School district audits released by the New York State Comptroller during the week ending March 4, 2023

On March 3, 2023, following audits were issued by State Comptroller DiNapoli:

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

School District Audits

Gorham-Middlesex Central School District – Online Banking Access (Ontario County) District officials did not ensure online banking access was limited to board-authorized users because no one reviewed online banking users’ access and permissions. District officials also did not monitor online banking transactions. As a result, the risk that the district may become the victim of a cybercrime and experience financial losses is heightened. Of the district’s 10 online banking users, six were not authorized to conduct online banking and were inappropriately provided with access. Five of the six users not authorized to conduct online banking and two others inappropriately had administrative permissions to bank accounts.

Discovery Charter School – Network and Financial Software Access Controls (Monroe County) School officials did not ensure that network and financial software access controls were adequate. As a result, data and personal, private and sensitive information are at greater risk for unauthorized access, misuse or loss. In addition to finding sensitive information technology (IT) control weaknesses, which was communicated confidentially to officials, auditors found that officials did not: adopt adequate network and financial software policies; establish an IT contingency plan; or provide IT security awareness training. Auditors found 18% of the school’s enabled nonstudent user accounts were not needed, which created additional entry points for someone to inappropriately access the network. Two of the three financial software user accounts unnecessarily had full access and three individuals unnecessarily shared access to a user account with administrative permissions.

East Meadow Union Free School District – Overtime (Nassau County) District officials did not properly approve, monitor and control overtime worked by the facilities and operations department employees. The department’s overtime costs were 97% of the district’s total overtime costs during the audit period. Auditors reviewed $381,878 (29%) of those costs and found that the department employees were paid $194,514 for overtime that was not approved until up to 20 days after the work was performed. Department workers were also paid $31,486 for 605 hours of overtime worked without any supervisory approval. District officials exceeded the department’s overtime budget from 2018-19 through 2021-22 by $1,107,396.

Greene Central School District – Unused Leave Payments and Leave Accruals (Chenango County) Officials did not ensure that leave accruals were accurate or payments for unused leave and separation payments were authorized and calculated correctly. District officials made errors in 76% of district employees’ accrued leave calculations. The district incorrectly calculated 61% of the unused vacation leave, sick leave and retirement incentive payments made during the audit period. Of the 38 payments totaling approximately $270,000 that auditors reviewed, 23 had errors totaling $8,530, including $4,900 in payments for unused vacation leave which were not authorized by the employees’ collective bargaining agreements.

Rye Neck Union Free School District – Health Insurance Cost Savings (Westchester County) District officials could achieve cost-savings by offering a buyout in lieu of health insurance coverage. Total savings could range between approximately $130,000 and $190,000 annually if the district offered family plan coverage buyouts of $4,500 or $6,000 and individual plan coverage buyouts of $2,000 or $2,500.

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A long career as an administrator and the absence of any prior disciplinary action found insufficient to mitigate the disciplinary penalty imposed, dismissal

Petitioner was the administrator of the County's Adult Care Center [ACC], a nursing home. Following a disciplinary hearing, a Hearing Officer found Petitioner guilty of eight of the numerous charges filed against him pursuant to §75 of the Civil Service Law and recommended that he be dismissed from service. The ACC's appointing authority sustained the Hearing Officer's findings with respect to seven of the charges and terminated Petitioner's employment. Petitioner then commenced this CPLR Article 78 proceeding challenging the determination.

Central to evaluating the penalty imposed, dismissal, the Appellate Division noted "Petitioner either suggested to or directed a subordinate to share her login credentials for a database maintained by the Centers for Disease Control and Prevention [CDC] with another employee to enable that employee to fulfill ACC's COVID-19 reporting requirements while the subordinate was on vacation. The ACC contended that such behavior constituted misconduct in violation of ACC's rules and ethics policy,* and, also, displayed incompetence insofar as Petitioner failed to recognize that his behavior could have resulted in ACC incurring penalties.

Petitioner had been invited to register with CDC's partner portal to begin the process of obtaining access to the database which, if approved, would grant him privileges to input data into the database. Petitioner never logged on to the partner portal and was relying on another employee to do the COVID-19 reports when required. 

The Appellate Division's decision notes that when an employee "refused to share her login information - fearing that doing so would violate [ACC's] rules and amount to a crime - [Petitioner]" became angry and purportedly stated, "I don't know why everything is such a big deal here". When told it was unlawful to ask the employee to share login information permitting "... reporting under someone else's credentials...", Petitioner allegedly replied, "why is everyone so uptight here."

The Appellate Division found that "substantial evidence exists" to support the Hearing Officer's determinations with respect to charges Nos. 3, 8, 9, 10 and 16, and said it was "unpersuaded by [Petitioner's] contention that the penalty of termination shocks the conscience and should be annulled."

Conceding that Petitioner had no prior disciplinary record and a long career as a health care administrator, the Appellate Division explained "when considering [Petitioner's]  position as the administrator of a nursing home during the COVID-19 pandemic, which required the highest degree of integrity, diligence and competence in light of the vulnerability of ACC's clients and staff," it could not conclude that the penalty of termination was "so disproportionate to the charged offenses as to shock one's sense of fairness". 

Citing Matter of Scuderi-Hunter v County of Delaware, 202 AD3d at 1317, quoting Matter of Young v Village of Gouverneur, 145 AD3d 1285, the court declined to disturb the penalty imposed, Petitioner's dismissal from his position.

* The record contains a copy of ACC's written code of conduct and a certification by Petitioner acknowledging its receipt. The code of conduct provided, in relevant part, that "[t]he County is committed to complying with the laws and regulations that govern the Federal and State programs that it administers .... [Employees] must abide by the policies and procedures and the standards set by the County." ACC's ethics policy provided: "It is the policy of the County to observe all laws and regulations applicable to its business and to conduct business with the highest degree of integrity. To accomplish this, all [employees] must obey the laws and regulations that govern their work and always act in the best interest of the ... County."

Click HERE to access the decision of the Appellate Division posted on the Internet.

Making public records available for public inspection and copying

In this CPLR Article 78, the Suffern Education Association sought to compel "complete disclosure" of certain "redacted documents" supplied to it by the Suffern Central School District pursuant to the Association's Freedom of Information Law [FOIL] request. The  School District had responded to the Association's FOIL request, in part, by including copies of several emails that had been "heavily redacted".

Supreme Court, after its in camera review of the redacted emails, directed the School District to provide the Association with unredacted documents. Supreme Court also awarded the Association its attorneys' fees and other costs associated with its Article 78 action. School District appealed the Supreme Court's rulings.

The Appellate Division affirmed the Supreme Court's decisions, explaining:

1. "FOIL requires that public agencies 'make available for public inspection and copying all records' except where they fall within one of the statute's enumerated exemptions." Courts "typically construe exemptions narrowly, and an agency has the burden of demonstrating that an exemption applies 'by articulating a particularized and specific justification for denying access'"; and

2. Public Officers Law §87(2)(g)(i) provides that an agency may deny access to records or portions thereof that "are inter-agency or intra-agency materials which are not," among other things, "statistical or factual tabulations or data."**

The Appellate Division, after its in camera inspection of the email communications at issue, concluded that the Supreme Court had properly determined that the redacted information constitutes factual data that is not exempt from disclosure and that the School District did not meet its burden to show that the redacted portions of the emails at issue were, in fact, exempt from disclosure.

Further, opined the Appellate Division, "Supreme Court providently exercised its discretion in awarding the [Association] attorneys' fees and other costs," noting that the Legislature had provided for the assessment of an attorney's fee and other litigation costs in FOIL proceedings "[in] order to create a clear deterrent to unreasonable delays and denials of access and thereby encourage every unit of government to make a good faith effort to comply with the requirements of FOIL."

Sustaining the Supreme Courts award of attorney's fee and other litigation costs, the Appellate Division observed that "it is undisputed that the [School District], in effect, denied the [Association] access to nonexempt documents, as no [such] documents were provided [to the Association] by the [School District's] self-imposed response date."

* Public Officers Law Article 6.

** The Appellate Division described factual data "as objective information, rather than 'opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making.'"

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

School district charged with negligent supervision, hiring, and retention of an employee and with breaching its duty in loco parentis

In this action to recover damages for negligent supervision, hiring, and retention, the Plaintiff, a former student of the defendant school district [School District] appealed Supreme Court's decision dismissing his complaint insofar as it alleged that an employee of the School District physically and sexually assaulted him while he was attending a party at the employee's home.

The Appellate Division affirmed the lower court's ruling, explaining that in determining a motion to dismiss such a CPLR 3211(a)(7) motion:

1. The pleadings are afforded a liberal construction;

2. The facts as alleged in the complaint are accepted as true; and

3. The plaintiff is accorded the benefit of every possible favorable inference.

However, citing Simkin v Blank, 19 NY3d 46, the Appellate Division explained that "allegations consisting of bare legal conclusions ... are not entitled to any such consideration." 

Here, said the court, Plaintiff has alleged a cause of action against the School District to recover damages for breach of a duty in loco parentis, and this is not a cognizable cause of action under New York law.

To the extent that the Plaintiff alleged a negligent supervision cause of action against the School District based on allegations that it failed to adequately supervise Plaintiff and, or,  its employee, the Appellate Division observed that "such cause of action was legally insufficient" because Plaintiff's allegations in the complaint, if accepted as true, demonstrated that the subject incident took place when the district had no custody or control of the Plaintiff and no duty to monitor or supervise its employee's conduct.

The Appellate Division's decision also observed that Plaintiff's complaint does not include factual allegations regarding any improper interactions between him and the School District's employee "that took place on school grounds during school hours prior to the subject incident."

Addressing Plaintiff's allegation with respect to negligent hiring and, or, retention causes of action against School District, the Appellate Division opined that Supreme Court "properly directed dismissal of such causes of action, since the [Plaintiff] failed to sufficiently plead that the [School District] knew or should have known of [its employee's] propensity for the type of conduct at issue." In addition, the court noted that although such causes of action need not be pleaded with specificity, here the complaint contained "little more than bare legal conclusions" as to the employee's propensity for improper conduct that were entirely unsupported by the alleged facts.

Finally, the Appellate Division said that even assuming that the complaint sufficiently pleaded notice of the School District's employee's "propensity for the type of conduct at issue, the [Plaintiff's] own allegations in the complaint, if accepted as true, demonstrated that there was no nexus between [the employee's] employment with the district and the subject incident, which were separated by time, place, and the intervening independent acts of [the employee]".

The bottom line: The Appellate Division held that the Supreme Court properly granted the School District's motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it for failure to state a cause of action.

Click HERE to access the Appellate Divisions decision posted on the Internet.

Arbitrating an issue that was not an alleged violation of the relevant collective bargaining agreement

Are tenured public school teachers [Petitioners] bound by the results of an arbitration initiated by their union, the United Federation of Teachers [UFT], pursuant to Civil Service Law §209 to resolve an impasse over the implementation of the COVID-19 vaccine mandate? The relevant abitration "Impact Award", which Petitioners, employees of the New York City Department of Education [DOE], challenged in this hybrid Article 75/Article 78 proceeding, established a procedure for handling requests for religious and medical exemptions from a COVID-19 vaccine mandate.*

UFT had sought to negotiate the mandate's implementation with the DOE pursuant to their "mutual obligation" to "confer in good faith with respect to wages, hours, and other terms and conditions of employment," since the mandate was not part of the collective bargaining agreement [CBA] then in force. Ultimately UFT submitted a declaration of impasse to the State Public Employee Relations Board [PERB] due to several unresolved issues, including placement of unvaccinated employees on leave without pay.

The Appellate Division held that:

1. The Article 75 claims were properly dismissed by Supreme Court as Petitioners (a) lacked standing to challenge the Impact Award and (b) failed to join UFT as a necessary party;

2. The Article 75 claims failed on the merits; and

3. The Article 78 claims failed as Petitioners were unable to show that DOE made an error of law or acted irrationally.

The Appellate Division held that Supreme Court, in each proceeding, properly found the requirement that every DOE employee be vaccinated against COVID-19 - imposed by the vaccine mandate underlying these proceedings, the validity of which petitioners do not challenge here - is a "qualification of employment unrelated to job performance, misconduct, or competency" [citations omitted].

Although PERB appointed a mediator, UFT and DOE continued to disagree on many issues. The parties agreed to arbitrate those issues before their former mediator. The arbitrator issued the Impact Award, noting that the mandate "did not expressly provide for exceptions or modifications for those with any medical counterindications to vaccination or sincerely-held religious objections to inoculation."

Under the Impact Award, an employee granted an exemption or accommodation would be permitted to remain on the payroll, but would not be allowed "to enter a school building while unvaccinated, as long as the vaccine mandate is in effect," and "may be assigned to work outside of a school building ... to perform academic or administrative functions ...." Employees placed on leave without pay continued to be eligible for health insurance, but were prohibited from engaging in gainful employment during the leave period. If they became vaccinated during the leave period and provided proof by November 30, 2021, they would have a right of return to the same school within one week of submitting proof. 

Petitioners are similarly situated teachers employed by DOE. All received notification by email that they were being placed on Leave Without Pay (LWOP) status because they were not in compliance with DOE's COVID-19 Vaccine Mandate.

As a threshold matter, the Appellate Division rejected the dissent's assertion that only the legislature has the authority to impose a vaccine mandate as a condition of employment.

As to Petitioners' claims under CPLR Article 75, that the arbitrator acted in excess of jurisdiction and in violation of public policy, the Appellate Division opined that such claims failed not only on the merits but also due to Petitioners' lack of standing. When a union represents employees during arbitration, only that union - not individual employees - may seek to vacate the resulting award.

In addition, the Appellate Division found that Petitioners also failed to join UFT as a party and because the limitations period for Article 75 proceedings had expired, any action brought now against UFT would be untimely.

Further, said the court, as the arbitrator's authority did not arise from the terms of the existing CBA or from provisions of the Education Law governing disciplinary proceedings but was instead based on the Civil Service Law, Petitioners, who were not parties to the arbitration, cannot challenge the Impact Award because they cannot show that the arbitrator "exceeded his power".

The Appellate Division concluded that placing Petitioners' on leave for failure to prove vaccination, a condition of employment, is "unrelated to job performance, misconduct or competency" and does not constitute "teacher discipline".

Noting that "All concur except for Friedman, J. who dissents in part in a memorandum," the majority of the court held "Because [Petitioners] were given the opportunity to submit proof of vaccination, request religious or medical exemptions and accommodations if immunocompromised, or opt for extended benefits and severance on more favorable terms, their due process rights were not violated" and, in addition, Petitioners "were ably represented by their union in the mediation and arbitration that arose from the vaccine mandate." 

* The mandate was originally issued on August 24, 2021 by the Commissioner of the New York City Department of Health and Mental Hygiene.

Click HERE to access this decision by the Appellate Division posted on the Internet.

See, also, Matter of Athena Clarke, Petitioner-Appellant, et al.,
https://www.nycourts.gov/reporter/3dseries/2023/2023_00945.htm 

 

Summarily terminating an individual serving a "disciplinary probation period"

In Ryan v City of New York, 2023 NY Slip Op 00966, decided on February 21, 2023, the Appellate Division's decision states that an individual in "dismissal probation" status may be terminated without a hearing for any reason, or no reason at all, absent a showing that the individual was dismissed in bad faith or for an improper or impermissible reason. At the time the charges resulting in Ryan's termination were brought, Ryan was on "dismissal probation" pursuant to a negotiated discipline settlement agreement which resolved earlier disciplinary charges brought against him.

Other decisions addressing summarily dismissing an individual serving a period of "disciplinary probation" include:

Taylor v Cass, 122 A.D.2d 885: A County employee won reinstatement with full back salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period. The terms of Taylor’s disciplinary probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” at any time during his disciplinary probationary period. Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours”; and

Wright v City of New York, 192 A.D.2d 411: The Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents. In other words, under the terms of relevant disciplinary probation the individual was to be treated as a "new employee" and he could be summarily terminated for any lawful reason.

In York v McGuire, 63 NY2d 760, New York State's Court of Appeals set out the basic rule concerning the dismissal of probationary employees upon their appointment to a position in the Classified Service as follows: 

After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.  

This reflects the view that the individual should be provided with a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. Should the appointing authority elect to dismiss such a probationary employee before he or she has completed the individual's required minimum period of probation, the individual is entitled to "notice and hearing" otherwise accorded a "tenured employee." 

Another element to consider: New York State's Military Law §243(9) provides, in pertinent part, in the event a probationary employee deployed on military duty before the expiration of his or her maximum period of the individual's probationary, the time he or she is absent on such military duty is to be credited as satisfactory service during such probationary period.

Click HERE to access the Ryan decision posted on the Internet.

Evaluating a defendant's motion for summary judgment in the course of Title VII litigation

The complainant [Plaintiff] in this Title VII action appealed the decision of a United States District Court to grant the Employer and several named employees of the Employer [Defendants'] motions for summary judgment on all of Plaintiff’s claims. 

Plaintiff had alleged that the Defendants had  (1) discriminated against him after one of his coworkers claimed he had engaged in workplace misconduct, including sexual harassment; (2) retaliated against him for appealing, pursuant to his union contract, subsequent adverse disciplinary decisions; and (3) violated his due process rights in the course of investigating and responding to the allegations of his alleged workplace misconduct. 

Reviewing the lower court's decision granting summary judgment to Defendants de novo, the Second Circuit Court of Appeals noted that summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." To establish a due process violation, said the court, a plaintiff must show that he possessed “a protected liberty or property interest” and that he was deprived of that interest “without constitutionally adequate process.” In addition, the Plaintiff must “establish [an individually named] defendant’s personal involvement in the claimed violation in order to hold that defendant liable in his individual capacity.”

The Circuit Court, observing that Plaintiff failed to address the district court’s dismissal of his intentional infliction of emotional distress and defamation claims in his brief, held that Plaintiff waived those issues for purposes of this appeal, citing Norton v. Sam’s Club, 145 F.3d 114. In Norton that Second Circuit Court held that “Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”

Here the Circuit Court concluded that "there is no genuine dispute of material fact and that Defendants are entitled to judgment as a matter of law on each of [Plaintiff's] discrimination, retaliation, and due process claims."

Addressing Plaintiff 's due process claims against individual Defendants, the Circuit Court affirm the district court's ruling on the basis of qualified immunity, explaining the “unlawfulness of their conduct”—if any—was not “clearly established at the time.” With respect to Plaintiff's Title VII retaliation claim, the Circuit Court  affirm the district court's ruling holding that Plaintiff had not been engage in any relevant Title VII-protected activity.

Click HERE to access the Circuit Court's decision posted on the Internet.

Woman arrested for allegedly stealing over $450,000 in New York State pension and Social Security payments

On February 23, 2023, New York State Comptroller Thomas P. DiNapoli, the U.S. Attorney for the Northern District of Georgia Ryan K. Buchanan and the Inspector General for the Social Security Administration Gail S. Ennis announced the arrest of a Georgia resident, Sandra Smith, for allegedly stealing over $450,000  in New York state pension and Social Security payments made to her deceased mother-in-law over a 16-year period.* 

Admitting to investigators that she stole the money, Sandra Smith was charged with 20 counts of wire fraud and 10 counts of theft of government funds. She was arraigned before U.S. Magistrate Judge Justin S. Anand.

“The defendant callously took advantage of her mother-in-law’s death to profit at the expense of New York’s retirement system and the Social Security Administration,” DiNapoli said. “She has now been brought to justice and we will seek full restitution. I thank U.S. Attorney Buchanan and the Social Security Administration Office of the Inspector General for their partnership on this matter.”

“Smith allegedly stole money that taxpayers and government employees paid into both retirement systems,” Buchanan said. “Money she was not entitled to. Through this joint effort, one more person who believed they could game the system has been caught and will be prosecuted.”

“For nearly 15 years, the beneficiary’s death was allegedly concealed by Ms. Smith so that she could illegally obtain Social Security benefits, which is a federal crime. These charges exemplify that my office will continue to pursue those who defraud the Social Security Administration,” Ennis said. “I thank the New York Office of the State Comptroller for investigating with us. I also thank the U.S. Attorney’s Office and Special Assistant U.S. Attorney Diane Schulman for prosecuting this case.”

Sandra Smith’s mother-in-law, Minnie Smith, was a longtime Brooklyn resident who had worked for the State Insurance Fund from 1985 until her retirement in 2005. She subsequently moved to Georgia to be close to family and died on Sept. 14, 2006. Her family did not notify the New York State and Local Retirement System (NYSLRS) or the SSA of her death and the retirement system received a change of address form purportedly signed and dated by “Minnie Smith.”  

At the time of Minnie Smith’s death in September 2006, Sandra Smith was her caretaker and handled her finances. As her caretaker, Sandra Smith had access to Minnie Smith’s bank account. After Minnie Smith died, Sandra Smith did not close the bank account. Instead, she kept Minnie Smith’s bank account open and NYSLRS and SSA continued to deposit funds into the account until early 2021. Sandra Smith knew exactly when those benefits would be deposited each month, and each month she allegedly withdrew the funds from the account almost as soon as they were deposited. 

When Minnie Smith's death was discovered, payments were stopped and the Comptroller DiNapoli’s Division of Investigations coordinated with the SSA-OIG, which was conducting its own review of the fraud.  

A total of $264,700 in retirement system payments and $194,351 in Social Security payments were deposited into Minnie Smith’s bank account from September 2006 through April 2021.

* The Comptroller noted that the charges filed against Sandra Smith in this case are merely accusations and Smith is presumed innocent unless and until proven guilty in a court of law.

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Since taking office in 2007, Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported to the Comptroller DiNapoli by using the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online using the Internet at https://www.osc.state.ny.us/investigations, or by mailing a complaint to the Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Disclosing complaints or allegations of a public officers' misconduct sought pursuant to the New York State Freedom of Information Law

In the Matter of New York Civil Liberties Union [CLU] v New York City Department of Correction [DOC], 2023 NY Slip Op 00930, the Appellate Division noted that the personal privacy exemption in Public Officers Law §87(2)* allows state agencies to protect sensitive matters "which are of little or no public interest, and which may include unsubstantiated allegations," citing Matter of New York Times Co. v City of New York Off. of the Mayor, 194 AD3d 157.

However, cautioned the court, "Public Officers Law §87(2) does not create a categorical or blanket exemption from disclosure for unsubstantiated complaints or allegations of uniformed officers' misconduct ... Documents concerning unsubstantiated complaints or allegations should be disclosed to the extent that they can be redacted to prevent an unwarranted invasion of personal privacy, including the removal of identifying details [citations omitted]."

In this instance the Appellate Division held that DOC did not establish that identifying details in the records or data requested by CLU could not be redacted to prevent an unwarranted invasion of privacy. 

Accordingly, the Appellate Division held that Supreme Court properly required DOC to disclose the requested records, subject to redactions with specific justification under Public Officers Law §87(2). Supreme Court, said the Appellate Division, also properly required that DOC sufficiently document its justification for redactions to facilitate potential in camera** review by Supreme Court.

Addressing CLU's request for an award of attorney's fees and costs, the Appellate Division opined that "as this proceeding at this stage concerns a novel interpretation of legislation that both repealed a statute and enacted new provisions to a longstanding statutory scheme", it cannot be said that DOC had no reasonable basis for denying access to the records at issue.

* See Public Officers Law §89(2), concerning personal privacy exceptions authorized by law. 

** Judicial review of a matter in the privacy of the judge's chambers."

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

See, also, Matter of Puig v New York State Police, https://www.nycourts.gov/reporter/3dseries/2023/2023_00258.htm

School board policy requiring speakers at board meetings to disclose their name and address challenged

A school board's policy requires speakers at board meetings to provide their names and addresses.  Petitioner in this Education Law §310 appeal to the Commissioner of Education sought to avoid giving her last name or street address in order to speak at a school board meeting. Petitioner asked the Commissioner of Education to removal from the school board president for enforcing this policy, which Petitioner alleged violated the board’s Ethics Code.  Petitioner also contended that the Commissioner should invalidate the board’s policy that speakers be required to give their name and address before speaking because it allegedly violated New York State's Open Meetings Law.

The Commissioner dismissed Petitioner's application on number of procedural grounds, including lack of jurisdiction, noting Public Officers Law §107 vests consideration of alleged violations of the Open Meetings Law in the Supreme Court of the State of New York. 

The Commissioner's decision cites Comm on Open Govt OML-AO-5607 (2019) and Comm on Open Govt OML-AO-2717 (1997), advisory opinions issued by Committee staff*, which posit that while the public entity may request an individual to provide his name and address, "a person may not be required [sic] to do so in order to attend, speak or otherwise participate relative to a meeting of a public body".

As the school board indicated that after receipt of the instant appeal it “voted against suspending its policy to conform to ... these opinions" issued by Committee staff, the Commissioner said that she would transmit her decision in this matter "to the Committee on Open Government for appropriate action."

* The Committee's staff prepares written advisory opinions in response to particular sets of facts and circumstances.

Click HERE to access the Commissioner's decision posted on the Internet.

Self-insured employer's claim for reimbursement for workers' compensation payments it made to a firefighter for a work-related injury rejected

In this appeal the City of Newburgh Fire Department [Department] challenged the Workers' Compensation Board's [WCB] decision that the Department, a self-insured workers' compensation employer, was not entitled to reimbursement or credit for certain payments it made to a Claimant [Firefighter].

Firefighter suffered a disabling work-related injury in the course of his performing his firefighting duties and established a claim for workers' compensation benefits. Ultimately classified as permanently partially disabled, Firefighter was paid his full salary during his period of disability by the Department. The Department filed requests for reimbursement of those wages against any award of workers' compensation benefits.*

In April 2016 Firefighter's application for performance of duty disability retirement pursuant to Retirement and Social Security Law §363-c was approved and provided for a 50% pension. Although full wage payment to Firefighter pursuant to General Municipal Law §207-a(1) were discontinued upon Firefighter's disability retirement, the Department commenced paying Firefighter the difference between the amount received from his pension and the amount of his regular wages under color of General Municipal Law §207-a[2].

In 2019, Firefighter submitted a request for additional benefits, claiming that his "permanency classification" entitled him to retroactive workers' compensation awards from April 2016 and continuing, which payments had been discontinued. The Department sought credit against any workers' compensation awards based upon its supplemental pension payments pursuant to General Municipal Law §207-a(2).

Ultimately Firefighter was awarded benefits "retroactive to April 30, 2016 and continuing". However, the Workers' Compensation Law Judge [WCLJ] found that the Department was not entitled to reimbursement against the workers' compensation awards for pension payments made to Firefighter under General Municipal Law §207-a(2).

The Department appealed but ultimately the WCB affirmed the decision of the WCLJ, noting that "any determination as to the setoff/reimbursement of the workers' compensation payments against the pension supplement the [Department] pays pursuant to General Municipal Law §207-a(4-a) was outside its jurisdiction." The Department's subsequent application "for reconsideration and/or full Board review was denied" and it appealed this ruling by the WCB.

The Appellate Division said was "unpersuaded by the [Department's] contention that because [Firefighter] is receiving a performance of duty disability pension, as opposed to an accidental disability retirement pension, the matter is distinguishable from Matter of Harzinski v Village of Endicott (126 AD2d 56 [3d Dept 1987]) and, as such, [the Department] is entitled — pursuant to Workers' Compensation Law §25(4)(a) or §30(2) — to reimbursement of its General Municipal Law §207-a(2) payments against [Firefighter's] workers' compensation awards."

Workers' Compensation Law §25(4)(a), said the court, provides that in the event an "employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability," the employer "will be entitled to reimbursement out of any unpaid workers' compensation award (emphasis provided by the court in its decision)" and Workers' Compensation Law §30(2) provides for the reimbursement of "any salary or wages paid" to a firefighter pursuant to General Municipal Law §207-a against any workers' compensation award.

Explaining that "because the supplemental retirement benefits paid by the [Department] were not wages, the workers' compensation awards were not reimbursable to the [Department] by way of Workers' Compensation Law §25(4)(a) or §30(2)," the Appellate Division sustained the WCB's determination.

To the extent that the Department argued that limiting "any offset or reimbursement to future General Municipal Law §207-a(2) supplemental payments" as set forth in General Municipal Law §207-a(4-a) is inappropriate and thwarts the statutory scheme,** the court said the Board made no determination with regard to the applicability of that statute, noting that its determination in that regard would be inappropriate. In the words of the court: "The employer does not challenge this finding on appeal and, as such, it is not properly before us."

* Any award of workers' compensation to Firefighter was to be designated reimbursable to the employer.

** General Municipal Law §207-a(4-a) provides that "[a]ny benefit payable pursuant to [General Municipal Law §207-a(2)] to a person who is granted retirement for disability incurred in performance of duty pursuant to [Retirement and Social Security Law §363-c] shall be reduced by the amount of the benefits that are finally determined payable under the workers' compensation law by reason of accidental disability."

 

Click HERE for access to the decision of the Appellate Division posted on the Internet.

 

New York Public Personnel Law E-books available 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.