Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 14, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 14, 2014

Click on text highlighted in color  to access the full report

Department of Agriculture and Markets: Dairy Inspections (2014-S-16)

The department performed approximately 6,000 inspections at almost 1,400 locations in calendar year 2013. Despite staffing shortages, the department does not have a backlog of safety inspections; all mandated inspections had been completed for 2013. However, the staffing shortfalls have required it to cut back on other activities or goals it also considers important to quality control and safety such as delivery vehicle inspections, plant raw and pasteurized milk sampling, and butterfat testing.

Department of Health: Unnecessary Medicaid Payments for Children at Voluntary Agencies (Follow-Up) (2014-F-5)
An initial audit report issued in September 2012 found that DOH could save millions of Medicaid dollars annually by assessing and modifying certain policies and practices that drive the costs of medical care provided to children placed at voluntary agencies. In a follow-up report, auditors found DOH has made progress in implementing the recommendations made in the initial audit report. Of the report’s five audit recommendations, three were implemented, one was partially implemented and one was not implemented.

Department of Health: Medicaid Program: Overpayments to Managed Care Organizations and Hospitals for Low Birth Weight Newborns (2013-S-57)
Medicaid made $12,378,309 in overpayments for low birth weight payments that did not meet the necessary requirements. For example, Medicaid paid one managed care organization $99,044 for a low birth weight payment based on a reported newborn birth weight of 215 grams. However, the newborn’s actual birth weight was 3,215 grams. Medicaid should have only paid the MCO $3,232. There was an additional $949,681 in potential overpayments for similar claims at high risk of not meeting the billing requirements for supplemental low birth weight claims. Medicaid paid $548,404 in duplicate fee-for-service and managed care low birth weight newborn claims. At the time the audit fieldwork concluded, auditors recovered more than $7 million of the overpayments identified.

Department of Labor: Amusement Park and Fair Ride Safety (2014-S-47)
Auditors conducted site visits at 53 locations across the state covering almost 1,000 rides and found each of the rides being operated at all of the 53 locations had been inspected and permitted as required.

Department of Motor Vehicles (DMV): Driver Responsibility Assessment Program (2013-S-53)
DMV accurately assessed all program fees and either collected these fees or suspended the licenses or the privilege to obtain a license of drivers who did not pay. However, the DMV needs to improve its internal controls over manual adjustments made to the program database by ITS staff.

Metropolitan Transportation Authority: MTA-NYC Transit Medical Assessment Centers (2013-S-33)
On a unit cost basis, auditors determined that Medical Assessment Centers (MAC) run by the MTA to gauge drivers’ health and ability to do their jobs were not more costly than using a contractor that previously performed the work. Auditors also concluded that there are opportunities to attain further efficiencies in the MAC program.

New York City Department of Buildings: Outstanding Violations (Follow-Up) (2014-F-13)
An initial report, issued in December 2011, found that New York City Department of Buildings managers did not have effective systems in place to ensure hazardous violations were resolved quickly. In a follow-up, auditors found the department has made progress in addressing the issues identified in the initial report. Of the four prior recommendations, two have been implemented and two have been partially implemented.

New York State Health Insurance Program: Empire BlueCross BlueShield – Selected Payments for Special Items for the Period April 1, 2011 Through June 30, 2011 (Follow-Up) (2014-F-6)
In an initial report, auditors determined Empire did not have adequate controls to ensure special items were paid according to contract limitations. As a result, Empire made a net overpayment of $119,141 on 33 claims. In a follow-up report, auditors found Empire officials made considerable progress in implementing the recommendations made in the initial audit report. Of the three prior recommendations, two were implemented and one was partially implemented. Empire recovered the overpayments from hospitals, implemented controls to ensure payments for special items are made in accordance with hospital agreements, and made significant progress to ensure that future agreements with hospitals contain language limiting the reimbursement of special items.

Port Authority of New York and New Jersey: Vehicle and Heavy Equipment Purchase Program (Follow-Up) (2014-F-2)
An initial report issued in December 2010 found that the Port Authority generally did not follow required procedures to ensure that the acquisition of vehicles and heavy equipment was justified. In a random sample of 75 items that were purchased for $8.2 million, the Port Authority provided documentation for only two items for $192,279. In addition, the Port Authority included funds for vehicle and equipment rentals in its annual Purchase Program. Auditors also found that the car service contract amounts were excessive compared to the amount the Port Authority actually spent. In a follow-up, auditors found the Port Authority has made some progress in addressing the issues identified earlier. Of the eight prior recommendations, two were implemented, and three were partially implemented and three were not implemented.

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Deleting e-mails sent by the supervisor

Deleting e-mails sent by the supervisor

OATH Index No. 2553/14

The appointing authority filed disciplinary charges against an employee charging the individual with having deleted 27 of the 29 of the e-mails sent by her supervisor without having read them and disobeying an order not to delete e-mails transmitted by the supervisor.

Testimony presented at the hearing included a statement by the employee’s supervisor that he had “received via e-mail notices that [the employee] had deleted without reading … e-mails on which he had copied [the individual].

OATH Administrative Law Judge Astrid B. Gloade found that misconduct was not proven and recommended dismissal of the charges as the evidence in the record did not establish that the employee was given an order to retain the e-mails. Further, explained the ALJ, the appointing authority “failed to prove that even if [the employee] had deleted the e-mails it would have constituted misconduct. Misconduct may be premised on carelessness or negligence, as well as willful or intentional conduct.”

In the words of the Administrative Law Judge: “I find that [the employer] failed to establish by a preponderance of the evidence that [employee] committed misconduct and recommend that the charges be dismissed.”

Among Judge Gloade's finding: 27 of the 29 of the emails were deleted on a Sunday morning and that the appointing authority failed to present any evidence that the employee was at work, or had remotely accessed her e-mail account, at that time.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2553.pdf
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New York State's Veterans Employment Act .

New York State's Veterans Employment Act

Source: NYS Department of Civil Service

The New York State Department of Civil Service has distributed General Information Bulletin No. 14-04 to State Department and Agency Directors of Personnel and Affirmative Action Officers.  Bulletin 14-04 states advises::

“On January 20, 2014 the Executive Law was amended to add Chapter 17-A, also known as the Veterans Employment Act. Pursuant to Section 369 of the Executive Law, it will be the policy of the state to use eligible discharged veterans for temporary appointments in state agencies rather than utilizing temporary employment service companies.

“To this end, it will be the responsibility of the Department of Civil Service to create and maintain a veteran temporary hiring list. The law requires a state agency to select a veteran from the veteran temporary hiring list when making a temporary appointment, provided that the veteran possesses the applicable skills needed for the temporary assignment.”

Veteran Eligibility

“In order to be eligible to participate in the Veterans Temporary Hiring Program an individual must have served on active duty in the United States Army, Navy, Marine Corps, Air Force, Coast Guard or the Reserve Components of the Armed Forces of the United States or served in active military service of the United States as a member of the Army National Guard, Air National Guard, New York Guard or New York Naval Militia, and have been released from such service otherwise than by dishonorable discharge after September 11, 2001.

“We expect that jobseekers will upload their federal form DD-214 (Military Service Record) in the portal and agencies will use this information to verify their eligibility for participation in the program.”

Temporary Appointments

“A state agency must select a qualified veteran from the Veteran Temporary Hiring Program portal when making a temporary appointment to a temporary-hourly budgeted position, provided the veteran possesses the applicable skills needed for the temporary assignment. A qualified veteran willing to accept the position must be selected prior to making an appointment of a non-veteran.”

Additional information is posted on the Internet at:

http://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB14-04.cfm
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Recent ruling by the Appellate Division concerning alleged unlawful discrimination

Recent ruling by the Appellate Division concerning alleged unlawful discrimination

Browne v Board of Educ, 2014 NY Slip Op 07465, Appellate Division, Second Department

Matter of Katz (Commissioner of Labor), 2014 NY Slip Op 07556, Appellate Division, Third Department

The Browne decision:

This decision by the Appellate Division illustrates the shifting of a party’s “burden of going forward” in litigating a complaint alleging unlawful discrimination.

Robert Browne attempted to recover damages for alleged employment discrimination on the basis of gender in violation of Executive Law §296.

The New York City Board of Education [Department] appalled so much of an order of the Supreme Court that denied its motion for summary judgment dismissing the cause of action in which Browne alleged employment discrimination based on gender.

The Appellate Division affirmed the lower court’s ruling explaining that Browne, in opposing the Board’s “prima facie showing that there was a legitimate, raised a triable issue of fact as to whether the Department’s explanation was false, misleading, or incomplete, and thus, a pretext for discrimination.

Accordingly, said the court, the Supreme Court properly denied that branch of the Department’s motion for summary judgment dismissing Browne’s first cause of action, which alleged employment discrimination based on gender.

The Appellate Division also noted that the Department, by failing to raise collateral estoppel as an affirmative defense to Browne’s cause of action alleging employment discrimination either in its pre-answer motion to dismiss or in its answer, waived it, citing CPLR §3211[a][5],[e].

The Katz decision:

The Katz decision by the Appellate Division demonstrates a difficulty that resulted from an individual submitting his or her resignation from the position based on what the court characterized as the employee's “perceived  religious harassment” without first giving the employer an opportunity to investigate the matter.

Roberta B. Katzbegan working for an organization that provides vocational services for persons with disabilities and was being trained to assume the position of director of accounting.

Prior to accepting the job, Katz received the employer's assurance that her religious practices would be accommodated permitting her to leave work at 2:45 p.m. on Friday, December 7, 2012. Her trainer scheduled a meeting on that date from 2:00 p.m. until 3:00 p.m., but told claimant that she could leave at 2:45 p.m. At 2:40 p.m. the trainer told Katz that she needed her to prepare a computer-generated report.

Katz told the trainer she could not complete the report within five minutes and the trainer agreed to prepare it herself. The trainer then asked Katz to log on to her computer to get a password the trainer needed to do the report. At 2:50 p.m. the trainer told Katz to leave.

Katz did not report to work the following Monday, but resigned from her position due to what she perceived was religious harassment.

Katz applied for unemployment insurance benefits and ultimately the Unemployment Insurance Appeal Board ruled that she was disqualified from receiving such benefits because she had voluntarily left her employment without good cause. Katz appealed the Board's ruling.

The Appellate Division affirmed the Board’s determination explaining regardless of the  “inappropriateness of the trainer's actions,” Katz resigned from her position without affording the employer an opportunity to investigate the matter or take corrective action.

Noting that Katz had emailed the employer announcing her resignation the Sunday after the incident and before she even discussed it with the employer's human resources manager, the court ruled that under these circumstances substantial evidence supported the Board's finding that Katz had voluntarily left her employment without good cause.

The Browne decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07465.htm

The Katz decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07556.htm

The Unemployment Insurance Appeal Board is bound by the disciplinary arbitrator's factual findings regarding the employee’s misconduct

The Unemployment Insurance Appeal Board held bound by the disciplinary arbitrator's factual findings regarding the employee’s misconduct 

2014 NY Slip Op 07414, Appellate Division, Third Department

A NYC Transit Authority [Authority] train operator [Operator] was served with disciplinary charges. Following a full evidentiary arbitration hearing conducted under the collective bargaining agreement, Operator was terminated.

Operator applied for unemployment insurance benefits and the Unemployment Insurance Appeal Board, noting that it was bound by the factual findings of the arbitrator, conducted an "independent evaluation” as to whether Operator’s behavior constituted disqualifying misconduct for the purposes of unemployment insurance.

The Board, however, found that Operator’s behavior leading to the Authority’s filing disciplinary charges did not constitute “disqualifying misconduct” within the meaning of the Unemployment Insurance Law and approved his claim for unemployment insurance benefits.

The Appellate Division reversed the Board’s determination.

The court explained that "While the Board was free to make 'independent additional factual findings' and draw its own independent conclusion as to whether [Operator’s] behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the [arbitrator's] 'factual findings regarding [Operator’s] conduct and [her] conclusion' that claimant had" committed serious violations of safety rules.

In this instance the arbitrator found that Operator had committed “grave violations of the employer's policies that had endangered the safety of his passengers, violations that were rendered even more egregious by the fact that he had previously been disciplined for similar conduct.”

In contrast, said the court, the Board “inexplicably found that [Operator] had ‘substantially complied with’ the [Authority’s] policies and made no effort to consider [Operator’s] behavior within the context of his prior disciplinary history."

Accordingly the Appellate Division ruled that the Board improperly contradicted factual findings of the arbitrator and remitted the matter to the Board for it to "reconsider upon appropriate findings."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07414.htm
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If a settlement or award includes a payment only the part constituting reimbursement for lost wages is included in determining the employee’s retirement allowance

If a settlement or award includes a payment only the part constituting reimbursement for lost wages is included in determining the employee’s retirement allowance
2014 NY Slip Op 07412, Appellate Division, Third Department

In 2006 a grievance brought by the union on behalf of a teacher [Teacher] who was not selected for a coaching position was settled with the school district. The settlement included a payment in the amount of $9,500 for “lost wages” as the result of Teacher not being given a coaching position.

This 2006 settlement award was included in the calculation of Teacher's final average salary for retirement purposes by the New York State Teachers' Retirement System [TRS].

Teacher was not appointed to a coaching position for either of the next two school years.  The union again filed a grievance on behalf of Teacher and again the matter was settled. A 2011 settlement “memorandum of understanding [MOU]” provided for an awarded of $11,220.* This amount constituted the stipends that Teacher would have been paid had he been appointed to a coaching position for both school years.

Teacher then asked TRS to recalculate his three-year final average salary to include the 2011 settlement payment provided by the MOU and to adjust his retirement allowance accordingly. TRS determined that because the payment provided pursuant to the 2011 MOU was not part of Teacher‘s regular compensation it could not be included in the final computation of his retirement benefit.

Teacher sued TRS seeking a court order annulling its decision, arguing that TRS’s decision was arbitrary and capricious in light of its previous inclusion of the 2006 settlement payment in its computation of his final average salary.

Supreme Court dismissed Teacher’s petition and he appealed that ruling to the Appellate Division.

The Appellate Division noted that a TRS member's final average salary is based on his or her highest average annual regular salary that was earned over any three consecutive years of service prior to retirement but shall exclude, among other things, "payments which are not part of the salary base."

TRS had explained that it had included the payment made to Teacher pursuant to the 2006 stipulation as the MOU reflected an acknowledgment by the school district that it had violated an existing collective bargaining agreement when it denied Teacher's coaching application on the ground that he was unqualified and gave the positions to teachers with less seniority. In addition, the 2006 settlement confirm that Teacher was indeed eligible to assume the coaching positions.

However, TRS pointed out that the 2011 MOU settling Teacher's subsequent grievances “did not concede, in any manner, that the denial of Teacher ‘s coaching applications for the 2005-2006 and 2006-2007 school years had resulted in any contractual violations….” In fact, said TRS, the 2011 MOU reiterated the school district's assertion that Teacher "was unqualified for the coaching position at issue."

The Appellate Division said that the fact that the school district opted to pay Teacher in exchange for a complete settlement of his claims against it does not create a basis to find that Teacher was eligible for the coaching appointments. Accordingly, the court found that the MOU settlement payment did not constituted compensation that Teacher would have earned and thus TRS was correct in excluding the 2011 settlement payment in its calculation of Teacher’s final average salary.

Finding that TRS’s determination, which was rendered without a hearing, was rational and not arbitrary and capricious, the Appellate Division declined to disturbed it.

* The Appellate Division observed that “Although the MOU states that the $11,220 settlement amount constitutes the stipends of $5,605 that Teacher would have been paid if appointed to a coaching position during each of the two school years for which he applied, the annual stipend amounts actually total $11,210.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07412.htm

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Removal of a public officer from his or her office

Removal of a public officer from his or her office

Kalodukas v Berentsen, 2014 NY Slip Op 07406, Appellate Division, Third Department

Glenda Kalodukas and other citizen residents of the Village of Bloomingburg in Sullivan County [Kalodukas], filed a petition in the Appellate Division pursuant to Public Officers Law §36* seeking to have the Appellate Division remove Mark Berentsen from his position of Mayor of the Village, alleging, among other things, that he violated General Municipal Law Article 18.**

Berentsen asked the court to dismiss the petition arguing, among other things, that the proceeding was moot in view of the fact that he was unsuccessful in his bid for reelection and no longer held the office of Mayor. The Appellate Division agreed and dismissed Kalodukas’ petition.

The court explained §36 of the Public Officers Law provides, as relevant in this action, that a village officer may be removed from office for "misconduct, maladministration, malfeasance or malversation in office." As Berentsen had lost his bid for reelection and no longer helds the public office from which Kalodukas sought to have him removed, the Appellate Division said that “the proceeding is undoubtedly moot.” 

In addition, the court addressed Kalodukas’ argument that the petition was not moot because Berentsen’s removal would prevent him from holding public office in the future. The Appellate Division, in a footnote, said that findings against an official in a removal proceeding pursuant to §36 of the Public Officers Law would not a bar his or her subsequent election to public office.***

* Such an application for removal may be made to the appellate division by any citizen resident of such town, village, improvement district or fire district, or by the district attorney of the county, in which such town, village or district is located. The officer is to given at least eight days notice and a copy of the charge[s] upon which the application will be made must be served with such notice.

** Article 18 is captioned “Conflicts of Interest of Municipal Officers and Employees”

*** In contrast, the court noted that Article VI, § 22 [h] of the State Constitution “A judge or justice removed by the [C]ourt of [A]ppeals shall be ineligible to hold other judicial office."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07406.htm

 __________________

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

 __________________

Reporting compensation and reimbursement for expenses paid to election workers

Reporting compensation and reimbursement for expenses paid to election workers

Source: Internal Revenue Service bulletin

Election workers are individuals hired by government entities to perform services at polling places in connection with national, state and local elections.

An election worker may be referred to by other terms and titles, for example, poll worker, moderator, machine tender, checker, ballot clerk, voting official, polling place manager, absentee ballot counter or deputy head moderator. These workers may be employed by the government entity exclusively for election work, or may work in other capacities as well.

Election worker compensation is includible in income and may be treated as wages for social security and Medicare (FICA) tax purposes.

Election workers may be compensated by a set fee per day or a stipend for the election period. The election period may include attending training or meetings prior to and after the election. 

Election workers may also be reimbursed for their mileage or other expenses. To be excludable from wages, expense reimbursements must be made under an accountable plan.

For additional information, go to http://www.irs.gov/Government-Entities/Federal,-State-&-Local-Governments/Election-Workers-Reporting-and-Withholding

A written administrative employee evaluation that is not disciplinary in nature may be placed in an employees personnel file by the employer

A written administrative employee evaluation that is not disciplinary in nature may be placed in an employees personnel file by the employer
2014 NY Slip Op 07360, Appellate Division, Second Department

A tenured teacher [Teacher] filed a CPLR Article 78 petition seeking a court order directing the school district to remove a certain letter from Teacher's personnel file. Supreme Court dismissed Teacher’s petition and on appeal the Appellate Division sustained the lower court’s action.

The Appellate Division explained that the letter Teacher sought to have removed from his personnel file "[fell] within [the] permissible range of administrative evaluation," and the school district did not act unlawfully in making it part of Teacher's personnel file without first complying with the disciplinary procedural requirements set out in Education Law §3020-a. Although in New York a tenured teacher may not be "disciplined" without he or she being afforded the protections set out in Education Law §3020-a, a critical "administrative evaluation" may properly be included in a teacher's personnel file without the appointing authority first having to comply with the administrative due process requirements set out in §3020-a.

As to what falls within the ambit of “the permissible range of administrative evaluation," in Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding.

The basic rule set out in Holt is that a statutory disciplinary provision such as §75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

In contrast, in D'Angelo v Scoppetta, 19 NY3d 663, the Court of Appeals found that a letter placed in an employee's file indicating “serious misconduct” that could negatively impact his or her eligibility for a future promotion goes beyond “constructive criticism.” In other words, a writing claimed to constitute “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in §75 of the Civil Service Law, §3020-a of the Education Law or a contract disciplinary procedure.

What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature? Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.The decisions of the Commissioner of Education in Fusco v Jefferson County School District, CEd, 14,396, and Irving v Troy City School District, CEd 14,373, are instructive in this regard.

In both the Fusco and Irving cases the Commissioner of Education found that the alleged “critical comment” filed in the respective personnel file of these employees exceeded the parameters circumscribing “lawful instruction” seeking to correct unacceptable performance.

In Fusco’s case, the Commissioner said that the “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was “intended to encourage positive change” in Fusco’s performance. The Commissioner noted that the memorandum "contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on “castigating [Fusco] for prior alleged misconduct."

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of §3020-a of the Education Law."

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The Teacher decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07360.htm

_________________

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

________________

Using the services of a private entity to select and provide qualified medical personnel to conduct medical examination required by Civil Service Law §72.1

Using the services of a private entity to select and provide qualified medical personnel to conduct medical examination required by Civil Service Law §72.1

Agency v Anonymous, OATH Index #866/14  

Civil Service Law §72.1, in pertinent part, provides: “When in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workers' compensation law, the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction.”

In the course of a hearing brought pursuant to §72 of the Civil Service Law,* Anonymous contended that the statutory requirement providing for the selection of the physicians who were to examine her was violated because she was examined by doctors who were selected by a private entity, JurisSolutions,** and not by physicians selected by the Department of Citywide Administrative Services (DCAS).

OATH Administrative Law Judge Kevin A. Casey found that the controlling provisions of the Civil Service Law were complied with, holding that DCAS’s delegation of the task of recruiting qualified medical specialists to perform §72 fitness-for-duty examinations to JurisSolutions did not constitute an unlawful delegation of its statutory authority.

Judge Casey found that while JurisSolutions employed the physicians who examined Anonymous, DCAS maintained control over the process by specifying minimum criteria for each specialty and retaining, in its the sole discretion, the authority to reject a doctor named by JurisSolutions to conduct the examination.*** Accordingly, said the ALJ, DCAS “did not unlawfully delegate its authority by contracting with a vendor to provide qualified, independent doctors to perform fit-for-duty examinations.”

Further, the ALJ found that Anonymous failed to show prejudice on the part of the independent and well qualified physicians who examined her..

Judge Casey's findings and recommendation were adopted by the appointing authority.

* Civil Service Law §72.1 provides that “An employee shall be allowed ten working   days from service of the notice to object to the imposition of the   proposed leave of absence and to request a hearing.

** JurisSolutions is a vendor selected by the New York Department of Citywide Administrative Services to provide qualified medical personnel in designated specialties “to conduct fitness-for-duty examinations.”

*** DCAS's delegation of its administrative authority appears to comply with the guidelines set out by the U.S. Supreme Court in Schechter Poultry Corp. v. United States, 295 U.S. 495, in addressing the delegation of legislative powers by Congress.
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Collective bargaining agreement determined to have clearly and unambiguously barred the arbitration of grievances involving layoff

Collective bargaining agreement determined to have clearly and unambiguously barred the arbitration of grievances involving layoff

Matter of the Arbitration between Hudson Val. Community Coll. and Hudson Val. Community Coll. Faculty Assn., 2014 NY Slip Op 07240, Appellate Division, Third Department

Christine Raneri, a part-time adjunct professor employed by the Hudson Valley Community College (HVCC), was appointed as a full-time probationary teacher by the College in 2007. In March 2012, HVCC notified Raneri that “her position had been retrenched,” and that her employment would end in August 2012.

The Hudson Valley Community College Faculty Association [Association] submitted a grievance on Raneri's behalf challenging HVCC's decision to retrenchment her from the position. HVCC's president denied the grievance following a hearing and the Association served a demand for arbitration on the college.

HVCC and the County of Rensselaer commenced an Article 75 CPLR action seeking a permanent stay of arbitration [proceeding No. 1]. The Association answered and then cross-petitioned to compel arbitration. The Association also initiated an Article 78 action, proceeding No. 2 against the County, the Board of Trustees of HVCC and others challenging Raneri's retrenchment on the merits. HVCC moved to dismiss the CPLR Article 78 petition.

Supreme Court granted HVCC’s petition in proceeding No. 1, permanently staying arbitration, denied the Association’s cross petition in proceeding No. 1 to compel arbitration, and dismissed the Association’s CPLR Article 78 proceeding (proceeding No. 2).

In its appeal from Supreme Court's ruling concerning proceeding No. 1 the Association contended that Supreme Court erred in determining that the issue of retrenchment was excluded from arbitration by the terms of the CBA and thus was incorrect in permanently staying the arbitration.

The Appellate Division disagreed with the Association’s claim, holding that the sole issue before Supreme Court was whether the CBA reveals that the parties agreed to arbitrate this grievance. Noting that the CBA provides that grievances — defined as claims "based upon the interpretation or application of" the CBA — are generally subject to arbitration, the court pointed out that the controlling CBA also provided that "[m]atters relating to [HVCC's] decision to retrench, fill, refill, establish and/or re-establish bargaining unit positions shall not be arbitrable hereunder”. The CBA further provided that if such a staffing issue is grieved, “the decision of the [HVCC] President or designee shall be final and binding and shall constitute the exclusive remedy thereunder."

The Appellate Division, agreeing with Supreme Court, said that this language clearly and “unambiguously manifests the parties' intention to exclude the subject matter of retrenchment from arbitration.”

Turning to the Association’s challenge to the Supreme Court’s dismissal of its Article 78 petition, the Appellate Division said that in reviewing such a claim, a court may not substitute its judgment for that of the administrative body and must confirm the challenged determination unless the body "acted in excess of [its] jurisdiction, in violation of lawful procedure, arbitrarily, or in abuse of [its] discretionary power," citing Pell v Board of Educ, 34 NY2d 222.

The court rejected the Association’s argument that the reason given by HVCC to Raneri for the retrenchment — the discontinuance of a particular program — was pretextual.

Although the Association contended that minutes from a curriculum committee meeting held in the same month as the retrenchment revealed that the faculty was advised that the discontinuance would have no impact on student numbers or faculty hours, the Appellate Division noted that affidavits in the record also reveal that, for economic reasons, HVCC was reducing the number of sections in Raneri's teaching area at the time in question and increasing the number of students in each section.

The Association also claimed that the retrenchment violated the CBA in that the positions of two faculty members in Raneri's teaching area who had less seniority "were not retrenched." The court said that the record showed that both of these instructors were ASE-certified and were scheduled to teach a full load of courses for which this certification was required — and which Raneri, not being ASE-certified, could not teach — in the fall of academic 2012.

Thus, the Appellate Division concluded, "the retrenchment of Raneri's position" was in conformity with a requirement in the CBA that such actions "shall be made in inverse order of seniority provided a faculty member has the qualifications to teach the courses to be taught" (emphasis in the decision)^.*

Regarding the Association’s claim that an incumbent serving in an adjunct faculty should be laid off first, the court noted that the adjunct faculty member also possessed ASE certification and taught classes for which such certification was required; thus, retrenching his position would not have prevented Raneri's being laid off

As the record revealed that assignments were made for legitimate reasons having to do with the instructors' qualifications and other responsibilities, the Appellate Division said that “Supreme Court did not err in determining that HVCC's decision was not arbitrary or capricious, an abuse of discretion or in violation of lawful procedure.”

* The Appellate Division said that it agreed with Supreme Court's view that “this provision requires a faculty member to be qualified to teach upcoming classes, rather than those for which the faculty member's qualifications may have sufficed in previous years.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07240.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

Public employees speech concerning matters of a personal interest is not “protected speech” within the ambit of the First Amendment

2014 NY Slip Op 07270, Appellate Division, First Department

Among the issues considered in this appeal was the teacher’s [Teacher] claim that she had suffered retaliation as a result of her having sued the New York City Department of Education [NYCDE] and having made statements to the media.

The Appellate Division held that neither Teacher's lawsuit nor her statements to the media constituted protected speech under the First Amendment or Article I, §§8 and 9 of the New York Constitution “as they primarily concern personal grievances, rather than matters of public concern.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern. In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution. As the court explained in Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, a public employee’s speech is not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

As to Teacher’s claim that she had suffered age discrimination within the meaning of the State and City Human Rights Laws, respectively Executive Law §290 et seq. and the Administrative Code of City of NY §8-101 et seq., the Appellate Division said that her allegations that she was 51 years old and was treated less well than younger teachers were insufficient to support her claims.

Addressing Teacher’s hostile work environment allegations, the court said that these claims also fail “because [NYCDE’s] alleged behavior amounts to "no more than petty slights or trivial inconveniences."

In Clauberg v State of New York, 95 AD3d 1385, the Appellate Division explained that “To support a retaliatory hostile work environment claim, the actions complained of must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animusAll of the circumstances must be considered, including "the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.”

In a case involving similar “free speech - retaliation” issues, Golodner v Berliner, USCA, 2^nd Circuit, Docket #12-1173, Golodner filed a 42 USSC 1983 action against the City of New London  and two City officials, alleging the defendants retaliated against him for exercising his rights under the First Amendment when he filed an earlier lawsuit against the City and several of its police officers (“Golodner I”).

The United States District Court for the District of Connecticut held that the speech in Golodner I constituted speech on a matter of public concern protected under the First Amendment, and that Golodner’s right to engage in this form of speech was clearly established at the time of the alleged retaliation. The Circuit Court of Appeals affirmed the district court’s denial of the City's motion for summary judgment and remanded the case for further proceedings.

The "Teacher" decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07270.htm

The Golodner decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/0f67eae6-db03-4e97-b551-f1767ed9a183/2/doc/12-1173_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0f67eae6-db03-4e97-b551-f1767ed9a183/2/hilite/
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COLA increases for dollar limitations on benefits and contributions

Retirement plan contributions - limitations on benefits and contributions

Source: The Internal Revenue Service

The Federal tax law places limits on the dollar amount of contributions to retirement plans and IRAs and the amount of benefits under a pension plan. §415 of the Internal Revenue Code requires the limits to be adjusted annually for cost-of-living increases. Interested readers should discuss this with their tax advisor.

Information and a table listing the dollar limitations for 2013, 2014 and 2015, and a number of Internal Revenue Code references, are posted on the Internal Revenue Service’s website at:.

http://www.irs.gov/Retirement-Plans/COLA-Increases-for-Dollar-Limitations-on-Benefits-and-Contributions
 
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A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law

A department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law

Yan Ping Xu v New York City Dept. of Health & Mental Hygiene, 2014 NY Slip Op 07261, Appellate Division, First Department

One of the issues in this Article 78 action concerned the termination of Yan Ping Xu [YPX], a New York City employee serving as a "City Research Scientist I," a position in the noncompetitive class .

Under the controlling Personnel Rules and Regulations of the City of New York, persons appointed to a position in the noncompetitive class are subject to a probationary period of six months unless another period is set by the Commissioner of the Department of Citywide Administrative Services (DCAS).* 

YPX was terminated from her position without notice and hearing after this six-month probationary period had passed. HMH contended that YPX was subject to a probationary period of one year in accordance with the provisions of the governing collective bargaining agreement (CBA) and HMH’s own probationary termination policy.

The Appellate Division said that there was “no evidence that, during the period of [YPX’s] employment, the Commissioner of DCAS had altered the default six-month probationary period for the City Research Scientist I position.” Indeed, said the court, “the record contains a letter from DCAS expressly confirming that, ‘during the period June 30, 2007 to March 16, 2008, no . . . DCAS document existed’ that "provided for a civil service probationary period different than the one specified in [Personnel Rule and Regulation] 5.2.1."

As to HMH’s reliance on the provisions of the CBA with respect to YPX’s probationary period, the court pointed out that “[e]ven if the CBA could trump Personnel Rule 5.2.1(b), the CBA provision relied on by [HMH] does not in any way set forth a probationary period for noncompetitive employees.”**

Nor, said the Appellate Division, does HMH’s termination policy, which purport to provide for a probationary period of one year for City Research Scientists, serve to change the probationary period for City Research Scientist I positions as only the Commissioner of DCAS, and not the head of any other agency, may set probationary periods for employees appointed to positions in the noncompetitive class at something other than the period set by the Commissioner of DCAS.***

Accordingly, the court said it found YPX was subject to a probationary term of six months and upon the expiration of that six-month period she became a “tenured employee.”****

The Appellate Division remanded the matter to HMH “for further consideration of [YPX’s] claim of unlawful termination.”

* Such personnel regulations have the force and effect of law.

** See, for example, Gordon v Town of Queensbury, 256 AD2d 784. In Gordon the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.

*** The court noted that HMH did not cite any provision of law that gives it the authority to establish a different probationary period for persons appointed to the title of City Research Scientist I. a position in the noncompetitive class of the classified service as defined in the Civil Service Law..

**** In its decision the court said that YPX became a “permanent” employee. However, an employee serving a probationary period is a permanent employee and attains tenure in the title upon his or her successful completion of the probationary period. Civil Service Law §63.1, in pertinent part, provides that a “… municipal civil service commissions may provide, by rule, for probationary service … upon appointment to positions in the exempt, non-competitive or labor classes….” and “shall, subject to the provisions of this section, provide by rule for the conditions and extent of probationary service” [see Civil Service Law §63.2].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07261.htm
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The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption

The custodian of public records demanded pursuant to a FOIL request electing to withhold some or all such records has the burden of demonstrating that the information requested falls within a statutory exemption
Jaronczyk v Mangano, 2014 NY Slip Op 07164, Appellate Division, Second Department

The basic concept underlying the Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. Further, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.In contrast, a FOIL request is required in the event the custodian of the public record[s] sought declines to voluntarily provide the information or record requested. 

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

John Jaronczyk wanted certain overtime records maintained by the Nassau County Sheriff's Department. Nassau initially denied Jaronczyk access, contending that the records contained the signatures of the captains who approved overtime requests but ultimately provided the requested records after redacting the signatures on the records that were provided.

Nassau argued that that redaction was proper pursuant to the "unwarranted invasion of personal privacy" statutory exemption, citing Public Officers Law § 87[2][b], claiming that disclosing the captains' signatures "would result in economic or personal hardship to the subject party" and the signatures were "not relevant to the work of the agency." 

The Appellate Division rejected Nassau's argument, stating that because Nassau had failed to “proffer more than conclusory assertions supporting these claims,” Supreme Court had correctly determined that Nassau failed to meet its burden of demonstrating that the information requested fell within this statutory exemption and thus, properly directed disclosure of the records without these redactions.

The court observed that the agency denying access to the records demanded has the burden of demonstrating that the information sought falls within a statutory exemption, "which exemptions are to be narrowly construed." As the Court of Appeals held in Westchester Rockland Newspapers v Kimball, 50 NY2d 575, cited by the Appellate Division in its decision, "FOIL compels disclosure, not concealment." wherever the agency fails to demonstrate that a statutory exemption applies.

The Appellate Division explained that in order to survive a challenge to the custodian of the record's refusal to release the records demanded requires the entity resisting disclosure to "articulate a particularized and specific justification for denying access'" and "conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed."

Noting that a court may award an attorney's fee and costs to a petitioner in conjunction with a FOIL request where the petitioner has substantially prevailed, and “(i) the agency had no reasonable basis for denying access; or (ii) the agency failed to respond to a request or appeal within the statutory time,” the Appellate Division said that, contrary to the Nassau's contention, the fact that  Nassau provided access to redacted documents during the pendency of the proceeding does not preclude a determination that Jaronczyk  substantially prevailed. Rather it is only one factor to be considered in determining whether an award of an attorney's fee and costs under the circumstances is appropriate.

Finding that Nassau failed to articulate a reasonable basis for redacting the signatures at issue, and because the Jaronczyk prevailed on this issue, the Appellate Division ruled that Supreme Court “did not improvidently exercise its discretion in granting that branch of the petition which was for an award of an attorney's fee and costs.”

* See, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07164.htm
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