Disciplinary penalty of termination imposed on an employee following a disciplinary action held shocking to one's sense of fairness

Citing Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, the Appellate Division said "A court may set aside an administrative penalty only if "it is so disproportionate to the offense . . . as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law"."

In determining if the penalty imposed is "shocking to one's sense of fairness", the Appellate Division said that a sanction imposed that is "is disproportionate to the misconduct, incompetence, failure or turpitude of the individual"; or "to the harm or risk of harm to the agency or institution"; or "to the public generally visited or threatened by the derelictions of the individual", is deemed "shocking to one's sense of fairness".

In this proceeding pursuant to CPLR Article 78 to review the employer's [Town] adoption of the hearing officer's findings that the employee [Plaintiff] was "guilty of misconduct and insubordination" and the hearing officer's recommendation that the Plaintiff be terminated, Supreme Court granted the Plaintiff's petition seeking to annul the penalty, and remitted the matter to the Town for the Town's imposition of a less severe penalty. The Town appealed the Supreme Court's ruling.

The Appellate Division, noting that the Plaintiff had been employed by the Town for approximately five years in a variety of positions, had filed disciplinary charges against the Plaintiff alleging misconduct and insubordination related to Plaintiff's alleged "absences from work without leave". 

In the words of the Appellate Division, "... contrary to the [Town's] contention, under the circumstances of this case,* the imposed penalty of termination is so disproportionate to the offense as to be shocking to one's sense of fairness". 

Accordingly, Appellate Division held that "the Supreme Court properly granted the [Plaintiff's] petition, annulled the penalty, and remitted the matter to [the Town] for the imposition of a less severe penalty."

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

* A Reasonable Disciplinary Penalty Under the Circumstances - NYPPL's 442-page e-book focusing 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 on http://booklocker.com/books/7401.html

Selected items posted on Internet blogs during the week ending July 4, 2025

Thomson Reuters recently released its Future of Professionals Report 2025. This item has been reviewed by Rochester, New York attorney Nicole Black in her article posted on the Internet. Click here to Read the whole entry 

New York Sets Cybersecurity Requirements for Local Agencies A new law covers online ransom attempts, cybersecurity training and other areas. The move comes as the Empire State works to increase its power in artificial intelligence and other digital areas. READ MORE

To Drive Cyber Awareness, Show the Impact of an Incident Information and security officers from Oregon educational institutions shared insight on making people within their organizations more cognizant of cybersecurity and developing appropriate cyber defense strategies. READ MORE

Hacktivism, Stacktivism and the Future of Tech Backlash In our new world of generative AI, autonomous vehicles and more, everything does not always work out as planned. READ MORE

CyberPatriot Events Reflect Growing Interest in IT Careers Organizers for CyberPatriot camps like those hosted by Calhoun Community College say they've seen a trend of rising interest among middle and high schoolers in cybersecurity and IT-related fields. READ MORE

Future-Proofing Government Workspaces: Enhancing Productivity, Security and Adaptability This thought leadership paper explores how to balance flexibility, security, and employee experience in a way that aligns with agency missions and workforce realities. DOWNLOAD

Improve Your Password – Infographic Use this infographic to help employees improve their passwords. Download now

This Arizona Program Is Attracting New Election Workers Arizona has seen more turnover in its election offices than most states. A fellowship program showed a path for attracting young workers to these jobs. READ MORE

Rethinking the Government Workplace Agencies can use a combination of emerging technologies, data-informed design and cross-functional collaboration to transform traditional office space. This paper explains multiple factors government leaders should consider in return-to-office strategies. DOWNLOAD

AI in State and Local Government: Everything You Need to Know Artificial intelligence (AI) often dominates technology discussions. But with so many implementation and policy considerations around the technology, many government leaders can feel overwhelmed at the idea of getting started with AI. This go-to guide shares everything you need to know to quickly begin implementing AI and developing the appropriate policy for the technology. DOWNLOAD 

Defendants' subpoenas served on former school district employees in order to depose them quashed

Supreme Court granted the cross-motions of the City of New York and the New York City Department of Education [City] to quash subpoenas issued by the New York City School Construction Authority and Admiral Construction LLC [Defendants] in an effort to depose two former employees of City subpoenaed by Defendants for deposition.*

Defendants appealed the Supreme Court's action but the Appellate Division unanimously affirmed the Supreme Court's decision, without costs, observing that Supreme Court had "providently exercised its discretion" in granting City's cross-motion to quash the subpoenas. 

City, opined the Court, had demonstrated the futility of uncovering anything legitimate via depositions of the subpoenaed former school principals as to the "individual plaintiff's claims of an injurious trip and fall on the scaffold in a fenced-off, locked area that was restricted to construction workers".  

In addition, the Appellate Division noted that "[there] was no evidence the former principals had personal knowledge of the circumstances of the individual plaintiff's fall or of the alleged tripping hazards on the scaffold". In the words of the Appellate Division: "Defendants failed to demonstrate that the deposition testimony of the principals was material and necessary to assist in addressing the premises liability issues".

* The Appellate Division noted that Defendants' subpoenas to compel the deposition testimony of two former New York City Department of Education employees were properly served as Defendants' subpoenas were addressed to them individually, as nonparties, and afforded them proper notice of the claims at issue.

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

Disqualification for appointment to the position of police officer based on the result of a psychological evaluation challenged by the candidate for the appointment

The jurisdiction's personnel agency [Respondent] found a candidate [Plaintiff] for appointment to the position of police officer was not qualified for appointment to the position based on the result of a psychological evaluation. In the course of the application review process, Plaintiff disclosed that he had, once, patronized a prostitute. The Plaintiff also disclosed that event during an interview with an investigator.

Petitioner then underwent a psychological evaluation. The evaluator concluded that there was no evidence of any psychological impairment, but that Plaintiff was not recommended for employment as a police officer with the jurisdiction. 

Respondent ultimately found that the Plaintiff was not qualified for appointment to the position of police officer and Plaintiff administratively appealed that decision. In the course of the administrative appeal, Plaintiff submitted the results of two independent psychological evaluations and numerous letters of support. He also appeared for psychological evaluation appeal interview before a panel provided by the Respondent. 

After reviewing the materials from the initial evaluation, the panel indicated it doubted whether there was sufficient evidence to support Plaintiff's disqualification but said it found no significant basis to overturn the original disqualification. The panel's report emphasized Plaintiff's failure to admit to the prostitution incident until asked a direct question during the appeal interview.

Plaintiff commenced the instant Supreme Court CPLR Article 78 proceeding seeking review the Respondent's determination. Respondent moved to dismiss Plaintiff's petition. The Supreme Court denied the Respondent's motion and transferred the proceeding to Appellate Division, finding that Plaintiff's petition raised a substantial evidence issue.

The Appellate Division, noting that Supreme Court erred in transferring the proceeding to it as the challenged determination was not made after a quasi-judicial hearing and did not raise a substantial evidence issue, said that as it had the full record before it would decide the matter on the merits in the interest of judicial economy. 

The Appellate Division granted Plaintiff's petition, with costs, annulled the Respondent's decision, reinstated Petitioner as a candidate for appointment to the position of police officer with the jurisdiction, and noted that Respondent could have the Plaintiff submit to a new psychological evaluation.

Local government and school audits posted on the Internet

On June 30, 2025 New York State Comptroller Thomas P. DiNapoli  announced the following local government and school audits have been posted on the Internet. 

Click on the text highlighted in color to access these audits

Livonia Central School District – Conflict of Interest (Livingston County)

A board member, who resigned on May 31, 2022, had prohibited interests in district contracts pursuant to New York State General Municipal Law. The board member’s physical therapy company entered into six contracts with the district while he was a board member that resulted in payments totaling $724,869 from Aug. 5, 2017 through Dec. 19, 2022. In addition, the former superintendent’s outside employment created an appearance of impropriety. The former superintendent resigned on July 15, 2022. The former superintendent informed district administrators and staff of products and services provided by vendors that were recruited by, and partnered with, a company he partially owned. District officials contracted with 18 of these vendors, for a total cost of $656,579, of which $146,825 related to unnecessary or unused services. The district lacked a formal procedure for identifying and reporting potential conflicts of interest until June 2021. As a result, district officials were not familiar with requirements of New York State General Municipal Law as they relate to conflicts of interest. District officials did not fully understand the steps necessary to disclose a conflict and what constituted a prohibited conflict of interest. Had such procedures been in place, the conflicts of interest may have been avoided.

Churchville-Chili Central School District – Procurement (Monroe County)

District officials did not ensure goods and services related to capital improvement projects’ (CIP) contracts were competitively procured in accordance with the district’s procurement policies or the law. As a result, officials cannot assure taxpayers the 12 CIP contracts entered – valued at approximately $36.6 million – were procured in the most prudent and economical manner and without favoritism. Specifically, officials responsible for purchasing did not advertise in the district’s official newspaper, as required by law, for nine CIP contracts totaling $32.6 million. Officials also did not demonstrate that prior to awarding three contracts, totaling approximately $4 million, through a group purchasing agency, they had reviewed the contracts to ensure the district was permitted to award the contracts pursuant to the “piggybacking” exception set forth in the law. Officials also did not competitively bid for moving and storage services totaling $35,535.

Moravia Central School District – Lead Testing and Reporting (Cayuga County)

District officials did not properly identify, report or implement needed remediation to reduce lead exposure in all potable water outlets as required by state law and Department of Health regulations. Auditors determined 98 of the 303 (32%) water outlets were not sampled or properly exempted by district officials during Cycle Two. This occurred because district officials did not have a sampling plan to identify all water outlets for sampling or exemption. District officials also did not have a remedial action plan that detailed which water outlets they exempted from sampling and how they would be secured against use, and what remedial actions were planned or enacted. Because there is no information on the lead levels of the 98 water outlets not sampled for testing, auditors were unable to determine whether officials identified and remediated all water outlets that would have required it.

North Amityville Fire Company, Inc. – Audit Follow-Up (Suffolk County)

The purpose of the review was to assess the North Amityville Fire Company’s progress, as of June 2024, in implementing our recommendations in an audit report released in April 2023. The audit determined that the board did not ensure that all cash disbursements were for appropriate company purposes or supported. The audit included 10 recommendations to help officials ensure cash disbursements are appropriate and supported. It appears that company officials have made significant progress in ensuring cash disbursements are supported and for company business activities. However, company officials can take further actions to strengthen the controls over the company’s disbursements processes. Of the 10 audit recommendations, four recommendations were fully implemented, and six recommendations were not implemented.

###

Appellate Division denies defendant's efforts to dismiss plaintiff's cause of action alleging legal malpractice

Plaintiff's attorneys [Defendants] in this action appeal a Supreme Court order denying Defendants motion for summary judgment dismissing Plaintiff's cause of action alleging legal malpractice.

Plaintiff had brought the instant action after her Federal Employers' Liability Act, 45 USC §51 et seq., [FELA] lawsuit against the Metropolitan Transportation Authority [MTA] was dismissed, with prejudice. Plaintiff alleged that the dismissal of her MTA litigation with prejudice was the result of her Defendants "failure to prosecute" her lawsuit. 

Defendants argued that in light of the denial of Plaintiff's application for accidental disability retirement benefits and the dismissal of the Plaintiff's proceeding pursuant to CPLR Article 78 to review the denial of said application, the Plaintiff was collaterally estopped from claiming that she suffered a work-related injury. Thus, Defendant contended, Plaintiff could not establish that she would have prevailed in the FELA action but for the Defendants' "alleged negligent failure to prosecute that action". 

The Appellate Division affirmed the Supreme Court's ruling explaining:

1. "A plaintiff in an action alleging legal malpractice must prove the defendant attorney's failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages;

2. "To establish proximate causation, the plaintiff must show that [he or] she would have prevailed in the underlying action ... but for the defendant attorney's negligence; and

3. "A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages."

The Appellate Division held that "Contrary to the [Defendants'] contention, they failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice based upon the doctrine of collateral estoppel". 

The Court noted that "The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity." Further, said the Appellate Division, the doctrine applies "only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the ... party to be bound had a full and fair opportunity to litigate the issue in the earlier action'".

The Appellate Division ruled that, contrary to the Defendants' contention, the  Defendants failed to demonstrate an identity of issues between the FELA action and the determination of either the Plaintiff's application for accidental disability retirement benefits or the CPLR Article 78 proceeding. 

In the words of the Appellate Division, "the FELA action involved the issue of whether the MTA's alleged negligence played any part in producing the injuries for which the [Plaintiff] sought damages, that issue was not litigated and necessarily decided against the [Plaintiff] either in the context of her application for accidental disability retirement benefits or in the CPLR article 78 proceeding ... [thus] the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice based upon the doctrine of collateral estoppel".

The Appellate Division further observed that Defendants "also failed to establish, prima facie, that the MTA neither created nor had actual or constructive notice of the alleged dangerous conditions at issue in the FELA action .... Thus, the [Defendants] failed to demonstrate, prima facie, that the [Plaintiff] would not have prevailed in the FELA action but for their alleged failure to prosecute that action". 

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

 

Selected items posted on the Internet during the week ending June 28, 2025:

Join State & Local Gov Tech Professionals to Explore Innovative Solutions for Government New York Digital Government Summit Date: September 18, 2025 Location: Albany Capital Center, Albany, NY This 37th annual event brings together public sector leaders and technology professionals to explore innovative solutions and best practices for solving challenges faced by state and local government. Summit attendees will gain valuable insights from expert-led discussions and connecting with peers through networking opportunities. Whether you're a state or local IT professional or business leader, this event is designed to offer something for everyone with keynote presentations, concurrent sessions, and vendor exhibits.   Key Themes Include: Cybersecurity Digital Transformation AI Implementation Data Governance Fostering Collaboration Across Stakeholders Save the date and be part of this opportunity to shape the future of digital government services in New York! For registration assistance or additional information, contact: Lee Vang / Government Technology / 916-932-1407 / lvang@govtech.com ========================================= Powering Public Services with AI & Automation This virtual summit explores how forward-thinking agencies are modernizing service delivery, empowering their teams, and building trust through data-driven, constituent-centric design. WATCH NOW   Digital Services in an Era of Evolving Support Watch this on-demand webinar to explore how cities and counties can embed resilience into their digital strategies, strengthen cybersecurity postures with available resources, and continue delivering secure, citizen-centered services during changing times. WATCH NOW   Efficiency Meets Accuracy: Optimizing Vital Records Operations Manual processes and outdated systems are slowing down vital records requests, making it harder for agencies to keep up. In this webinar, experts will share practical ways to speed up processing, improve security, and make life easier for both staff and residents. WATCH NOW   AI-Powered Automation for Efficient Government Gain insights on how to deploy secure, scalable AI solutions that work seamlessly with your current infrastructure—ensuring compliance and minimizing risk. WATCH NOW   AI Use Cases, Security Risks, and What You Need to Know Watch this on-demand webinar exploring what it takes to build AI-ready infrastructure, ensure security and compliance, and learn from real-world use cases in the public sector. WATCH NOW   Maintaining Cyber Resilience with Network Visibility Watch this on-demand webinar where we unpack what meaningful network visibility looks like today and why it's quickly becoming the cornerstone of effective cybersecurity. WATCH NOW   Why a Consistent Website Experience Signals Trust Learn how consistent digital experiences can strengthen security, build credibility, and make official communications unmistakable. WATCH NOW   Tech Strategies That Save Time and Budget on Capital Projects Uncover practical strategies that streamline capital projects, cut waste, and deliver faster, more transparent results. WATCH NOW

Audits of state departments and agencies issued by New York State Comptroller Thomas P. DiNapoli

On March 26, 2025, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued.

Click on the text highlighted in BLUE to access the text of the Comptroller's report

Empire BlueCross – Overpayments for Physician-Administered Drugs (Follow-Up) (2024-F-34)  The New York State Health Insurance Program (NYSHIP) is administered by the Department of Civil Service (Civil Service). The Empire Plan is the primary health insurance plan for NYSHIP, and Civil Service contracts with Anthem Blue Cross (Anthem), formerly Empire BlueCross, to administer the Hospital Program of the Empire Plan and to process and pay claims for hospital services. Hospital benefits cover a range of services including physician-administered drugs, which are drugs administered by health care professionals in a hospital or facility setting. A prior audit, issued in September 2023, identified over $2.7 million in actual and potential overpayments for physician-administered drugs. Anthem officials made progress in addressing the problems identified in the initial audit, recovering over $600,000 of the overpaid claims and taking steps to make more recoveries. Of the initial report’s seven audit recommendations, two were implemented, four were partially implemented, and one was not implemented.

New York City Department for the Aging – Case Management (Follow-Up) (2025-F-3) The New York City Department for the Aging (DFTA) contracts with community-based organizations (providers) to provide case management services, which help older persons with functional impairments gain access to appropriate services, benefits, and entitlements needed to age safely at home and maintain their quality of life. Case management providers must adhere to DFTA’s Case Management Standards of Operations and Scope of Services (Standards), which detail when intake assessments and reassessments must be performed, as well as wait list prioritization. A prior audit, issued in July 2023, found that DFTA did not ensure that its contracted providers adhered to the Standards; therefore, key milestones for delivering and monitoring services needed for vulnerable seniors were not always met. Additionally, DFTA reimbursed providers for $10,480 in claimed expenses that had insufficient supporting documentation or were unrelated to the case management program. DFTA made some progress in addressing the initial audit report’s eight recommendations, implementing one, partially implementing four, and not implementing three.

Department of Health – Improper Medicaid Payments During Permissible Overlapping Medicaid and Essential Plan Coverage (Follow-Up) (2024-F-40) The Department of Health (DOH) administers the State’s Medicaid program and the Essential Plan, both of which provide health care services to individuals who are economically disadvantaged. As eligibility factors change, individuals may transition between Medicaid and the Essential Plan, resulting in DOH-authorized periods of overlapping coverage and the Essential Plan should be the primary payer and Medicaid, as secondary payer, should pay any remaining liabilities, such as deductibles and coinsurance. A prior audit, issued in September 2023, found Medicaid improperly paid $93.7 million in claims during periods of overlapping Medicaid and Essential Plan coverage because DOH did not account for the Essential Plan as a liable primary payer. DOH officials made some progress in addressing the problems identified in the initial audit report, but minimal progress in recovering the improper payments identified by the initial audit. Of the initial report’s two audit recommendations, one was partially implemented and one was not implemented.

Homes and Community Renewal: Division of Housing and Community Renewal – Physical and Financial Conditions at Selected Mitchell-Lama Developments in New York City (Follow-Up) (2024-F-30)  The Mitchell-Lama Housing program was created to provide affordable rental and cooperative housing to middle-income families. A prior audit, issued in June 2023, found DHCR did not adequately oversee the physical and financial conditions at the sampled developments, likely causing management at those developments to misspend funds and fail to provide a safe and clean living environment for their residents. DHCR officials made some progress in addressing the issues identified in the initial audit report, but auditors observed additional hazardous and unsanitary conditions on follow-up, including rodent infestations, mold, and peeling paint. Of the initial report’s nine audit recommendations, one was implemented, six were partially implemented, and two were not implemented.

Department of Health – Medicaid Claims Processing Activity April 1, 2024 Through September 30, 2024 (2024-S-5)  During the 6-month period ended September 30, 2024, the Department of Health’s eMedNY computer system processed almost 249 million claims, resulting in payments to providers of nearly $50.6 billion. OSC’s audit of claims processing activity identified over $11.5 million in improper Medicaid payments for claims that were not processed in accordance with Medicaid requirements. The audit also identified 14 Medicaid providers who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs.

Department of Health: Medicaid Program – Improper Fee-for-Service Pharmacy Payments for Recipients With Third-Party Health Insurance (Follow-Up) (2024-F-25) When Medicaid recipients have other third-party health insurance (TPHI) in addition to Medicaid, fee-for-service (FFS) providers are required to coordinate benefits with the recipient’s TPHI for payment prior to billing Medicaid. The Office of the Medicaid Inspector General (OMIG) contracted with Gainwell Technologies to identify and recover Medicaid payments made for services that should have been paid for by a recipient’s TPHI. A prior audit, issued in May 2023, determined DOH and OMIG lacked adequate oversight of Gainwell’s recovery process to ensure all available recoveries on FFS pharmacy payments were made. The audit also found claims processing improvements could be made to prevent TPHI overpayments from occurring. DOH and OMIG officials made minimal progress in addressing the problems identified in the initial audit report. Of the initial report’s eight recommendations, one was implemented, two were partially implemented, and five were not implemented.

Office for People With Developmental Disabilities – Pandemic Planning and Care for Vulnerable Populations (Follow-Up) (2024-F-23)  The Office for People with Developmental Disabilities (OPWDD) is responsible for certifying and regulating all residential facilities and providing guidance and best practices to its own staff at State-operated facilities and voluntary agencies that deliver direct care to people with intellectual and developmental disabilities. One component of OPWDD’s mission is providing a safe environment, including disaster preparedness. A prior audit, issued in April 2023, found OPWDD developed and issued specific COVID-19 pandemic plans to only State-operated Intermediate Care Facilities, which accounted for less than 1% of OPWDD’s residential clients. Additionally, while OPWDD’s emergency management and overarching emergency planning documents considered pandemics as a risk even before COVID-19, OPWDD did not take proactive steps to ensure that all homes had followed suit in their own emergency plans. OPWDD made progress in addressing the problems identified in the initial audit report, partially implementing all four recommendations.

New York State Health Insurance Program – Incorrect Payments by CVS Caremark for Medicare Rx Drug Claims That Were Improperly Paid Under the Commercial Plan (Follow-Up) (2025-F-1)  The Empire Plan is the primary health benefits plan for the New York State Health Insurance Program, administered by the Department of Civil Service (Civil Service). Civil Service contracts with CVS Caremark to administer the prescription drug program for the Empire Plan, which includes the Empire Plan Medicare Rx drug plan (Medicare Rx Plan) for retired members and their dependents who qualify for Medicare, and the Commercial Plan for members and their dependents who do not qualify for Medicare. Claims paid under the Medicare Rx Plan are eligible for enhanced drug manufacturer discounts and federal subsidies that are not available for claims paid under the Commercial Plan. A prior audit, issued in September 2023, identified claims totaling $12,358,531 that were incorrectly paid under the Commercial Plan instead of the Medicare Rx Plan. Civil Service and CVS Caremark made some progress in addressing the issues identified in the initial audit, partially implementing all three of initial report’s recommendations and reprocessing over $5 million in claims under the Medicare Rx Plan. However, they did not evaluate or put in place additional controls to prevent claims from being inappropriately paid under the Commercial Plan, and, consequently, auditors identified $1.37 million in claims paid under the Commercial Plan for Medicare-eligible members since the initial audit (from April 2022 through December 2024).

Office of Addiction Services and Supports – Addiction Support Services During Emergencies (Follow-Up) (2024-F-39)  The Office of Addiction Services and Supports (OASAS) certifies providers to operate substance use disorder and problem gambling treatment and prevention programs (Programs)  and conducts unannounced recertification reviews to assess providers’ compliance with regulatory requirements. OASAS also requires providers to maintain waiting lists for clients awaiting treatment and certain providers to develop, maintain, and update an Emergency Preparedness Plan (Plan) to address emergencies that may present an immediate danger to personnel, patients, Programs, and/or property. Further, the state created the New York State Evacuation of Facilities in Disasters System (eFINDS) application to track in real time the location of individuals being cared for in facilities and on-duty staff when relocation occurs during an emergency. A prior audit, issued in November 2023, found OASAS should improve the extent and clarity of its guidance to include strategies to manage and mitigate prolonged service disruptions and continue to deliver addiction support services; improve its monitoring of providers’ Plans; and do more to ensure that providers have access to and use eFINDS and improve the accuracy and usefulness of its waiting lists. OASAS has made little progress in addressing the problems identified in the initial audit report, implementing none of the initial report’s three recommendations.

###

New York City's Office of Administrative Trials and Hearings Administrative Law Judge recommends agency dismissed disciplinary charges filed against one of its employees

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ], Kara J. Miller, recommended the dismissal of disciplinary charges against filed against a child protective specialist supervisor [Employee] employed by the Administration for Children’s Services [Employer] after disciplinary hearing. Judge Miller found that the Employer had not proven that the Employee had engaged in misconduct. 

The Employer had alleged that the Employee had used disrespectful language and had acted in a threatening manner towards the Employee's supervisors and was insubordinate when she refused to complete an assignment, among other charges. 

The Employer sought to offer two internal religious discrimination complaints the Employee had filed with the Employer’s Office of Equal Employment Opportunity to impeach the Employee’s witnesses for hostility and bias. 

The ALJ accepted the documents because evidence that a witness bears some bias may be adduced to show that the Employer’s factual allegations are untrue but rejected the offering of any exhibits that went beyond the limited scope of impeachment. 

Although Judge Miller found that the Employee was impolite, the Employer’s witness testimony was insufficient to prove misconduct as "the testimony was exaggerated, embellished, and exhibited bias against the Employee]" 

Further, the ALJ found that the Employee was given ambiguous directions with respect to the assignment she allegedly refused to complete and therefore was not insubordinate for lack of requisite intent. 

Accordingly, the ALJ recommended the Employer dismiss the disciplinary charges it filed against the Employee.

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

.

Retirees failed to prove a School District agreed to charge a specific percentage as a retiree contribution for health insurance upon their retirement

Petitioners in this appeal to the Commissioner of Education served with a School District for more than 20 years ago in positions designated confidential. This designation for the purposed of the Taylor Law made them ineligible to join any of the collective bargaining units recognized by the School District. Documents entitled “Terms of Employment for Civil Service Positions Non-Contract Confidential Employees" indicated that all “terms of employment and other benefits” were deemed “equal to those” negotiated by the Support Staff Association [SSA] bargaining unit, with limited exceptions.

One exception specified that Petitioners would contribute to health insurance premiums at the rate of six percent but did not indicate the health insurance contribution rates that such employees would pay upon their retirement.

Subsequent to their retirement the School District's Board [Board] advised Petitioners that it had agreed to a new collective bargaining agreement [CBA] and that Petitioners’ contribution rate for health insurance premiums would be increased to reflect this change. Petitioners attended Board meetings to contest this change but were ultimately were advised that the Board's determination concerning  the health insurance premiums to be paid by Petitioners was final. 

Petitioners appealed the Board's decision to the Commissioner.

The Commissioner, observing that in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, concluded that Petitioners had not proven that the Board agreed to maintain the six percent contribution rate for the Petitioners' upon their retirement.  

Although Board's Policy 9510 indicated that “health insurance will continue to be provided for retired employees … at the same level of district/employee contribution as the corresponding bargaining unit", the Commissioner found that Policy 9510 was "inapplicable to [Petitioners]" as they were not members in any collective bargaining unit and "neither the [CBAs] nor policy 9510" guaranteed Petitioners a specific percentage of the contribution for health insurance to be paid by the retirees upon their retirement.

The Commissioner, concluding that Plaintiffs' appeal must be dismissed, then said  she "encourage [the Board] to develop a consistent policy regarding retirement benefits for confidential employees". 

The Commissioner's decision is set out below.

Appeal of MICHAEL CAMBARERI and LORI KREBS from action of the Board of Education of the Sandy Creek Central School District regarding retirement benefits.

Decision No. 18,568

(June 9, 2025)

Office of Inter-Municipal Legal Services, Jefferson Lewis Board of Cooperative Educational Services, attorneys for respondent, George R. Shaffer III, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge the determination of the Board of Education of the Sandy Creek Central School District (“respondent” or “board”) to modify their health insurance premiums in retirement.  The appeal must be dismissed. 

Petitioners began their employment with respondent over 20 years ago.  Both of their positions were designated “confidential,” which made them ineligible to join any of the bargaining units recognized by respondent.  Petitioners’ employment conditions were identified in documents entitled “Terms of Employment for Civil Service Positions Non-Contract Confidential Employees” (the “agreements”).[1]  The agreements indicated that all “terms of employment and other benefits” were deemed “equal to those” negotiated by the Support Staff Association (“SSA”) bargaining unit, with limited exceptions.  One exception specified that petitioners would contribute to health insurance premiums at the rate of six percent.  The agreements did not address health insurance contribution rates in retirement.[2]  Petitioners Krebs and Cambareri retired from their employment with respondent in 2021 and 2024, respectively. 

By letter dated August 19, 2024, respondent informed petitioners that it had agreed to a new collective bargaining agreement (“CBA”) with the SSA that would increase petitioners’ contribution rate for health insurance premiums.[3]  Petitioners attended a September 12, 2024 board meeting to contest this change.  By letters dated September 17, 2024, respondent informed petitioners that its determination to change the health insurance premiums was final.  This appeal ensued.

Petitioners contend that respondent is estopped from modifying the terms of their employment, which they characterize as binding contracts.  Petitioners submit statements from two other confidential employees who indicate that their health insurance contribution rate will remain the same in retirement (the “confidential retirees”).  Petitioners seek an order maintaining their contributions to the health insurance plan at six percent.

Respondent contends, among other arguments, that it exercised its right to unilaterally modify the provision of the terms of employment regarding health insurance contributions.  Alternatively, respondent argues that petitioners lack standing to challenging respondent’s past practice of providing health insurance benefits to confidential retirees.  Respondent further submits that the two confidential employees are dissimilar to petitioners as these employees negotiated specific provisions regarding health insurance in retirement.

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 (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners have not proven that respondent agreed to maintain the six percent contribution rate throughout their retirement.  As indicated above, petitioners’ agreements do not address retirement benefits.  Board policy 9510 indicates that “health insurance will continue to be provided for retired employees … at the same level of district/employee contribution as the corresponding bargaining unit….”  This provision is inapplicable to petitioners as they did not belong to any bargaining unit.  Therefore, neither the agreements nor policy 9510 guaranteed petitioners a specific contribution rate in retirement.  While respondent has a past practice equating such rates with those negotiated by the SSA, petitioners were not aggrieved by this benefit (Matter of Aenas McDonald Police Benevolent Assn v City of Geneva, 92 NY2d 326, 330-331 [1998]).[4]

The language of the agreements between respondent and the two confidential retirees are not to the contrary.  These retirees, unlike petitioners, separately negotiated provisions regarding health insurance in retirement.  These provisions were then memorialized in the confidential retirees’ agreements under headings such as “health insurance in retirement” and “medical benefits/insurance post employment.”  Petitioners’ agreements do not contain comparable provisions.[5]  Thus, I find that petitioners have failed to demonstrate a clear legal right to a six percent contribution rate through retirement.

While the appeal must be dismissed, I encourage respondent to develop a consistent policy regarding retirement benefits for confidential employees.  If such benefits (including health insurance) are commensurate with those afforded to SSA members, respondent’s policy or agreements should so state.

In light of this disposition, I need not address the parties’ remaining contentions, including respondent’s procedural contentions.

THE APPEAL IS DISMISSED.

---

[1] Respondent issued separate agreements to each petitioner.  The material provisions of these agreements are identical.

[2] Retirement benefits for employees are generally addressed in board policy 9510, discussed below.

[3] Consistent with its past practice described below, respondent determined that these changes applied to petitioners.

[4] In this decision, the Court of Appeals also held “that there is no legal impediment to [a] municipality’s unilateral alteration of [a] past practice” and that “a public employer’s statutory duty to bargain does not extend to retirees.” Id. at 330-31, 332.

[5] Petitioners also submit statements from two current confidential employees, who indicate that when their supervisor “presented [them] with … Terms of Conditions that included a 6% insurance premium,” she represented “that it would carry through into … retirement.”  While petitioners argue that this reflects the binding nature of the six percent rate, it is equally plausible that the supervisor’s statement referred to the past practice described above.