State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance

State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance
Source: Office of the New York State Comptroller Thomas P. DiNapoli

During the three-year audit period, the Department of Taxation and Finance had 81 contracts for personal and miscellaneous services totaling about $563 million. More than 98 percent of this amount related to contracts for either information technology or banking services.

Auditors examined whether the department was adequately justifying the need to initially contract out for such services and periodically reassessing whether such contracts could be deferred, eliminated or reduced to save state funds.

The auditors found that the department was sometimes but not always performing these activities.

The full text of the audit report is posted on the Internet at: http://osc.state.ny.us/audits/allaudits/093010/09s38.pdf

US Department of Labor to conduct Family Medical Leave Act study

US Department of Labor to conduct Family Medical Leave Act study
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

On July 21, 2010 Labor Secretary Hilda Solis announced that next year the U.S. Department of Labor will conduct a study of how families use Family Medical Leave Act [FMLA] leave, as well as "information on regulatory changes, among other things."

In the past, DOL studies have been a precursor to regulatory changes. While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments. Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed.

The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me).

Disciplinary actions held in absentia

Disciplinary actions held in absentia
Clarke v NYC Board of Education, App. Div., 251 A.D.2d 403

No one gave Fernando A. Clarke, a purchasing agent employed by the New York City Board of Education, permission to be absent from his job on February 14, 1994. To make matters worse, he never returned to work and didn’t bother to appear for a scheduled disciplinary hearing.

Clarke was served with charges of AWOL pursuant to Section 75 of the Civil Service Law. Although Clarke did not appear at the scheduled disciplinary hearing, the hearing officer found him guilty of the charges filed against him. The board adopted the findings and recommendations of the disciplinary hearing officer and terminated Clarke from his position.

The Appellate Division dismissed Clarke’s appeal challenging his termination. The court pointed out that Clarke (1) was aware of the time and place of the Section 75 hearing; (2) failed to attend the hearing; or (3) offer any proof on his own behalf.

The decision notes that the only evidence in the disciplinary hearing record was that Clarke had been continuously absent from his position without approval since February 14, 1994 and that he had not provided any satisfactory explanation for this absence. This, said the Appellate Division, was sufficient to provide the substantial evidence needed to support the board’s determination.

This decision demonstrates the fact that an appointing authority may proceed with a disciplinary hearing notwithstanding the fact that the accused employee fails to appear at the proceeding. However, before making a final determination in cases where the Section 75 disciplinary hearing was conducted in absentia, the appointing authority should make certain that:

1. The employee was served with the disciplinary charges and that he or she was advised of the time and place of the hearing;

2. A diligent effort was made to contact the individual on the day of the hearing to determine if there was a reasonable explanation for his or her failure to appear as scheduled before the hearing officer started the hearing;

3. A formal hearing was conducted and that the employer was required to introduce evidence proving its charges before the hearing officer;

4. A formal record of the hearing was made and a transcript provided to the appointing authority and, if requested, to the employee.

Finally, the employee must be advised of the appointing authority’s determination and his or her right of appeal.