State and municipal audits issued on October 20, 2020

On October 20, 2020, New York State Comptroller Thomas P. DiNapoli announced the following agency and school district audits had been issued.

Click on the text in blue to access the full text of the audit. 

Agency Audits:

Office of General Services (OGS): Compliance with Executive Order 88 – Energy Efficiency of State Buildings (Follow-Up) (2020-F-18)

An audit, covering the period April 1, 2014 to May 13, 2019, found OGS generally had developed targets and plans to contribute toward EO 88 and complied with the guidelines. However, auditors found OGS had relied on one capital project to provide the majority of its energy savings. OGS also needed to develop a contingency plan to replace the project and to continue developing energy-saving capital projects to contribute toward the collective 20 percent energy reduction. In a follow-up, auditors found OGS has made significant progress in correcting the problems identified in the initial report. 

 

Department of Health (DOH): Improper Medicaid Payments for Recipients in Hospice Care (Follow-Up) (2019-F-59)

An audit released in December 2018 identified over $8 million in improper Medicaid payments for medical services provided to recipients receiving hospice care. Many of the overpayments occurred because the DOH did not have a process to identify and track Medicaid recipients receiving hospice care. In a follow-up, auditors found DOH officials did not make much progress in addressing the problems identified in the initial audit, and significant action is still required to prevent future Medicaid overpayments.

 

New York City Department of Education (DOE): Compliance with Special Education Regulations for the Provision of Services (2018-N-5)

Auditors determined that DOE did not arrange for special education services within the required 60 school days for 18 percent of the eligible students in school year 2016-17. Noncompliance ranged from 32 percent in District 9 (located in the South Bronx) to 4 percent in District 11 (Northeast Bronx). Auditors also found situations where DOE provided services without the required parental consent.

 

Metropolitan Transportation Authority (MTA): Administration of Self-Insured Workers’ Compensation Plans (2018-S-33)

There is room for improvement in how the MTA’s three self-insured agencies administer workers’ compensation plans making sure they meet the self-insurers’ obligations. Auditors found inconsistent processes and application of the law across agencies have resulted in late, inaccurate, or sometimes missed administration of benefits, placing an undue financial burden on injured employees.

 

New York City Department of Transportation: Oversight of Selected Aspects of Traffic Controls (2018-N-6)

The department monitored traffic flow at intersections, but did not address the concerns of the public and officials in a timely manner. Auditors reviewed several units that were supposed to perform monitoring and operational tasks and found that all of them need to improve their performance. 

 

New York City Department of Transportation: Controls over Revocable Consents (2010-N-1)

A revocable consent grants an individual or organization the right to construct and maintain certain structures on, over, or under New York City streets and sidewalks. To obtain this right, the property owner must file a petition for the revocable consent. The department charges an annual rate for eligible revocable consents, based on either a formula or a flat rate. Auditors found the department did not bill and collect the correct annual rates for the majority of consents reviewed. It was inconsistent in its application of the rules and did not always apply them as written when calculating the annual rate to be billed. As a result, the grantees were undercharged an estimated $1,056,242.

 

New York State Health Insurance Program: CVS Health – Temporary Holding Account Rebate Revenue (Follow-Up) (2020-F-25)

An audit issued in October 2019 found that CVS Health improperly designated a temporary holding account used to process certain prescription drug claims, as “non-rebate-eligible.” As a result, CVS Health did not seek rebates from drug manufacturers on claims in the temporary holding account that were, in fact, rebate-eligible. In a follow-up, auditors found CVS Health has made significant progress in correcting the problems identified in the initial report, having implemented both recommendations.

 

New York State Liquor Authority (SLA): Internal Controls Over Selected Financial Operations (2019-S-69)

Auditors found SLA has adequate internal controls in the areas of revenues, payroll, procurement and procurement card expenditures, asset management, and travel expenses to ensure assets and information are properly managed and safeguarded.

 

State Education Department (SED): Oversight of Pupil Transportation Services (2019-S-49)

Auditors determined SED could further enhance its efforts to monitor school districts’ compliance with its own requirements for school bus drivers, monitors and attendants. As a result, SED does not have assurance that school bus drivers, monitors, and attendants across the state are qualified and have completed the required training. 

 

School District Audit:

Dalton-Nunda Central School District – Financial Management (Allegany County, Livingston County and Wyoming County)

The board and district officials did not adopt realistic budgets and effectively manage fund balance and reserves. The board’s actions to manage fund balance were not transparent and made it appear that the district needed to both increase taxes and use appropriated fund balance to close projected budget gaps. The board circumvented the statutory limit on surplus fund balance by making $7.8 million in unbudgeted year-end transfers to reserves and appropriating $900,000 in fund balance that was not used. As of June 30, 2019, recalculated surplus fund balance exceeded the statutory limit by more than $1.3 million or 8 percentage points and two general fund reserves were overfunded.

 

Naples Central School District – Information Technology (Livingston County, Ontario County Steuben County and Yates County)

District officials did not ensure that the district’s network access controls were secure. Officials did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled. The district had 63 unneeded network user accounts that had not been used in at least six months. In addition, sensitive information technology control weaknesses were communicated confidentially to officials.

 

Oneida City School District – Information Technology (Madison County and Oneida County)

The district’s network was not adequately secure to protect the student information system against unauthorized use, access and loss. District officials did not adequately manage user accounts or administrative permissions to limit access to assets and data. In addition, some district computers were used for personal activity, increasing the likelihood of the district’s network being exposed to malicious software. A written disaster recovery plan was not made available to the Comptroller’s auditors or the board of education for review and approval. Sensitive information technology control weaknesses were communicated confidentially to officials.

 

Courts apply longstanding basic rules of statutory interpretation to ascertain and give effect to the intention of the legislature

In July 1976 legislation that fundamentally reformed the state pension systems was enacted and signed into law. Included were changes providing that "any public employee hired on or after July 1, 1976 would be enrolled in the newly-created Tier 3 [a system]  characterized as one 'designed to provid[e] uniform benefits for all public employees and eliminat[e] the costly special treatment of selected groups ... inherent in the previous program.'"

An exception to this pension reform allowed all police officers and firefighters who subsequently entered or reentered a public retirement system to continue as Tier 2 members pursuant to "regular two-year extender bills" until 2009 and, as relevant here, all NYPD officers appointed between July 1, 2009 and March 31, 2012 were placed in Tier 3 of the New York City Police Pension Fund (PPF) while all officers appointed on or after April 1, 2012 were placed in revised but functionally similar Tier 3 plans of the same pension fund.

The focus in this appeal was City of New York's policy to the effect that certain Tier 3 officers were not eligible for certain benefits available to officers in Tier 2 of the PPF retirement plan, including the "credit for service" mechanism* that allows police officers to obtain credit for certain periods of absence without pay for childcare leave, while other PPF retirement plan member absent without pay for childcare leave permitted under NYPD regulations would be eligible for a limited amount of credit for that leave if certain filing and reimbursement requirements were met.

Plaintiffs in this action, among other things, sought a decision declaring that "all police officers hired by the NYPD, including those hired on or after July 1, 2009, are eligible for the benefits afforded by the second subdivision (h) of §13-218," notwithstanding the absence of any extender bill after 2009, and all members of the PPF - regardless of hire date - may purchase pension credit for time spent on unpaid childcare leave."

The City, in contrast, asserted that the relevant provisions of the RSSL "conflict with the Administrative Code and that the pension rights of Tier 3 police officers are exclusively governed by article 14 of the Retirement and Social Security Law [RSSL]." Specifically, the City argued that RSSL §513(h) [1] "addresses the issue of service credit for [childcare] leave," [2] overrides any like provision of Administrative Code §13-218, and [3] "limits the eligibility for such credit to New York City correction officers hired before April 1, 2012."

Supreme Court reasoned that Administrative Code §13-218 (h), on its face, renders any member of the PPF eligible for the childcare leave service credit benefit, and that the RSSL does not conflict with or preempt that part of the Administrative Code**. 

The Appellate Division reversed the Supreme Court's ruling, denying Plaintiffs' motion for summary judgment and granting the City's cross motion for accelerated relief. The Appellate Division reasoned that "because the RSSL expressly makes the childcare leave service credit benefit in question available to correction officers, but does not expressly confer the same benefit upon police officers, the legislature meant to nullify the part of the Administrative Code allowing the buyback to police members of the retirement system."

Referencing the longstanding, basic rules of statutory interpretation, the Court of Appeals said that in such matters a court's "primary consideration is to ascertain and give effect to the intention of the [l]egislature", citing Samiento v World Yacht Inc., 10 NY3d 70. The rule of statutory interpretation relevant here, said the court, is that the literal language of a statute controls "unless the plain intent and purpose of [the] statute would otherwise be defeated."

Noting that Administrative Code §13-218(h) "Credit for service" provides, in relevant part, that: "any member who is absent without pay for child care le[a]ve of absence pursuant to regulations of the New York city police department shall be eligible for credit for such period of child care leave provided such member files a claim for such service credit with the pension fund by December [31, 2001], or within [90] days following termination of the child care leave, whichever is later, and contributes to the pension fund an amount which such member would have contributed during the period of such child care leave, together with interest thereon", the Court of Appeals opined that "none of the pertinent parts of the statute are ambiguous and 'Any member' can mean only what it says."

In the words of the court, "The reference to 'any member' is unbounded and unfixed to employees of a particular Tier, and the absence of an exception applicable to Tier 3 employees cannot reasonably be attributed to carelessness or mistake."

Rejecting the principal contentions advance by the City in support of its position, the Court of Appeals, Judge Rivera dissenting in an opinion in which Chief Judge DiFiore concurred, held that the Appellate Division order should be reversed and, applying "longstanding, basic rules of statutory interpretation," that the relevant part of "Administrative Code §13-218 renders officers of the New York City Police Department (NYPD) who are members of the Tier 3 retirement system eligible for credit for certain periods of unpaid childcare leave, and that the grant of such benefits for those officers is consistent with the Retirement and Social Security Law."

* See Administrative Code §13-218 [h].

** See 56 Misc 3d at 442-443. 

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05841.htm

 

An individual may be subjected to disciplinary action for alleged off-duty misconduct having a clear nexus to his status as an employee

During an investigation by the New York City Department of Education's [DOE] Office of Special Investigations [OSI] into a complaint that confidential student information had been posted on the Internet, the plaintiff [Petitioner], a DOE employee, acknowledged that he was involved in posting the information at issue on the website of United Federation of Teachers (UFT) Solidarity, "a political caucus within the UFT."

Contending that OSI has no jurisdiction to investigate his alleged misconduct because he undertook this activity as a private citizen and education activist, not in his capacity as a DOE employee, Petitioner filed a CPLR Article 78 action asking the court to annul DOE's determination that he had violated Chancellor's Regulation A-820 and the federal Family Educational Rights and Privacy Act* [FERPA].

The Appellate Division said that Petitioner's argument that OSI has no jurisdiction in this matter "is unavailing," opining that Petitioner's misconduct has a clear nexus to his status as a DOE employee. Citing Board of Educ. City of N.Y. v Hershkowitz, 308 AD2d 334, leave to appeal dismissed 2 NY3d 759, the Appellate Division explained that OSI is charged with investigating misconduct within the City of New York school district, which is not limited to misconduct committed by a DOE employee acting within the scope of his employment.

The court noted that OSI had rationally determined that by posting the confidential student information at issue, which included transcripts, attendance records, and grade-change records, Petitioner had violated the FERPA and Chancellor's Regulation A-820, which conforms to federal regulations promulgated pursuant to FERPA.**

* See 20 USC § 1232g[b][2]. 

** See 34 CFR part 99.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05703.htm

 

Sewer overflow problems

New York State Comptroller Thomas P. DiNapoli notes that at least 20 percent of the publicly-owned sewer systems in New York state were not reporting overflow events or registered with the electronic notification system (NY-Alert) that tracks those events, potentially putting the public at risk, according to an audit of the NYS Department of Environmental Conservation DEC] released on October 19, 2020.

Two laws related to wastewater discharges protect New York’s natural resources and the health of its residents: the 2013 Sewage Pollution Right to Know Act, which requires public reporting of sewage discharges; and the State Pollutant Discharge Elimination System (SPDES) program, which controls permitted discharges into public waterways.

The Right to Know Act requires publicly owned water treatment works and publicly owned sewer facilities to report untreated and partially treated sewage discharges to DEC and the local health department within two hours of discovery and to notify the public and nearby municipalities within four hours of discovery. Exposure to untreated sewage can cause serious illnesses such as dysentery, hepatitis, cholera and cryptosporidiosis, according to the U.S. Environmental Protection Agency.

Auditors found that documentation supporting when overflows occurred varied by facility but included automated emails, phone calls, and text messages from the facilities’ monitoring systems or time-stamped screenshots of the monitoring system dashboard, and logbook entries. Some facilities were unable to provide time-stamped documentation. Due to these limitations, auditors could not verify the timeliness of 37 percent of the events. Of the other events, 18 percent were not reported within two hours and 10 percent were not reported within four hours, as required.

DEC officials generally agreed with the recommendations and indicated actions they would take to implement them. Their full comments are included in the report posted on the Internet at https://www.osc.state.ny.us/files/state-agencies/audits/pdf/sga-2021-19s54.pdf?utm_medium=email&utm_source=govdelivery.

School District audits released during the week ending October, 16, 2020

New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued during the week ending October 16, 2020

Broadalbin-Perth Central School District – Cash Management (Fulton County, Saratoga County and Montgomery County) - District officials did not develop and manage a comprehensive investment program. As a result, officials did not maximize interest earnings for the district. In addition, officials did not formally solicit interest rate quotes or prepare cash flow forecasts to estimate the amount of funds available for investment. Officials earned interest totaling $40,652 during the audit period. However, auditors determined they could have earned another $159,100 had officials used other available investment options.

Mahopac Central School District – Non-instructional Payroll (Putnam County) - The transportation department’s payroll was not adequately approved, supported and documented. In addition, a staff person received overtime pay that was not properly supported by documentation.

Minerva Central School District – Financial Condition Management (Essex County and Warren County) - District officials overestimated appropriations by a total of more than $2.1 million from 2016-17 through 2018-19 and annually appropriated fund balance that was not used to finance operations. Unrestricted fund balance ranged between 18.5 and 31.1 percent of ensuing years’ appropriations, exceeding the 4 percent statutory limit. In addition, district officials did not develop a comprehensive multiyear financial plan.

New York Mills Union Free School District – Procurement (Oneida County) - District officials did not always seek competition for purchases that are not subject to competitive bidding. Officials also did not comply with the district’s procurement policy. Auditors determined the purchasing agent did not effectively perform her procurement duties. In addition, officials did not always seek competition for professional services. No competition was sought for the services procured from five professional service providers totaling $89,421. No written or verbal quotes were obtained for the purchase of goods and services from 13 vendors who were paid $73,032.

 

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10 RBG Takeaways from 2 Lawyers

Ruth Bader Ginsburg’s passing has spurred great memories from across all demographics. She paved the way for women’s equality—from the right to sign a mortgage without a man to the right to have a bank account without a male co-signer, and even the right to have a job without being discriminated against based on gender.   

 

What did the accomplishments of Ruth Bader Ginsburg mean to generations of women in the workforce?  Here, Erica Baird and Karen Wagner, two successful lawyers now retired—and the cofounders of Lustre.net, an online community whose mission is to redefine retirement for modern career women by confronting outdated concepts and defying stereotypes—talk lawyer-to-lawyer as they reflect on 10 RBG Takeaways that can inspire every woman [Ed. Note: " and man"] … young and old: 

 

1. Find a job you love. RBG was rejected, again and again, including by New York law firms. But just think—if she had been employed in a law firm, she likely never would have ascended to the Supreme Court. And that was her dream job.

 

2. Be strategic. Figure out where you want to go, and then, before you start, figure out how best to get there. RBG did that with her litigation strategy. Showing how men were hurt by sex discrimination was a more effective strategy than having only women plaintiffs. 

 

3. Be human. Separate your advocacy from your relationships. And do have relationships. RBG's best friend was her fellow justice Antonin Scalia. She disagreed with him, fiercely, about pretty much every legal point. But they loved each other, and bonded over music, and over dinners prepared by RBG's husband. It was not a transactional relationship; it was a human relationship.

 

4. Work hard. You must earn your victories. RBG started working hard when she was a new lawyer, and she never stopped. Look at the honor guard at the Supreme Court for her memorial, composed of people who worked as her clerks, responding to 2 a.m. faxes and constant demands for more precise analysis, as long as she lived. They undoubtedly loved her for her humanity, but they also surely loved her because she made them better lawyers.

 

5. Be precise. Words matter. The practice of law is a combination of analysis and communication. Communication is more effective when it is spare and clear. RBG's writing was crisp and muscular. Any reader got her point.

 

6. Presence matters. Justice Ginsburg always looked professional and elegant in her Armani suits and her long black robes. She was all brilliant lawyer and all powerful woman. And, like Barbara Bush with her faux pearls, RBG sent signals with her decorative collars.

 

7. Find a good partner. Her “Marty” was legendary—an attorney in his own right, not threatened by a strong woman.

 

8. Advocate with humor. As she did when becoming a little deaf, or remarking that the Supreme Court will have a sufficient number of women only when there are nine.

 

9. Find something outside of your job to love. She found opera, and lost herself in music.

 

10. Work out. RBG, the documentary, showed RBG working out very strenuously. Like everything else she did, she went all out. If you do the same your lives will be richer for it.

 

About Lustre.net
Lustre.net is an online forum founded by Erica Baird and Karen Wagner, two New York City retired attorneys. Together, Baird and Wagner are on a mission to redefine retirement for modern career women by confronting outdated concepts, defying stereotypes and raising our collective voices to ensure that retirement for all of us is shaped by women, for women. Baird and Wagner want women to “tap into our experiences and passions, forge new identities and find new purpose—and pass on what we know to the next generation.” 

 

Posted by NYPPL with the permission of Mouth Digital PR [Justin.loeber@mouthdigitalpr.com].

 

Retiring upon attaining the mandatory age of retirement bars claim for line of duty sick leave benefits

General Municipal Law §92-d provides for sick leave benefits to certain employees with qualifying World Trade Center conditions as defined by §2 of the Retirement and Social Security Law. 

A former fire chief [Chief] commenced this CPLR Article 78 proceeding against his former employer [City] in an effort to have the City's determination denying his application for line-of-duty sick leave pursuant to General Municipal Law §92-d annulled. Supreme Court granted the City's motion to dismiss the Chief's petition, agreeing with the City that the Chief's Article 78 action was moot. The Chief appealed.

The Appellate Division affirmed the Supreme Court's ruling, observing that after the Chief filed his Article 78 petition in this case he attained "the mandatory retirement age pursuant to Retirement and Social Security Law §370 (b) and retired with the maximum amount of accrued sick leave."

The court explained that it is "a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal," referencing Matter of Hearst Corp. v Clyne, 50 NY2d 707, at page 713.

Opining that "[u]nder the circumstances here, Supreme Court properly dismissed the petition as moot," the Appellate Division held that this proceeding is "not of the class that should be preserved as an exception to the mootness doctrine."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05665.htm

 

 

OATH launches citywide text-messaging reminder system for all civil summonses

On September 4, 2020, the New York City Office of Administrative Trials and Hearings [OATH] announced a citywide launch of a text-messaging reminder system to remind respondents about their Hearings Division hearing dates. Respondents can register by simply texting "OATH reminder" to 474747, and then responding to the prompt with their summons number. 

"Every person who receives a summons should know that OATH's goal is to make it as convenient as possible for them to respond to that summons and direct text messages that explain our hearing process, the consequences for not responding to summonses, and remind people of important deadlines is just one way OATH is doing that," said Commissioner and Chief Administrative Judge Joni Kletter. 

For more information, read OATH's press release.

Salaries of undercover police officers not subject to disclosure pursuant to the Freedom of Information Law

§89[3][a] of the New York State (Public Officers Law)*, The Freedom of Information Law [FOIL], provides that "[n]othing in [the statute] shall be construed to require any entity to prepare any record not possessed or maintained by such entity."

In this CPLR Article 78 action the Empire Center for Public Policy [Empire] challenged the denial of its FOIL request seeking the aggregate gross salary of all individuals not included in the NYC Open Data Citywide Payroll Database for fiscal year 2017.

The Supreme Court's decision indicating that the information sought by Empire would include the salaries of "undercover police officers, whether aggregated or individualized," denied Empire's petition request for individualized salary information as to such individuals and Empire appealed.

The Appellate Division unanimously modified, on the law, part of the Supreme Court's order, vacating that part of the order requiring the disclose aggregate salary information, and otherwise affirmed the Supreme Court's ruling, indicating that:

1. Such information is exempt from disclosure under FOIL's public safety exemption;

2. The respondent, the New York City Office of Payroll Administration, met its burden of making a particularized showing that publicly releasing this information would create "a possibility of endangerment" to the public's safety; and

3. The New York City Office of Payroll Administration is not obligated to compile "aggregate data" "from the documents or records in its possession"** (See Matter of Reubens v Murray, 194 AD2d 492).

The Appellate Division opined that in the analysis of Empire's request not only the instant FOIL request for information as to fiscal year 2017 is to be considered but also future requests which could be made for equivalent information as to other years. Citing Matter of Grabell v New York City Police Dept., 139 AD3d 477, the court said that such information would allow members of the public to estimate the increases or decreases in the overall number of undercover officers, which could "undermine their deterrent effect, hamper NYPD's counterterrorism operations, and increase the likelihood of another terrorist attack." The New York City Office of Payroll Administration's past disclosure of salary and other information as to certain public employees not employed by NYPD is not dispositive.

* Public Officers Law §89[3][a], with exceptions not raised in this action.

** See Matter of Reubens v Murray, 194 AD2d 492.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05449.htm

 

With few exceptions, an officer's or an employee's resignation from a position in the classified service must be in writing.

The petitioner [Plaintiff] in this CPLR Article 78 action was employed by the defendant [Town] in a position in the Labor Class of the Classified Service when he was elected to public office in another jurisdiction.

The Petitioner and the Town subsequently disputed whether Plaintiff had orally resigned his position with Town and ultimately the Town sent a letter to Plaintiff reporting that "it had accepted [Plaintiff's resignation]"* effective the December 31. Although Plaintiff sought to retain his position with the Town, the Town refused his request under color of Plaintiff's purported oral resignation.

Plaintiff filed a petition pursuant to CPLR Article 78 seeking a court order directing the Town to reinstate him to his position with back pay, and benefits, contending, among other things, that the Town's action terminating from his position was arbitrary and capricious and in violation of Civil Service Law §75-b.

Supreme Court dismissed Plaintiff claim with respect to the alleged violation of Civil Service Law §75-b, but otherwise granted Plaintiff's petition and directed the Town to reinstate Petitioner to his position with the Town with back pay and benefits. The Town appealed the Supreme Court's ruling.

The Appellate Division rejected the Town's appeal explaining that it was not inconsistent for Supreme Court to dismiss Plaintiff's claim with respect to the alleged violation of Civil Service Law §75-b and then grant him relief pursuant to CPLR Article 78, noting that notwithstanding the Town's argument to the contrary, Plaintiff's to elective office in another jurisdiction did not constitute an automatic resignation of his position as laborer with the Town. Citing People ex rel. Ryan v Green, 58 NY 304, the Appellate Division opined that "[P]hysical impossibility is not the incompatibility of the common law, which existing, one office is ipso factovacated by accepting another." Based upon the record before it, the Appellate Division opined that the two positions in question were not per se incompatible.

Addressing the Town's contention that Supreme Court's granting Plaintiff's petition was erroneous in view of Plaintiff's alleged oral resignation, the court said that the Town's argument was without merit inasmuch as the Town's  employee handbook requires that an employee's resignation be in writing.**

The Appellate Division also rejected the Town's  argument that Plaintiff was not entitled to back pay and benefits. Rather, said the court, CPLR Article 78 allows for damages incidental to "the primary relief sought by the [Plaintiff], i.e., reinstatement to employment and such damages may include full back pay and benefits retroactive to the date of termination."

* Although it is sometimes reported that "a resignation has been accepted," all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74) unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a controlling collective bargaining agreement. An example of requiring the "acceptance" of the resignation for it to take effect: §2111 of the Education Law, "Resignation of district officers." §2111 states that a school district officer "may resign to a district meeting." §2111 then further provides that officer shall also be deemed to have resigned if he or she filed a written resignation with the district superintendent of his of her district and such superintendent endorses thereon his approval and files the same with the district clerk [emphasis supplied]. See, also, §2110.3 of the Education Law.

** The Town  is located in Seneca County and the County's Civil Service Rule XX, provides, in pertinent part, as follows: 1. RESIGNATION IN WRITING: Except as otherwise provided herein, every resignation shall be in writing.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05312.htm

 

Overcoming the presumption in favor of collective bargaining terms and conditions of employment underlying the Taylor Law

Civil Service Law §71 provides that where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the Worker's Compensation Law, "he or she shall be entitled to a leave of absence for at least one year, 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."

Under color of Civil Service Law §6[1], the Department of Civil Service promulgated implementing regulations for Civil Service Law §71, setting out procedures for notifying an employee of the right to a one-year leave of absence, notifying an employee of an impending termination following the expiration of that one-year period, the employee's right to a hearing and the procedures to be followed in the event an employee so terminated seeks to return to duty after recovering from the disability.* 

The Long Beach Professional Firefighters Association, IAFF, Local 287 [LBPFA] advised the City of Long Beach [City] that it wished to negotiate the procedure for separating members of LBPFA placed on leave pursuant to §71. City declined to negotiate such a procedure and LBPFA filed an improper practice charge against the City with New York State Public Employment Relations Board [PERB]alleging that the City violated Civil Service Law §209-a(1)(d) by refusing to negotiate the matter with the LBPFA.

An administrative law judge [ALJ] determined that the City had violated Civil Service Law §209-a(1)(d) and PERB affirmed the ALJ's determination. The City then commenced a CPLR Article 78 proceeding challenging PERB's determination. PERB moved to dismiss the petition and the Supreme Court granted its motion. The City appealed the Supreme Court's decision.

The Appellate Division, citing Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 19 NY3d 876, observed that "It is well settled that '[t]he Taylor Law requires collective bargaining over all terms and conditions of employment'" and that the Court of Appeals has "'made clear that the presumption ... that all terms and conditions of employment are subject to mandatory bargaining cannot easily be overcome.'"

That said, the court noted that City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73 teaches that "The presumption in favor of bargaining may be overcome only in special circumstances where the legislative intent to remove the issue from mandatory bargaining is plain and clear, or where a specific statutory directive leaves no room for negotiation."** 

Finding that the demand to negotiate the issue raised by LBPFA fell within the ambit of Watertown, the Appellate Division opined that it need not defer to PERB's interpretation of Civil Service Law §71 because "[that] question is one of pure statutory construction dependent only on accurate apprehension of legislative intent [with] little basis to rely on any special competence of PERB."

Addressing the issue de novo, the Appellate Division declared that "the presumption in favor of collective bargaining [had been] overcome." The court then reversed PERB's order and judgment holding PERB's decision null and void, granted the City petition, and dismissed the improper practice charge filed by the LBPFA against the City "with prejudice". 

* See 4 NYCRR 5.9. 

** The Appellate Division's decision also notes that [1] "a subject that would result in [the public employer's] surrender of nondelegable statutory responsibilities cannot be negotiated," citing Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; and [2] "some subjects are excluded from collective bargaining as a matter of policy, even where no statute explicitly says so," citing Matter of City of New York v Patrolmen's Benevolent Assn. of the City of N.Y., Inc., 14 NY3d 46. See, also, https://publicpersonnellaw.blogspot.com/2010/10/prohibited-subjects-of-arbitration.html

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05504.htm

 

 

Determining a retirement system member's eligibility for accidental disability retirement

On May 9, 2018 the Board of Trustees of the New York City Police Pension Fund [Board] denied a New York City police officer's [Officer] application for accident disability retirement [ADR]. Officer challenged the Board's decision and Supreme Court granting his CPLR Article 78 petition seeking to vacate the Board's determination and awarded Officer ADR benefits retroactive to December 1, 2010. 

The Board appealed and the Appellate Division unanimously reversed the Supreme Court's ruling "on the law," and dismissed Petitioner's Article 78 action. 

The Appellate Division opined that the Board's denial of Officer's application for ADR benefits was not arbitrary and capricious noting that the relevant date for purposes of disability is at or prior to the applicant's retirement from service, citing Matter of Gullo v Kelly, 50 AD3d 449, leave to appeal denied 11 NY3d 702.

The court noted that the Medical Board's consideration of evidence and reports after Officer's retirement, and its conclusion that Officer was disabled several years after his retirement, "does not change the relevant date for entitlement to ADR" benefits.

Further, said the Appellate Division, the Medical Board was entitled to rely on its own examinations and testing of Officer as well as its review of Officer's medical records. These provided some credible evidence to support the Medical Board's finding that Officer was not disabled at the time of his retirement.

Referring to Matter of Khurana v Kelly, 73 AD3d 497, leave to appeal denied 15 NY3d 715, the court held that the Medical Board "was not bound by the contrary opinions of [Officer's] treating physicians."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05282.htm