Selected notices posted on the Internet by various departments and agencies of the State of New York during the week ending November 5, 2022

NEW YORK STATE DEPARTMENT OF CIVIL SERVICE ANNOUNCES PROFESSIONAL CAREER OPPORTUNITIES ONLINE EXAM IS NOW OPEN FOR REGISTRATION TO FILL HUNDREDS OF JOBS ACROSS STATE GOVERNMENT

 Applicants Can Apply for the PCO Online Exam From November 1 Through November 30; Online Exam Must be Completed by December 15

New PCO Virtual Career Fair Will be Held on November 9 to Highlight Jobs Available Across State Government – Register to Attend Here!

 

Computers Available for New Yorkers Who Need Them to Attend the Career Fair or Take the Online Exam at Designated Career Centers and Educational Opportunity Centers Across the State 

The New York State Department of Civil Service today announced that beginning today, individuals interested in a career in New York State public service can apply and complete the Professional Career Opportunities (PCO) exam, a civil service exam used to fill more than 150 professional entry-level titles across New York State agencies. This exam, which is being offered online for the first time, is the largest exam administered by the Department of Civil Service. Qualified candidates who have a Bachelor’s degree or will have a Bachelor’s degree by June 30, 2023, can apply for the exam online until 11:59 pm EST on Wednesday, November 30, 2022. All candidates who apply MUST complete the online examuntil 11:59 pm EST on Thursday, December 15, 2022.

 

“The Professional Career Opportunities Exam provides jobseekers, including soon-to-be college graduates, with the unique opportunity to gain access to a number of rewarding and meaningful careers with New York State,” said Department of Civil Service Commissioner Timothy R. Hogues. “The Department of Civil Service is pleased to be hosting this large exam online for the first time, making it easier than ever for all New Yorkers to take this exam from the comfort of their own homes or in centers located throughout the State for those who need access to computers. Working for New York State not only offers the chance to serve the greater public, but also provides the opportunity to work with dedicated public servants, in addition to the great health benefits and compensation packages. I encourage all interested candidates to apply for this exam and learn more about joining New York’s diverse and dedicated workforce.”

To be eligible to take the PCO exam, candidates must first meet the minimum qualifications for the exam, which requires a Bachelor’s degree by June 30, 2023. All applicants who meet the minimum qualifications must apply for the exam by November 30, 2022, then access the online exam and submit all examination materials by December 15, 2022. The online exam will require candidates to provide information about their training and experience with an online questionnaire that is completed and submitted by the candidate. Candidates should be prepared to provide detailed information on their education, work experience, dates of employment, and supervisor contact information to answer the questions completely.

To highlight the many career opportunities currently available across State government, all jobseekers are invited to attend the New York State PCO Jobs Virtual Career Fair being held on Wednesday, November 9 from 10:00am to 2:00pm. The job fair will feature a variety of State agencies with a special focus on the many job titles filled by the PCO exam. The career fair will also include informational sessions to help jobseekers begin their New York State careers with helpful information. To register and learn more, click here.

Candidates who need computer access to attend the virtual career fair or to access the online exam may visit a New York State Department of Labor Career Center and should first fill out this simple form to ensure computer availability. Candidates may also visit a SUNY Educational Opportunity Center for computer access.

New York State Department of Labor Commissioner Roberta Reardon said, “Governor Hochul continues to advance efforts to guide New Yorkers into family-sustaining careers that they will love. Civil Service exams open doors to so many amazing career possibilities. I encourage qualified New Yorkers to sign up today to begin their career journey in New York State service.”

SUNY Interim Chancellor Deborah F. Stanley said, “This exam is the next step for our SUNY graduates and soon-to-be graduating seniors to be eligible for hundreds of New York State jobs. For those interested in a career in public service, and the chance to help solve for the needs of our communities, this is the time to apply. Our thanks to our partners within the Department of Civil Service for making the exam more accessible than ever so that more New Yorkers can avail themselves of this opportunity.”

As part of the launch of the PCO exam, New York State has launched a statewide social media campaign, which will include videos and web content to help attract candidates to apply for the exam. Campaign content and additional information and resources to help candidates complete the exam is available at www.cs.ny.gov/pco.

The PCO exam is one civil service exam that is used by State agencies to fill more than 150 different entry-level professional job types across a wide range of discipline, including health and human services, environmental conservation, human resources, administrative analysis, and transportation.  The majority of positions filled through this exam require two-year traineeships during which individuals gain the necessary knowledge and experience to perform the full responsibilities of the position.

Governor Hochul’s ongoing, multi-pronged approach continues to help connect New Yorkers to new career opportunities statewide. Job seekers are encouraged to visit the New York State Job Bank, an online resource maintained by the New York State Department of Labor (NYSDOL) featuring 250,000 available positions across the state. NYSDOL also has several resources on its website to help job seekers with resumes, interview tips, training opportunities including apprenticeships, and much more.

To learn more about working for the State of New York and how to take the next step in pursuing a rewarding career in public service, please visit the Department of Civil Service website and follow the Department onFacebook, Twitter, andLinkedIn.

 

STATE COMPTROLLER DiNAPOLI ANNOUNCES NEW CYBERSECURITY TRAINING WEBINARS FOR LOCAL GOVERNMENTS

The Office of the State Comptroller has developed five new “10-minute Tech Talk” cybersecurity training webinars for local government officials with weekly releases planned throughout October in recognition of National Cybersecurity Awareness Month, State Comptroller Thomas P. DiNapoli announced. 

As threats and attacks from malicious actors continue to become more sophisticated and commonplace, the importance of training for the "people" part of a cyberdefense has grown even more critical.

The trainings were developed by DiNapoli’s Division of Local Government and School Accountability’s Applied Technology Unit. The theme for this year's campaign is "See Yourself in Cyber," highlighting the critical roles that all people play in cybersecurity.

The trainings include:

• Cybersecurity Foundations;
• Software Management;
• Multifactor Authentication;
• Passwords; and
• Phishing.

In addition to the new series, prior years’ Cybersecurity Awareness Month webinar series are also available on the Comptroller’s website, as are several other webinars and a wide variety of user-friendly publications designed to be further cybersecurity education.

DiNapoli's office will be surveying local governments in the weeks ahead on cybersecurity issues.

 

The Audits listed below were posted by the New York State Comptroller during the week ending November 5, 2022:

Click on the text below in "color" to access the audit.

New York City Department of Sanitation (DSNY) and New York City Mayor’s Office of Operations – Street and Sidewalk Cleanliness (Follow-Up) (2022-F-8)

The initial audit determined that weaknesses in key management controls, including communication, coordination, and record keeping, impair DSNY’s ability to address ongoing cleanliness problems on New York City streets and sidewalks efficiently and effectively. In addition, deficiencies in operations’ inspection process and rating calculations further undermine DSNY’s goal of clean streets and sidewalks. The audit made eight recommendations – four each to DSNY and Operations – to address the problems identified. The follow-up found that DSNY did not implement any of OSC’s four recommendations. Operations made progress, having implemented three recommendations and partially implemented one.

Office of Mental Health (OMH) – Reporting of Community-Based Services Under the Transformation Reinvestment Plan (2021-S-15)

OMH’s 2014 Transformation Reinvestment Plan entailed reducing capacity at its inpatient facilities and using the cost savings to enhance and expand services in lower-cost, more accessible community-based settings. OMH reported that, from 2014 through State fiscal year 2020-21, more than $82.5 million realized under the plan was allocated to community-based services (CBS), serving more than 111,000 individuals. This audit found that, while OMH provided adequate reporting on the funds reinvested in CBS under the plan, it can improve on the quality of its reporting. For example, the audit identified inconsistencies with how OMH collected data on “new individuals served,” which could impact the accuracy of the information included in these reports. Also, OMH’s reports do not clearly address its progress in the 11 areas of investments identified in the plan.

Office of Temporary and Disability Assistance – Reimbursement of Homeless Shelter Providers – Rescue Mission Alliance of Syracuse (2021-S-34)

The office’s annual budget for its network of 612 homeless shelters totals in the billions of dollars. Funding to shelters is administered through local departments of social services, which either operate the shelters directly or contract with providers to operate them. In 2020, under its contract with the Onondaga County Department of Social Services, the Rescue Mission Alliance of Syracuse (Rescue Mission) provided homeless services to nearly 1,100 adults and reported expenditures totaling $2.9 million. The audit found that, by design, the office does not monitor shelters’ costs claimed for reimbursement to ensure they comply with the approved budget or, for that matter, with state laws and regulations or Office policies. This responsibility instead falls to the local departments, yet the office does not provide them with the guidance needed for effective monitoring – creating significant risk of improper reimbursements, as evidenced by this audit, which identified $26,123 in costs claimed by Rescue Mission that were improperly reimbursed. The office needs to establish controls to adequately monitor and appropriately reimburse claims by Rescue Mission.

State Education Department (Preschool Special Education Audit Initiative) – Field of Dreams, Inc. – Compliance With the Reimbursable Cost Manual (2022-S-2)

Field of Dreams, a for-profit special education provider serving students from Orange and Ulster counties, is authorized by the State Education Department (SED) to provide Preschool Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (over 2.5 hours per day) to children with disabilities who are between the ages of 3 and 5 years. For the three fiscal years ended June 30, 2019, Field of Dreams reported approximately $2.4 million in reimbursable costs to SED for these programs. Auditors identified $172,121 in costs that did not comply with SED’s requirements for reimbursement.

 

The Department of Civil Service has published the following Attendance and Leave Policy Bulletins:

• Policy Bulletin 2022-06, Attendance and Leave Items – 2021 – 2026-State-CSEA Negotiated Agreements for Employees in the Administrative Services Unit (ASU), Institutional Services Unit (ISU), Operational Services Unit (OSU) and the Division of Military and Naval Affairs (DMNA)

Text of Policy Bulletin 2022-06 will be found at:
https://www.cs.ny.gov/attendance_leave/PolBull22-06.cfm

If you prefer to print Policy Bulletin 2022-06, there is a PDF version posted at:
https://www.cs.ny.gov/attendance_leave/pb2022-06.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

 

New York State Continuing Legal Education Board

An additional CLE requirement for New York attorneys established

• Effective July 1, 2023, attorneys must complete 1 CLE credit hour in the new Cybersecurity, Privacy and Data Protection category of credit as part of an attorney's CLE requirement. The total number of CLE credits that to be completed in a reporting cycle has not been increases.
  
• Experienced attorneys (admitted to the New York Bar for more than two years):
• If you are due to re-register on or after July 1, 2023 (birthday is on or after July 1st), you must complete 1 CLE credit hour in Cybersecurity, Privacy and Data Protection as part of your biennial CLE requirement.
• If you are due to re-register in 2023 but your birthday is before July 1st, you need not comply with the new requirement in 2023, but must comply in future biennial periods.
• Example: If your birthday is on June 30th and you are due to re-register in 2023, then you do not need to comply with the new requirement in 2023, even if you file your registration form on or after July 1, 2023.
• If you are due to re-register in 2024, or later, you must comply with the new requirement.
• Newly admitted attorneys (admitted to the New York Bar for two years or less):
• If you were admitted to the NY Bar prior to July 1, 2023, you need not comply with the Cybersecurity, Privacy and Data Protection requirement in your newly admitted cycle, but must comply in future reporting cycles.
• Attorneys admitted to the NY Bar on or after July 1, 2023, must complete 1 CLE credit hour in Cybersecurity, Privacy and Data Protection as part of their newly admitted attorney CLE requirement.
• Earning Credit: You may start to earn CLE credit in this new category beginning on January 1, 2023.
• For More Information
• CLE website
• https://www.nycourts.gov/attorneys/cle
• Cybersecurity FAQs

Posted on the Internet by the New York State Continuing Legal Education Board.

 

Civics and Science: Contemporary Issues for Civil Democracy

Dr. Robert A. Michaels, NYPPL's Science Consultant, has published a new book focusing on contemporary issues of critical importance to American democracy.  

The book explores, in a strictly non-partisan manner, the nexus between civics and science, identifying contemporary issues of critical importance for American democracy. 

It promotes objective, clear thinking toward evidence-based decision making in a range of important issue areas.  Dr. Michaels is a politically unaffiliated observer of politics.  His analysis is rigorous, and his writing engaging and personal.

Available in a Kindle Edition [$4.99] and in a paperback hard copy format [$19.99].  For additional information about this work and to order your copy from Amazon, click HERE.

Resolving conflicting medial evidence presented by medical experts

A New York City firefighter [Plaintiff] challenged the Subchapter II Medical Board of the New York City Fire Department Pension Fund [Medical Board], after evaluating Plaintiff and reviewing his medical records, concluded that although the Plaintiff was disabled due to his right hip injury, this disabling condition was causally related to chronic degenerative joint disease, not a work-related injury. Accordingly, Plaintiff's application for accidental disability retirement benefits was denied and the Plaintiff was retired on "ordinary disability retirement benefits." 

Supreme Court denied Plaintiff's appeal of the Board's decision to provide him with "ordinary disability retirement benefits" based on court's finding that Medical Board's determination was supported by credible medical evidence* and, thus, was not arbitrary and capricious. Supreme Court dismissed Plaintiff's complaint, which judgment was subsequently affirmed by the Appellate Division. 

The Medical Board had reviewed a recent report submitted by the Plaintiff's surgeon in which the surgeon had opined that the Plaintiff had "post-traumatic unilateral right hip arthritis following an on-the-job injury." The Medical Board, however, ultimately disagreed with the surgeon, stating that the surgeon had not identified any basis for his description of the Petitioner's "arthrosis as 'post-traumatic,' and that there was no evidence that the petitioner had unilateral arthrosis...."

Citing Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that "A firefighter is entitled to accidental disability retirement [benefits] when a medical examination and investigation shows that he or she is 'physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an accidental injury received in such city-service'".

Following a medical examination, the Medical Board first determines whether the firefighter is disabled for performance of duty and ought to be retired and if it so finds,  , it must then determine whether the disability is "a natural and proximate result of an accidental injury received in such city-service". The Medical Board than certifies its recommendation on this issue to the Board of Trustees, which is ultimately responsible for retiring the city service member and determining the issue of service-related causation.

In the event, as was here the case, a vote by the Board of Trustees on an application for ADR benefits results in a tie, the application is denied, and the firefighter is awarded ordinary disability retirement benefits as the Court of Appeal ruled in Matter of Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund.

In CPLR Article 78 proceeding challenging this result, "the reviewing court may not set aside the Board of Trustees' denial of accidental disability retirement resulting from such a tie vote unless it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident." Further, said the Appellate Division, under this standard, "as long as there was any credible evidence of lack of causation before the Board of Trustees, its determination must stand." 

* In Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660, the Appellate Division noted that credible medical evidence "is evidence that proceeds from a credible source and reasonably tends to support the proposition for which it is offered". Credible evidence "must be evidentiary in nature and not merely a conclusion of law, nor mere conjecture or unsupported suspicion". In reviewing a determination by the Board of Trustees, "the courts cannot weigh the medical evidence or substitute their own judgment for that of the Medical Board", [See Matter of Santoro v Board of Trustees of N.Y. City Fire Dept. Art.1-B Pension Fund, 217 AD2d 660]. The Appellate Division also opined that in the event there is "conflicting medical evidence and medical reports are presented to the Medical Board, it is solely within the province of the Medical Board to resolve such conflicts."

Click on the URL set out below to access the Appellate Division's decision in this case.

https://www.nycourts.gov/reporter/3dseries/2022/2022_06007.htm

 

 

Governor Hochul recognizes Middletown Police Officer for exceptional valor in the face of grave danger

Officer Evan Barone received the New York State Police Officer Medal of Valor, also known as the Governor's Police Officer of the Year Award, and is the first police officer from his Department to receive this recognition. Lieutenant Governor Antonio Delgado presented the medal on Governor Hochul's behalf during a ceremony conducted  in Middletown on November 2, 2022. 

Officer Barone was on routine patrol when he was flagged down by a woman whose ex-boyfriend refused to leave her home. Seconds after stopping to help, Officer Barone was shot and despite being seriously wounded, he fired back, struck his assailant, and protected the woman, several children and other adults who witnessed the unprovoked attack. 

Governor Hochul said that despite being seriously wounded, "Officer Barone demonstrated exceptional bravery by putting himself in harm's way to keep New Yorkers safe." In the words of the Governor, Officer Barone's "quick-thinking and swift action prevented anyone else from being harmed by the gunman. We honor him for his courage and service, and we also commend the thousands of police officers who work tirelessly to protect New Yorkers in communities across the state."

 

"Middletown Police Officer Evan Barone exemplifies what it means to be a police officer, which is why he is being awarded the New York State Police Officer Medal of Valor," said Lieutenant Governor Antonio Delgado.  "For demonstrating exceptional courage and unflappable bravery in the face of grave danger, Officer Barone is well deserving of this award, and I thank him and his fellow officers from the Middletown Police Department for their service to this community." 

 

Despite being seriously injured, Officer Barone returned fire and hit his assailant multiple times. He then secured custody of the gunman, protecting the woman with whom he was speaking and several children and adults nearby. Officer Barone then radioed for help, applied a tourniquet to his own wound to control the bleeding and waited for medical assistance.  

 

Lieutenant Governor Delgado presented the award to Officer Barone morning of November 2, 2022, on Governor Hochul's behalf during a ceremony at the Paramount Theatre in Middletown. The incident for which the officer was honored occurred on August 29, 2020, and in October 2022, the individual responsible for the attack was sentenced to 58½ years to life in prison.

 

In nominating Officer Barone for the 2020 award, the Middletown Police Department provided the following account of the incident:    

   

"Officer Barone was on routine patrol as part of the department's Neighborhood Enhancement Unit, when he was flagged down by a woman outside of her home. He stopped, got out of his marked patrol vehicle, and spoke with her. The woman told Officer Barone that her ex-boyfriend was inside her home, armed with a gun and refused to leave. As the woman talked with Officer Barone, her ex-boyfriend burst through the front door of the home and onto the porch, firing a 9mm handgun. A bullet struck the officer's left forearm and lodged in his body armor."   

   

New York State Division of Criminal Justice Services Commissioner Rossana Rosado said "I am honored to join Lieutenant Governor Delgado in presenting this award on behalf of Governor Hochul. Officer Evan Barone's selfless act reminds us that our officers put their lives on the line every time they put on their uniforms and that they are willing to make that sacrifice for us. We thank him and his colleagues for all they do for Middletown and New York."

 

DCJS coordinates the work of the award selection committee, members of which represent law enforcement agencies and police union leadership. The committee considered nominations of 30 officers from eight police departments and two sheriffs' offices before selecting Officer Barone for the recognition. Since its inception in 1984, the award has been presented to 122 officers from 21 different agencies since its inception.

 

The anatomy of an effort to vacate an arbitration award

A SUNY community college and its sponsoring county, [Employers] are parties to a collective bargaining agreement [CBA] with an Employee Organization [Union] representing members of the community college's faculty.

When Employers served disciplinary charges on one of Union's members, a college professor, and suspended the professor without pay while such charges were pending, the Union filed a grievance alleging that the suspension without pay violated certain terms set out in the CBA*. 

The grievance was denied by the Employers and the Union filed a demand to submit the matter to arbitration.

Following an arbitration hearing, the arbitrator found that the matter was arbitrable and further determined that Employers were required, under the terms of the CBA, to continue to pay the professor during the period of the suspension. Employers then commenced a CPLR Article 75 action seeking to vacate the arbitrator's decisions and award.

Supreme Court denied the petition and Employers appealed the Supreme Court's ruling to the Appellate Division. The Appellate Division opined that the following were the relevant Articles of the CBA concerning the issues to be resolved by the arbitrator:

1. Article 3 which stated that Employers reserve the powers and rights conferred upon them by federal and state law, and the exercise of such powers and rights shall "be limited only by the specific and expressed terms of [the CBA]";

2. Article 12 which sets out a four-step grievance procedure, culminating in arbitration as the last step in that process; and

3. Article 45 which, in general, provides for the procedure for bringing disciplinary charges against a faculty member and section E of Article 45, in particular, which provides that "[p]ending the hearing and determination of charges, [Employers] may suspend the [faculty member]".

With respect to Employers' contention "that the dispute was not arbitrable because Union failed to follow the first two steps of the grievance procedure in that Union did not provide notice of its grievance to the proper individuals within the mandated time frames", the Appellate Division noted that "[q]uestions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrator, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the [procedural] limitations a condition precedent to arbitration".

As the CBA contains no express provision requiring strict compliance with the grievance procedure as a prerequisite to arbitration, the question of whether Union complied with that procedure — in particular, its notice requirements and time limitations — was for the arbitrator to resolve. The arbitrator found that, despite the lack of strict compliance with the first two steps of the grievance procedure, Employers had actual notice of Union's grievance well before the deadline for filing it and therefore the matter was arbitrable. The Appellate Division said that it found "no basis to disturb this conclusion" by the arbitrator.

Addressing Employers' claim that the arbitrator went beyond the powers granted to the arbitrator by Articles 3 and 12 of the CBA in evaluating Union's compliance with the grievance procedure, the Appellate Division ruled that "this contention is without merit as Employers have made no showing that the arbitrator's determination in this regard violated public policy, was irrational or exceeded a specifically enumerated limitation on his power."

As to the Employers' contention that the arbitrator misinterpreted the suspension provision contained in Article 45, §E of the CBA, the Appellate Division opined that "[a]n arbitrator is charged with the interpretation and application of the parties' agreement and courts are obligated to give deference to the decision of the arbitrator." Accordingly, "[i]f the contract is reasonably susceptible to different conclusions, including the one given by the arbitrator, courts will not disturb the award."

With respect to the question of whether suspension of an employee during the pendency of disciplinary charges should be with or without pay, the Appellate Division commented that in view of ambiguity of §E of Article 45 concerning this issue the arbitrator looked to another provision of the CBA prohibiting termination of an employee before arbitration and reasoned that suspension without pay prior to arbitration would be tantamount to termination.

In addition, the Appellate Division's decision reports that the arbitrator also relied on a parol evidence of previous instance in which Employers, pursuant to the same contract language at issue in this case, provided full pay to an employee who had been suspended on similar charges.** Inasmuch as this determination, in the view of the Appellate Division, "was not irrational", it declined to substitute its judgment for that of the arbitrator.

Accordingly, the arbitrator's order was affirmed by the Appellate Division, with costs. 

* The merits of the underlying disciplinary charges were addressed in a separate proceeding and are not the subject of this appeal. 

** Citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d 326, the Appellate Division's decision held the arbitrator was free to consider "parol evidence" concerning a past practice given the ambiguity the arbitrator found in Article 45, §E of the CBA.

Click here to access the Appellate Division's ruling.

Audits and reports issued by the New York State Comptroller in October, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for New York State Departments and Agencies, New York City Departments and Agencies, Municipalities and School Districts were issued during the month of October, 2022.

Click on the text highlighted in colorto access the complete audit report.

State Departments, New York City Departments and Agencies and Authorities

Metropolitan Transportation Authority (MTA): Employee Qualifications, Hiring, and Promotions (Follow-Up) (2021-F-27) A January 2019 audit determined that, while the MTA allows employees to transfer across its subsidiary agencies, it did not ensure they met the qualifications for the new position into which they were hired or promoted, including education, experience, and operating license requirements and, for operating titles such as Train Operators, Conductors, and Bus Operators, drug/alcohol screening and medical examinations. The follow-up review found that the MTA made progress in addressing the issues identified. Of the 14 recommendations from the initial report, four were implemented, seven were partially implemented, two were not implemented, and one was no longer applicable.

 

New York City Department of Youth & Community Development (DYCD): Oversight of Afterschool and Summer Youth Employment Contracts (Follow-Up) (2022-F-11) The initial audit, issued in June 2019, determined DYCD was not adequately overseeing its contracts with the Greater Ridgewood Youth Council, Inc., totaling $13.9 million, to administer DYCD’s summer employment and afterschool programs. Auditors identified numerous contract and program policy violations, such as improper hiring practices, inappropriate expenditures, and duplicate compensation costs for overlapping services. The follow-up found DYCD made only limited progress in addressing the issues identified in the initial report. Of the report’s 10 recommendations, five were partially implemented and five were not implemented.

 

Department of Civil Service: Empire Plan Members With Dual Family Coverage (Follow-Up) (2022-F-13) The initial audit, issued in January 2021, determined that for certain organizations that participate in NYSHIP, their employees may be enrolled in two Family coverages – as both a primary policy holder and a dependent of a NYSHIP-eligible family member who also elected Family coverage. The dual coverages are duplicative and associated with significant unnecessary premium costs for both the member and the participating organization. Participating organizations may be unaware that employees have dual Family coverage, and unable to counsel them regarding more cost-effective options, because Civil Service, citing Health Insurance Portability and Accountability Act (HIPAA) rules, does not share data that would allow them to make this determination. The follow-up found that Civil Service implemented both recommendations from the initial audit; however, officials also concluded that information sharing was not feasible, despite auditors pointing out HIPAA exceptions that would allow it.

 

Department of Health (Medicaid Program): Accuracy of Medicaid Eligibility Determined by NY State of Health (Follow-Up) (2022-F-15  The initial audit, issued in September 2020, identified $16.6 million in improper and questionable Medicaid payments. The improper payments stemmed from processing weaknesses in the NY State of Health (NYSOH) system as well as a lack of eligibility and enrollment data reconciliations that resulted in recipients, including some who were deceased, remaining eligible beyond their actual eligibility period. The follow-up found that the Department of Health made some progress addressing the problems identified, such as correcting certain deficiencies in NYSOH data processing. However, further actions are required to prevent additional improper payments. Of the initial report’s six audit recommendations, four were partially implemented and two were implemented.

 

New York City Civilian Complaint Review Board (CCRB): Complaint Processing (2020-N-9) CCRB investigates civilian complaints against the New York City Police Department that allege excessive or unnecessary force, abuse of authority, discourtesy, and use of offensive language. The audit found that CCRB does not complete complaint investigations in a timely manner – taking an average of 14 months in the first half of 2021. Lengthier time frames can drive cases closer to the 18-month statute of limitations and jeopardize CCRB’s ability to hold officers accountable for misconduct. CCRB did not have measures in place to pre-emptively monitor lengthy investigations or to analyze all delays to determine their root cause in order to proactively address and prevent them. In addition, CCRB did not always comply with its established procedures and guidelines intended to ensure that investigations of complaints are conducted in compliance with New York City regulations, that the resulting recommendations are appropriate, and that substantiated cases of misconduct are advanced for disciplinary action.

 

Department of Health (DOH): Medicaid Program – Improper Overlapping Medicaid and Essential Plan Enrollments (2020-S-66) Weaknesses within DOH’s automated claims processes resulted in recipients who should have been enrolled in either Medicaid or the State’s Essential Plan (EP) being improperly enrolled in both – causing both Medicaid and EP programs to make claim payments on their behalf. For the audit period, auditors determined that, during the periods of overlapping enrollment, DOH made Medicaid payments totaling $40.3 million and EP payments totaling $18.4 million. Case reviews by DOH are required to determine which program made improper payments.

 

New York City Department of Small Business Services (SBS): Selected Aspects of Supporting Small Businesses (2020-N-10) SBS’ Employee Retention Grant (ERG) Program was intended to assist businesses and non-profit organizations across all five boroughs retain employees during the COVID-19 pandemic. SBS awarded 3,411 in grants totaling nearly $25 million, but did not provide adequate oversight overall to ensure the grants were awarded and used as the Program intended. Among other issues, auditors found that SBS awarded grants to businesses that did not meet the eligibility requirements, awarded some businesses higher amounts than they were entitled to, and did not follow up with businesses to verify that they retained their employees, as required.

Municipalities and School District

Arlington Fire District – Station Number 5 Renovation (2022M-54)

Baldwinsville Central School District – Fuel Inventory (2022M-106)

Mount Pleasant Blythedale Union Free School District – Procurement (2022M-86)

North Greenbush Common School District – Claims Auditing (2022M-112)

Penfield Central School District – Procurement (2022M-76)

Starpoint Central School District – Network Access and Application User Permissions (2022M-101)

Village of Hancock – Insurance Withholdings (2022M-108)

Village of Ocean Beach – Clerk-Treasurer Compensation (2022M-79)

York Central School District – Financial Management (2022M-96)

York Central School District – Network Access Controls (2022M-93)

 

New York Public Personnel Law's summaries of judicial and quasi-judicial decisions moving to a new Internet web site

New York Public Personnel Law's almost 6,000 case summaries and research materials will be relocated to a new and different Internet web site. 

Individuals interested in continuing to access these case summaries and research materials are invited to email their name, affiliation and preferred email address to nyppl@nycap.rr.com using "Information" as the "Subject" of the email.

NYPPL's New York State Public Personnel Law ebooks,  listed below, will continue to be available for purchase from BookLocker. 

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE. 

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE. 

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE. 

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

Audits and reports issued by the New York State Comptroller in October, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for New York State Departments and Agencies, New York City Departments and Agencies, Municipalities and School Districts were issued during the month of October, 2022.

Click on the text highlighted in color to access the complete audit report.

State Departments, New York City Departments and Agencies and Authorities

Metropolitan Transportation Authority (MTA): Employee Qualifications, Hiring, and Promotions (Follow-Up) (2021-F-27) A January 2019 audit determined that, while the MTA allows employees to transfer across its subsidiary agencies, it did not ensure they met the qualifications for the new position into which they were hired or promoted, including education, experience, and operating license requirements and, for operating titles such as Train Operators, Conductors, and Bus Operators, drug/alcohol screening and medical examinations. The follow-up review found that the MTA made progress in addressing the issues identified. Of the 14 recommendations from the initial report, four were implemented, seven were partially implemented, two were not implemented, and one was no longer applicable.

 

New York City Department of Youth & Community Development (DYCD): Oversight of Afterschool and Summer Youth Employment Contracts (Follow-Up) (2022-F-11) The initial audit, issued in June 2019, determined DYCD was not adequately overseeing its contracts with the Greater Ridgewood Youth Council, Inc., totaling $13.9 million, to administer DYCD’s summer employment and afterschool programs. Auditors identified numerous contract and program policy violations, such as improper hiring practices, inappropriate expenditures, and duplicate compensation costs for overlapping services. The follow-up found DYCD made only limited progress in addressing the issues identified in the initial report. Of the report’s 10 recommendations, five were partially implemented and five were not implemented.

 

Department of Civil Service: Empire Plan Members With Dual Family Coverage (Follow-Up) (2022-F-13) The initial audit, issued in January 2021, determined that for certain organizations that participate in NYSHIP, their employees may be enrolled in two Family coverages – as both a primary policy holder and a dependent of a NYSHIP-eligible family member who also elected Family coverage. The dual coverages are duplicative and associated with significant unnecessary premium costs for both the member and the participating organization. Participating organizations may be unaware that employees have dual Family coverage, and unable to counsel them regarding more cost-effective options, because Civil Service, citing Health Insurance Portability and Accountability Act (HIPAA) rules, does not share data that would allow them to make this determination. The follow-up found that Civil Service implemented both recommendations from the initial audit; however, officials also concluded that information sharing was not feasible, despite auditors pointing out HIPAA exceptions that would allow it.

 

Department of Health (Medicaid Program): Accuracy of Medicaid Eligibility Determined by NY State of Health (Follow-Up) (2022-F-15  The initial audit, issued in September 2020, identified $16.6 million in improper and questionable Medicaid payments. The improper payments stemmed from processing weaknesses in the NY State of Health (NYSOH) system as well as a lack of eligibility and enrollment data reconciliations that resulted in recipients, including some who were deceased, remaining eligible beyond their actual eligibility period. The follow-up found that the Department of Health made some progress addressing the problems identified, such as correcting certain deficiencies in NYSOH data processing. However, further actions are required to prevent additional improper payments. Of the initial report’s six audit recommendations, four were partially implemented and two were implemented.

 

New York City Civilian Complaint Review Board (CCRB): Complaint Processing (2020-N-9) CCRB investigates civilian complaints against the New York City Police Department that allege excessive or unnecessary force, abuse of authority, discourtesy, and use of offensive language. The audit found that CCRB does not complete complaint investigations in a timely manner – taking an average of 14 months in the first half of 2021. Lengthier time frames can drive cases closer to the 18-month statute of limitations and jeopardize CCRB’s ability to hold officers accountable for misconduct. CCRB did not have measures in place to pre-emptively monitor lengthy investigations or to analyze all delays to determine their root cause in order to proactively address and prevent them. In addition, CCRB did not always comply with its established procedures and guidelines intended to ensure that investigations of complaints are conducted in compliance with New York City regulations, that the resulting recommendations are appropriate, and that substantiated cases of misconduct are advanced for disciplinary action.

 

Department of Health (DOH): Medicaid Program – Improper Overlapping Medicaid and Essential Plan Enrollments (2020-S-66) Weaknesses within DOH’s automated claims processes resulted in recipients who should have been enrolled in either Medicaid or the State’s Essential Plan (EP) being improperly enrolled in both – causing both Medicaid and EP programs to make claim payments on their behalf. For the audit period, auditors determined that, during the periods of overlapping enrollment, DOH made Medicaid payments totaling $40.3 million and EP payments totaling $18.4 million. Case reviews by DOH are required to determine which program made improper payments.

 

New York City Department of Small Business Services (SBS): Selected Aspects of Supporting Small Businesses (2020-N-10) SBS’ Employee Retention Grant (ERG) Program was intended to assist businesses and non-profit organizations across all five boroughs retain employees during the COVID-19 pandemic. SBS awarded 3,411 in grants totaling nearly $25 million, but did not provide adequate oversight overall to ensure the grants were awarded and used as the Program intended. Among other issues, auditors found that SBS awarded grants to businesses that did not meet the eligibility requirements, awarded some businesses higher amounts than they were entitled to, and did not follow up with businesses to verify that they retained their employees, as required.

Municipalities and School District

Arlington Fire District – Station Number 5 Renovation (2022M-54)

Baldwinsville Central School District – Fuel Inventory (2022M-106)

Mount Pleasant Blythedale Union Free School District – Procurement (2022M-86)

North Greenbush Common School District – Claims Auditing (2022M-112)

Penfield Central School District – Procurement (2022M-76)

Starpoint Central School District – Network Access and Application User Permissions (2022M-101)

Village of Hancock – Insurance Withholdings (2022M-108)

Village of Ocean Beach – Clerk-Treasurer Compensation (2022M-79)

York Central School District – Financial Management (2022M-96)

York Central School District – Network Access Controls (2022M-93)

 

Challenging the confirmation of an arbitration award

Supreme Court a petition submitted pursuant to CPLR §7510 to confirm an arbitration award and denied the Respondent's cross petition to vacate the award. Respondent appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

Respondent challenged the confirmation of an arbitration award alleging Petitioner "committed perjury during the arbitration proceeding."

The Appellate Division explained that Respondent's disagreement with the arbitrator's conclusion that Petitioner did not give perjurious testimony or false responses to discovery demands "was not a proper basis for setting aside the arbitration award under CPLR 7511(b)(1) or on grounds of public policy."

As a general rule, courts will not second-guess the factual findings or the legal conclusions of the arbitrator." Respondent, said the court "has not offered sufficient reason why an exception to that rule exists in this proceeding."

Further, the Appellate Division observed that courts "may not substitute their own credibility determinations for those of the arbitrator", citing Matter of Noralez v New York City Dept. of Educ., 187 AD3d 475.

Addressing Respondent's contention that Petitioner submitted "false responses to discovery demands", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, the court opined that "there was at least 'a barely colorable justification' for the arbitrator's conclusion that there was a lack of competent evidence to support [Respondent's] claim of false discovery disclosures".

Click HEREto access the Appellate Division's decision posted on the Internet.

"Editor's letter" published in the October 22, 2022 issue of The Week magazine.

Talking Points

William Falk

October 22, 2022

No, it's not over

New Omicron subvariants are headed our way.

I was talking to a neighbor the other day about COVID, and he said with vehemence he wasn't getting the new booster. He'd already had COVID twice, despite being vaccinated with the original two shots in 2021. Since COVID hadn't killed him, he said, why bother with more shots? I reminded him that more than 1 million Americans have died of COVID, and that boosters have been proven to dramatically reduce the risk of serious illness. That led him to launch into a riff on "Fauci" laced with conspiracy theories; if that damn Fauci wanted him to get boosted, well, hell, forget it. These views, of course, are shared by tens of millions of people who've absorbed the same deluge of disinformation, and who've bought into the deadly notion that the other tribe gets shots, and ours doesn't. Besides, the pandemic is over, isn't it?

Sorry, but it isn't. COVID deaths and hospitalizations have fallen dramatically, thanks to the immunity produced by hundreds of millions of vaccinations and tens of millions of COVID infections over the past year. But immunity from infection and shots wanes after four to six months, and every winter, indoor gatherings fuel surges of infectious disease. A new swarm of subvariants has evolved to evade immunity, and are spreading rapidly; hospitals in the U.K., Europe, and Singapore are filling up with COVID cases. One of the new subvariants, BQ.1, already makes up 10 percent of new cases in the U.S., according to the CDC. A substantial portion of the millions who may be infected in coming months may develop long COVID — especially those who are unvaccinated or get COVID multiple times. Fortunately, the new "bivalent" booster will help shield people from serious illness, death, and long COVID. But so far, only about 7 percent of 209 million eligible Americans have gotten the new booster, out of COVID fatigue, tribal loyalty, or not knowing it's available. Don't roll the COVID dice. Go get a booster.

This Editor's Letter posted in The Week magazine is reprinted here, with permission, as a public service.

Determining a nonscheduled Workers' Compensation award payable following the injured employee's death

The initial paragraph of this ruling by the Court of Appeals states "It is well settled that some categories of workers' compensation benefits may pass, in certain circumstances, to the beneficiaries of injured employees who die from causes unrelated to the work injury." The court then noted that unaccrued portions of a nonschedule award under Workers' Compensation Law (WCL) §15(3)(w) do not so pass, explaining that the statute "does not provide for any unaccrued portion of a nonschedule award to remain payable following an injured employee's death."

The Employee had sustained an injury in a work-related accident classified as having a nonschedule permanent partial disability. Employee received an award pursuant to WCL §15(3)(w) in the amount of $500 per week.

Pursuant to statutory caps imposed on the period for which nonscheduled awards may be paid, Employee was to receive this amount for no longer than 350 weeks. Employee, however, passed away due to unrelated causes after 311.2 weeks. Employee's minor son  [Claimant] sought the accrued unpaid amounts of his father's award, as well as benefits for the 38.8 weeks that remained before Employee's award would have reached the statutory durational cap.

The Workers' Compensation Board affirmed an administrative law judge's ruling denying these benefits sought by Claimant explaining that "no additional award is payable to the decedent's surviving child" because "[t]o be entitled to the awards the [employee] must have causally related lost time," and "[w]ith [an employee's] death, there are no future earnings to lose," so "no posthumous award is warranted".

In the words of the Court of Appeals, "[t]here is no dispute that, pursuant to WCL §33, Claimant is entitled to the accrued, unpaid portion of the award which his father should have received during his lifetime, in the amount of 311.2 weeks at $500 per week. [Claimant, however] is not entitled to $500 per week for an additional 38.8 weeks" sought by Claimant.

The court explained that under WCL §15 (4), where an injured employee dies from causes other than the injury, an award "made to a claimant under subdivision three" may pass, as relevant here, to "a surviving child ... under the age of eighteen years." WCL §15(3) provides for two categories of awards for injuries resulting in permanent partial disability. A "schedule loss of use" [SLU] award, provided for in §15(3)(a)-(u), is designed to "compensate for loss of earning power, rather than the time that an employee actually loses from work or the injury itself".

The nature of nonschedule awards, dependent on an employee's actual earnings and the continuance of the disability, is such that there is no remaining portion of the award that can pass through to a beneficiary. Accordingly, the Court of Appeals held that "the Workers' Compensation Board's 2021 decision and so much of the Appellate Division order brought up for review" in the instant appeal should be reversed, with costs, "and the Workers' Compensation Board's 2019 decision reinstated."

Click HEREfor the instant decision by the Court of Appeals.

 

Administrative procedures to be followed are negotiable within the meaning of the Taylor Law

In this action, the Court of Appeals addressed the question whether Article 14 of the Civil Service Law, typically referred to as the Taylor Law, requires a public employer to engage in collective bargaining to determine the administrative procedures to be followed in determining if an employee placed on "workers' compensation leave" pursuant to Section 71 of the Civil Service Lawmay be terminated from the position if the individual is "absent from work for more than a year due to an injury sustained in the line of duty".

The decision notes that in Matter of City of Schenectady v New York State Public Employment  Relations Board, 85 NY2d 480 [Schenectady] the Court of Appeals held that "a city's authority under section 207-c to make initial determinations about those matters is not 'subject to mandatory bargaining' but left open the question of whether 'the procedures for implementation of the requirements of [section] 207-c' are a subject of collective bargaining."

The Court of Appeals then noted that it "answered that question in the affirmative five years later" in Matter of City of Watertown v State of New York Public Employment Relations Board, 95 NY2d 73 [Watertown], holding that "the procedures for contesting the City's determinations under section 207-c are a mandatory subject of bargaining."

Distinguishing its ruling in Schenectady, in Watertown the court concluded that "[u]nlike the initial determinations themselves - which were at issue in Schenectady 'the text of section 207-c says nothing about the procedures for contesting those determinations'" and explained that "'based on the text and history of section 207-c, it was evident that [t]he Legislature expressed no intent - let alone the required 'plain' or 'clear' intent - to remove the review procedures from mandatory bargaining".

Opining that it is undisputed that the City's right to terminate the employee is not a  mandatory negotiation subject of collective bargaining, the Court of Appeals held that the City must negotiate the administrative procedures necessary to implement that right, concluding that in this instance "collective bargaining is required."

Click HEREto access the Court of Appeal' ruling in the instant action.