Early intervention counseling

Early intervention counseling

Tatum v Horn, 37 AD3d 285

Wayne Tatum appealed his dismissal from his position as a New York City correction office after being found guilty of a number of allegations of misconduct.

The Appellate Division ruled that the New York City Department of Correction presented ample evidence at Tatum’s disciplinary hearing proving allegations that he had violated numerous departmental rules.

Tatum had been charged with being AWOL on multiple occasions, failing to sign-out of the correctional facility to which he was assigned, failing to contact his superiors when required, and insubordination by failing to obey a supervisor’s order. 

In response to Tatum’s argument that the Department had not sent him to an “early intervention counseling program”, the court said that “Correction was not obliged to send him to its early intervention counseling program, a program that is discretionary, not mandatory.” In addition, the Appellate Division commented that “the value of such counseling would have been questionable in light of [Tatum’s] long disciplinary history."

In a similar case, Carroll v Perkle, 296 AD2d 755,  Leave to appeal denied 98 NY2d 764, one of the issues considered by the court concerned “intervention counseling programs.” 

The Appellate Division ruled that Carroll had been denied administrative due process because the Education Law Section 3020-a Hearing Panel failed to consider “mitigating circumstances” in determining the penalty. 

The Appellate Division said that the Hearing Panel failed to honor Carroll’s request that the Board of Education’s “lack of effort to correct his behavior,” be considered by the panel in determining the appropriate penalty to be imposed. §3020-a(4) of the Education Law provides that “At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including, but not limited to, remediation, peer intervention or an employee assistance plan.”

The decision is posted on the Internet at: 

http://nypublicpersonnellawarchives.blogspot.com/

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State Comptroller report concluded that the use of local development corporations out of control Source: Office of the State Comptroller

State Comptroller report concluded that the use of local development corporations out of control
Source: Office of the State Comptroller

Citing an on-going pattern of abuse, State Comptroller Thomas P. DiNapoli today proposed a package of reform proposals that would limit local governments’ use of local development corporations (LDCs) and other private entities such as limited liability companies (LLCs).

The suggested reforms would also give the State Comptroller direct audit authority over LDCs, LLCs and similar entities controlled by local governments.

LDCs were originally intended to allow New York's counties, cities, towns, and villages to utilize these entities for economic development purposes and to promote employment opportunities.  Because many activities undertaken by LDCs are exempt from taxation, they are used to construct or rehabilitate industrial or manufacturing plants or to    encourage such businesses to relocate or remain in a particular region.

However, said the Comptroller, current law includes loopholes that allow LDCs to be used for purposes beyond the original intention.

DiNapoli cited several instances in which the use of LDCs and LLCs unnecessarily drove up taxpayer costs, including the use of an LLC by the city of Rochester to purchase a ferry that ended up costing taxpayers nearly $20 million.

The Comptroller’s report, Municipal Use of Local Development Corporations and Other Private Entities is posted on the Internet at:
http://www.osc.state.ny.us/localgov/pubs/research/ldcreport.pdf

Other items from the Comptroller's press office available on the Internet include:

DiNapoli: 101 School Districts Request Surplus Certifications to Use Funds to Make Up State Aid Cuts

State Comptroller Thomas P. DiNapoli’s office today certified the amounts of excess Employee Benefits Accrued Liability Reserve funds (EBALR) held by 95 school districts across the state that can be used by the districts in the 2011-12 school year to make up for $190.6 million in state aid cuts. DiNapoli’s review found the districts’ excess EBALR funds total $148.2 million.


DiNapoli's Office Releases School Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: the Auburn Enlarged City School District; the Malone Central School District; the Schalmont Central School District; and, the Waterloo Central School District.


DiNapoli's Office Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: Village of Akron; the Town of Malta; the Village of Endicott; the Town of Trenton; the Smithtown Special Library District; the Village of Lancaster; the Village of Irvington; the Village of Centre Island; the Bellona Fire District; and an audit on Saving Money on Nursing Home Drug Purchases for various counties.


DiNapoli's Office Releases State Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: the Beacon City School District; Department of Health, Medicaid Payments for Diabetic Testing Supplies (Follow-Up) (2010-F-42) and, Department of Health, Inappropriate Payments for Vision Care Services Claimed by Dr. Horowitz (Follow-Up) (2010-F-47).
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Unfair labor practices - protected activities

Unfair labor practices - protected activities

CSEA Local 1000 v PERB, 267 AD2d 935

CSEA appealed a determination by the New York State Public Employment Relations Board [PERB] that the Holbrook Fire District did not commit an improper employer practice when it disciplined one of its employees, Jason Feinberg.

The district had filed eight charges against Feinberg, a firehouse attendant, alleging misconduct and, or, incompetence pursuant to Section 75 of the Civil Service Law.

Feinberg was alleged to have “permitted unauthorized personnel in his work area, participated in inappropriate activities during work hours, failed to timely complete certain work assignments and follow standard operating procedures in performing certain work-related activities.”

CSEA filed an improper employer practice charge against the district pursuant to Civil Service Law Section 209-a with PERB on behalf of Feinberg. CSEA contended that the district had filed disciplinary charges against Feinberg “in retaliation for his efforts at organizing a union.”

While CSEA’s charges were pending before PERB, the disciplinary hearing officer issued a report and recommendation finding Feinberg guilty of six of the charges. The penalty recommended by the hearing officer: Feinberg should be terminated from his employment. The District accepted the hearing officer’s findings and recommendations and dismissed Feinberg.

CSEA and the district stipulated that rather than holding a separate hearing, the record of the proceedings conducted in connection with the disciplinary charges would be used by PERB’s Administrative Law Judge (ALJ) in resolving the improper practice charge. Finding that other employees who had engaged in similar misconduct had not been disciplined by the district, the ALJ ruled that the district “had committed an improper practice by discharging Feinberg in retaliation for protected union activities.” PERB reversed its ALJ’s ruling.

PERB said that “the ALJ should have deferred to the findings of the hearing officer that the charges against Feinberg were brought by the District for proper business reasons and not to retaliate against him for his organizing activities”.

The Appellate Division initiated its review of CSEA’s appeal from PERB’s ruling by noting that “the relevant inquiry in a proceeding pursuant to Civil Service Law Section 75 is very different than that in an improper practice proceeding under Civil Service Law Section 209-a.” The court, citing City of Albany v Public Employment Relations Board, 43 NY2d 954, said:

1. In considering an appeal involving Section 75, the focus is upon whether there was cause for the employee’s dismissal.

2. In considering an appeal involving Section 209-a, the focus it is whether the employer‘s action was motivated by anti-union animus and “it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed.”

The Appellate Division said that PERB relied upon its policy of deference and the disciplinary hearing officer’s determination when it reversed ALJ’s determination.

However, said the court, its review of the decision in the Section 75 proceeding indicates that the disciplinary hearing officer “did not fully consider the dispositive issue in the improper practice proceeding, i.e., whether Feinberg’s firing was improperly motivated.” Accordingly, the Appellate Division said that “PERB’s deference to the [Section 75] Hearing Officer’s findings as the sole basis in resolving the improper practice charge was inappropriate.”

The Appellate Division annulled PERB’s determination and remanded the case to PERB “for an independent review of the ALJ’s decision of [CSEA’s] improper practice charge in light of all the evidence contained in the record of the Civil Service Section 75 proceeding.”