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 text of
Advisory Memorandum 23-01 will be found at:
https://www.cs.ny.gov/ssd/Manuals/SPMM/2800AutoPositPersnl/Advisory
Advisory Memorandum 23-01, in a PDF format is available at:
https://www.cs.ny.gov/ssd/pdf/AM23-01.pdf.
To view previous Advisory Memoranda issued by the Department of Civil Service, visit: https://www.cs.ny.gov/ssd/Manuals/SPMM/
"They say imitation is the sincerest form of flattery — just not when it comes to job cuts" according an article posted on the Internet by The Week Magazine.
Click HERE to access the article.
Reminder
§75.1(b) of the Civil Service Law has been amended effective April 1, 2023 and §75.2a of the Civil Service Law has been amended effective March 1, 2023.
On February 15, 2023, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued.
Click on the text highlighted in color to access the complete test of the audit.
Metropolitan Transportation Authority – MTA Bus Company and New York City Transit – Management and Maintenance of Non-Revenue Service Vehicles (2020-S-31) New York City Transit (Transit) and the MTA Bus Company (MTA Bus) maintain a fleet of 1,950 non-revenue service vehicles used to support transit operations. Despite an estimated value of $150 million and a replacement cost of $216.7 million, the audit determined the fleet and related costs were not being adequately managed. Routine and annual preventive maintenance inspections were not being performed as required, increasing the risk of a shortened useful life or the need for more repairs. Also, there was no inventory system to track parts purchased for vehicle maintenance, resulting in parts that were missing or untraceable to a vehicle. Notably, for the audit period, maintenance costs totaled more than $50 million, nearly $9 million over budget.
State Education Department (Preschool Special Education Audit Initiative) – Cantalician Center for Learning – Compliance With the Reimbursable Cost Manual (2022-S-7) Cantalician, a not-for-profit special education provider serving students from Erie, Genesee and Niagara counties, is authorized by the State Education Department 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 fiscal year ended June 30, 2017, Cantalician reported approximately $2.23 million in reimbursable costs for these programs. The audit identified $358,254 in costs that did not comply with SED’s requirements for reimbursement.
State Education Department (Preschool Special Education Audit Initiative) – Abilities First, Inc. – Compliance With the Reimbursable Cost Manual (2022-S-23) Abilities First, Inc. (AFI) is a not-for-profit special education provider located in Wappingers Falls that serves students from three counties in the Mid-Hudson region. AFI is authorized by the State Education Department to provide Preschool Special Class (over 2.5 hours per day), Preschool Integrated Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (2.5 hours per day) to children with disabilities who are between the ages of 3 and 5 years. For the fiscal year ended June 30, 2019, AFI reported more than $4.41 million in reimbursable costs for these programs. The audit identified $236,209 in costs that did not comply with SED’s requirements for reimbursement.
Department of Health – Improper Medicaid Payments for Individuals Receiving Hospice Services Covered by Medicare (Follow-Up) (2022-F-31) A prior audit report, issued in December 2020, identified about $50 million in actual and potential Medicaid overpayments, cost-savings opportunities, and questionable payments for services provided to recipients enrolled in Medicare-covered hospice care. The follow-up found that the Department of Health made some progress in addressing the problems identified, but more actions were needed. Namely, the Office of the Medicaid Inspector General had yet to materially recover the overpayments.
Homes and Community Renewal – Housing Trust Fund Corporation – Oversight of the Residential Emergency Services to Offer Home Repairs to the Elderly (RESTORE) Program (Follow-Up) (2022-F-18) From 2017 to 2019, Homes and Community Renewal (HCR) awarded $6.13 million in RESTORE funds, which benefited about 785 senior citizen housing repair projects. A July 2021 audit found that HCR needed to exercise greater oversight of the program to ensure that funds are awarded appropriately and that program goals are being achieved. For example, flaws in the selection process resulted in some local program administrators (LPAs) being inappropriately awarded funds and others being denied. The audit also found that LPAs were not properly administering the RESTORE program and were not using awarded funds within required time frames to ensure emergency repairs were addressed promptly. Further, the awards served just 36 of the State’s 62 counties. More targeted outreach regarding the RESTORE program could increase statewide participation and result in better distribution of funds. The follow-up determined that HCR made progress in addressing these issues, implementing four of the six audit recommendations and partially implementing two.
The State commenced this CPLR Article 78 proceeding seeking to annul Public Employment Relations Board [PERB] determinations that [1] not charging examination application fees created an enforceable past practice; and [2] PERB's subsequently affirming a second Administrative Law Judge's decision ordering the State to stop requiring employees represented by the respondent employee organization for the purposes of collective bargaining to pay fees for promotional and transitional examinations and to reimburse those employees any money that they paid as a result of the State's unilateral imposition of such examination fees.
PERB had concluded that waiving fees for promotional and transitional examinations was a term and condition of employment because there was an "economic benefit" to the employees and rejected the State's contention that the issue of its imposition of the fees was a prohibited or permissive subject of collective bargaining. PERB, in contrast, determined that the subject was mandatorily negotiable and that the State had earlier established an enforceable past practice of not charging such fees.
Supreme Court and the Appellate Division, among other things, (1) confirmed PERB's determinations and (2) dismissed the State's petition (see 183 AD3d 1061, at 1064), explaining "the application fee" was a term and condition of employment because "the employees at issue received an economic benefit by not having to pay" that fee. Further, the Appellate Division agreed with PERB that the imposition of the fees was a mandatory subject for the purposes of collective bargaining and that an enforceable past practice to waive such fees existed.
The Court of Appeals reverse these lower court's rulings, holding charging application fees for promotional and transitional civil service examinations [1] was not a term and condition of employment as defined in Civil Service Law §201.4 and [2] the State had no obligation to negotiate those fees pursuant to Article 14 of the Civil Service Law, typically referred to as "The Taylor Law, Civil Service Law, CSL §200 et seq."
Noting:
[1] The Taylor Law "requires all public employers and employee organizations to negotiate in good faith to determine represented employees' terms and conditions of employment";
[2] New York's "strong and sweeping public policy in favor of collective bargaining"; and
[3] "The presumption is that all terms and conditions of employment are subject to mandatory bargaining";
the Court of Appeals determined that a public employer's bargaining obligations extend only to terms and conditions of employment, a phrase defined by statute as "salaries, wages, hours and other terms and conditions of employment."
Here, said the court, PERB, relying on Matter of Local 237, International Brotherhood of Teamsters [Town of Islip], 44 PERB 3014, has interpreted the statute "to mean — and maintains here — that any 'economic benefit' afforded to employees is a term and condition of employment."
The Court of Appeals said PERB misapprehends its holding" In Matter of Town of Islip. In Islip "we merely acknowledged that PERB had determined that 'employee use of an employer-owned vehicle for transportation to and from work is an economic benefit and a mandatorily negotiable term and condition of employment' (see 23 NY3d at 491)." In the words of the Court of Appeals "PERB erroneously reads this language as adopting a per se rule that any economic benefit is a term and condition of employment."
The court held that PERB's determination in
this case "conflicts with Civil Service Law §201(4) and ... precedent". Although certain forms of compensation, including employees' health
benefits, qualify under the statute as a term and condition of employment, "to be a term and condition of employment under section 201(4), an
economic benefit must have some nexus to the employment".
As an example,
the Court of Appeals cited the employees' use of vehicles to commute to their jobs as a
term and condition of employment because the employer provided an economic
benefit that was plainly related to the employment. With respect to the instant litigation, the Court
of Appeals held that "PERB's determination here improperly eliminated the
nexus requirement".
The Court of Appeals' decision points out that Civil
Service Law §50(5) vests the Department of Civil Service with the power to impose
fees to recoup the administrative costs of conducting civil service examinations, not
with authority to alter the employer-employee relationship through the
imposition of the fees. In the words of the Court of Appeals, "The fees for promotional and
transitional exams at issue here are akin to fees imposed by an agency with
plenary authority to set fees for licenses that an employer may demand as a job
requirement, such as a driver's license or professional license".
Concluding the imposition of the subject fees was not encompassed within the definition of terms and conditions of employment within the meaning of Civil Service Law §201(4), nor did earlier waiver of the fees for State employees render them terms or conditions of employment, the Court of Appeals ruled that "the State had no obligation to negotiate with respect to their implementation."
Holding that PERB's conclusion to the contrary was error, the Court of Appeals determined that the order of the Appellate Division should be reversed, with costs, and that the State's petition to annul PERB's determinations in this matter should be granted.
Click HERE to access the text of the Court of Appeals decision posted on the Internet.
Click on the text highlighted in color to access the full text of the decision.
Administrative Law Judge Christine Stecura recommended a 79-day suspension for a sanitation worker charged with 51 complaints of violating his employer’s time and leave policy during a 14-month period, including failing to document emergency leave, providing inadequate documentation, and failing to remain accessible while on sick leave.
Judge Stecura sustained the charges and recommended suspension in lieu of termination due to substantial mitigating circumstances as most of the sanitation worker’s absences involved caring for his child, who had a serious medical condition, and the worker subsequently obtained approved leave for this purpose.
Dep’t of Sanitation
v. D.L., OATH Index No. 2434/22
Supervising Administrative Law Joan R. Salzman recommended a 30-day suspension for a TLC Inspector who cursed at his supervisors, moved aggressively toward them, and forcibly pushed away a colleague who was trying to stop him.
The Inspector denied wrongdoing, despite video evidence showing him pushing his colleague.
Although Inspector had no prior disciplinary history, Judge Salzman found that the gravity of the employee's violent conduct, combined with employee's refusal to take responsibility for his actions, warranted a 30-day suspension.
Taxi & Limousine Comm’n v. Urena-Santos, OATH Index No. 527/23 (Dec. 23, 2022), adopted, Comm’r Dec.
Administrative Law Judge Jonathan Fogel recommended dismissing charges against a community board member because the community board did not prove that the member had made two false statements on his application to become a board member.
ALJ Fogel declined to dismiss the charges on procedural grounds, however, finding that the charges were properly brought under the New York City Charter and although the application predated the member's service as a board member, it is part of the community board member's personnel file and "his membership on the board".
Brooklyn Community Board 13 v. Greenberg, OATH Index No. 1574/22
Supreme Court granted plaintiffs' petition to enjoin AFSCME's Local 983 from holding the duly scheduled election and directed Local 983 to provide a plan, to be reviewed by Plaintiffs for a future election within 30 days. The Appellate Division unanimously reversed the Supreme Court's ruling and dismissed Plaintiff's petition.
The Appellate Division opined that Supreme Court had "improvidently exercised its discretion to enjoin [Local 983] from proceeding with their scheduled election," explaining that as Local 983 is an unincorporated association, the Plaintiff's petition fails because it does not plead "that each individual union member authorized or ratified the [allegedly] unlawful actions", citing Matter of Agramonte v Local 461, Dist. Council 37, Am. Fedn. of State County and Mun. Empls., 209 AD3d 478, and other authorities including Martin v Curran, 303 NY 276.
Further, said the Appellate Division, "even had the Martin requirement not applied, [Plaintiffs] failed to exhaust their contractual remedies before bringing this action," noting AFSCME's constitution prohibits members from instituting a civil action without first availing themselves of the remedies in its constitution. The remedies available to Plaintiffs' include a procedure to challenge the conduct of an election so that a protesting party has an opportunity to be heard.
The decision also points out that provisions of AFSCME's constitution allow petitioners to "appeal an adverse determination to a judicial panel, then to a full judicial panel, and then again to an international convention." In addition, the Appellate Division commented that the Union's constitution "also gives the union the authority to set aside an election outcome and hold a new election upon a finding of a violation."
In the words of the Appellate Division "Petitioners have not advanced a sufficient reason to excuse them from exhausting that remedial process."
Click HERE to access the Appellate Division's decision posted on the Internet.
The Commissioner dismissed this Education §310 appeal for improper service, noting that §275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. "If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a], Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).
As here relevant, the petition was sent by U.S. mail to respondent’s district clerk. The Commissioner observed that service by U.S. mail "does not constitute valid service of a petition pursuant to Education Law §310" and, therefore, "the appeal must be dismissed."*
The Commissioner then opined that "Even if the appeal were not dismissed
on procedural grounds, it would be dismissed on the merits. In an appeal
to the Commissioner, a 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." The Commissioner also noted that "As [the school
district correctly noted], there is no requirement that a board of education
conduct a nationwide search for a superintendent."
Petitioner, said the Commissioner, has otherwise failed to demonstrate that the school district acted in an arbitrary or capricious manner in appointing its new superintendent. (see Appeal of S.E., 51 Ed Dept Rep, Decision No. 16,352; Appeal of J.P., et al., 42 id. 226, Decision No. 14,832).
* The Petitioner’s affidavit of service contained the following notation: “Affidavit of service by mail [s]ince the school district is on Spring Break this week.” This, said the Commissioner, "does not establish that district offices were closed or that [Petitioner] was otherwise prevented from effectuating personal service."
Click HERE top access the Commissioner's decision.