTQ identity.

* Chapter 490 of the Law of 2019

** §350.3 of the Executive Law defines the term "veteran" as "a person, male or female, resident of this state, who has served in the active military or naval service of the United States during a war in which the United States engaged and who has been released from such service otherwise than by dishonorable discharge, or who has been furloughed to the reserve."

Supreme Court's granting Defendant's pre-answer, pre-discovery motion dismissing Plaintiff's CPLR Article 78 action alleging unlawful discrimination reversed "on the law"

An educator [Plaintiff] filed a CPLR Article 78 petition alleging that he had suffered various act of unlawful discrimination as the result of actions taken against him by the school principal [Principal], a Caucasian woman, because of his Haitian origin and her belief that he is a voodoo priest,* including the Principal's falsely accusing him of misconduct that subjected him to an Office of Special Investigations investigation, during which Principal falsely accused Plaintiff of being a voodoo priest.

Plaintiff also asserted that Principal assigned him to an unsanitary basement office upon his return from a temporary administrative office assignment, contending this was done maliciously in disregard of his seniority even though there were other available offices and that, ultimately, Principal demoted Plaintiff to the position of temporary substitute, assigned on a weekly basis to different schools.

The defendant in the action, the New York City Department of Education [DOE] submitted a pre-answer, pre-discovery motion seeking a court order dismissing Plaintiff's complaint. Supreme Court granted DOE's motion and denied Plaintiff's cross motion for leave to file a second amended complaint. 

The Appellate Division unanimously reversed the Supreme Court's ruling "on the law," denying DOE's motion to dismiss Plaintiffs complaint and granting Plaintiff's cross motion to amend his complaint.

The Appellate Division explained:

1. Plaintiff's  complaint "states a causes of action for unlawful discrimination, retaliation and hostile work environment in violation of the New York State and New York City Human Rights laws;" and

2. Plaintiff's allegations were sufficient to give DOE "fair notice" of the nature of Plaintiff's claims and their grounds, which is all that is required "to survive at the pleading stage."

As to DOE's contention that Plaintiff's alleged certain acts by Principal occurred more than one year before he commenced this action and it is thus untimely, the Appellate Division, citing Education Law §3813[2-b], opined that the court could not state that, as a matter of law, "that these acts, if proven, were not part of a single continuing pattern of unlawful conduct extending into the one-year period immediately preceding the filing of the complaint" and that, in any event, Plaintiff "is not precluded from using the prior acts as background evidence in support of a timely claim."

DOE, in support of its motion to dismiss Plaintiff's complaint, also contended that "there were legitimate, nondiscriminatory reasons for the actions taken against Plaintiff." The Appellate Division, however, said that this argument advanced by DOE merely stated a potential rebuttal argument to a prima facie case of unlawful employment discrimination, "which is misplaced at this early procedural juncture." 

Under the circumstances, said the court, Plaintiff's cross motion for leave to amend his complaint should have been granted by Supreme Court.

* Plaintiff alleged that he studied voodoo but does not practice voodoo.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07990.htm

Fungal risk vectors in the context of climate change

Below an abstract of an article by Dr. Robert Michaels [bam@ramtrac.com] recently published in the Environmental Claims Journal addressing emerging health problems in the context of climate change.  

ABSTRACT

The trend toward increasing frequency and intensity of storms has exacerbated mold and other moisture-related health problems, and can be extrapolated to the future. Mold growth therefore exhibits increasing significance in the context of changing climate. The decades-old hypothesis of mold causation and/or exacerbation of asthma previously has been deemed unproven, though not rejected. The present investigation assesses the status of this hypothesis within the industrial, regulatory, scientific, medical, and legal communities. To assure accuracy, statements from these communities are quoted. Recent high-level reviews, such as by the National Academy of Sciences Institute of Medicine and the United Nations World Health Organization, have failed to consider literature that was available, and studies postdating NAS IOM and UN WHO reviews have confirmed and augmented available literature. As a result, all nine of the Hill criteria of causation in epidemiology now are satisfied. I conclude that, with exposure of sufficient intensity and duration, some molds can cause asthma and/or exacerbate preexisting asthma, and that the hypothesis indeed has been accorded broad acceptance in the communities considered.

The full text of the article can be downloaded from ResearchGate at no charge, via the following URL: https://doi.org/10.1080/10406026.2017.1345521

Prosecuting whistleblower lawsuits brought pursuant to the federal False Claims Act

A qui tam lawsuit, typically called a whistleblower lawsuit, is brought under the False Claims Act, [FCA], 31 U.S.C. §3729, et. seq. The FCA authorizes bringing an action against any person or entity who knowingly submitted a false or fraudulent claim for payment to the federal government. The FCA also provides for rewarding whistleblowers successful in cases where the government recovers funds lost to fraud.

The United States government may bring the FCA action, or a private citizen, known as a “Relator,” may bring a qui tam action “for the person and for the United States Government,” and “in the name of the Government.”

In this action the Relator, proceeding pro se,* brought the qui tam action on behalf of the United States and California, Connecticut, Florida, and New York under color of the FCA.**

The federal district court dismissed the qui tam action because Relator, who was not an attorney, was not represented by counsel. Relator appealed the ruling to the U.S. Circuit Court of Appeals, Second Circuit.

Limiting its review to the dismissal of Realtor's action by the district court for failure to retain counsel, the Circuit Court opined:

1. "The right to appear pro se in civil litigation in federal court is guaranteed by 28 U.S.C. §1654, which provides that 'parties may plead and conduct their own cases personally or by counsel.'

2. "A person who is not an attorney and is not represented by an attorney 'may not appear on another person’s behalf in the other’s cause.'

3. "A non-attorney relator in an FCA qui tam action cannot proceed pro se because 'the United States remains the real party in interest in qui tam actions, the case, albeit controlled and litigated by the relator, is not the relator’s own case as required by 28 U.S.C. §1654, nor one in which he has an interest personal to him.'"

4. "The district court therefore did not err in dismissing this action after Relator failed to retain counsel, despite being granted ample opportunity to do so.

Although Relator argued on appeal that appointment of counsel by the district court was warranted, the Circuit Court of Appeals observed that Relator did not move for the appointment of counsel in the district court, and the district court was not required to sua sponte appoint counsel.

* A person who appears before the Court without an attorney to represent him is appearing pro se.

** The Circuit Court's decision notes that the Relator "did not move for appointment of counsel in the district court, and the court was not required to sua sponte appoint counsel."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d0620e70-22ac-4d62-a18b-4442337ba1ce/1/doc/17-3812_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d0620e70-22ac-4d62-a18b-4442337ba1ce/1/hilite/

Application for renewal of a certification rejected on the grounds that the applicant made material false statements and demonstrated poor moral character

New York City Department of Buildings denied the request submitted by an applicant [Petitioner] to renew his Site Safety Coordinator (SSC) certification on the ground that Petitioner made material false statements and demonstrated poor moral character in his original application for certification.

In his initial application, Petitioner was required to disclose whether any "licenses/certifications/registrations issued to [him]" had ever been revoked.

Petitioner failed to report that he had been authorized as an OSHA outreach trainer and that his authorization had been revoked because he failed to comply with OSHA requirements and falsified safety certificates.

The Appellate Division sustained the Department's determination explaining that although Petitioner's OSHA credentials "may not have been labeled a license, certification, or registration," his OSHA responsibilities were substantially similar to those of an SSC. Accordingly, said the court, the Department rationally concluded that Petitioner was required to disclose the revocation of those credentials.

The Appellate Division further opined that the Department rationally concluded that Petitioner exhibited poor moral character by failing to disclose OSHA's determination that he falsified agency documents.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07524.htm

New York State Comptroller Thomas P. DiNapoli issues audits and examinations

On November 6, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations had been issued.

Click on the text highlighted in color to access to access the full report

Department of Health (DOH): Medicaid Program: Overpayments for Therapy Services and Prescription Drugs Covered by Medicare (2016-S-73)

The audit identified $20.1 million in Medicaid payments made by DOH for therapy services and drugs that should have been paid for by Medicare.

Department of Health: Improper Medicaid Payments to a Transportation Provider (Follow-Up) (2019-F-28)

An audit issued in September 2018 found that a transportation provider did not maintain the required documentation to support claims prior to 2016, totaling $1.4 million. In a follow-up, auditors found DOH made some progress in addressing the problem identified in the initial report. The Office of the Medicaid Inspector General opened an investigation into the provider; which remained ongoing at the time of the follow-up review.

Department of Health: Medicaid Payments to Medicare Advantage Plan Providers (Follow-Up) (2019-F-29)

An initial audit released in September 2018 identified $770,935 in Medicaid overpayments for Medicare Part C cost-sharing. In a follow-up, auditors found DOH made some progress in addressing the problems identified. However, no action had been taken to recover the inappropriate payments.

New York City Department of Buildings (DOB) Elevator Safety (Follow-Up) (2019-F-22)

An audit issued in June 2018 concluded that inspectors did not always perform thorough elevator inspections. As a result, hazardous and other unsafe conditions were not always identified and corrected. In a follow-up, auditors found that of the prior recommendations, DOB implemented three, partially implemented four, and did not implement two.

New York State Health Insurance Program: CVS Health: Temporary Holding Account Rebate Revenue (2019-S-27)

CVS Health did not seek rebates from drug manufacturers on claims that were, in fact, rebate-eligible. Auditors identified $428,958 in rebate revenue that is due to the state Department of Civil Service for rebate-eligible claims in the account for the period Jan. 1, 2014through Dec. 31, 2018. 

Metropolitan Transportation Authority: Triborough Bridge and Tunnel Authority (TBTA): Selected Aspects of Collection of Bridge and Tunnel Tolls and Fees (Follow-Up) (2019-F-1)

An earlier report found that, while the TBTA makes efforts to collect unpaid tolls, $11.3 million in tolls were either written off or uncollected. In addition, TBTA had more than $72 million in unpaid fees for the Henry Hudson Bridge from 2013 through 2015. In a follow-up, auditors found TBTA officials have made progress in addressing the issues identified. However, additional improvements are needed.

State Education Department (SED): Oversight of Nurse Licensing (Follow-Up) (2019-F-26)

An audit issued in September 2017 found the SED was not completing investigations, particularly for complaints that pose a substantial danger to public health and safety, in a timely manner. In a follow-up, auditors found SED made some progress in addressing the issues identified in the initial audit.

Department of Taxation and Finance: Controls Over Unclaimed Bottle Deposits (Follow-Up) (2019-F-6)

A report issued in December 2017, determined that the department deposited all funds received into the General Fund, as required. However, it did not assess penalties on 39 deposit initiators that failed to file required quarterly reports, nor did it assess penalties on those who filed late, and took little action to improve compliance. In a follow-up, auditors found the department has made significant progress in addressing the issues identified in the audit.

Employee Organization Leave

Employee organization leave has been an issue since the adoption of the Taylor Law. In response to demands that State employees elected to a leadership position of an employee organization representing state employees be provided with "paid organization leave," the State agreed to provide for “Employee Organization Leave” and enacted §46 of Chapter 283 of the Laws of 1972 to this end.

This law provides that a State employee organization may obtain approval for paid full or part-time leaves of absence of its representatives provided it agrees to fully reimburse the State for the salary and other compensation paid to the individual and, in addition, for all employer contributions for fringe benefits made on behalf of the individual while he or she is on Employee Organization Leave. The individual would continue as a State employee, on the State’s payroll, during this time. 

Another element affecting State employees on Employee Organization Leave: The State Ethics Commission has advised that “State employees on Employee Organization Leave or State employees on leave without pay who serve as employee organization representatives for CSEA … who have terminated their State service and are now employed by CSEA are subject to the "revolving door" provisions of the Public Officers Law and the corresponding restrictions on post-employment activities” [see Advisory Opinion #90-a ].

Presumably this opinion would be applied with respect to State employees on employee organization leave serving with other employee organizations.

Failure to respond to a request for documents sought pursuant New York State's Freedom of Information Law

An individual [Petitioner] had made numerous requests to the County District Attorney's Office [Respondent] pursuant to the Freedom of Information Law [FOIL] for copies from the negatives of crime scene photographs related to his criminal case. Not receiving any response to his FOIL request,* Petitioner eventually commenced a CPLR Article 78 proceeding seeking to compel the Respondent to produce the photographs. Supreme Court dismissed the petition based on the Respondent's certification that the requested records could not be located and Petitioner appealed.

The Appellate Division affirmed the lower court's decision, explaining that in the event the custodian of the record or records sought is unable to locate documents properly requested pursuant FOIL, Public Officers Law §89(3) requires the custodian to certify that it does not have possession of the requested record or the record cannot be found "after diligent search."**

However, said the Appellate Division, "even where an entity properly certifies that it was unable to locate requested documents after performing a diligent search, the person requesting the documents may nevertheless be entitled to a hearing on the issue where he or she can 'articulate a demonstrable factual basis to support the contention that the requested documents existed and were within the entity's control.'"

In this instance Petitioner did not establish his entitlement to a hearing as FOIL only requires the custodian of the record to provide copies of "any information kept, held, filed, produced or reproduced by, with or for the [Respondent]." Although Petitioner submitted a police department property report that listed a roll of film, the court said that nothing in the record indicates that the roll of film or any photographs that may have been developed therefrom were ever in Respondent's possession.

Citing Gould v New York City Police Dept., 89 NY2d at 279, the Appellate Division held that as Respondent had adequately certified that "no requested documents could be found after a diligent search," the Supreme Court had properly dismissed the Petitioner's Article 78 action.

* Public Officers Law §89[4][a] provides that a failure to respond is deemed a constructive denial of a Freedom of Information Law request.

** The statute, however, does not specify the manner in which an agency must certify that documents cannot be located and neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07657.htm

Appealing administrative decisions made by New York State Education Department staff members

New York State Education Department’s Office of Teaching Initiatives [SED] denied the request submitted by a school counselor [Petitioner] holding a provisional certification for an extension of time in which to complete the requirements for obtaining permanent certification as a school counselor.

 

The Petitioner held provisional certification as a school counselor. In 2013 Petitioner received an extension to complete the necessary requirements to receive permanent certification.  Petitioner requested a second extension of time in 2019, which SED denied. Petitioner appealed to the decision to the Commissioner of Education seeking SED issuance of a permanent certificate in school counseling or, in the alternative, an extension of time in during which Petitioner could complete any additional requirements."

The Commissioner dismissed the appeal for "lack of jurisdiction." 

Citing Appeal of Carmel Academy, 56 Ed Dept Rep, Decision No. 16,976, the Commissioner explained that "[i]t is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department" and  that any such appeal must adjudicated "in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume59/d17773

Modernizing Government: How to Achieve Enhanced Mobility and Security

GOVERNING reports that to meet an ever-increasing demand for services, state and local governments are mobilizing their workforces and applications and turning to data to gather insights and improve decision-making. Noting that managing this interconnected ecosystem of people and technology poses challenges – one of the top being enhanced cybersecurity risk.

On November 13, 2019 [11:00 a.m. PST and 2:00 p.m. EST] Governing's experts will help agency leaders navigate this complex landscape by discussing the latest tools and solutions to increase mobility without sacrificing security.

Register now for this complimentary webcast that will also consider:

The technologies and strategies available to improve the productivity and mobility of your current and future employees

How to better protect endpoints in an evolving threat environment

Public sector use cases where a modern mobility and cybersecurity strategy bring significant advantages