Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy

Providing the names and home addresses of employees of a private contractor to an employee organization to be determined by applying a “balancing test” to avoid an "unwarranted invasion" of privacy
Massaro v New York State Thruway Auth., 2013 NY Slip Op 07234, Appellate Division, Third Department*

A union official submitted a Freedom of Information Law [FOIL] request to the New York Thruway Authority in an effort to “ensure that nonunion contractors comply with the prevailing wage law” (see Labor Law §220). Among other things, the official asked the Thruway to provide certified payroll records of a private nonunion contractor relating to work it performed on a public works project and the names and home address of the employees performing the work employed by the nonunion contractor.

The Thruway granted the official's request in part, providing employee titles and corresponding wage rates that were paid, redacting the employees' names, home addresses and Social Security numbers. The Thruway contended that providing the names and related information of the employees would constitute an unwarranted invasion of personal privacy within the meaning of FOIL.

After an unsuccessful administrative appeal, the official filed an Article 78 petition in Supreme Court seeking a court order directing the Thruway to provide him with the private employer’s employees' names and home addresses. Supreme Court dismissed the petition and official appealed that court’s ruling.

The Appellate Division, pointing out that the personal privacy exemption set out in Public Officers Law §87 [2] [b]) provides “a nonexhaustive list of categories of information that falls within the exemption.”

Where, however, none of the categories of exemption specifically cover the information demanded, the court said that the issue of whether there is an "unwarranted invasion" of privacy is decided "by balancing the privacy interests at stake against the public interest in disclosure of the information."

As to the balancing analysis, the Appellate Division said that “An unwarranted invasion of personal privacy has been characterized as that which ‘would be offensive and objectionable to a reasonable [person] of ordinary sensibilities.'  Here the official wishes to obtain the names and home addresses so that it can contact employees of the nonunion contractor to find out if they were paid as reported by their employer.”

In the words of the Appellate Division, “The scenario of nonunion employees of a nongovernment employer being contacted at their homes by someone from a union who knows their names, their home addresses, the amount of money they reportedly earn, and who wants to talk about that income would be, to most reasonable people, offensive and objectionable.” This, the court characterized as “a significant privacy interest.” Citing United States Dept. of Defense v Federal Labor Relations Auth., 510 US 487.

Rejecting the union official’s argument that the release of this information to his union is in the public interest since the union is attempting to ensure that the contractor paid appropriate wages and that the union is gathering necessary data should an underpaid employee desire its representation under Labor Law § 220-g, the Appellate Division said that the redacted payroll records that the Thruway provided – indicating employee titles and corresponding wage rates — provide “sufficient information (absent fraudulent record creation by a contractor) to confirm whether the contractor complied with wage requirements.”

Further, explained the court, in the event fraudulent or any other noncompliant conduct is suspected, an investigation may be initiated upon request to the appropriate government official as Labor Law §220 (7) provides that a governmental fiscal officer "shall on a verified complaint in writing of any person interested or of [a union] [or] may on his [or her] own initiative cause a compliance investigation to be made to determine whether the contractor . . . has paid the prevailing rate of wages."

The Appellate Division’s conclusion” “Notwithstanding the FOIL presumption of access to information gathered by the government and the important policy of ensuring payment of prevailing wages, the significant personal privacy interests implicated here prevail, particularly since the information already provided to petitioner should be sufficient to ensure compliance; in any event, other avenues are available to ensure compliance without invading the privacy of the employees of the nonunion contractor by disclosing their names and home addresses.”

* See also Stevens v New York State Thruway Authority, 2013 NY Slip Op 07235, Appellate Division, Third Department, a case involving essentially the same issues, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07235.htm

The Massaro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07234.htm
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Of the 753,295 visits to the 3403 items posted on this LawBlog as of December 31, 2013, listed below are the five that have been viewed most often and the initial date of its posting.

Entry
Essentials of the "Pickering Balancing Test”
The legal distinction between domicile and residen...
Any administrative action in the nature of discipl...
Employee's inability to provide the necessary urin...
Two different complaints; two different forums

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If a disinterested party could concluded the appointing authority had adjudged the matter in advance of hearing it, remanding the matter to a qualified and impartial individual is required

If a disinterested party could concluded the appointing authority had adjudged the matter in advance of hearing it, remanding the matter to a qualified and impartial individual is required
2013 NY Slip Op 08575, Appellate Division, Third Department

A fire inspector [Inspector] employed by the Village also served as the president of its firefighters union. Inspector was served with disciplinary charges and specifications Civil Service Law §75 alleging misconduct. The charges alleged that Inspector had engaged in an oral altercation with the Fire Chief concerning a directive issued by the Chief, during which he made two statements that resulted in disciplinary charges being filed.

Inspector filed an improper practice charge with the Public Employment Relations Board (PERB) shortly after being served with the disciplinary charges alleging that the Village’s decision to discipline him amounted to anti-union animus.

At the hearing on the disciplinary charges Inspector acknowledged that he had made the one statement but denied making the second statement alleged in the charges filed against him. Crediting the testimony of witnesses to the encounter to the effect that Inspector had, in fact, made the second statement, the Hearing Officer found Inspector guilty of the charges and recommended a period of unpaid suspension. The Village’s Mayor sustained the findings of guilt but modified the penalty to be imposed on Inspector.*

During the PERB hearing, held shortly after the Mayor had sustained the findings in the disciplinary hearing, Inspector again testified that he did not make the second statement.

This resulted in Inspector being served with new disciplinary charges alleging misconduct amounting to perjury and making a false official statement, as well as incompetence for failure to be truthful based on his testimony at the PERB hearing and his testimony at the disciplinary hearing.

This second §75 disciplinary hearing resulted in Inspector being found guilty of the charges and the Hearing Officer recommending that his employment be terminated. The Mayor adopted the findings and penalty of the Hearing Officer, whereupon Inspector filed an Article 78 petition seeking an order vacating the Mayor’s action. Supreme Court dismissed the petition and Inspector appealed.

The Appellate Division first noted that “Where a witness testifies falsely under oath, he or she may properly be subject to additional proceedings and sanctions, noting that the United States Supreme Court has held “…under circumstances indistinguishable from those present here … that ‘a [g]overnment agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct’,” citing Lachance v Erickson, 522 US 262.

Notwithstanding this, the Appellate Division said that “Reversal is required,” explaining that the Mayor was disqualified from reviewing the Hearing Officer's recommendations. Although an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges, in this instance the Appellate Division found that there was evidence indicating that the administrative decision maker may have prejudged the matter at issue. Thus, the court concluded, “disqualification is required.”

The Appellate Division noted that in his decision in the first disciplinary proceeding, the Mayor not only agreed with the Hearing Officer's report, but also stated his own opinion that "I do not believe [Inspector 's] account of what was said."

Further, said the court, his affidavit submitted in Inspector's CPLR article 78 proceeding challenging the first disciplinary determination, “the Mayor went one step further.” In explaining the portion of his decision addressing Inspector's version of the second statement, the Mayor said that he found that version "incredible."

Although the falsity of Inspector 's account of the second statement was not at issue in the second disciplinary proceeding, as that issue was conclusively determined in the first disciplinary proceeding, the central issue in the second disciplinary proceeding was whether Inspector's false testimony was given knowingly and willingly. Thus, after concluding that he did not believe Inspector's account of what was said and that Inspector’s version was "incredible," the Mayor put himself in the position of determining whether the statement that Inspector did in fact make was made knowingly and willfully.

The problem, said the court, was that these questions were inextricably intertwined, and the Mayor's statements regarding Inspector's testimony in the first proceeding were such that "a disinterested observer may conclude that [the Mayor] ha[d] in some measure adjudged the facts" surrounding the knowing and willful question "in advance of hearing it."

Accordingly, the Appellate Division ruled that the Mayor should have recused himself and because he did not, his determination was affected by an error of law.

The proper remedy, said the court, Judge Egan dissenting in part, was to remit the matter for a de novo review of the present record and the Hearing Officer's recommendations by a qualified and impartial individual

* Inspector commenced a CPLR article 78 proceeding challenging the determination, and Supreme Court dismissed the petition. Inspector did not appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08575.htm
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Although an employee organization and the employer are able to retroactively bind each other to the terms of a collective bargaining agreement, they unable to bind third parties to the agreement under color of the Taylor Law

Although an employee organization and the employer are able to retroactively bind each other to the terms of a collective bargaining agreement, they unable to bind third parties to the agreement under color of the Taylor Law

Buffalo Niagara Airport Firefighters Assn. v DiNapoli, 2013 NY Slip Op 07227, Appellate Division, Third Department

In 2009, in response to an "unprecedented" fiscal crisis,* the State Legislature revamped the State's Employee’s Retirement System and created a new Tier 5 requiring all newly hired firefighters, among others, to contribute a portion of their salary to the retirement system.

The legislation was made effective January 9, 2010 but it provided for an exception whereby eligible employees could join a noncontributory special retirement plan available to them pursuant to a collectively bargained agreement that was "in effect on the effective date of this act", i.e., on January 9, 2010.

The Buffalo Niagara Airport Firefighters Association [Association] and the Niagara Frontier Transportation Authority [NFTA] had entered into a collective bargaining agreement [CBA] that covered the period April 1, 2008 through March 31, 2009  [the 2008 Agreement] and subsequently executed a successor CBA in August 2010 that retroactively covered the period from April 1, 2009 through March 31, 2013 [the 2009 Agreement]. 

Both the 2008 Agreement and the 2009 Agreement permitted NFTA firefighters to participate in a noncontributory special retirement plan.

The Comptroller, however, determined that certain NFTA's newly hired firefighters were not eligible for the statutory exception and thus were unable to enroll in the noncontributory plan because no CBA was in effect on January 9, 2010. 

The Association challenged the Comptroller’s determination, contending that the “newly hired firefighters” were entitled to participate in the noncontributory plan provided for in the CBAs because either [1] the expired 2008-2009 CBA continued to be "in effect" on January 9, 2010 pursuant to the Triborough Amendment** or, in the alternative, [2] the 2009-2013 CBA was retroactively "in effect" on that date.

Supreme Court sustained the Comptroller's determination and the Association appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that the Association’s “reliance on the continued effect of the terms of the 2008-2009 CBA is unavailing in light of the recent decisions of the Court of Appeals expressly rejecting the application of the Triborough Amendment to the Tier 5 retirement legislation.”***

Thus, said the court, “the expired 2008-2009 CBA cannot be considered to have been ‘in effect’ on January 9, 2010 for the purpose of permitting the new hires to qualify for the statutory exception.”

Further, the Appellate Division ruled that 2009 Agreement could not be retroactively "in effect" on January 9, 2010, as it was not executed until seven months later in August 2010. 

The court concluded that in August 2010 newly hired firefighters were required by law to contribute to the retirement system and, as a result, “the Union and NFTA were prohibited from agreeing to a noncontributory retirement plan”, citing Civil Service Law §201[4]**** and Retirement and Social Security Law §470.

The Appellate Division explained that although “the Union and NFTA were able to retroactively bind each other to the terms of the 2009-2013 CBA, they were unable to bind third parties such as the Comptroller.” [See, also, Matter of Council of School Supervisors & Adm'rs, Local 1 v New York City Dept. of Educ., 87 AD3d 883, an entity not a party to a collective bargaining agreement negotiated pursuant to the Taylor Law may not be bound by its terms.]

* See Governor’s Program Bill Mem, Bill Jacket, Chapter 504 of the Laws of, 2009

** Civil Service Law § 209-a [1] [e]

*** Matter of City of Oswego, 21 NY3d 880; Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, 20 NY3d 651

**** Civil Service Law §201[4] provides that “The term "terms and conditions of employment" means salaries, wages, hours and other terms and conditions of employment provided,  however, that such term shall not include any benefits provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees, or payment to retirees or their beneficiaries. No such retirement benefits shall be negotiated  pursuant to this article, and any benefits so negotiated shall be void." while §470 of the Retirement and Social Security Law, captioned “Temporary suspension of retirement negotiations,” provides that “Changes negotiated between any public employer and public employee, as such terms are defined in section two hundred one of the civil service law, with respect to any benefit provided by or to be provided by a public retirement system, or payments to a fund or insurer to provide an income for retirees or payment to retirees or their beneficiaries, shall be prohibited."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_07227.htm
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Governor Cuomo releases 2013 year-end report

Governor Cuomo releases 2013 year-end report

Source: Office of the Governor

Governor Andrew Cuomo assumed office as the 56th Governor of the State of New York three years ago. On December 27, 2013 Governor Cuomo office issued the Governor’s 3rd annual year-end report, detailing New York’s progress in 2013.

The complete 54 page report can be found here. 
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Information for individual considering retirement available at the Securities and Exchange Commission’s website

Information for individual considering retirement available at the Securities and Exchange Commission’s website

Source: United States Securities and Exchange Commission

The United States Securities and Exchange Commission has posted a number of aids to assist individuals interested in planning for retirement on the Internet.

Click on http://www.investor.gov/tools#.Ur2cq_uab-Iaccess the information and the various tools provided by the Commission that it believes will assist an individual in evaluating his or her financial situation. Commission observes that “Once you know your current financial situation, you'll be in a better position to plan for the future.”

Listed below are some of the tools provided by the Commission:

401(k) and IRA Required Minimum Distribution Calculator: After age 70½, you are generally required to start withdrawing money from your IRAs and 401(k)s. Find out the minimum amount you'll need to withdraw, depending on your age and the value of your accounts.

Compound Interest Calculator: Find out how much your money can grow, using the power of compound interest.

Social Security Retirement Estimator: Get personalized benefit estimates to help you plan for retirement.

Worksheet for Determining Your Net Worth: Use this worksheet to list your assets and debts.

Worksheet for Tracking Your Income and Expenses: Keeping track of your income and expenses will help you stay on track with your financial goals.

Among others aids included are the following:

A mutual fund analyzer at: http://www.investor.gov/tools/calculators/mutual-fund-analyzerand

A variety of free investment professional background check tools at:

http://www.investor.gov/researching-managing-investments/researching-investments/ask-check

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Procedures followed in Educator’s probationary evaluations found to have undermined “the integrity and fairness of the entire review process”

Procedures followed in Educator’s probationary evaluations found to have undermined “the integrity and fairness of the entire review process”
2013 NY Slip Op 07275, Appellate Division, First Department

The New York City Department of Education [DOE] terminated a probationary teacher’s [Educator] employment. Educator challenged her termination during her probationary period and her unsatisfactory [U-rating] evaluation as a probationary employee.

Supreme Court denied Educator’s Article 78 petition seeking to annul DOE’s decision to terminate Educator’s probationary employment and affirmed Educator’s U-rating. The Appellate Division modified the Supreme Court’s ruling on the law, granting Educator’s petition to the extent of annulling the U-rating.

The Appellate Division indicated that Educator’s Article 78 petition appealing DOE’s termination of her probationary employment was filed “well after the expiration of the four-month statute of limitations period.”

In contrast, the court found that Educator’s appeal of her U-rating was timely.

Considering the merits of Educator’s appeal of her U-rating, the Appellate Division noted that Educator had invoked DOE's administrative procedures to appeal the U-rating and the Chancellor's Committee held a hearing and sustain Educator's appeal and recommended that the U-rating be reversed.

DOE, however, did not issue a final decision for more than year, whereby its final determination affirmed the U-rating and in doing so, DOE declined to adopt the recommendation of the Chancellor's Committee to reverse Educator’s U-rating.

Under the circumstances presented, said the court, “we find that the U-rating should be annulled.” The court explained that the record showed that upon timely receipt of her initial written report, Educator implemented its recommendations, and the deficiency set out there in was not noted in the subsequent formal observations.

The decision then reports that Educator’s principal failed to provide Educator with the written evaluation of Educator’s next formal observation for more than three months, and it was given to Educator at the end of the school year when there was little time to implement the multiple suggestions it set out.

Educator’s next formal observation came only nine days after her receiving the report of the previous observation and, said the court, “not surprisingly, the report indicated that she had not implemented the suggestions” set out in the previous report.

The Appellate Division’s conclusion: “In view of the foregoing, we find that the deficiencies in the rating of [Educator] were not merely technical, but undermined the integrity and fairness of the entire review process” and sustained Educators’ appeal of her U-rating.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07275.htm

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Amendment to New York State’s Constitution regarding additional veteran credits available to disabled veterans

Amendment to New York State’s Constitution regarding additional veteran credits available to disabled veterans

New York State Constitution, Article 5, §6

Scott DeFruscio, Assistant Director of Staffing Services, New York State Department of Civil Service, has distributed a General Information Bulletin to New York State departments and agencies addressing a recent amendment to the State's Constitution providing certain benefit to disabled veterans. The amendment takes effect January 1, 2014.

Click on text highlighted in color toaccess additional information and forms.

The Bulletin is set out below:

GENERAL INFORMATION BULLETIN No. 13-01

TO: Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers

FROM: Scott DeFruscio, Assistant Director of Staffing Services

SUBJECT: Amendment to the New York State Constitution re Eligibility for Disabled Veteran Credits on New York State Examinations

DATE: December 26, 2013

Article 5, Section 6, of the New York State Constitution was amended to entitle veterans who have used veteran credits for a Civil Service appointment or promotion and who were/are subsequently certified as being a disabled veteran by the United States Department of Veterans Affairs, to additional credits for a subsequent appointment or promotion.

This Constitutional amendment, which is effective January 1, 2014, provides additional veteran credits to a veteran who:

1. Used non-disabled veteran credits to obtain a civil service appointment or promotion with New York State or a local government, and,

2. Subsequent to such appointment is determined by the United States Department of Veterans Affairs to be a qualified disabled veteran, as defined in the New York State Civil Service Law.

Such candidate is entitled to 10 additional credits on civil service examinations, minus the number of credits already used for the prior appointment.

Eligible lists established on or after January 1, 2014 will include the additional disabled veteran credits in the scores of candidates who meet the above two conditions and provide the necessary documentation to establish eligibility to the Department of Civil Service (DCS) or other state agency establishing a decentralized eligible list.

DCS is taking steps to revise both the online and paper NYS-APP to provide candidates the ability to claim these additional credits. This will require modifying current systems to automate the capture and processing of veteran credit eligibility information. We are working as expeditiously as possible on these modifications.

In the meantime, DCS has established the following process to notify potentially eligible candidates and provide them a means to claim the additional veteran credits:

1. All candidates for examinations for which eligible lists will be established on or after January 1, 2014 will receive notification (attached) of the Constitutional amendment and its effect. The notice will provide the candidate with eligibility information and direct the candidate to this website: www.cs.ny.gov/vetcredits. On the website the candidate will answer questions to assist in determining eligibility and will be able to submit a claim for the additional disabled veteran credits.

2. The candidates will have approximately 10 days from receipt of the notice to submit the required information. Candidates may not claim the credits after an eligible list has been established.

3. DCS will add the additional credits to scores of candidates who submit a claim and will send these candidates two forms, T-252 and T-252A The candidate will use these forms to request required eligibility verification information from the U. S. Department of Veterans Affairs and the candidate’s previous public sector employer. These forms must be returned to DCS and will be used to verify eligibility for the use of the claimed credit at the time of appointment along with the S-203 Disposition of Veterans Credits documentation. Any candidate who claimed additional disabled veteran credits and has either not provided this Department with needed verification documentation in a timely manner, or who is found to be ineligible, will have the claimed credits removed and their score on the eligible list revised accordingly.

Additional information regarding the affects of the Constitutional amendment, including frequently asked questions, can be found on our website, www.cs.ny.gov/vetcredits.

Decentralized Examinations

Once the DCS revisions of the online and paper NYS-APP are finalized, any special applications for decentralized examinations must be revised in a similar manner. Until such time, agencies must not establish any eligible lists nor add eligibles to continuous recruitment eligible lists resulting from decentralized examinations without first notifying candidates of the ability to claim additional disabled veteran credits, as provided by the Constitutional Amendment. Agency personnel who establish and maintain eligible lists should be informed accordingly. Agencies that administer decentralized examinations should adopt procedures similar to those described above to accept and verify claims for additional disabled veteran credits. The notification to candidates used by DCS may be modified for agency use. The additional veteran credits may only be added to a candidate’s score prior to list establishment. The scores of current list eligibles may not be changed.

Questions may be directed to your Staffing Services Representative.

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Misconduct in another jurisdiction may be a basis for disciplinary action in New York State

Misconduct in another jurisdiction may be a basis for disciplinary action in New York State

Bueno v. Ambach, 82 A.D.2d 935, Appeal Dismissed, 54 N.Y.2d 1024

The Appellate Division concluded that the Commissioner of Education properly revoked a physician’s license to practice medicine in New York State on the basis of his record in other jurisdictions.

Holding that “it is clear that misconduct in other jurisdictions can be the basis for a disciplinary action in New York...and also that the transcripts of the hearings were properly...in evidence,” the Appellate Division  dismissed Bueno’s appeal.
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A tribunal’s lack of jurisdiction to render a judgment or determination may be asserted at any time

A tribunal’s lack of jurisdiction to render a judgment or determination may be asserted at any time
2013 NY Slip Op 08481, Appellate Division, Third Department

In 1994 a New York City employee filed a Workers’ Compensation claim alleging that she had sustained a work-related injury.. The claim was controverted by the employer, who was “self-insured,” and in 1995 the employee's claim was marked closed due to a lack of prima facie medical evidence.

In 2011 the individual submitted a medical report documenting her injury. A Workers' Compensation Law Judge established the claim in a June 2011 decision, finding that the employer waived its defenses by failing to appear at a Workers' Compensation hearing. The Board found the employer's application for review of hearing officer's the decision untimely and the employer appealed its ruling.

The employer, conceding that its application for review was untimely, nevertheless contended that the Workers’ Compensation Board’s refusal to consider its claim that the Board lacked jurisdiction to reopen the matter pursuant to Workers' Compensation Law §123* constituted an abuse of discretion.”

The Appellate Division agreed, citing Doey v Howland Co., 224 NY 30. The court explained that "The general rule is that lack of jurisdiction to render a judgment or determination may be asserted at any time …" Although the Board has broad discretion to reject a late application for review, the court ruled that its refusal to consider an untimely challenge to its jurisdiction may constitute an abuse of discretion.

Given the age of the claim and the fact that it was marked closed in 1995, the Appellate Division said that the “employer plausibly argues that the Board lacked jurisdiction to reopen the present claim.” Thus the Board abused its discretion in refusing to consider the employer's admitted untimely application for review with respect to the Board’s jurisdiction under these circumstances.

The Appellate Division remanded the matter to the Board in order for it to “address the merits of [the employer's] application and determine if the [individual's] claim had been truly closed in 1995.”

* Workers' Compensation Law §123 provides for the continuing jurisdiction of the Board under certain circumstances.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08481.htm


 
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 21, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 21, 2013

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli on December 18, 2013 announced his office completed audits of

the New Suffolk Common School District,

the Quogue Union Free School District and

the Schoharie Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on December 18, 2013 announced his office completed audits of

County Reimbursement for Social Services Costs,

the Town of Dannemora, Village of Deposit and

the Kiantone Fire Department.

DiNapoli Announces Public Can Search State Payments on www.openbooknewyork.com

State Comptroller Thomas P. DiNapoli Tuesday announced that state payments to vendors, municipalities, school districts and others are now available at Open Book New York (www.openbooknewyork.com), a transparency website launched by DiNapoli in 2008. Data is updated daily to include approximately 10,000 new payments the Comptroller’s office processes each business day.

DiNapoli: State Public Authority Pay & Employee Perks Overs $7 Billion

New York’s state public authorities pay more than $7 billion in compensation and perks to more than 104,000 employees annually, with nearly $1.8 billion going to employees who earn $100,000 or more, according to a reportreleased Wednesday by State Comptroller Thomas P. DiNapoli.
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Video tape exonerates employee accused of vandalism of employer’s property

Video tape exonerates employee accused of vandalism of employer’s property

OATH Index No.1572/13

Tapes created by surveillance video cameras have been used as evidence against employees in disciplinary procedures.

In this disciplinary action, a videotape introduced by the employee in his defense persuaded the hearing officer that the department had not proven the disciplinary charges filed against him.

A New York City a sanitation worker was served with disciplinary charges alleging that he had vandalized a garbage truck parked in a Department garage. The New York City Department of Sanitation attempted to prove these charges by introducing evidence that alleged that the employee vandalized a Department truck at about 3:15 a.m.

The evidence relied upon by the Department consisted of the testimony of two investigators who were watching a Department parking lot at night from the rooftop of an adjacent building and who had made a video recording of the lot from their observation point.

OATH Administrative Law Judge Kevin F. Casey found that the sound of broken glass could be heard on the video made by the investigators but no one was visible on the tape because it was too dark.

The employee denied that he had vandalized the Department’s equipment and introduced into evidence a video surveillance camera tape taken at a nearby 7-Eleven store and “[a]ccording to the time stamp on the recording, the [employee] entered the 7-Eleven at 3:12 a.m. and he left at 3:22 a.m., after using the restroom and purchasing food and coffee.”

Finding that the Department failed to rebut employee’s alibi evidence, including the video tape showing that he was at a 7-Eleven at the alleged time of the incident, OATH Administrative Law Judge recommended that the disciplinary charges filed against the employee be dismissed.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/98_Cases/13-1572.pdf
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Six Agency and Authority Audits Find Overlapping Work Time, Potential Safety Issues Regarding Consecutive Hours Worked

Six Agency and Authority Audits Find Overlapping Work Time, Potential Safety Issues Regarding Consecutive Hours Worked

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

The State Comptroller reports that a review of six state agencies and authorities found a pattern of abuse and poor oversight of employees that hold two or more public jobs, including fraudulently claiming to be working at two places at the same time, New York State Comptroller Thomas P. DiNapoli announced on Friday, December 20, 2013.

Earnings by all workers with two or more state jobs exceed $500 million annually. If even only a small percentage of these payments are not earned, the cumulative cost to taxpayers could easily be several million dollars annually.

Of 345 employees examined, auditors found 75 employees that regularly violated time and attendance policies, costing taxpayers $413,277 for 4,803 hours not worked. This amount represented almost 4.5 percent of the employees’ salaries. Auditors also found employees falsified timesheets, abused sick leave and misrepresented travel time from one job to another.

The Comptroller said: “Dozens of public employees working for more than one public employer have managed to take advantage of lax oversight and take credit for hours they didn’t work,” DiNapoli said. “Our audits found supervisors were lax and often complicit in allowing employees to game the system. This is costing taxpayers too much and could jeopardize public safety. It has got to stop. While the Executive should address this issue with all state agencies, I commend the agencies we audited for taking swift action, and recognizing that changes are needed.”

DiNapoli’s auditors examined the issue of dual employment after identifying red flags in previous audits.  The Metropolitan Transportation Authority (MTA), the Office for People with Developmental Disabilities (OPWDD), the Department of Corrections and Community Supervision (DOCCS), the Office of Mental Health (OMH), the Unified Court System (UCS) and the Office of Children and Family Services (OCFS) were selected for audit.  

Dual employment is most prevalent at colleges, prisons, health facilities and the courts. The most common secondary positions are as adjuncts, correction officers, and school hourly staff.

In additional findings, DiNapoli’s auditors found 69 employees who claimed to have worked 3,536 hours at two jobs at the same time (overlapping hours). Another 22 employees did not accurately reflect travel time from one job to another, and 16 improperly charged 511 hours of sick leave at one job, even though they were working at a second job.

Specific examples include:

·        An MTA track equipment maintainer who also worked for the New York City Department of Environmental Protection (NYCDEP) had work schedules that overlapped four hours each week. He told auditors that a supervisor had approved an alternate schedule seven years ago, which allowed him to report earlier to work at 6 a.m. instead of 8 a.m. in order to get to the NYCDEP on-time, even though his timesheets did not reflect this alternate schedule. During a site visit, auditors found that he arrived shortly before 8 a.m. instead of his earlier start time. This employee reported 193.5 overlapping hours at a cost of $8,232 over the course of a year;

·        A UCS employee who also taught at two CUNY schools was teaching classes during the hours that he was supposed to be at UCS. He was paid by UCS for 344 hours that he spent either traveling to or teaching CUNY classes;

·        A psychiatric nurse employed by OMH, who also worked as a public health nurse at P.S. 205 in the Bronx, submitted time records reporting the same end and start time for both jobs. She was paid for 205 hours not worked over twenty-two months at a cost of at least $1,607;

·        An OPWDD developmental aide charged 64 hours of unscheduled sick leave even though he was actually attending out-of-state basketball games associated with his SUNY employment. He was paid for 64 hours of sick leave at $1,187.20 and was paid as much as $689.43 for time not worked; and

·        There were 16 MTA employees who, because of their dual employment, were violating time limits for consecutive hours worked within a 24-hour period and were potentially putting public transportation users at risk.

Each of the six entities is performing its own internal investigation of employees identified in the audits.  At OCFS, two employees were fired, while a third resigned. The Comptroller’s office has also instructed the agencies to adjust calculations for any unearned pension credits given to the cited employees.

DiNapoli’s auditors recommended that agencies develop more comprehensive regulations to protect public health and safety, when permitted by labor contracts. Agencies should also consult with the Department of Civil Service and public employee unions to articulate more realistic time and attendance policies that reflect legally permissible practices, maximize productivity, and ensure adequate staff coverage.

The agencies and authorities generally agreed with the audit findings and to provide training on time and attendance policies, and recover overpayments for time not worked. The Comptroller’s office will also start providing agencies with data to allow payroll offices to better monitor employees with two or more jobs.

For a copy of the dual employment roll-up report visit: http://osc.state.ny.us/reports/dual_employment_roll_up.pdf

The individual audit for MTA can be found here: http://www.osc.state.ny.us/audits/allaudits/093014/11s46.pdf

The individual audit for OPWDD can be found here: http://www.osc.state.ny.us/audits/allaudits/093014/11s22.pdf

The individual audit for DOCCS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/12s129.pdf

The individual audit for OMH can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/11s47.pdf

The individual audit for OCFS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/11s48.pdf

The individual audit for UCS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/12s79.pdf

Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location

Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location

OATH Index No.1571/13

A sanitation worker was charged and found guilty of accepting a $40 gratuity from undercover investigators in exchange for disposing of approximately 12 black garbage bags containing trade waste.

While OATH Administrative Law Judge Faye Lewis found that the Department did not prove that the worker knew the bags contained construction debris, she held that he knew or should have known the bags did not likely contain household garbage. Thus, the worker violated the agency's trade waste directive by disposing of more than six bags of construction debris without supervisory approval.

Although “Termination has often been the penalty for trade waste violations, particularly when there is proof that a worker has accepted a gratuity” in so doing, Judge Lewis noted that in recent cases involving similar facts the appointing authority imposed a lesser penalty on employees found guilty of “trade waste violations.” Citing OATH Index No. 469/11, Judge Lewis said that although the OATH ALJ considering the matter recommended the termination of the employment of a long-term sanitation worker found to have accepted a gratuity in return for picking up yard debris in violation of the trade waste order, the appointing authority rejected the penalty recommended and instead decided that a 30-day suspension without pay, the loss of 80 vacation hours and a reassignment* to another word location as the penalty should be imposed.

Finding that in this instance the employee’s partner played the dominant role in the transaction and the employee played only a secondary role, Judge Lewis recommended imposing a penalty of a 30-day suspension without pay.

The Commissioner adopted Judge Lewis’ recommendation of a 30-day suspension without pay but modified it imposing an additional penalty -- reassigning the employee from his current  work location to another location for 5 years.

* Although judicial and quasi-judicial decisions occasionally uses the term "transfers" to describe the type of personnel change involved here, a "change of work station," the employee’s “change of location” was, in fact, a "reassignment." Transfers typically involve moving an individual under the jurisdiction of one appointing authority to the jurisdiction of a different appointing authority and usually requires the approval of the individual involved. In contrast, a reassignment is the placement of an individual under the jurisdiction of one appointing authority to another position under the jurisdiction of the same appointing authority -- and the approval of the individual is not required unless a collective bargaining agreement provides otherwise. See, for example, 4 NYCRR 1.2(b), which applies to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/10_Cases/13-1571.pdf

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Payments for accumulated leave credits to retiring employees

Payments for accumulated leave credits to retiring employees

Source: January 2014 edition of the FSLG Newsletter [Issue Number: 01-2014]

In its January 2014 edition of the FSLG Newsletter, the Internal Revenue Service states:

“Employees of local governments often have substantial accumulations of sick and vacation pay at the time they retire. In many cases, contractual agreements between the employer and employee call for a lump - sum payment of all accumulated sick and vacation pay, as of the date of retirement. Th e payments often leave local governments and employees with large, unexpected tax liabilities.

“Many times, local governments and employees negotiate a payment plan to lessen the tax burden for both parties.

“Generally, the agreements are executed to defer the tax liability into other years. However, under the constructive receipt rules, the full amount is generally taxable when the employee has the option to receive the full amount. An employee cannot decide when the tax will be paid.

“As we discussed in an article in our previous newsletter , the constructive receipt rules under Internal Revenue Code section 451 require that individuals recognize income as soon as they have effective  control over it; that is, when the funds are made available without substantial limitations. When an employee has an option to receive the income without restriction, it is recognized as income, regardless of whether the employee actually receives it at t hat time.

“Example:

“City Government A owes Employee Z $150,000 in accumulated sick and vacation pay as of the day of retirement. A month before Employee Z’s retirement date, City A reaches an agreement to pay Employee Z $50,000 a year. For  3 years. City A intends to treat each of the 3 payments as wages and subject the payment to Federal Income tax withholding, social security, and Medicare taxes in each year. This arrangement does not defer the tax due. City A may choose to make the payments over the 3 years, but because the entire $150,000 is available at retirement, it will be included in income, subject to income tax withholding and social security and Medicare taxes ,  as of the date the employee is entitled to the funds.

 

“There are two key considerations to remember when consider ing payments of accumulated sick and vacation pay. First, does the worker have a right to receive the money? The worker does not have to exercise that right; the simple existence of the right to receive the money is sufficient t o establish that a taxable event has occurred.

“Second, has the employee been given an option as to when to receive the funds? If the employee has an option, the n the  employee has constructively received the money. The right to receive the money or the opt ion to receive the money determines whether  the money has been constructively received. Once the money is deemed to have been constructively received, it is taxable at that point.”

For additional information and assistance, please discuss the liquidation of accrued leave credits with your attorney or tax advisor.

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