Absent consideration of a disciplinary hearing officer's report or other factual findings, an appointing authority has no basis to make a disciplinary determination

The Plaintiff in this CPLR Article 78 proceeding was served with disciplinary charges pursuant to §75(2) of the Civil Service Law alleging he "caused himself to receive unauthorized overtime compensation and an unauthorized increase in salary for a pay period."   

Although a §75 disciplinary hearing was conducted before a duly designated hearing officer, the hearing officer failed to issue a report of findings or make a recommendation with respect the disposition of the disciplinary charges filed against Plaintiff by the appointing authority. Notwithstanding this defect in the disciplinary procedure,* the appointing authority terminated Plaintiff's employment effective December 31, 2019.

In response to Plaintiff's challenge to the appointing authority's action, Supreme Court concluded that the Board's determination was not arbitrary and transferred the matter to the Appellate Division.**

The Appellate, noting that it is undisputed that "the hearing officer did not issue a report with findings or recommendations" before the appointing authority made its determination to terminate Plaintiff 's employment, concluded that any action taken by the appointing authority was "unavoidably ... arbitrary", citing Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385.

Accordingly, the Appellate Division held that "under the circumstances, the [Petitioner] is entitled to be reinstated to his position and to back pay and benefits, even if the proceedings against him eventually lead to the termination of his employment."

The court granted the Plaintiff's Article 78 petition, annulled the determination of the appointing authority, reinstate the Plaintiff to his former position, with full back pay and benefits, and "remitted the matter to the [appointing authority] for a new hearing and a new determination with respect to the charges."

* §75.2 of the Civil Service Law, in pertinent part, provides "In case a deputy or other person is so designated, he shall, for the purpose of such hearing, be vested with all the powers of such officer or body and shall make a record of such hearing which shall, with his recommendations, be referred to such officer or body for review and decision." 

 ** See CPLR §7804(g).

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

 

Employee terminated after failing to provide a urine sample for a drug test

The New York City Transit Authority [Respondent] terminated Plaintiff's employment as a bus operator because he failed to provide a urine sample for a drug test. The Plaintiff commenced a proceeding pursuant to CPLR Article 75 in an effort to vacate an arbitration award sustaining the Respondent's terminating Plaintiff's employment. The Supreme Court denied the petition, dismissed the proceeding and Plaintiff appealed.

The Appellate Division's decision noted:

1. The courts have limited power when reviewing an arbitration award, indicated an arbitrator "exceed[s] his [or her] power [within the meaning of the statute] where the ... award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power", citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100 AFL-CIO, 6 NY3d 332*;

2. "Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator's decision", citing Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530; and

3. "A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence."

Observing that Plaintiff failed to establish by clear and convincing evidence that the arbitration award should be vacated, the Appellate Division opined that although the Plaintiff contended on appeal that the arbitration award was irrational, the arbitration award was supported by evidence in the record, and, thus, was not irrational.

The Appellate Division's conclusion: Supreme Court properly denied and dismissed Plaintiff's CPLR Article 75 petition.

* See, also, Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85.

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

 

Justia lists Employment Law blawgs

Justia's top 14 of its 225 Employment Law blogs as of May 14, 2023, sorted by popularity, are listed below.

In addition, Justia currently lists 3,558 Blawgs in 73 subcategories of practice areas. Click on the URL shown below to access its complete list of practice areas.

 https://blawgsearch.justia.com/blogs

 

Employment Law Blogs

New York Public Personnel Law  National Rank this Week: 11

Working Now and Then National Rank this Week: 19

JOTWELL - The Journal of Things We… National Rank this Week: 38

HR & Benefits Update National Rank this Week: 40

HR Watchdog National Rank this Week: 44

Impact Litigation Journal National Rank this Week: 67

Employer Law Blog National Rank this Week: 70

Whistleblower Protection Blog National Rank this Week: 71

Employment Law Business Guide National Rank this Week: 81

Wage & Hour - Development… National Rank this Week: 97

Bean Kinney & Korman Blog National Rank this Week: 103

Kaufman Dolowich & Voluck, LLP… National Rank this Week: 118

Employee Rights Blog National Rank this Week: 123

Florida Estate Planning Lawyer… National Rank this Week: 128 

 

 

 

Selected press releases and agency memoranda recently issued

New York State Sheriffs’ Institute civil school  –  Fifty-three deputy sheriffs and civilian staff from Sheriff’s offices around the state attended the New York State Sheriffs’ Institute civil school held recently in Albany, New York, including Deputy Jamie Darling and civil staff Jordan Somers, Kate Davis, and Sierra Palmer.   This was the first week in a two week-long day training program offered each year by the Sheriffs’ Institute.

All Sheriff’s offices in New York have civil law enforcement functions, including the service of process, enforcement of judgments and other court orders and mandates. The school provides participants with training in the latest advances in civil law enforcement and a forum to discuss current civil law enforcement issues and share best practices. Oswego County’s Civil Division is staffed by a sergeant, 3 deputies and 6 civilians with roles such as account clerk and senior account clerk.

The Sheriffs’ Institute is a not-for-profit corporation formed in 1979 to advance criminal justice education, prevent juvenile delinquency, and support victims of crime and their families.

NYC civil service exam: Applications open in May, 2023. Published: May. 07, 2023, 9:00 a.m. by Annalise Knudson | aknudson@siadvance.com STATEN ISLAND, N.Y. — The New York City Department of Citywide Administrative Services (DCAS) has released its May application schedule for civil service exams. Open, competitive, computer-based tests are administered throughout each month for various positions. If you meet the basic requirements of the job, you can apply for your exam online at Online Application System (OASys) or at one of the Computer-Based Testing and Application Centers (CTAC).

Niagara County hiring more corrections officers by Robert Creenan | robert.creenan@lockportjournal.com, May 6, 2023 Niagara County is partaking in another round of hiring corrections officers without the need for candidates to take a Civil Service exam. Interested candidates have until May 19 to complete an application, which can be found on the Niagara County website. They then have until June 30 to fill out an online questionnaire covering their training, experience and any other skills.

Press Releases, Memoranda, News items and Bulletins 

Policy Bulletin No. 2023-01 pdf February 2023, Paid Parental Leave. 

Advisory Memoranda No. 2023-02 pdf March 2023, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2023.

Advisory Memoranda No. 2023-01 pdf February 2023, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU).

State Contract and Payment Actions in March | Office of the New York State Comptroller

Union Pressure Aims to Hit Home - Empire Center for Public Policy Empire Center for Public Policy The bill (S6477) was filed last month by Senate Civil Service and Pensions committee chair Robert ... What's behind NY's union membership slide?

New York Enacts New Requirement for Prior Notice of Certain Healthcare Transactions Sidley Austin LLP The law considers management services organizations (MSOs) to be health care ... or plan providing health care services in” the state of New York.

New York State Budget Brings Sweeping Changes to the Home Health Care Industry Littler Mendelson P.C. New York Budget for FY 2023-2024 includes legislation affecting the home ... Temporary Health Care Services Agencies (THCSAs) register with the NY.

New York Enacts New Requirement for Prior Notice of Certain Healthcare Transactions Sidley Austin LLP The law considers management services organizations (MSOs) to be health care ... or plan providing health care services in” the state of New York.

New York Enacts Long Negotiated Budget Bill with Sweeping Implications for Health Care JD Supra On May 2, 2023, legislators approved the $229 billion New York State FY ... The Budget extends and expands various provisions of existing law ...

Genesee County participating in new Pilot Program for upcoming Correction Officer Civil ... Video News Service A new pilot program is being tested by New York State's Civil Service Department. “Now is the time to begin a rewarding career in law enforcement.

State Contract and Payment Actions in March | Office of the New York State Comptroller New York State Comptroller Department of Civil Service. $331.6 million to CaremarkPCS Health LLC to provide pharmacy benefit services for the Empire, Excelsior and Student ...

New York Enacts New Requirement for Prior Notice of Certain Healthcare Transactions Sidley Austin LLP The law considers management services organizations (MSOs) to be health care ... or plan providing health care services in” the state of New York.

New York State Budget Brings Sweeping Changes to the Home Health Care Industry Littler Mendelson P.C. New York Budget for FY 2023-2024 includes legislation affecting the home ... Temporary Health Care Services Agencies (THCSAs) register with the NY ...

Union Pressure Aims to Hit Home - Empire Center for Public Policy Empire Center for Public Policy The bill (S6477) was filed last month by Senate Civil Service and Pensions committee chair Robert ... What's behind NY's union membership slide?

What's News, Breaking: Friday, May 12, 2023 - Brooklyn Eagle BROOKLYN BRIDGE PARK — The New York Road Runners Club is kicking off its ... can be found on the Department of Civil Service's official website, ...

What's News, Breaking: Thursday, May 11, 2023 - Brooklyn Eagle BROWNSVILLE — The Child Center of NY on Thursday, May 11, ... on HELP can be found on the Department of Civil Service's official website, ... 

NYS – Rally For Access to Representation Act Law - NY Carib News A $120 million investment in legal and immigration services ... urging the passage of this legislation, which is a pressing civil rights ...

Civil Service and Pensions Meeting | NY State Senate The New York State Senate S3513. Authorizes Douglas Brenning of the village of New York Mills to take the competitive civil service examination for the position of p..

County considering waiving residency requirement for certain employees - Yahoo News Yahoo News Rob Creenan, Niagara Gazette, Niagara Falls, N.Y. ... New York counties that waived civil service exams this past year for corrections officers, ...

New York Joins Other States with Health Care Transaction Review Laws | Mintz - JDSupra On May 3, 2023, New York joined Connecticut, Delaware, Massachusetts, Nevada, New Jersey, Oregon, Rhode Island, Washington, and California in 

Civil Service and Pensions Meeting | NY State Senate S3513. Authorizes Douglas Brenning of the village of New York Mills to take the competitive civil service examination for the position of p..

 

New York State Comptroller DiNapoli releases municipal audits

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued were issued on May 11, 2023.

Links to material posted on the Internet highlighted in COLOR.

 

City of Amsterdam – Budget Review (Montgomery County) The significant revenue and expenditure projections in the city’s 2023-24 proposed budget are reasonable. However, certain revenue and expenditure projections and other matters should be reviewed by the mayor and council. In addition, city officials did not implement all of the recommendations in the previous review letter when preparing the 2023-24 proposed budget. Auditors found that the mayor submitted the 2023-24 proposed budget to the council on April 19, 2023, or 18 days after the charter-established deadline and the proposed budgets for the general and recreation funds are not structurally balanced because they include subsidies from other funds to finance their operations. Also, the proposed budget, as in the three previous years, allocates appropriations for personal services, contractual expenditures and employee benefits between the operating funds using unsupported allocation methods.

 

Town of Chemung – Intermunicipal Consolidation Agreement (Chemung County) Town of Chemung (Chemung) officials did not adequately monitor the Chemung and Town of Ashland (Ashland) Intermunicipal Consolidation Agreement’s highway service labor costs. Officials did not establish procedures to evaluate labor costs by town. For example, timecard information was not used to monitor labor costs for services provided to Ashland and highway employees’ timecards did not always identify their work location needed to allocate costs. As a result, labor costs were not equitable, and Chemung could have incurred approximately $23,000 in additional costs to provide services to Ashland.

 

City of Long Beach – Budget Review (Nassau County) The significant revenue and expenditure projections in the 2023-24 proposed budget are reasonable. However, City officials only partially implemented the recommendations provided in the prior year’s budget review letter.  In addition, the city’s proposed budget includes a tax levy of $59.9 million, which is $5.5 million above the legal limit and the city council has adopted a local law authorizing an override of the tax levy limit.

 

North Amityville Fire Company, Inc. – Cash Disbursements (Suffolk County) The board did not ensure that all cash disbursements were for appropriate company purposes or supported. Of the $3.6 million in disbursements made during the two-year audit period, auditors found disbursements totaling $585,792 were for inappropriate purchases. Examples included: $106,542 in unsupported cash disbursements made to six board members and the chief; $44,820 for domestic flights and lodging in, among other places, Dallas, Indianapolis, Las Vegas, and Nashville; $32,093 for service and maintenance to vehicles the company did not own or could not provide support for; $11,258 for Christmas gifts that included, but were not limited to, gift cards, clothing, drones and video games. The disbursements also included $10,853 for one board member’s Alaskan cruise vacation and the chief’s vacation to a clothing-optional resort in Jamaica with his spouse. Other items included: $7,239 for alcohol; $5,121 for 14-karat gold and diamond rings for the chief and his spouse; $2,728 for optical services; and $1,998 for professional basketball tickets.

###

Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Complying with the requirements of New York State's Freedom of Information Law

In New York Civ. Liberties Union v State of New York, 4 NY3d 175 the Court of Appeals held that "mandamus* is available 'only to enforce a clear legal right where the public official has failed to perform a duty enjoined by law'"

In this action brought by Plaintiff pursuant to CPLR §7803[1] seeking certain agency records under color of New York State's Freedom of Information Law, the Appellate Division held that the agency, in response to Petitioner's request for information to assist him in formulating FOIL requests for certain records, "fully complied with its obligation under 21 NYCRR 1401.2(b)(2) to 'indicate the manner in which the records are filed, retrieved or generated to assist [Petitioner] in reasonably describing records'".

The court noted that the FOIL appeal officer provided Petitioner with a list of records maintained by subject matter, instructed Petitioner to include "relevant docket numbers, dates, names, addresses, [and] descriptions," and advised Petitioner to avoid the use of "phrase[s] or reference material[s]" because the records were not maintained or characterized in that manner.

The Appellate Division noted that nothing in the regulation supported Petitioner's argument that agency was required to produce additional information regarding how the records were stored and retrieved in its database. Further, said the court, Petitioner's reliance on Defenders v New York City Police Dept. (2017 NYLJ LEXIS 1412) was misplaced as the court held "the NYPD was not required to provide database fields."

* The writ of mandamus, Latin for we command, to compel an official to perform "acts that such officials are duty-bound to perform." Other ancient writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of certiorari, compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of quo warranto [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

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

 

Applying the Doctrine of Laches barring a party from seeking judicial or quasi-judicial relief because such action is determined to be untimely

If a petitioner fails to demand for relief within a reasonable time after the right to make it occurs, or knows or should know of facts indicating a clear right to relief, the petitioner's claim can be barred by the Doctrine of Laches. This was the situation in the instant CPLR Article 78 action in which Petitioner commenced a CPLR Article 78 proceeding seeking reinstatement of her employment with the Manchester-Shortsville Central School District [District].

During the 2019-2020 school year, Petitioner was employed by the District as a full-time English Language Arts (ELA) teacher. However, in June 2020, Petitioner's position was changed from full to part time. Petitioner's name was placed on a "preferred eligible list of candidates for appointment to a vacancy" pursuant to Education Law §3013(3)(a).* Subsequently the District posted an opening for a full-time ELA teacher. Petitioner applied for the opening and went through the formal application process, but when she was offered the position, she rejected the offer.

After the District hired an individual to fill the vacancy, Petitioner submitted a demand that she be recalled to her prior position pursuant to Education Law §3013(3)(a). The District refused Petitioner's demand and Petitioner commenced the instant CPLR Article 78 proceeding by filing a petition on November 10, 2021. Supreme Court effectively granted the District motion to dismiss Plaintiff's petition and Plaintiff appealed.

The Appellate Division, however, sustained Supreme Court's dismissal of Plaintiff's petition as untimely. The Appellate Division opined that, where, as here, a proceeding is in "the nature of mandamus to compel, it [is] required to have been commenced within four months after the refusal by [the] respondent, upon the demand of [the] petitioner, to perform its duty", citing Matter of Speis v Penfield Cent. Schs., 114 AD3d 1181.

The Appellate Division explained that;

1. "The term laches, as used in connection with the requirement of the making of a prompt demand in mandamus proceedings, refers solely to the unexcused lapse of time and does not refer to the equitable doctrine of laches", citing Granto, 148 AD3d at 1695"; and

2. "[T]he four-month limitations period of CPLR Article 78 proceedings has been treat[ed] ... as a measure of permissible delay in the making of the demand", citing Matter of Norton v City of Hornell, 115 AD3d 1232, lv denied 23 NY3d 907.

The Appellate Division conclude that under the circumstances, Petitioner knew or should have known of facts that gave her a clear right to relief as of April 19, 2021, when the District posted the opening for the full-time ELA teacher position. Petitioner, however, did not demand that she be recalled to her prior position until August 31, 2021, beyond the relevant four-month limitations period and thus "the proceeding is barred by the doctrine of laches."

* Petitioner was offered, and accepted, the position of a part-time ELA teacher, from which position Petitioner subsequently resigned for financial reasons.

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

 

Applicant for accidental disability retirement must show the disability resulted from an accident within the meaning of the Retirement and Social Security Law

Petitioner filed an application for accidental disability retirement benefits alleging that he was permanently disabled due to posttraumatic stress disorder and injuries to his back and left knee as the result of the suspect's discharge of a firearm in Petitioner's direction and Petitioner's injury as a result of his attempting to scale a fence in the process of apprehending the suspect.

The New York State and Local Police and Fire Retirement System denied Petitioner's application, finding that the incidens giving rise to his application for accidental disability retirement benefits did not constitute an accident within the meaning of Retirement and Social Security Law [RSSL] §363. Following a hearing, the Comptroller adopted the Hearing Officer's decision, and this CPLR Article 78 proceeding ensued.

The Appellate Division, citing Matter of Kelly v DiNapoli, 30 NY3d 674, sustained the Comptroller's decision, noting, as is relevant here, it is well established that an injury which occurs in the course of an activity undertaken in the performance of the ordinary employment duties of a police officer is not an accidental injury within the meaning of RSSL §363.

The court opined that the neither the suspect's discharge of a firearm in Petitioner's direction nor Petitioner's injury resulting from his attempt to scale a fence in the process of apprehending a suspect were the result of an accident within the meaning of RSSL §363. Rather, said the Appellate Division, Comptroller's determination is supported by substantial evidence the injuries suffered by Petitioner resulted from an inherent risk in Petitioner performing his duties as a police officer.

* See Matter of Grall v DiNapoli, 196 AD3d 962.

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

 

Seeking documents or information pursuant to New York State's Freedom of Information Law

In the Matter of Law Offices of Cory H. Morris [Plaintiff] v Suffolk County [Respondent], Plaintiff appealed the judgment of Supreme Court [1] denying Plaintiff's petition seeking the disclosure of certain records pursuant to New York State's Freedom of Information Law [FOIL];* [2] denying an award of attorney's fees and litigation costs; and [3] dismissing the proceeding.

The Appellate Division modified and reinstated, on the law, those branches of the petition which sought to compel disclosure of certain records pursuant to FOIL and for an award of attorney's fees and litigation costs. 

The Appellate Division then remanded the matter to Supreme Court for further proceedings, explaining a number of FOIL essentials, including the follows:

1. "In order to promote open government and public accountability, FOIL imposes a broad duty on government to make its records available to the public (Matter of Tuckahoe Common Sch. Dist. v Town of Southampton, 179 AD3d 929;**

2. "The statutory time to respond to a FOIL request for records is 'within five business days of the receipt of a written request,' and the agency should respond by 'mak[ing] such record available to the person requesting it, deny[ing] such request in writing or furnish[ing] a written acknowledgment of the receipt of such request and a statement of the approximate date ... when such request will be granted or denied'" ... that "[d]enial of access shall be in writing stating the reason therefor and advising the person denied access of his or her right to appeal to the person or body designated to determine appeals, and that person or body shall be identified by name, title, business address[,] and business telephone number;

3. "21 NYCRR 1401.7(c) provides that a FOIL request is deemed denied if there is no response to the request within five business days (Matter of Madden v Village of Tuxedo Park, 192 AD3d 802);

4. "[A]ny administrative appeal of a denial [must] be undertaken within 30 days of the denial (Matter of Snyder v Nassau County, 199 AD3d at 924);

5. "A petitioner who does not 'appeal[ ] the denial in writing' will generally be deemed to have 'failed to exhaust its administrative remedies and, thus, [may] not resort to a judicial forum to gain relief' (Matter of Bradhurst Site Constr. Corp. v Zoning Bd. of Appeals, Town of Mount Pleasant, 128 AD3d 817, citing Doe v Lake Grove Sch., 107 AD3d 841;

6. However, where, as here, the agency "fails to inform the person [or entity] making the FOIL request that further administrative review of the determination is available, the requirement of exhaustion [of administrative remedies] is excused (Matter of Lepper v Village of Babylon, 190 AD3d 738, Matter of Barrett v Morgenthau, 74 NY2d 907; [see Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648];

7. Plaintiff's alleged "aware[ness] ... of the availability of administrative review ... did not relieve the agency of its responsibility to advise the [Plaintiff] that such review was available, and of the procedures for securing it (Matter of Orange County Publs. v Kiryas Joel Union Free School Dist., 282 AD2d 604);

8. "Contrary to the [Respondents'] contention, the proceeding was not rendered academic by its post-commencement disclosure of records in response to some of the [Plaintiff] requests, since an actual controversy between the parties still exists concerning whether the [Plaintiff's] remaining requests are exempt from disclosure (see Matter of Barry v O'Neill, 185 AD3d 503, 505; cf. Matter of McDevitt v Suffolk County, 183 AD3d 826; Matter of Convers v County of Orange, 139 AD3d 1060;

9. The Plaintiff's "request for attorney's fees and other costs is ... not academic, nor would it have been rendered academic even if the [Respondent] had eventually provided all of the materials sought (see Matter of Acme Bus Corp. v County of Suffolk, 136 AD3d 896; and

10. "Since that branch of petition which was to compel disclosure of certain records remains undetermined in light of [the Appellate Division's] determination," the Appellate Division held that "the [Plaintiff's] request for an award of attorney's fees and litigation costs is premature (Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d 731; see Matter of McDevitt v Suffolk County, 183 AD3d at 828)."

Accordingly, as noted earlier, the Appellate Division reinstated those branches of the petition which were to compel disclosure of certain records and for an award of attorney's fees and litigation costs, and remitted the matter to Supreme Court, Suffolk County, "for further proceedings consistent herewith and a new determination of those branches of the petition."

* Public Officers Law, Article 6.

** N.B.: Typically submitting a "formal FOIL request" pursuant to administrative procedures established by the agency is required to obtain the documents or information sought. However, the release of certain public records may be prohibited by statute such as Education Law §1127 and §33.13 of the Mental Hygiene Law. Further, the agency may decline to provide documents or information sought pursuant to a FOIL request, or otherwise, that fall within the ambit of one or more of the "FOIL exceptions" that the agency could rely upon in denying a FOIL request, in whole or in part, absent a prohibition in law.

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

 

NYC Health + Hospitals Struggles With Temporary Staffing Costs

 Click on text in COLOR to access the full report

A new report released on May 4, 2023, by State Comptroller Thomas P. DiNapoli found the COVID-19 pandemic exacerbated pre-existing staffing pressures, particularly a shortage of staff nurses, in NYC Health + Hospitals (H+H) facilities, leading to an increased reliance on temporary nurses and higher staffing costs.

Between February 2020 and September 2022, temporary staffing at H+H grew by 83% to offset the loss of staff nurses while managing demand for its services. It resulted in unexpected costs of $125 million in Fiscal Year (FY) 2023, which the State Comptroller’s office anticipates will remain elevated through at least FY 2024.

“For many NYC residents, NYC Health + Hospitals is a lifeline to quality health care, but it is a public health system struggling to get fully back on its feet after the stress of the pandemic,” DiNapoli said. “Hospitals and their staff were pushed to the brink during the pandemic. H+H lost hundreds of nurses, forcing them to hire temporary staff to manage demand due to the pandemic and its fallout, which increased salary costs and created training and other challenges.”

This report is an update to DiNapoli’s 2021 report, NYC Health + Hospitals Check-Up: The Impact of COVID-19. DiNapoli’s office routinely examines the finances and issues impacting the fiscal health of H+H.

The number of registered nurses (RNs) and licensed practical nurses at H+H facilities declined by 6% and 31%, respectively, from February 2020 to September 2022. As the pandemic persisted, RN staffing levels in H+H facilities declined at a greater rate than they did in the city overall and statewide. RN employment also declined in New York City and the rest of the state between 2019 and 2022 by 1.1% and 5.3%, respectively. Currently, H+H’s vacancy rate for nurses is 15%.

Hiring temporary staff to deal with the pandemic and its fallout on hospital staff is driving up hospital costs across New York City, including at H+H. It is estimated that in New York, contract labor costs across health care systems and hospitals have increased by more than 110% of pre-pandemic levels, with average temporary nurse salaries increasing from about $1,800 per week pre-pandemic to about $3,300 per week in March 2022.

New York City has historically provided financial support to H+H. It funds the non-federal share of supplemental Medicaid payments, among other costs, since H+H provides care to a large share of the city’s uninsured and Medicaid patients.

The city recently announced a new collective bargaining agreement with District Council 37 (DC 37) that it assumes will set a wage pattern for other unions, including for employees at H+H. A review of the city’s recently released budget update suggests collective bargaining costs at H+H are assumed to be fully annualized at $680 million, with nurses to make up about 29% of the total.

Related Reports 

NYC Health + Hospitals: Nurse Staffing Trends, May 2023

Issues Facing New York City's Agencies: New York City Health + Hospitals, February 2022

NYC Health + Hospitals Check-Up: The Impact of COVID-19, September 2021

---

Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Arbitrating disputes involving health insurance benefits for retired employees

Citing Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, the U.S. Circuit Court of Appeals, Second Circuit noted "It is well settled in both commercial and labor cases that whether parties have agreed to submit a particular dispute to arbitration is typically an issue for judicial determination" and "a court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute." Further, said the court, "ordinary principles of contract law guide the inquiry into whether an arbitration agreement was validly formed and whether the parties consented to arbitrate a particular dispute."

That said, the Circuit Court opined that this case required it to decide whether "the grievance-and-arbitration provision of the parties' collective bargaining agreement" covers a dispute concerning the medical insurance benefits that, according to Local Union 97, International Brotherhood of Electrical Workers, AFL-CIO [Union], the Union and the employer, Niagara Mohawk Power Corporation, agreed to provide to certain retired employees, former members of the Union.

The Circuit Court concluded that the Union bargained both for health insurance benefits for retired employees and for a grievance procedure that included, where necessary, access to arbitration. Expressing no view regarding the merits of the Union's grievance as "that is a question for the arbitrator," the Circuit Court held that "it is clear that the parties intended to arbitrate this dispute" and affirmed the judgment of the federal district court granting the Union's motion to compel arbitration.

Click HERE to access the decision of the U.S. Circuit Court of Appeals, Second Circuit.

 

 

Employer's rejecting hearing officer's recommendation to approve employee's GML §207-c application for benefits held arbitrary and capricious under the circumstances

A Correction Officer [Plaintiff] discovered three laundry bags in the middle of a hallway on the housing unit floor. Believing the bags blocking the hallway was a safety concern to persons walking the hallway, Plaintiff attempted to move the bags close to the wall and  sustained a shoulder injury while attempting to move one of the bags. Plaintiff's Employer [Respondent] contended Plaintiff's injury did not occur as a result of the performance of duties and rejected Plaintiff's application for General Municipal Law §207-c disability benefits. Pursuant to a memorandum of agreement between, among others, Plaintiff's union and the Respondent, a hearing was held on the issue whether Petitioner's injury occurred as the result of the performance of duties.

The Hearing Officer found that the laundry bags in the hallway posed a safety hazard and that Plaintiff had a duty to remedy the situation immediately. Although the Hearing Officer recommended that Plaintiff receive GML §207-c disability benefits, Respondent issued a final determination rejecting the Hearing Officer's recommendation and denied Plaintiff's application for §207-c disability benefits. Plaintiff then commenced the instant proceeding before the Appellate Division. *

The Appellate Division explained that its review of this administrative determination was limited, and subject to the following considerations:

1. Was the determination affected by an error of law or was it arbitrary and capricious or an abuse of discretion and a determination "is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts".

Passing these tests:

2. An agency's determination is entitled to great deference; and

3. A court must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency." 

However, in this instance the Appellate Division, citing Matter of Casselman v Village of Lowville, 2 AD3d 1281, concluded that [Petitioner] established "... a direct causal relationship and thus demonstrated ... entitlement to benefits under General Municipal Law §207-c",

Accordingly, the Appellate Division held that the Respondent's decision to deny Plaintiff's application for §207-c benefits was arbitrary and capricious and unanimously annulled the Respondent's decision "on the law without costs" and granted Plaintiff's petition.

* The Appellate Division, citing Erie County Sheriff's Police Benevolent Assn., Inc., 159 AD3d at 1561-1562, consider the merits of Plaintiff's petition notwithstanding the fact the decision at issue was not made as a result of a hearing held, and at which evidence was taken pursuant to direction by law "in the interest of judicial economy."

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