An individual who refused to report for appropriate light duty denied General Municipal Law §207-c disability benefits effective on and after the date of such refusal

An individual who refused to report for appropriate light duty denied General Municipal Law §207-c disability benefits effective on and after the date of such refusal

Farina v County of Orange, 2015 NY Slip Op 08408, Appellate Division, Second Department

General Municipal Law §207-c(1) entitles correction officers to certain enumerated benefits, including the payment of full salary or wages, where the officer "is injured in the performance of his [or her] duties or . . . is taken sick as a result of the performance of his [or her] duties" and to eligible for such disability benefits the municipal employee "need only prove a direct causal relationship between job duties and the resulting illness or injury." 

A county correction officer, Ronald Farina, slipped and fell while performing his rounds at a county correctional facility. Farina was examined by two physicians. One physician concluded that Farina was capable of working in a light duty capacity; the second physician concluding that Farina was incapable of working "for the next 10 days." Although the Undersheriff issued an order directing Farina to return to work in a light duty capacity effective July 20, Farina did not return to work until July 30.

Subsequently the Undersheriff denied Farina’s application for benefits pursuant to General Municipal Law §207-c. A hearing was conducted and the hearing officer found that Farina was fit to return to light duty status on July 20 but refused to do so and confirmed the Undersherriff's determination denying Farina any §207-c benefits.

Farina then filed a petition pursuant to CPLR Article 78 seeking a court order annulling the hearing officer's determination and the restoration of the leave time he was charged while he was out of work due to the injuries he sustained.

The Appellate Division noted that the standard of review of an administrative determination made after a hearing is limited to considering whether the determination was supported by substantial evidence and the test of whether the administrative determination is supported by substantial evidence is whether, on the relebant record, a reasonable person might have made the findings and conclusions made by the administrative agency.

Citing Flynn v Pease, 242 AD2d 331, the Appellate Division noted that a municipality is entitled to conduct its own medical examination of an employee claiming §207-c benefitsand if the medical examiner concludes that the individual can perform light duty relevant to his or her position, payment of the individual's full amount of salary or wages may be discontinued should the employee refuse to return to work in a light-duty assignment.

In this instance the court said that the record indicates a direct relationship between Farina’s job duties and his resulting injuries and therefore, he qualified for benefits pursuant to General Municipal Law §207-c and the Undersheriff’s determination to deny Farina §207-c benefits from the date of the accident, July 6, up to and including July 19 -- prior to the ordered start of Farina light duty assignment -- was not supported by substantial evidence.

In contrast, the Appellate Division held that there was substantial evidence to support the hearing officer's determination that Farina was fit to return to light duty when he was ordered to do so on July 20. Because Farina refused to report for his light duty assignment on July 20, the court ruled that he was not entitled to the §207-c benefits he requested from that date forward.

Accordingly, the Appellate Division vacated the determination of the hearing officer denying §207-c benefits for the period of July 6 up to and including July 19, but otherwise denied Farina’s petition. Thus the County was directed to award Farina §207-c benefits only for the period of July 6 through and including July 19.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08408.htm

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Selected Reports issued by the Office of the State Comptroller during the week ending December 19, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending December 19, 2015

Click on text highlighted in color to access the full report

Bombay Clerk Charged in Theft of Justice Court Fees

A North Country court clerk is accused of pocketing more than $5,400 from the Bombay Justice Court while the other court clerk was absent, according to State Comptroller Thomas P. DiNapoli.

Eric Fleury, of Constable, was charged with grand larceny in the third degree, a D felony, in Dickinson Town Court. The alleged thefts were uncovered in an audit and investigation by DiNapoli’s office to review the court’s financial operations.

“The public relies on our justice court fines to support vital services including highway safety, not to line the pockets of a dishonest clerk,” DiNapoli said. “My office will continue to root out corruption at all levels. I thank the State Police for their work on this case.”

Fleury was in charge of collecting fine money and depositing it into the court bank account. Auditors and investigators found that Fleury logged the cash receipts, but failed to deposit more than $5,400. The alleged larceny occurred from April 2014 to May 2015. Most of the funds were taken when the other court clerk, Fleury’s mother, was on sick leave, investigators found.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

The Bombay Justice Court report is posted on the Internet at:

http://www.osc.state.ny.us/press/releases/dec15/121815.htm

Review prior cases at http://www.osc.state.ny.us/investigations/index.htm

Municipal Audits reported

Town of Covet - Financial Management and Justice Court

The board needs to adopt long-term financial plans to effectively manage the town’s finances. The board has adopted budgets that have relied heavily on appropriated fund balance that cannot be maintained in the future. In addition, town officials are unable ensure that all the court justice’s moneys received were deposited and recorded completely and accurately.

http://www.osc.state.ny.us/localgov/audits/towns/2015/covertjc.pdf

Town of Horseheads - Financial Management

The board has not developed multiyear financial plans to address the use of fund balance to finance operations, the continued reduction of sales tax revenues, establishing reserve funds, or purchasing and financing future capital assets.

http://www.osc.state.ny.us/localgov/audits/towns/2015/horseheads.pdf

Town of Niagara - Justice Court

Town justices did not ensure that all fines and fees were properly collected. Court reports indicate that unpaid fines and fees may total nearly $400,000 on tickets ranging from 1989 through 2015 and that more than 11,000 tickets dating as far back as 1985 appear to be pending.

http://www.osc.state.ny.us/localgov/audits/towns/2015/niagarajc.pdf

Orange County Soil and Water Conservation District - Financial Operations

The board did not ensure that certain contract agreements were approved in a timely manner. In addition, board meeting minutes were not transparent, as motions were not always clearly stated or titled.

http://www.osc.state.ny.us/localgov/audits/specialdists/2015/orangecosoilwater.pdf

Yates County - County Clerk Cash Receipts

The clerk maintains accurate accounting records and deposits moneys intact and in a timely manner. However, the clerk has not established written policies and procedures for cash receipts and cash receipt duties are not adequately segregated.

http://www.osc.state.ny.us/localgov/audits/counties/2015/yates.pdf

School DistrictAudits Reported

Brookhaven-Comsewogue UFSD - Professional Services

District officials have established a comprehensive purchasing policy. As a result, the district procured professional services in an economical manner.

http://www.osc.state.ny.us/localgov/audits/schools/2015/brookhavencomsewogue.pdf

New Lebanon CSD - Financial Condition

District officials have overstated liabilities and accumulated excessive reserve funds. In addition, the board has repeatedly appropriated fund balance, which has gone unused. The effective percentage of the district’s unrestricted fund balance is 16 percent of appropriations, which exceeds the 4 percent statutory limit.

http://www.osc.state.ny.us/localgov/audits/schools/2015/newlebanon.pdf

Southern Cayuga CSD - Financial Management

District officials have generally taken appropriate action to manage the district’s financial condition. However, the district’s multiyear financial plan does not address its debt share or declining enrollment.

http://www.osc.state.ny.us/localgov/audits/schools/2015/southerncayuga.pdf

Yonkers City School District - Fixed Assets

District officials and taxpayers have no assurance that all district property can be accounted for. Auditors found that 10 assets valued at $225,307 could not be located and 10 assets valued at $91,704 were either not tagged or the asset tag information on the tag did not agree with the accounting records.  

http://www.osc.state.ny.us/localgov/audits/schools/2015/yonkers.pdf

The aggrieved employee has the burden of proving that his or her employee organization’s action, or inaction, breached its “Duty of Fair Representation”

The aggrieved employee has the burden of proving that his or her employee organization’s action, or inaction, breached its “Duty of Fair Representation”

DeOliveira v New York State Pub. Empl. Relations Bd., 2015 NY Slip Op 08228, Appellate Division, Third Department

Donna Scarpinati DeOliveira filed an improper employee organization practice charge with the Public Employment Relations Board [PERB] alleging that the Cairo-Durham Teachers Association [Association], the employee organization representing her purposes of collective bargaining, violated its duty of fair representation.

The Cairo-Durham Central School District [District] had appointed DeOliveira a position in the elementary education tenure area subject to her satisfactory completion of a three-year probationary period. She subsequently absented herself for a “period of unpaid maternity leave.”

After DeOliveira returned to teaching full time the District abolished four positions in the elementary education tenure area and she was notified that she would be terminated at the end of the school year because her period of unpaid maternity leave that she took had the affected her seniority status. As a result she became one of the four least senior teachers in her tenure area.

DeOliveira asked the Association to file grievances on her behalf challenging the District's calculation of her seniority for the purposes of layoff but the Association decided that she had no viable claims and declined to file the grievance. DeOliveira later learned that, prior to the layoffs, the Association had agreed with the District's decision to exclude at least two sixth grade teachers from the elementary education tenure area — Peter Goodwin and Erin Murphy, both of whom were appointed by District after DeOliveira’s effective date of appointment.

In her improper practice charge filed with PERB, DeOliveira alleged, among other things, that the Association did not fairly represent her interests because it:

1. willfully failed to investigate her concerns regarding the impact of her unpaid maternity leave on her seniority status;

2. falsely represented to her that it had consulted with an attorney concerning the matter on her behalf; and

3. intentionally withheld from her the so-called "clandestine agreement" it made with the District to protect Goodwin and Murphy from being laid off.

Following a hearing, a PERB Administrative Law Judge [ALJ] dismissed the charge. PERB affirmed the ALJ’s ruling and ultimately DeOliveira commenced a CPLR Article 78 proceeding seeking review of PERB's decision. Supreme Court transferred the matter to the Appellate Division.

Citing Chenango Forks Central School District v PERB, 21 NY3d 255, the Appellate Division said that its review of a PERB determination is limited to whether it is supported by substantial evidence, that is, whether there is a basis in the record allowing for the conclusion that "PERB's decision was legally permissible, rational and thus not arbitrary and capricious.” The court said that in its view there was substantial evidence in the record supporting PERB's determination that the Association did not breach its duty of fair representation it owed to DeOliveira.

To establish a claim that the employee organization breached its duty of fair representation the Appellate Division explained that "there must be a showing that the activity, or lack thereof, which formed the basis of the charges … was deliberately invidious, arbitrary or founded in bad faith." DeOliveira, said the court, failed to made this showing regarding any of her specific allegations.

As to DeOliveira’s claim that the Association willfully failed to adequately investigate the District's exclusion of the time that she was on unpaid maternity leave from its calculation of her seniority, she had admitted that she met with Association representatives on multiple occasions regarding her concerns and the Association's president testified that a substantial investigation followed. Further, said the Association, DeOliveira was also advised in writing of its rationale and ultimate decision not to process her grievance.

As to DeOliveira’s allegation that the Association’s president told her that he would consult with a New York State United Teachers [NYSUT] attorney regarding her grievance, the Association president admitted that he did not consult with an attorney but said that he did consult with a NYSUT  Labor Relations Specialist. DeOliveira, said the court, did not offer any proof that the president’s misrepresentation was intentional or that he relied on the Labor Relations Specialist’s advice in bad faith.*

Turning to DeOliveira’s argument that the Association represented her in bad faith by making a "clandestine agreement" with the District to wrongly exclude Goodwin and Murphy from the elementary education tenure area at her expense, the court said there was nothing in the record to support such a claim.

Noting that the Commissioner of Education, in his ruling in an appeal** filed with Commissioner by DeOliveira, determined that Goodwin and Murphy should have been included in the elementary education tenure area for the purpose of layoffs, the Appellate Division said that “there is no evidence that the decision not to do so was motivated by animus toward petitioner or favoritism toward Goodwin and Murphy.” At worst, said the court, the Association's agreement with the District regarding the treatment of Goodwin and Murphy, and its attendant failure to pursue DeOliveira 's grievance about it, was an honest mistake, and "the fact that a union is guilty of mistake, negligence or lack of competence does not suffice [to prove] a[n unfair representation] claim."

The Appellate Division confirmed PERB’s determination and dismissed DeOliveira’s Article 78 petition.

* The president testified that he considered the Labor Relations Specialist to be the Association's "counsel" when it came to assessing teacher grievances.

** Appeal of Donna Scarpinati De Oliveira, from action of the Cairo-Durham Central School District, Decisions of the Commissioner of Education, Decision 16,411. The Commissioner ruled that even had Goodwin and Murphy been in retained in the elementary tenure area and DeOliveira seniority determined in consideration of their “seniority” in such tenure area, DeOliveira was still the least senior teacher in the elementary tenure area.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08228.htm

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