Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
The IRS invites NYPPL readers to click registerto sign up for a free webinar on Payroll Reconciliation hosted by the Office of Federal, State and Local Governments on October 14, 2021 at 2:00 PM (ET).
This webinar will cover when your payroll should be reconciled and what payroll amounts to use. It will also explain reconciling gross payroll to taxable income for federal income tax and FICA.
In this appeal the Appellate Division addressed a decision by the Unemployment Insurance Appeal Board that rejected of a claim for unemployment insurance benefits filed by a probationary teacher [Claimant].
Claimant had been appointed as a probationary teacher effective December 11, 2019 and on January 29, 2020, emailed her resignation from her position to her school principal indicating that January 31, 2020 would be her last day of without stating any reason for her action. In her application for unemployment insurance benefits Claimant said that she had resigned from her position for safety reasons because she had been caught in the middle of an incident involving two students in which she had been "jostled around" in mid-December 2019.
The Appellate Division's decision reports that Claimant had been appointed as a probationary teacher effective December 11, 2019 and on January 29, 2020, emailed her resignation from her position to her school principal indicating that January 31, 2020 would be her last day of without stating any reason for her action. Claimant subsequently applied for unemployment insurance benefits, but the Department of Labor held that Claimant was disqualified from receiving benefits because she had voluntarily separated from her employment without good cause.
Claimant requested a hearing in the course of which she testified that she resigned for safety reasons in response to a "verbal fight between students in mid-December 2019 and the general misbehavior of students" and that security had responded to the incident and that she had filed an incident report with school administrators. In contrast to Claimant's testimony, the principal and one of the assistant principals testified that they never received an incident report nor was any other administrator or security personnel ever informed of a December 2019 incident involving a physical confrontation between students and a teacher, "which would have triggered certain protocols and student suspensions."*
The Administrative Law Judge [ALJ] sustained the Department of Labor's determination, discrediting Claimant's testimony that she feared for her safety and filed an incident report, ruled that Claimant did not have good cause for resigning from her position. The Unemployment Insurance Appeal Board [Board] affirmed the ALJ's decision and Claimant appealed the Board's ruling.
The Appellate Division, finding that substantial evidence supported the Board's decision that Claimant had "voluntarily separated from her employment without good cause," dismissed Claimant's appeal. The court, citing Matter of Vargas [Mason ESC LLC-Commissioner of Labor, 185 AD3d 1339, explained "Whether a claimant has voluntarily left his or her employment without good cause is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence."
Considering the conflicting testimony and the fact that Claimant waited six weeks after the December 2019 incident to resign, the Appellate Division opined that the question as to whether Claimant genuinely feared for her safety, officially reported the incident or sought assistance to address problems in her classroom "presented a credibility issue that the Board was free to resolve in the employer's favor." In the words of the court, it found "no basis upon which to disturb the Board's finding that [Claimant] voluntarily left her employment without good cause while continuing work was available, and she was therefore not entitled to unemployment insurance benefits."**
* The Appellate Division's decision indicates although Claimant continued to work in her position until the end of January 2020, she did not attempt to discuss the incident with the school principal or assistant principals, nor did she file a grievance with her union.
** The court also held that the Board's determination that Claimant received benefits to which she was not entitled, thereby allowing for recoverable overpayments, was also supported by substantial evidence.
Click HERE to access the Appellate Division's decision.
A member of the New York State Employees' Retirement System applying for accidental disability retirement benefits has the burden of establishing that the injury he sustained during the incident giving rise to the disability in question was the result of an accident within the meaning of the Retirement and Social Security Law.
Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, the Appellate Division, in the instant appeal challenging the denial of a firefighter's application for accidental disability retirement benefits, said that the Court of Appeals has defined an accident as "a sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact."
As the court held in Matter of Kelly v DiNapoli, 30 NY3d 674, "an injury-causing event is accidental when it is sudden, unexpected and not a risk of the work performed, but the focus of the determination must be on the precipitating cause of [the] injury, rather than on the petitioner's job assignment."
In this appeal the Appellate Division considered a number of incidents suffered by a firefighter [Petitioner] at various time in the course of his performing firefighting duties cited his application for accidental disability retirement benefits.
Petitioner's application was initially denied, which decision was upheld by a Hearing Officer, who concluded that none of the incidents described by Petitioner constituted an accident within the meaning of the Retirement and Social Security Law. The Comptroller adopted the Hearing Officer's decision, and Petitioner initiated a CPLR Article 78 proceeding challenging the Comptroller's determination.
The Appellate Division sustained the Comptroller's ruling with respect to all but one incident ... an incident in which Petitioner "was struck by the master stream of water while fighting a fire inside an automotive garage."
Petitioner testified that the master stream of water that struck him and resulted in his disability:
a. was then being pumped at an average rate of 1,500 gallons per minute;
b. it was against standard operating procedure to spray a master stream of water into a burning structure while firefighters were inside because the force could be lethal; and
c. he had no warning that the master stream of water was being utilized to fight the fire until he "actually saw it a split second before getting hit."
The Appellate Division, noting that there "is no record support for the Hearing Officer's finding that [Petitioner] knew in advance that a master stream was being operated ... such that he could have left the building," concluded that "[u]nder these circumstances, the event that precipitated [Petitioner's] injuries was sudden, unexpected and not a risk inherent in [Petitioner's] regular duties as the incident would not have occurred if proper safety protocols had been followed."
Accordingly, the court opined that this event constituted an accident within the meaning of the Retirement and Social Security Law, thus entitling Petitioner to accidental disability retirement benefits and ruled "that part of the [Comptroller's] determination finding otherwise must be annulled" and the matter remitted to Comptroller "for further proceedings not inconsistent with this Court's decision".
Click HERE to access the text of the Appellate Division's decision.
New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 1, 2021.
Click on the text highlighted in color to access the complete audit report.
Town of Lyndon – Town Clerk’s Collections (Cattaraugus County) The clerk generally recorded, remitted and reported collections accurately and in a timely manner. Collections were deposited accurately but the clerk did not always make deposits in a timely manner. Collections totaling $7,050 or 49% of the collections recorded from Jan. 1, 2020 through May 6, 2021 were not deposited within three days, as required. The board did not perform an annual audit of 2020 records, as required.
Town of Machias – Supervisor’s Financial Duties (Cattaraugus County) The supervisor did not adequately perform his financial duties and cannot provide support for almost $1.6 million in interfund loans. Although interfund loans must be repaid by the close of each fiscal year, interfund loans have grown from $246,280 in 2015 to almost $1.6 million as of Dec. 31, 2019. The supervisor also did not provide adequate oversight of the bookkeeper. The supervisor did not provide detailed monthly financial reports to the board. Auditors found the supervisor did not review monthly bank reconciliations. In addition, the supervisor did not prepare and file the annual financial reports for 2019 and 2020 with the Office of the State Comptroller in a timely manner.
Town of Stanford – Financial Management (Dutchess County) The board did not properly manage the town’s financial condition and did not adopt realistic budgets. The board adopted an unbalanced 2020 budget that was missing information and misleading, which resulted in a 58% decrease in real property taxes. The board also adopted a 2021 budget with a $749,159 increase in the tax levy over the prior year and levied more taxes than necessary to fund general fund operations. In addition, the board exceeded its fund balance policy limit by $645,366.
OTHER REPORTS
On October 1, 2021, State Comptroller Thomas P. DiNapoli, Madison County District Attorney William Gabor and New York State Police Superintendent Kevin P. Bruen announced that a second former state police mechanic [Mechanic #2] has pleaded guilty to corrupting the government in the third degree, a felony, and petit larceny, a misdemeanor. At the time of his plea, he paid back $12,865 in restitution and was placed on interim probation.
This is the second guilty plea that has resulted from the Comptroller's and the District Attorney's joint investigation.
Mechanic #2 was found to be breaking the law and will be held fully accountable. One of two non-sworn civilian employees responsible for maintaining police vehicles, Mechanic #2 he was convicted of ordering auto parts and tools for personal use on the state police-paid account at United Auto Supply.
DiNapoli’s analysis of thousands of United Auto Supply invoices found that between April 2015 and October 2020, there were over $54,000 in inappropriate purchases on the state police account.
Earlier another civilian mechanic [Mechanic #1] pleaded guilty to felony corrupting the government in the third degree and was sentenced to interim felony probation. As part of his plea, Mechanic #1 paid back $20,000. He is due back in court for sentencing in December.
State police said they recovered more than $4,800 worth of state funded auto supplies, tools and parts at Mechanic #2's home.
Mechanic #2 retired during the investigation and was not employed with the state police at the time of his arrest. He had been employed by the state police for at least 30 years.
Mechanic #2 appeared before Judge Patrick O’Sullivan in Madison County Court. He is due back in court on Dec. 2, 2021.
The proposed action would amend Part 276 and §277.1 of Title 8 NYCRR pursuant to Education Law, §§101, 207, 305, 310 and 311 with respect to Education Law §310 regarding appeals to the Commissioner and the initiation of proceedings seeking the removal of school officers.
NO HEARING(S) SCHEDULED
The text of the proposed rule amendments and any required statements and analyses may be obtained from Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov.
Data, views or arguments may be submitted to: Julia Patane, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: REGCOMMENTS@nysed.gov.
Public comment will be received until 45 days after publication of this notice. [Published in the NYS Register on September 29, 2021].
On September 30, 2021, New York State Governor Kathy Hochul announced the designation of Rory M. Christian as Chair of the Public Service Commission and chief executive officer of the Department of Public Service, the staff arm of the Commission.*
Mr. Christian began his career in the energy industry with KeySpanEnergy where he first served as a civil engineer before transitioning to a role engaging government agencies operating in Long Island and New York City. In that role, he was responsible for coordinating activities between KeySpanand government organizations, negotiating contracts, developing contingency plans and streamlining operations to satisfy both organizations' operational needs.
While serving at Exelon Energy, Mr. Christian developed new products targeting public sector clientele and helped facilitate the creation of multiple partnerships and alliances. Mr. Christian also previously served as the Director of Energy Finance and Sustainability for the New York City Housing Authority. More recently, he was the Director of New York Clean Energy at Environmental Defense Fund where he provided strategy management, programming, business development and stakeholder collaboration for the Clean Energy program in NY.
Mr. Christian graduated from the City College of New York's, Grove School of Engineering with a bachelor's degree in Civil Engineering and an MBA from the Baruch College, Zicklin School of Business.
* Nonpartisan by law since 1970, the six member Public Service Commission regulates New York State's electric, gas, steam, telecommunications, and water utilities and oversees the cable TV industry. The Commission also exercises jurisdiction over the siting of major gas and electric transmission facilities and has responsibility for ensuring the safety of natural gas and liquid petroleum pipelines. Members of the Commission are appointed by the Governor and confirmed by the State Senate for a term of six years or to complete an unexpired term of a former Commissioner.
Petitioners in the appeal to the Commissioner of Education alleged that the school district [District] “systematically interfered with” the election to the school board by “providing absentee voter poll data before the polls closed"; using District resources “to advocate a ‘yes’ vote on the [s]chool [b]udget”; an employee organization "obtained voter contact information and used it 'to send an advocacy postcard to arrive simultaneously with [e]lection [b]allots,'” and that the superintendent “targeted email communications about the [b]udget and [t]rustee [v]ote to parents of children in the school district and not to the whole electorate.”
Petitioners asked the Commissioner issue an order overturning the results of the election and vote. Citing 8 NYCRR 275.10, the Commissioner said that in an Education Law §310 appeal to the Commissioner:
a. The petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief; and
b. Mere speculation as to the existence of irregularities or the effect of irregularities is an insufficient basis on which to annul election results.
The Commissioner then addressed a number of procedural issues raised by respondents in this appeal:
1. With respect to Petitioners' challenge to alleged actions the employee organization in the voting process, the Commissioner opined that it is well settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education in appeals submitted pursuant to §310 of the Education Law and thus she lack jurisdiction over Petitioners' claims with respect to the employee organization's alleged participation in the election.
2. With respect to Petitioners' claims involving the Freedom of Information Law [FOIL], the Commissioner held that such claims must dismissed for lack of jurisdiction, explaining that §89 of the Public Officers Law "vests exclusive jurisdiction over alleged FOIL violations in the Supreme Court of the State of New York."
3. The Commissioner then ruled that Petitioners’ remaining claims must be dismissed for failure to join "a necessary party," indicating that an individual or an entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party and must be joined as such. As an example, the Commissioner noted that in an appeal involving a school district election, the petitioner must join the district’s board of education as well as “each person whose right to hold office is disputed.”
Accordingly, the Commissioner dismissed Petitioners' §310 appeal for lack of jurisdiction.
The Commissioner then noted that "even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits," explaining that in order to invalidate the results of a school district election, the petitioner must either:
(1) Establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or
(2) Demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.
On this record, said the Commissioner, Petitioners have failed to carry their burden of proving that any irregularities occurred and affected the outcome of the election.
In the words of the Commissioner: "Although Petitioners object to various alleged actions of the district respondents, [Petitioners] have not provided any evidence, such as an affidavit from a district voter, to establish that such actions impacted the results of the election in any way."
Thus, opined the Commissioner, even if the appeal were not dismissed on procedural grounds, it would have been dismissed on the merits.
Click HERE to access the full text of the Commissioner's decision.
On September 29, 2021, New York State Governor Kathy Hochul announced Mary T. Bassett, MD, MPH, has been appointed Commissioner, NYS Department of Health.
Governor Hochul said "With more than 30 years of experience devoted to promoting health equity and social justice, both in the United States and abroad, Dr. Bassett's career has spanned academia, government, and not-for-profit work."
Dr. Bassett's appointment is effective December 1, 2021.
The Plaintiff [Petitioner] appealed the dismissal of his pro se lawsuit in which New York State Unified Court System, its Office of Court Administration [OCA], and certain OCA personnel [collectively "Respondents"] were alleged to have violated Title II of the Americans with Disabilities Act of 1990 [ADA], 42 U.S.C. §§12131–12165, and §504 of the Rehabilitation Act, 29 U.S.C. §794 et seq. in the course of Plaintiff's family court action.
Petitioner alleged that Respondents denied certain of his requests for ADA accommodations and that he had suffered other damages in the course of his participation in certain New York State judicial and related proceedings.
1. With respect to Petitioner's claim for damages targeting a law clerk to a judge, the Circuit Court of Appeals concluded that judicial immunity bars such claims for damages. The court explained that “[A]cts arising out of, or related to, individual cases before the judge are considered judicial in nature” and protected by judicial immunity and "for purposes of absolute judicial immunity, judges and their law clerks are as one”. Accordingly, said the court, a law clerk "is sheltered from a damages claim for the actions taken by her in the capacity of court attorney."
2. Addressing Petitioner's claims for injunctive and declaratory relief with respect to act or omissions of certain named Respondents, the Circuit Court of Appeals concluded all such claims against the Respondents must be dismissed in consideration of [a] the Rooker-Feldman doctrine, which prohibits federal courts from exercising jurisdiction over suits challenging final state court orders, and [b] the rulings in Younger [401 U.S. 37] and O’Shea [414 U.S. 488] with respect to "abstention," which rulings caution that federal courts generally should refrain from enjoining pending state court proceedings. The Circuit Court of Appeals then opined that the federal district court "correctly concluded that it was either unlawful or imprudent for it to enter any order directing the state family court to conduct its affairs differently than it did in dealing with [Petitioner]."
3. With respect to claims for damages against OCA respondents, the Circuit Court of Appeals noted that although the district court "relied on the Eleventh Amendment in entering its dismissal order", it could affirm on any ground fairly presented by the record on appeal. It then so acted, "on the ground that [Petitioner] has failed to state a claim on which relief may be granted. The court explained that to establish a prima facie claim under either Title II of the ADA or §504 of the Rehabilitation Act, "a plaintiff must satisfy three requirements: he must show that (a) he is a “qualified individual” with a disability; (b) he was excluded from participation in a public entity’s services or programs or was otherwise discriminated against by a public entity; and (c) such exclusion or discrimination was due to his disability." Regardless of the correct resolution of claims advanced by Petitioner with respect to his being a "qualified individual" with a disability, the court concluded that Petitioner "has not plausibly alleged facts to satisfy the second and third requirements of the prima facie case."
4. As to Petitioner's assertion that OCA violated the ADA by failing to provide an ADA-compliant grievance procedure, the court noted that this assertion "is flatly contradicted" by both general information in the public record and specific records in Petitioner's case and the fact that "[t]he state court judicial record shows that [Petitioner] availed himself of these appeals processes."
Accordingly, the court affirmed the district court’s dismissal of the damages claims against the Respondents as Petitioner "has not stated a claim on which relief may be granted."
Click HERE to access the Circuit Court of Appeals' decision.
In keeping with the goals of the New York State Workers’ Compensation Board [Board] to create medical guidelines for the treatment of injured workers using the most effective evidence-based modern diagnostic and treatment techniques, the Board plans to propose three new New York Medical Treatment Guidelines (MTGs):
New York Eye Disorders MTGs
New York Traumatic Brain Injury MTGs
New York Complex Regional Pain Syndrome MTGs
Regulations providing for these updated MTGs and comments from the public will be published in the State Register and on the Board’s websites.
Questions concerning these proposed MTGs may be e-mailed to:
A claim for unemployment insurance benefits filed by a City of New York maintenance and filter plant operator [Claimant] at a public swimming pool filed by resigned from his position. Claimant contended that he resigned because he believed that the working conditions in the maintenance facility constituted a dangerous work environment.
The Unemployment Insurance Appeal Board [Board] ruled that Claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause. Claimant appealed.
The Appellate Division affirmed the Board's decision, explaining "whether a claimant has good cause to leave employment is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence."
Citing Matter of Micara [Commissioner of Labor], 307 AD2d 568, the court said "Objections to the environmental conditions in the workplace will not [constitute good cause for leaving employment] unless the claimant can show reasonable grounds for the perception that his or her personal safety or health would be endangered thereby."
The court found that the record established that Claimant told his supervisor that he was required to clean a "hair catcher" twice a day but a defective valve made it impossible to control the water that gushed out, necessitating the help of other coworkers to hold down the cover. Although the valve was not permanently fixed after the defect was reported by Claimant, Claimant's supervisor testified that, although it was difficult to clean, it was not unsafe and, in any event, he told Claimant that he no longer was required to clean the hair catcher.
As to other perceived hazardous conditions at the pool maintenance facility reported by Claimant, his supervisor testified regarding the training and protective equipment provided the Claimant and that the facility is inspected by two government agencies for safety at least once a year. The supervisor also testified that he was trying to accommodate Claimant's request to be transferred to another assignment, but that Claimant had resigned before a position became available.
In addition, Claimant conceded that he did not have any adverse health issues as a result of his working conditions, nor did he consult with a doctor prior to resigning.
Accordingly, the Appellate Division found that substantial evidence supported the Board's decision that Claimant voluntarily left his employment without good cause.
Click HEREto access the Appellate Division's decision.
The Western Regional Off-Track Betting Corp. (OTB) spent at least $121,000 on tickets to sporting events, concerts, food and alcohol for board members, employees and other individuals without the oversight required by state rules, according to an auditreleased by New York State Comptroller Thomas P. DiNapoli.
A second audit released found the OTB’s CEO did not reimburse the organization for his personal use of an official vehicle in a timely manner.
Click on the text highlighted in color above to access the complete audit report.