Violating an employer's known policy may result in disciplinary action and can constitute disqualifying misconduct for unemployment insurance benefit purposes

Violating an employer's known policy may result in disciplinary action and can constitute disqualifying misconduct for unemployment insurance benefit purposes
Matter of Intini (Commissioner of Labor), 2014 NY Slip Op 08933, Appellate Division, Third Department

The Unemployment Insurance Appeal Board which ruled that claimant Andrew J. Intini was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Supervisors of the municipality’s sanitation workers could assign individuals to work extra hours pursuant to an inverse seniority rotation policy. In June 2010, Intini, a municipal sanitation worker, was terminated from his position as a result of his refusal to work the additional time assigned to him by his supervisor. Intini filed a grievance challenging his termination and In November 2010 an arbitrator held that by refusing an order by a member of management, Intini had violated a written standard of conduct and, therefore, there was just cause for the termination. The arbitrator then reinstated Intini to his former position, which reinstatement was conditioned upon Intini not violating the appointing authority’s standards of conduct for six months. Intini did not appeal the arbitrator’s determination.

On January 6, 2011, Intini was assigned to work extra hours by his supervisor pursuant to the inverse seniority rotation policy. Intini again refused the assignment and following a hearing, the arbitrator ruled that by refusing an order by a member of management, Intini had violated “a written standard of conduct and, therefore, there was just cause for the termination.” Intini did not appeal this determination.

Intini then applied for unemployment insurance benefits. An Administrative Law Judge (ALJ) held a hearing and determined that Intini had been earlier afforded a full and fair opportunity to litigate the issue of his conduct before the arbitrator. Accordingly, the ALJ gave collateral estoppel effect to the arbitrator's findings of fact and ruled that Intini’s actions constituted misconduct under the Labor Law and denied his application for benefits.

The Unemployment Insurance Appeal Board affirmed the ALJ’s ruling and Intini appealed the Board’s decision. Intini contended that he was denied a full and fair opportunity to litigate the issue of misconduct before the arbitrator and, therefore, the Board erred in giving collateral estoppel effect to the arbitrator's factual findings.

The Appellate Division rejected Intini argument explaining that he was represented at the arbitration hearing by a nonattorney representative from his union,* and was given the opportunity to testify and present other evidence, and the union representative had cross-examined the employer's witnesses.

Thus, said the court, it could not conclude that the Board's decision to give collateral estoppel effect to the arbitrator's factual findings was affected by an error of law noting that a review of the record confirmed that the Board made "an independent evaluation as to whether that conduct constitutes 'misconduct' for the purposes of unemployment insurance."

The Appellate Division also noted that violating an employer's known policy “can constitute disqualifying misconduct for unemployment insurance benefit purposes.”

* §75.2 of the Civil Service, in pertinent part, provides: "The person or persons holding such hearing shall, upon the request of the person against whom charges are preferred, permit him to be represented by counsel, or by a representative of a recognized or certified employee organization, and shall allow him to summon witnesses in his behalf."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08933.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 10, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 10, 2015

Click on text highlighted in color  to access the full report

On January 9, 2015, New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued: 

Department of Health Medicaid Program: Improper Payments to a Physical Therapist (2013-S-15)
Medicaid overpaid a physical therapist $146,225 because he reported incorrect Medicare payment information. He avoided Medicaid’s automated claims processing controls by submitting Medicare claims using the National Provider Identifier (NPI) for his group practice and the related Medicaid claims using his NPI as an individual provider. The provider also did not comply with some regulations and administrative procedures for Medicaid program participation.

Department of Health: Overpayments of Certain Medicare Crossover Claims (Follow-Up) (2014-F-17)
An initial audit report issued in January 2013 identified $10 million in Medicaid overpayments that occurred because of flaws in eMedNY computer programs designed to process electronic Medicare crossover claims. Auditors additionally identified $16.4 million in potential overpayments on similar claims because providers submitted their claims directly to Medicaid and bypassed the crossover system and the controls that it affords. In a follow-up report, auditors found DOH has made progress in addressing the problems identified in the initial audit report. This included the recovery of $977,343 in Medicaid overpayments. However, further actions are still needed.

Hudson River Park Trust: Selected Financial Management Practices (2013-S-56)
Auditors found opportunities exist for the trust to improve its practices related to revenue collection, procurement, investments, time and attendance, budgeting, and equipment inventories. The Trust did not collect $297,925 in revenues because tenants: reduced their payments to the Trust by the amounts of maintenance costs, which were not documented; did not pay rent for a year; or paid the wrong amount of rent. Auditors also found two vendor contracts were awarded and modified by $16.9 million, but the documentation in support of the vendor selection and contract modification was incomplete.

New York City Health and Hospitals Corporation (HHC): Management and Control of Overtime Costs (Follow-Up) (2014-F-15)
Our initial report issued in May 2012 determined that HHC did not effectively manage and control its overtime costs. Auditors found indications that overtime was often used when it was not in the best interest of HHC, as employees responsible for patient care routinely worked excessive overtime shifts that could compromise the quality of the care they provide due to fatigue. In a follow-up report, auditors found HHC has made progress in addressing the issues identified in the initial report. Of the three prior recommendations, all three have been partially implemented.

New York State Energy Research and Development Authority (NYSERDA): Contract Award and Performance (2013-S-45)Although NYSERDA has policies and procedures governing the contract award process, certain policies and procedures were not always followed for 19 of the 69 contracts auditors reviewed. Five contracts (valued at $742,113) were incorrectly awarded as unsolicited proposals and, therefore, without the competition that would otherwise have been required. NYSERDA did not effectively monitor contract expiration dates to ensure that successor contracts were in place prior to the expiration of the previously existing contracts for similar or related work. NYSERDA paid about $9.7 million on four contracts after they had expired or after approved extensions had been exhausted. NYSERDA did not adequately document the justification for allocating projects (related to four contracts) to certain contractors when there were nine additional contractors pre-qualified for the same work. Two of these four contracts amounted to $15.4 million.

Office of Parks, Recreation and Historic Preservation (OPRHP): Controls Over Cash Advance Accounts (2014-S-22)
Auditors found OPRHP consolidated some of its authorized advance accounts by transferring the funds to an unrelated account without notifying the Office of the State Comptroller of the change. Two funds had shortages that originated prior to 2011, but the agency did not reconcile the discrepancies or report them to OSC as required by state law. The petty cash account, which had not been reconciled in at least four years, contained $5,000 more than it should have, and officials were unable to explain or account for the surplus. It was also significantly overfunded. OPRHP inappropriately used petty cash account funds totaling over $4,600 for employee payroll advances, which is prohibited.

Port Authority of New York and New Jersey: Management and Control of Employee Overtime Costs (Follow-Up) (2014-F-3) An initial report issued in August 2011, determined that the Port Authority of New York and New Jersey (Port Authority) generally did not effectively manage and control employee overtime costs. Auditors found numerous examples of overtime being earned in excess of $75,000 annually by individuals whose salary base was at least $75,000. In addition, the Port Authority did not meet the 20 percent overtime reduction goal established in its 2010 budget to the Governors of New York and New Jersey. In a follow-up report, auditors found Port Authority officials made some progress in addressing the issues identified in the initial report.

Division of State Police: Seized Assets Program (2013-S-46)
Auditors found State Police did not properly account for or track seized assets. Specifically, the division did not maintain its Asset Seizure Tracking System database with complete or updated information. Of 107 seized assets sampled that were listed as pending disposition, auditors determined that 56 assets were actually closed. The 56 forfeited assets were valued at $992.7 million, but State Police received only $12.2 million for its share of the proceeds of those cases. Auditors also found State Police had custody of more than $700,000 in seized assets that should have been turned over to the State Comptroller’s Office of Unclaimed Funds and that individual troops did not always report asset seizures to State Police headquarters.

Tuition Assistance Program (TAP): Stony Brook University (2013-T-2)
Auditors determined that Stony Brook was overpaid $4,170,880 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include 31 students who received awards but did not meet the requirements for full-time status, 23 students who did not maintain good academic standing and 2 students who were not properly matriculated. Many of the incorrect certifications result from students not enrolling in at least 12 credits that were applicable to their designated programs or repeating courses for which they had already earned credit.

Tuition Assistance Program: LaGuardia Community College (2013-T-4)
Auditors determined LaGuardia was overpaid $91,911 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include 8 students who received awards but did not meet the requirements for full-time status, and one student who did not maintain good academic standing.

 ____________________

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An educator who resigned from his or her tenured position is not automatically given tenure status upon his or her subsequently employment by the school district

An educator who resigned from his or her tenured position is not automatically given tenure status upon his or her subsequently employment by the school district

Brennan v City of New York, 2014 NY Slip Op 08905, Appellate Division, First Department

Supreme Court sustained the New York City Department of Education's determination terminating Philomena Brennan employment, and dismissed her petition.

The Appellate Division unanimously affirmed the Supreme Court’s ruling explaining that Brennan’s termination from her position as a probationary teacher was not arbitrary and capricious or contrary to law. Further, said the court, Brennan, as a probationary teacher, was not entitled to a pre-termination hearing pursuant to New York Education Law §3020-a.

Brennan was previously a tenured employee with the City’s Department of Education. However, she had resigned from her employment in June 2007, and thus forfeited her tenure. When she was reemployed by the Department she failed to comply with Chancellor's Regulation C-205(29) which governs withdrawal of a resignation and restoration to tenure. Accordingly, Brennan did not regain her tenured position.

Significantly, the Appellate Division noted that Brennan had filed a written application for reinstatement and the removal of her name from the ineligibility list in 2009. In the course of an earlier Article 78 proceeding involving these actions, commenced in 2010, the court granted ‘s request to have her name removed from the Department’s “ineligible for employment list” but declined to reinstate her tenure until Brennan satisfied the additional steps required for reinstatement.

The Appellate Division said that Brennan “failed to comply with the court's directive and her tenure was not constructively restored by her rehiring.”

As to her removal from her probationary appointment, the court ruled that Brennan has not demonstrated that her unsatisfactory performance rating was arbitrary and capricious or made in bad faith as the Department’s decision was supported by the record based on detailed observation reports by her principal and assistant principal describing her poor performance and her failure to implement “step-by-step strategies for improvement.”

In addition, the Appellate Division commented that Brennan was aware of the stated deficiencies as reflected in the reports of her principal and assistant principal and “{still failed to improve.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08905.htm