Employee testified that his use of “Nazi” and “Fascist” directed towards his supervisors constituted profanity and was intended to be offensive

Employee testified that his use of  “Nazi” and “Fascist” directed towards his supervisors constituted profanity and was intended to be offensive

NYC Dept. of Corrections v RM, OATH Index No. 651/13

RM, an employee of the NYC Department of Corrections, was served with disciplinary charges alleging that he acted in a disrespectful manor towards his supervisors, that he failed to obey an order to submit a report, he performed doing less work than his co-employees, that he refused to perform certain duties and that he had made false entries into Department records.

OATH Administrative Law Judge Astrid B. Gloade found that RM called his supervisors “Nazis” and “Fascists,” refused to conduct workshops to assist inmates, and processed less than one percent of the discharge letters issued by his three-person unit.

The ALJ said that RM had testified that the use of “Nazi” and “Fascist” to him amounts to profanity, which Judge Gloade viewed as indicating that RM’s intent was to offend his supervisors.

Further, Judge Gloade said that RM only expressed remorse that his statements, meant to be insults, “might not have hit their mark” because he “realized [his supervisors] didn't even know what [he] was talking about because they weren't even around when Nazis were current events.”

RM’s own testimony, said Judge Gloade, established that he directed highly inappropriate remarks towards his supervisors.

However, the ALJ found the Department did not prove that RM failed to submit a report when ordered to do so nor did it prove that he made false entries in Department documents with the intent to defraud.

Finding RM guilty of the remaining allegations of misconduct, ALJ Gloade recommended that the appointing authority suspend RM for 45 days without pay.

N.B. In Matter of Shafer, 2013 NY Slip Op 04571, Appellate Division, Third Department, an individual dismissed from her employment for “insubordinate behavior” that included rude, disrespectful and hostile conduct,was found guilty of disqualifying misconduct for the purposes of eligibility for Unemployment Insurance benefits by the Unemployment Insurance Appeal Board.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-651.pdf

Governor Cuomo announces Senate confirmation of a number of individuals he nominated for appointment to various public offices

Governor Cuomo announces Senate confirmation of a number of individuals he nominated for appointment to various public offices

Source: Office of the Governor

On June 20, 2013, Governor Andrew M. Cuomo announced the Senate’s approval of multiple appointments within the administration. Below are the individuals confirmed.

New York State Office of Temporary and Disability Assistance

Kristin Proud

Ms. Proud will serve as Commissioner. She earlier served in Governor Andrew Cuomo’s Office as Deputy Secretary for Human Services, Technology & Operations. She is a member of the Governor’s Olmstead Cabinet and the State’s Mandate Relief Council. She previously served in the Governor’s Office as the Deputy Director of State Operations from November 2007 to August 2009 and the Director of Health and Human Services from January to November 2007. Ms. Proud spent fourteen years in the New York State Assembly, during which time she worked for three Speakers of the Assembly. Ms. Proud was the Deputy Secretary of the Assembly Ways and Means Committee and was also the principal staff advisor to the Speaker and the Assembly Majority on issues related to health and human services. Following that, she served as Senior Director of Community Relations and Planned Giving for the Center for Disability Services, the largest provider of services to individuals with disabilities in the Capital Region. Ms. Proud is a summa cum laude graduate of the State University of New York at Albany. She also attended Florida State University.

Gaming Commission

John A. Crotty

A founding member of Workforce Housing Advisors, a New York City-based development firm with a particular focus on affordable housing. Mr. Crotty has nearly two decades of experience in housing, government and finance in a variety of capacities. Mr. Crotty is a former member of the Board of Directors of the New York City Off-Track Betting Corporation and was appointed by Governor Paterson to a panel to restructure the Off Track Gaming system statewide. Mr. Crotty was also a member of the New York State Franchise Oversight Board, which oversees the finances of The New York Racing Association, Inc.

John J. Poklemba

Served as General Counsel to American Transit Insurance Company, a New York City-based Commercial Automobile Insurer. Previously, Mr. Poklemba was the managing partner of his general practice in Saratoga County for more than a decade. Prior to that, Mr. Poklemba was the principal attorney responsible for governmental relations and litigation for Bartlett, Pontiff, Stewart & Rhodes, P.C. in Glens Falls. Mr. Poklemba also served in New York State government for many years working on criminal justice.

Barry Sample

Mr. Sample recently retired from Governor Cuomo’s Administration as Deputy Director of State Operations where he handled the day-to-day management of state government following nearly two decades in service to New York State. Previously, Mr. Sample served as Deputy Director at the New York State Division of Criminal Justice Services, Deputy Director at the New York State Division of Budget, and Director of Intergovernmental Affairs and Community Relations at the New York State Comptroller’s Office.

Todd R. Snyder

Serves as executive vice chairman of North American Global Financial Advisory and co-head of the debt and restructuring group at Rothschild, Inc., a leading international investment banking and financial advisory firm where he is also Senior Managing Director. Mr. Snyder has been an advisor for Rothschild Inc.’s companies for more than two decades, including work with Emerald Casino, Dow Corning and United Airlines. Mr. Snyder also served as part of Governor Cuomo’s Labor Negotiating Team, where he was instrumental in forging new contracts with the state’s public sector unions. He advised the Bush and Obama administrations on the restructuring of the auto industry.

Justice Center Advisory Council

William Gettman

Mr. Gettman will serve as Chair. He is Executive Director of St. Catherine’s Center, with more than 25 years of experience in the child welfare field in both the public and private sectors. Previously, he was Executive Deputy Commissioner at OCFS, responsible for all child welfare programs throughout the State.

Other appointees include:

Euphemia Strauchn-Adams

Joseph Rich

Snowden Earl Eichelberger

Glen Liebman

Jeremy Klemanski

Leslie Hulbert

Judith O’Rourke

Alfred Kingon

Robert Weisman, DO

Michael Arsham

Shirley Flowers

Peter Pierri

Denise Figueroa

Harvey Rosenthal

Gabrielle Horowitz-Prisco

Walter Joseph, Jr.

David Allen Lamphere

Norwig Debye-Saxinger

Ronald Lehrer

Tanya Hernandez

Christopher Tavella

Delores McFadden

Brian McLane

Scott Salmon

Lisa Goring

Mary Bonsignore

Clint Perrin

Belinda Lerner

Eva Dech

Behavioral Health Services Advisory Council

Paul Samuels, JD

Mr. Samuels will serve as Chair. He is the Director and President of the Legal Action Center (LAC), a non-profit law and policy organization whose mission is to fight discrimination against people with histories of addiction, HIV/AIDS, or criminal records, and to advocate for sound public policies in these areas. Mr. Samuels has served as a member of the NYS Advisory Council on Alcoholism and Substance Abuse Services as Vice-Chairperson.

Other appointees include:

Kunsook Song Bernstein, PhD

John Kastan, PhD

Jennifer Havens, MD

Tino Hernandez

Ralph Fasano

William Gettman, Jr.

Howard Meitiner

Katherine Breslin

Lt. Colonel April Critelli

James Scordo

Stephanie Orlando

Patrice Wallace-Moore

Sharon Gillette

Grant Mitchell, MD

John Lee

Maura Kelley

Euphemia Strauchn-Adams

Andrew Roberts

Deborah Mayo

Michael Martin

Glenn Martin

Robert Cruz

Scott LaVigne

Dormitory Authority of the State of New York (DASNY)

Alfonso Carney, Jr.

Mr. Carney will serve as Chair. He is a principal of Rockwood Partners, LLC, which provides medical consulting services in New York City. He has served as Acting Chief Operating Officer and Corporate Secretary for the Goldman Sachs Foundation and has held senior level legal positions with Altria Group Inc., Philip Morris Companies Inc., Philip Morris Management Corporation, Kraft Foods, Inc. and General Foods Corporation.

Other appointees include:

Beryl Snyder

John B. Johnson

New York Convention Center Operating Corporation (Javits Center)

Henry Silverman

Senior Advisor and Vice Chairman of Investment Management Business for Guggenheim Partners, a diversified financial services firm in New York City, Mr. Silverman will serve as Chair. He currently serves as Chair of the New York Convention Center Development Corporation.

Other appointees include:

Daniel De Vita

Andrew Murstein

David Emil

Civil Service Commission

Jerry Boone

Continuing to serve as Commissioner and President, Mr. Boone is currently the Managing Principal of Boone Consulting, where he has helped develop human resources and operations infrastructure. Previously, Mr. Boone founded Pride Properties, LLC, in 2008, a company based in Memphis, Tennessee, focused on the acquisition and rehabilitation of distressed properties to develop quality, affordable housing for sale or rental to lower to middle income households. Mr. Boone still serves as President of the organization, which also offers financial counseling provided for first-time home buyers.

State Board for Historic Preservation

Robert MacKay, PhD

Executive Director of the Society for the Preservation of Long Island Antiquities in Cold Spring Harbor, where he led the society's evolution and growth from being primarily a manager of traditional house museums to becoming a vibrant regional preservation organization that provides assistance to communities to safeguard and revitalize their historic built environments in the midst of ever increasing development pressure, Dr. MacKay will continue to serve as the Board’s Chair.

Other appointees include:

John Winthrop Aldrich

Randall Crawford

Jay DiLorenzo

Douglas Perrelli, PhD

State Commission of Correction

Thomas A. Beilein

Mr. Beilein, holds the distinction of being the only former sheriff in the history of the Commission to serve as the Commission’s Chair. His experience as the Niagara County Sheriff from 1994 to 2008 – which includes running a jail with an average daily population of 450 – is unique in the annals of Commission history. Mr. Beilein brings a wealth of law enforcement and administrative experience. He has worked as a correction officer, road patrol officer, investigator and administrator.

Other appointees include:
Thomas Loughren 

The Port Authority of New York and New Jersey

Basil Alexander Paterson

Mr. Paterson, a member of the law firm of Meyer, Suozzi, English & Klein and Co-Chair of the firm’s Labor practice, is a Harlem native and former New York State Senator, having first been elected in 1965. A former New York City Deputy Mayor for Labor Relations and Personnel, he was appointed as New York’s first African American Secretary of State in 1979. He previously served on the Port Authority’s Board of Commissioners from 1989 to 1995. Mr. Paterson has also taught at the State University of New York at New Paltz, Fordham University School of Education, and Hunter College. He is a double alumnus of St. John’s University in Queens.

Kenneth Lipper

Mr. Lipper brings years of experience in public and private sector management and investment banking to the Port Authority. Since 1987 he has served as Chairman and Chief Executive Officer of Lipper & Co. LLC, an investment management and investment banking firm. He is has also been a Director of CNH Global NV, a leading agricultural and construction equipment company since 1996. Previously, Mr. Lipper was Executive Vice President and Senior Adviser of the leading global real estate firm Cushman & Wakefield. He also served as Advisor and Deputy Mayor to New York City under Mayor Ed Koch, and is a former adjunct professor at Columbia University’s Graduate School of International and Public Affairs.

Olympic Regional Development Authority (ORDA)

J. Patrick Barrett

Mr. Barrett will continue serving as ORDA Chair. He is Chairman and Chief Executive Officer of CARPAT Investments, a private investment company. Previously, he was Chairman and CEO of Avis.

Other appointees include: 
Jill Ruhm Broderick
Robert Francis Flacke

State Athletic Commission
John Signorile – Commissioner 

Battery Park City Authority
Lester Petracca 

State Council on the Arts
Deborah Ronnen 

Saratoga-Capital District State Parks, Recreation and Historic Preservation Commission
Karen Lee Bilowith
John McEneny

Niagara Frontier Transportation Authority
LaVonne E. Ansari
Anthony Baynes
Peter G. Demakos
Margo Dawn Downey
Michael P. Hughes
Adam W. Perry

Adirondack Park Agency 
Daniel Wilt
Arthur Lussi
William Thomas
Karen Feldman

Allegany State Parks, Recreation and Historic Preservation Commission
Michael Lyons 
Thomas Erlandson 
Michael McLaughlin 

Genesee State Parks, Recreation and Historic Preservation Commission
Frank Allkofer 
Thomas Jennings 
Peter Humphrey 
Martin Miskell 
Loren Penman 

Niagara Frontier State Parks, Recreation and Historic Preservation Commission
Thomas Yots 
Stuart Angert 

Palisades Interstate State Parks, Recreation and Historic Preservation Commission
Howard G. Seitz

Thousand Island State Parks, Recreation and Historic Preservation Commission
James Ransom 

Central New York State Parks, Recreation and Historic Preservation Commission
Stephen Buechner 
Terry Ettinger 
Cornelius B. Murphy 

Finger Lakes State Parks, Recreation and Historic Preservation Commission
Ludi Augustine 
Mitchell Cornish 
Robert Scharf 

New York City State Parks, Recreation and Historic Preservation Commission 
Allison Whipple Rockefeller 
Leisle Lin 
Alexander Durst 
Simon Roosevelt

Niagara Frontier Transportation Authority
Charles (Sam) Gurney
Wesley Hicks, MD 

Workers’ Compensation Board
Frances Libous (Vice Chair)

CUNY Board of Trustees
Alfreida D. Foster-Tolbert

State Insurance Fund
Joseph Canovas 
Barry Swidler

NYS Housing Finance Agency
Nestor Davidson
Joyce Miller 

Tax Appeals Tribunal
Roberta Moseley Nero 

Advisory Council on Agriculture 
Samuel Casella
Lesa Sobolewski 
David Haight 

Albany Pine Bush Commission
John Brust 
Harvey Alexander 
Nancy Pierson 
Steven Rice, PhD

Citizen’s Policy and Complaint Review Council
Nicholas A. LaBella

New York State Council on the Arts 
Laura Aswad

Ogdensburg Bridge and Port Authority 
Samuel James LaMacchia

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law”

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law” 

2013 NY Slip Op 04472, Appellate Division, Fourth Department

The Appellate Division reversed a Supreme Court decision that denied a tenured teacher’s [Educator] Article 78 petition seeking to annul the school district’s suspending her without pay for 30 days.

The Appellate Division said it agreed with Educator that the school district failed to comply with the requirements of Education Law §3020(1) when it disciplined her without affording her a hearing pursuant to Education Law §3020-a.

The court explained that “the plain language of Education Law §3020(1) provides that a tenured teacher facing discipline, and whose terms and conditions of employment are covered by a collective bargaining agreement (CBA) that became effective on or after September 1, 1994, is entitled to elect either the disciplinary procedures specified in Education Law §3020-a or the alternative procedures contained in the CBA.”

The court determined that the relevant CBA took effect on July 1, 2006. Accordingly, said the court, Educator was entitled to choose whether to be disciplined under the procedures set forth in the CBA or to elect a disciplinary hearing in accordance with Education Law §3020-a as a matter of law regardless of whether or not the CBA offered such an option.

The school district, however, had denied Educator’s written request for a §3020-a hearing.

Finding that the school district’s action was “incorrect,” the Appellate Division annulled the school district’s imposing a disciplinary penalty suspending Educator for 30 days without pay and directed the school district to [1] reinstate her to her position with back pay and benefits retroactive to the date of her suspension and [2] to remove all references to the discipline imposed from Educator’s personnel file.

Significantly, §3020.1, in pertinent part, provides that any such ”alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September 1, 1994, must provide for the written election by the employee of either the procedures specified in such §3020-a or the alternative disciplinary procedures contained in the collective bargaining agreement.” [emphasis supplied].

Further, the negotiated alternative disciplinary procedure must provided constitutional due process protections equivalent to those available under the statutory procedure [Antinore v State, 40 NY2d 6].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04472.htm

_____________________________

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

Local Government Performance and Efficiency Program (LGPEP) grant assistance

Source: Department of State

On June 19, 2013, the New York Department of State announced over $12 million in Local Government Performance and Efficiency Program (LGPEP) grant assistance in recognition of the recurring financial savings generated by 13 projects.  The grants will be distributed in equal parts over three years, and are contingent upon continued demonstration of savings. 

A competitive program, LGPEP rewards local governments for undertaking significant and innovative actions that reduce the property tax burden confronting residents.  The projects recognized today are estimated by applicants to generate $38.2 million in combined annual savings. In accepting an award, these local governments commit to measuring and sustaining the financial impact of these savings. 

The Awards were as follows: 

City of Corning, $279,575.00, Fire Department Efficiency Initiative

Town of Gates, $710,000.00, Health Insurance Consolidation Project

Town of East Hampton, $536,425.00 Re-engineering of Town Government

Village of Liberty, $99,375.00, operations streamlining

Essex County, $244,881.40, Creation of the Office of Community Resources

Madison County, $1,615,724.00, Home Care Services Privatization

Town of Alden, $138,905.00, Town Clerk/Tax Receiver Consolidation Project

Nassau County, $5,000,000.00, Police Department Personnel Reduction and Precinct Consolidation Initiative

Town of New Castle, $194,313.14, Once per Week Garbage Collection

Town of Bethlehem, $776,107.36, Departmental Restructuring of Payment System and Maintenance Staff

Essex County, $984,250.00, Privatization of the Horace Nye Nursing Home

Town of Alden, $72,578.20, Innovative Employee Health Insurance Program

City of Rochester, $1,857,183.30, Neighborhood & Business Development Consolidation and Efficiencies Program

For additional information concerning the grant program please call the Office of the LGPEP Program Manager, (518) 473-3355.

Article 75 petition seeking to confirm an arbitration award holding the current CBA preserved the rights retirees obtained under previous CBAs granted by court

Article 75 petition seeking to confirm an arbitration award holding the current CBA preserved the rights retirees obtained under previous CBAs granted by court

Port Auth. of N.Y. & N.J. v Port Auth. Police Lieutenants Benevolent Assn., 2013 NY Slip Op 50953(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

Due to budget constraints, the Port Authority, effective January 1, 2011, discontinued its free E-Z Pass program available to all Port Authority retirees. As a result, the Port Authority Police Lieutenants Benevolent Association [LBA] filed a grievance under the arbitration provision in its Collective Bargaining Agreement, [CBA] claiming that the Port Authority had violated the CBA by discontinuing the E-Z pass program for retirees.

The Arbitrator framed the issues as follows:

1. Is the grievance substantively arbitrable?

2. If so, did the Employer violated [sic] the Collective Bargaining Agreement (CBA) by discontinuing on or about December 2010 or January 2011 free passage and parking at Port Authority facilities for retirees of the bargaining unit?

3. If so, what shall the remedy be?

The relevant CBA was agreed to in April 2005, effective retroactive to January 21, 2003, through to January 20, 2010. It contained a "Savings Clause," which provides that wages, benefits and conditions of employment "shall remain in full force and effect until a new Memorandum of Agreement [i.e., CBA] is executed." The provision relied upon by the LBA provided “for distribution of free passes for ‘permanent and project employees, retired employees, and employees on military leave for use at tunnels, bridges and some air terminals.’" Retired Lieutenants were provided with free passage “in the form of E-Z Passes.”

Arbitrator Howard C. Edelman found in the LBA's favor, ruling that the Port Authority had "violated the Collective Bargaining Agreement by discontinuing on or about December 2011 free passage and parking for retirees of the bargaining unit." The Port Authority was directed to reinstate the free passage and parking, and reimburse retirees for the monies they had expended on passage and parking since the program was terminated.

The Port Authority filed an appeal pursuant to Article 75 of the CPLR seeking to vacate the award. It contended that the Arbitrator exceeded his powers in ruling that free passage should be applicable to all LBA retirees, because the issue before the Arbitrator was limited to those employees who retired under the CBA 2003-2010 CBA. Accordingly, the Port Authority contended that it was error to apply the Arbitrator’s ruling to all “LBA retirees” and argued that the court should modify the award so as to limit the benefit to employees in the negotiating unit retiring between 2003 and 2010.

Judge Anil C. Singh said the Arbitrator had acknowledged the Port Authority’s argument in the Award but found that under Savings Clause which provided that, "all clauses of the contract ... continue in full force and effect' after the expiration of the [CBA]" and that the CBA thus "requires the continuation of the retiree benefit in question until the parties modify it in collective bargaining."

Judge Singh found that the Arbitrator had not exceeded his power by including pre-2003 retirees in the award where the arbitration was conducted pursuant to the 2003-2010 CBA.

Citing Riverbay Corp. (Local 32-E, S.E.I.V. AFL-CIO), 91 AD2d 509, the court said that “An arbitrator exceeds his or her power by giving ‘a totally irrational construction to the contractual provisions in dispute,’ so as to effectively rewrite the parties' contract.” The court then held that the Arbitrator did not exceed his powers, or rewrite the parties' agreement, when he found that the right to free E-Z Passes and parking applied to more than just retirees who had retired under the 2003-2010 CBA. The decision indicates that the language in CBA’s “Savings Clause” retained the right of retirees from previous MOAs to receive these benefits.

Concluding that the current CBA preserved the rights retirees obtained under previous CBAs, Judge Singh ruled that Arbitrator was not acting irrationally or exceeding his powers when he applied his ruling to past LBA retirees and confirm the LBA’s petition to confirm the award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50953.htm

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan
Bryant v Board of Educ., Chenango Forks Cent. Sch. Dist., 2013 NY Slip Op 04379, Appellate Division, Third Department

Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.*

The Public Employment Relations Board directed the School District to rescind its June 2003 memorandum in which it notified employees and retirees that it was terminating its practice of reimbursing Medicare Part B premiums.

In a companion case PERB ruled that the school district must reinstate its former practice of reimbursing retirees for Medicare Part B premiums** -- the same relief sought in the current proceeding.

The Appellate Division noted that PERB's order in the companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op 04039 (2013)]. Accordingly, Bryant received the full relief challenged by School District in the current appeal as a result of that determination, . Accordingly, the court ruled that the instant appeal is now moot.

As to argument advanced under color of an exception to the mootness doctrine, the Appellate Division held that the claimed exception “does not apply in that, although the issue advanced herein may recur and is significant, it is not likely to evade review.”

* The underlying facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134 [2005]) and in the companion case brought by the Chenango Forks Central School District (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the Internet at http://publicpersonnellaw.blogspot.com/search?q=bryant

** The reason for reimbursing retirees for Medicare Premiums that they are required to pay is explained in a “comment" in NYPPL’s summary of Munger v Board of Educ. of the Garrison Union Free School Dist., 85 AD3d 747, posted on the Internet at:  http://publicpersonnellaw.blogspot.com/2009/12/city-to-pay-100-of-cost-of-health.html

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm

The Statute of Limitations for seeking payment of compensation alleged due an employee pursuant to a contract begins to run when the employee had a legal right to demand such payment

The Statute of Limitations for seeking payment of compensation alleged due an employee pursuant to a contract begins to run when the employee had a legal right to demand such payment

2013 NY Slip Op 04321, Appellate Division, Second Department

The Village Police Commissioner and the Village had signed a contract that provided that the Commissioner was to earn $5,000 more than the highest-ranking lieutenant for each year that he served as Commissioner. In June 2010, the Commissioner learned that he would not be reappointed as Commissioner and alleged that he subsequently learned that his Lieutenants were earning more than he had been earning.

The Commissioner filed a written claim with the Village on November 2, 2010 alleging that the Village had breached its contract with him from 1999 through 2010 and on September 28, 2011commenced an action in Supreme Court pursuant to CPLR Article 78 alleging breach of contract and sought to “recover the wages that allegedly were owed him for those years.”

Supreme Court denied the Village’s motion [1] to dismiss so much of the Commissioner’s complaint that sought to recover payments allegedly due him prior to March 28, 2010 and [2] to transfer the Commissioner’s complaint to District Court, Nassau County. The Village appealed.

The Appellate Division reversed Supreme Court’s ruling and remanded the matter to District Court, Nassau County. In the words of the court, ”the damages sought [by the Commissioner] in connection with the portion of the complaint that is not time-barred fall within the jurisdictional limit of the District Court. Therefore, removal to that court is appropriate.”

Addressing the issue of the timeliness of the Commissioner’s petition, the Appellate Division [1] said that §9802 of the Civil Practice Act and Rules provides that, "no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued," and [2] explained that “Where the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment.”

The Village had argued that the Commissioner's causes of action alleging breach of contract accrued at the end of each year that the Commissioner allegedly was not paid in accordance with his contract. The Appellate Division agreed, ruling that as the Commissioner’s action was not commenced until September 28, 2011, the Village established, prima facie, that the action was time-barred to the extent that the Commissioner sought to recover damages accruing prior to March 28, 2010, i.e., 18 months prior to the commencement of his action.

Significantly, the Appellate Division held that the Commissioner’s reliance on “his lack of knowledge that the several breaches had occurred” did not toll the running of the statute of limitations for bringing a timely action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04321.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Reports issued during the week ending June 15, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Watertown Boasts Strong Finances

The City of Watertown has maintained a stable tax base, developed healthy revenue streams and built up rainy day reserves, according to a fiscal profile of the city issued by State Comptroller Thomas P. DiNapoli. The report was released June 12, 2013 in conjunction with the Comptroller’s 2013 Local Government Leadership Institute in Watertown.

DiNapoli: Auditors Uncover $3 Million in Improper Unemployment Insurance

State Comptroller Thomas P. DiNapoli uncovered up to $3 million in inappropriate unemployment insurance payments made by the Department of Labor, including payments to recipients who were ineligible because they were employed, had collected more than the maximum weekly benefits or were not authorized to work in the United States, according to a reportreleased June 14, 2013.

Comptroller DiNapoli Releases Municipal Audits

On June 13, 2013 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of:

the Village of Belle Terre;

the Town of Calicoon;

the Town of Gardiner;

the Town of New Berlin;

the Village of Nichols;

the Town of Pittsfield; and,

the Sylvan Beach Fire District.

Comptroller DiNapoli Releases Audits

On June 14, 2013 New York State Comptroller Thomas P. DiNapoli announced that his office completed the following audits:

the Metropolitan Transit Authority;

the Office of General Services;

the Workers’ Compensation Program;

the Department of State; 

the Office of Children and Family Services; and,

the Division of State Police.

Individual whose new employer rescinded the offer of employment for good cause disqualified for Unemployment Insurance benefits under the circumstances

Individual whose new employer rescinded the offer of employment for good cause disqualified for Unemployment Insurance benefits under the circumstances

2013 NY Slip Op 03735, Appellate Division, Third Department

A public employee [Claimant] delivered his letter of resignation to the appointing authority indicating that he had been offered, and had accepted, a position at another facility.

Subsequently Claimant drove a motor vehicle after he had taken prescription medication and was arrested for “driving while ability impaired.” When his prospective employer learned of his arrest, it withdrew its offer of employment and Claimant’s former employer would not allow him to withdraw or retract his resignation.*

The Department of Labor initially disqualified Claimant from receiving unemployment insurance benefits, finding that he voluntarily left his employment without good cause.

Claimant appealed and after a hearing, an Administrative Law Judge overruled this determination. The Unemployment Insurance Appeal Board reversed the Administrative Law Judge’s decision and Claimant appealed the Board’s ruling.

The Appellate Division affirm the Board’s decision, explaining "A claimant's conduct . . . with regard to accepting a new position is a critical element in determining whether separation from employment was for good cause."

In this instance, said the court, Claimant had a valid offer of employment at the time he tendered his resignation but he lost this offer through his own poor judgment in driving a motor vehicle after taking prescription medication.

Under these circumstances, said the court, substantial evidence supports the Board's finding that good cause did not exist for Claimant's voluntary departure from employment and that he was disqualified from receiving benefits and it found

* Given that Claimant worked in the field of substance abuse prevention, the Appellate Division said that his former employer was justified in refusing to allow Claimant to rescind his resignation. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03735.htm

New York State Governor Andrew Cuomo releases provisional open data guidelines to increase transparency among state agencies

New York State Governor Andrew Cuomo releases provisional open data guidelines to increase transparency among state agencies

Source: Office of the Governor

On June 13, 2013, Governor Andrew M. Cuomo released provisional open data guidelines for state agencies and public authorities to participate in Open.ny.gov. New York is the first state in the nation to publish its provisional open data guidelines* and seek public comment on GitHub, an open source platform that allows for open collaboration and sharing. Public comment is open until September 1, 2013.

Governor Cuomo said. “This transparency website is a coordinated effort by all of state government, so today’s provisional open data guidelines will provide direction to state agencies and authorities on how to catalogue and share their data on Open.ny.gov. I encourage New Yorkers to submit their comments as we work to build a new level of openness in government.”

On March 11, 2013, the Governor issued Executive Order 95** along with launching Open.ny.gov. The Executive Order directed state agencies, for the first time, to review and catalogue data they collect, and take steps to make public data available on Open.ny.gov in accordance with guidelines developed by the NYS Office of Information Technology Services (ITS).

These guidelines are designed for use by both covered state entities and other government entities not covered by Executive Order 95 including localities. The guidelines will help with identifying, reviewing, and prioritizing state data for publication. The Executive Order directs ITS to encourage public input and finalize the guidelines in the coming months.

Robert Freeman, Executive Director of the Committee on Open Government, said, “The use of Github represents a first among the fifty states, and will serve as the equivalent of a chat room open to the world. It will enable thoughtful and creative people to make contributions and communicate in a manner that can only improve the operation of government.”

Open.ny.gov is a comprehensive state data transparency website that provides user-friendly, one-stop access to open data from New York State agencies, localities, and the federal government. "Open data" refers to data that is free from restrictions and can be released in a format that can be retrieved, downloaded, indexed, and searched by commonly used web search applications. Open.ny.gov provides "open data" access and transparency to the wealth of information collected and maintained by the state and local governments. It allows researchers, citizens, business, and the tech community direct, centralized access to high-value government data to search, explore, download, and share. 

 * The Provisional Open Data Handbook is posted on the Internet at:

http://nys-its.github.io/open-data-handbook/

** Executive Order 95 is posted on the Internet at: http://www.governor.ny.gov/executiveorder/95

Application to participate in the employer's “Vested Benefits Program” rejected because the individual was not an employee “in good standing” when he resigned from his position

Application to participate in the employer's “Vested Benefits Program” rejected because the individual was not an employee “in good standing” when he resigned from his position

2013 NY Slip Op 04102, Appellate Division, First Department

The Port Authority of New York and New Jersey advised an employee that disciplinary action was being taken against him because he failed to obtain the Authority’s permission to engage in outside employment that was required to be so employed. 

Subsequently the employee submitted his resignation from his position with the Port Authority and then filed an application to participate in the Authority’s Vested Benefits Program “as a retiree.”

The Port Authority rejected the individual’s application to participate in its Vested Benefits Program because was not an employee “in good standing” when he submitted his resignation from his position. As a matter of policy the Authority deemed that “disciplinary action is pending” if the employee has been informed that disciplinary charges are being prepared.

According to the Appellate Division’s decision, the Authority’s rejection of the individual's application to participate in the Authority's "Vested Benefit Program" was based on its long standing policy that an employee who resigns while disciplinary charges are pending is not “in good standing and is therefore not entitled to such benefits.”

As the individual had been advised that disciplinary charges were being prepared prior to the effective date of his resignation, the Appellate Division ruled that the Authority’s rejection of his application to participate in the Authority’s Vested Benefits Program was  “not arbitrary and capricious or affected by an error of law.”

The court then indicated that the Authority had “reasonably complied with its own regulations when it determined that the lack of good standing disqualified petitioner from eligibility to participate in the Vested Benefits Program.”

The decision is posted on the Internet at:       

http://www.nycourts.gov/reporter/3dseries/2013/2013_04102.htm

Tenure by estoppel

Tenure by estoppel

2013 NY Slip Op 04006, Appellate Division, Second Department

Tenure by estoppel results "when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term."

When a probationary teacher was denied tenure prior to the end of his probationary period, he claimed that he had attained tenure by estoppel.

According to the decision, the Board of Education had employed the teacher [Educator] as a per diem substitute teacher from September through the following June. Upon Educator’s completion of that academic year he appointed as full time teacher subject to the satisfactory completion of a two-year probationary period commencing July 1, 2008 through to June 30, 2010. The decision notes that Educator was entitled to a “one-year credit” toward the statutory three-year probationary period based on his prior tenure service in another district as provided by Education Law §3012[1][a].

What was ultimately to prove critical to the resolution of Educator’s claim that he had attained tenure by estoppel was a revised “letter of intent” he had signed that memorialized his probationary appointment and which specified that he would become eligible for tenure on July 1, 2010.

In May 2010, the superintendent of schools advised Educator that would be recommend the termination of his probationary appointment and on June 23, 2010 the Board voted to terminate Educator’s employment effective June 25, 2010.

Educator challenged the Board’s action and filed an Article 78 seeking a court order directing his reinstatement to his former contending that the Board did not have the authority to summarily terminate his employment because he had acquired tenure by estoppel.

Supreme Court denied Educator’s petition.

The Appellate Division sustained the Supreme Court’s decision, explaining that Educator had failed to demonstrate that the Board unduly delayed his formal appointment to his position or that he had otherwise acquired tenure by operation of law.

The court said that it was undisputed that Educator signed a revised letter of intent. This letter was held to have superseded all prior agreements and specified that Educator would become eligible for tenure on July 1, 2010.

Educator, however, had already discharged from his employment prior to that date.

Accordingly, ruled the Appellate Division, the Supreme Court properly denied Educator’s petition and dismissed the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04006.htm

Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

Torpey v Town of Colonie, N.Y., 2013 NY Slip Op 04085, Appellate Division, Third Department

With respect to back pay to be awarded in the event a discharged employee is reinstated by action of a civil service commission or personnel officer or a court, prior to its amendment in 1985 Civil Service Law §§76 and 77 provided that the amount of back pay due an individual found to have been unlawfully terminated from his or her position was to be reduced by the amount of compensation he or she may have earned in any other employment or occupation following his or her termination, together with any unemployment insurance benefits he or she may have received during that period.

In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.

The issue in Torpey: May the compensation due employees reinstated to their former positions in the classified service pursuant to a court order be “reduced by” their earnings in other employments during the period in question.

The employees involved had been terminated from their long-term employment with the Town of Colonie on the ground that they were public officers who were required to, but did not meet, the residency requirement set out in the Public Officers Law. Following their termination, they accepted other employment with the Town for which there was no residency requirement.

The employees then challenged their termination and asked Supreme Court to reinstate them to their former positions "with full back pay, benefits and emoluments of employment."

Supreme Court determined that the employees had been erroneously terminated, finding that the Town had not shown that they were public officers subject to the residency requirements. The court granted the employees’ petition, ruling that the employees were "entitled to be reinstated to their former positions and to all back pay and associated benefits to which they would have been entitled had they not been improperly terminated."

Subsequently a dispute arose between the employees and the Town regarding, among other things, the meaning of the court's directive that employees were entitled to "all back pay," i.e., whether the back pay awards was to be “reduced by” the employees' earnings while employed by the Town as laborers, as the Town claimed, or whether they were entitled to full back pay without any such offset, as the employees argued.

The employees then asked Supreme Court “to resettle and/or clarify the court's prior judgment regarding back pay.” Supreme Court denied their motion, finding it represented an improper attempt to amplify and expand upon the court's prior decision and the employees appealed.

The Appellate Division agreed with Supreme Court, concluding that the employees’ motion “was one to resettle and/or clarify Supreme Court's prior judgment regarding back pay.”  Such a motion, said the court, is designed "not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision.” Such motions rest on the inherent power of courts to "cure mistakes, defects and irregularities that do not affect substantial rights of [the] parties."

In this instance the Appellate Division decided that the employees’ motion in Supreme Court sought to amplify and substantively amend, not merely to clarify, Supreme Court's prior judgment relating to back pay, “by invoking for the first time Civil Service Law provisions* in support of their argument that the back pay award should not be offset by earnings as Town employees during the period in which they had been improperly terminated, points which should have been raised and argued before a determination was rendered on their petition.”

The Appellate Division’s rational: “Such an offset would directly affect the amount of back pay owed by the Town and, as such, would clearly have ‘alter[ed] [a] substantial right[] of the parties.’”

Holding that “Under established precedent, no appeal lies from the ‘denial of a motion to resettle [or clarify] a substantive portion of an order,'" the Appellate Division dismissed the employees’ appeal.

* Presumably the Appellate Division did not view the employees’ reinstatement by Supreme Court as being within the ambit of Civil Service Law §76.3 or  §77 and thus the provisions of neither §76.3 nor §77 were operative in this instance as a matter of law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04085.htm

Past practice found sufficient to trump the absence of language in the relevant collective bargaining agreements providing for the practice

Past practice found sufficient to trump the absence of language in the relevant collective bargaining agreements providing for the practice
Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd., 2013 NY Slip Op 04039, Court of Appeals

The Chenango Forks Central School District told its faculty and staff it was discontinuing its practice of reimbursing Medicare Part B premiums of retirees 65 years of age or older participating in the District’s health insurance plan due to the cost involved of providing that benefit.

Initially the School District had been reimbursing these premiums as required by its then healthcare insurance plan. In 1990 the Union representing the faculty and the staff and the District agreed upon a new health insurance plan. This new plan was set out in the relevant collective bargaining agreement (CBA).

Although the new plan did not require the District to reimburse the retirees for the Medicare Part B premiums they were paying, the District continued to provide this benefit to its retirees. The successor collective bargaining agreements subsequently negotiated by the parties were silent with respect to the District reimbursing retirees for their Medicare Part B premium.

In response to the letter the Union filed a contract grievance contending that the School District had violated the CBA by failing to negotiate cancellation of Medicare Part B premium reimbursement. Shortly thereafter it filed an improper practice charge with the New York State Public Employment Relations Board on essentially the same theory.

Consistent with PERB's policy of refraining from asserting jurisdiction over an issue in dispute that was pending arbitration “until a determination is made as to whether the parties' [CBA] provide[d] a source of right to the charging party," PERB’s Administrative Law Judge “conditionally dismissed the [Union's] improper practice charge, subject to a motion to reopen.”

The arbitrator ruled there was no language in the collective bargaining agreement that would require Chenango Fork to reimburse retirees' Medicare Part B premiums that they had paid. The arbitrator explained that with respect to historical practices of the District regarding its making reimbursing retirees for the Medicare Part B premium they had paid “such practices originated from the former [healthcare plan] and a now repealed statutory obligation on the part of the District, and once the statutory obligation was removed, the District made voluntary Medicare Part B reimbursement payments to retirees. The voluntariness of the District's conduct,* given the origin of the District's Medicare Part B reimbursements, does not contain sufficient evidence of a mutual understanding and agreement to establish a binding past practice" (emphasis in the original).

The Union then asked PERB to reopen the improper practice charge it had earlier filed. PERB's Administrative Law Judge granted the Union’s request, opining that because "the arbitrator found no [contractual] source of right to [the Union] with respect to the dispute at issue ..., [the Union was] not seeking to enforce an agreement in the context of the charge, and PERB [had] jurisdiction over the alleged failure to continue a non-contractual practice."

Based on facts stipulated by the parties and the testimony given at hearings, ultimately PERB held that the District had violated Civil Service Law §209-a (1) by circulating the memorandum advising its employee of the fact that the District was going to discontinue its reimbursing retirees for the premiums they paid for Medicare Part B and there existed a past practice of providing a benefit — “the promise to reimburse current employees' post-retirement Medicare Part B premiums — which is a mandatory subject of bargaining”

PERB noted that the test for establishing a binding past practice under the Taylor Law was set out in its decision in Matter of County of Nassau (24 PERB ¶ 3029 [1991]) where it ruled that the "practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected [bargaining] unit employees that the [practice] would continue.”. PERB also noted that "the expectation of the continuation of the practice is something that may be presumed from its duration with consideration of the specific circumstances under which the practice has existed" and denied the District’s exceptions to the Administrative Law Judge’s ruling.

The Court of Appeals sustained PERB’s determination, concluding that under the facts in this case “it was reasonable for PERB not to defer to the arbitrator [as the] identity of issues was lacking and, to the extent the arbitrator purported to determine there was no past practice within the meaning of the Taylor Law, he exceeded his authority and his finding was repugnant to that statute.”

* The District contended that its continuation of the reimbursement of its retirees for Medicare premiums was the result of an administrative oversight.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_04039.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending June 8, 2013 [Click on text highlighted in bold to access the full report]


DiNapoli Issues Report On Public—Private Partnerships

New York State Comptroller Thomas P. DiNapoli called for strong oversight provisions if New York broadens the authority of the state to enter into public—private partnership (P3) projects or goes forward with private financing of public projects. DiNapoli’s recommendations follow the release of a reportWednesday examining the benefits and problems that have plagued P3 projects elsewhere in the country.

DiNapoli To Audit Superstorm Sandy Payments By State Agencies

State Comptroller Thomas P. DiNapoli will examine payments made by the state in response to Superstorm Sandy to make sure state agencies received goods and services at the appropriate price.

DiNapoli: Elmira Showing Signs of Progress

The city of Elmira’s finances have improved in recent years due to higher rates of revenue growth and a concerted effort to control spending, according to a fiscal profile report issued last week by State Comptroller Thomas P. DiNapoli. The city, however, remains challenged by unemployment and poverty.

DiNapoli: Mayor’s FY 2014 City Budget is Balanced, but Substantial Risks Remain

New York City Mayor Michael Bloomberg’s proposed budget for the upcoming fiscal year is balanced, but challenges remain including the unknown cost of potential labor agreements and the likelihood of realizing anticipated revenue from the sale of new taxi medallions, according to an analysisof the city’s four—year financial plan released Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Niagara Falls Hampered by Budget Deficits

The city of Niagara Falls has a growing disparity between its revenues and expenditures, forcing city officials to use nearly $22 million of its rainy day funds for operating costs from 2009 through 2013, according to an auditissued Tuesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office completed audits of:

the Allegany County Industrial Development Agency;

the City of Middletown;

the Village of Mount Morris;

the Village of Rockville Centre; and,

the Yaphank Fire District.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office completed audits of:

the Bolton Central School District;

the Maine–Endwell Central School District;

the Plattsburgh City School District; and,

the Warwick Valley Central School District.