Governor Paterson accepts final report of Task Force on Public Retiree Health Insurance
Source: Office of the Governor
On June 23, 2101 Governor David A. Paterson accepted the final report of the Task Force on Public Employee Retirement Health Care Benefits. Established by Executive Order No. 15.
The Task Force was tasked with reviewing issues such as the level and cost of benefits received by New York State public employees and retirees, the degree to which those benefits have been impacted by difficult fiscal times, the current legal framework governing retiree health benefits, potential avenues for addressing rising health care costs, and various proposals for reform.
The Task Force included representatives of various executive agencies, the Comptroller, the Legislature, local governments, labor and retiree groups. It was chaired by Richard Berman, who has previously served as director of the New York State Office of Health Systems Management, Director of the Division of Housing and Community Renewal, chair of the Westchester Medical Center, and President of Manhattanville College.
Governor Paterson said that the Task Force made the following recommendations:
• Encourage employer coalitions with labor participation pursuant to Article 47 of the Insurance Law.
• Permit the establishment of State administered prescription drug carve out plans for retired public employees.
• Implement a co-payment structure which encourages primary and preventative care by reducing financial barriers to managing disease.
• Provide a premium contribution to plan members who live outside of the service area of the employer's plan for other coverage of the retired employee's choosing.
• Continue to provide, where appropriate, incentives for providers and consumers to implement electronic medical records.
• No payment by retiree health plans, coupled with a prohibition of balance billing by providers, for "never events."
• Build relationships with and encourage use of health education and disease self management programs that promote healthy behaviors such as exercise, smoking cessation and other evidence based chronic disease self management programs.
• Require that insurers and plan administrators provide claims experience, consistent with statutory privacy protections, to local governments on request, thereby providing employers with greater audit authority.
• Actively pursue third party liability (e.g., coordination of benefits, subrogation).
• Encourage employers to provide information and assistance to retired public employees to enable them to fully leverage Medicare benefits such as health screenings and to make informed decisions about coverage.
• Establish a State insurance exchange including, but not limited to retired public employees with no coverage.
• Provide jurisdiction to the Insurance Department for oversight of the reserves and solvency of self-funded government plans.
• Encourage employers to allow retired employees who meet the plan's eligibility requirements to enroll in the employer's plan regardless of whether they were covered as an active employee.
• Implement more aggressive oversight of health care costs by the State and Federal governments.
• Create a standing task force which would represent in a fair and balanced manner the interests of retired public employees, their former employers, taxpayers and the public at large.
The Governor reported that the Task Force was unable to reach a consensus on the best approach to reform proposals that would limit the ability of public employers to diminish public retiree health benefits. Instead, it includes three position papers that set forth varying recommendations of particular Task Force participants.
A copy of the Final Report is available on the Internet at:
http://www.ny.gov/governor/reports/pdf/HealthCareRetiree.html
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
June 24, 2010
Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation
Civil Service Law prohibits assigning out of title work to an employee in other than an emergency situation
Woodward v GOER, 279 A.D.2d 725
The Governor's Office of Employee Relations [GOER] denied the out-of-title work grievance filed by a Grade 22 Senior Correction Counselor, Larry Woodward.According to the decision, Woodward, whose duties essentially involved "the social, educational and vocational rehabilitation of prisoners," was assigned to conduct Tier III disciplinary hearings involving inmates.
One of 10 civilian supervisory-level employees assigned such duties, Woodward conducted an average of 61 tier III disciplinary hearings per year between May 1, 1994 and June 1, 1999.
In September 1994 Longwood asked that either his name be removed from the list of individuals assigned to conduct Tier III hearings or that he be compensated for performing the tasks of a Hearing Officer, a grade 25 position.
When GOER denied his grievance, relying on an advisory opinion by the State Department of Civil Service's Director of Classification and Compensation indicating that "the grieved assignment [did] not constitute out-of-title work * * * [as] [t]he limited assignment of [petitioner ] to serve as a disciplinary hearing officer [was] a logical and proper extension of the duties of a Senior Correction Counselor and other civilians at this organizational level of correctional facility staffing". Accordingly, GOER denied Woodward's grievance.
Woodward's union, the Public Employees Federation, filed an Article 78 action seeking to annul GOER's denial of the out-of-title grievance and to obtain a determination that Woodward is entitled to back pay at the grade 25 level.
A State Supreme Court judge annulled GOER's determination and remitted this matter to it for a "redetermination and appropriate award of back pay." GOER appealed. The Appellate Division affirmed the lower court's determination, ruling that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law Section 61(2).
Section 61(2) essentially provides that:
"[n]o person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder".
The court, however, pointed out that "not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work."
The Appellate Division said that test to be used in considering complaints involving alleged out-of-title work is whether "the record as a whole provides a rational basis for the determination that the duties [the employee] performed were 'substantially similar' to those detailed in his job description and that he was not performing out-of-title work."
In this instance the court concluded that the Department of Civil Service specifications for Senior Correction Counselor, did not encompass "presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making appropriate findings of fact and conclusions of law and imposing punishment."
In the words of the court, such duties "simply cannot be said to be reasonably related to or viewed as a logical extension of [Longwood's] duties as a Senior Correction Counselor.
Accordingly, Supreme Court appropriately concluded that respondents' determination denying Woodward's out-of-title grievance lacked a rational basis and was wholly arbitrary and capricious. Significantly, the Appellate Division noted that the Supreme Court did refer to a regulation, 7 NYCRR 253.1, which permits a facility superintendent to designate employees to conduct such disciplinary hearings.
However, said the court, "such designation is valid only to the extent that it does not violate Civil Service Law Section 61(2)." In other words, a regulation may not be relied to support a decision if it is inconsistent with the specific mandates of a statute.
Ultimately back pay was awarded to Woodward for his out-of-title work in conducting tier III hearings.
Woodward v GOER, 279 A.D.2d 725
The Governor's Office of Employee Relations [GOER] denied the out-of-title work grievance filed by a Grade 22 Senior Correction Counselor, Larry Woodward.According to the decision, Woodward, whose duties essentially involved "the social, educational and vocational rehabilitation of prisoners," was assigned to conduct Tier III disciplinary hearings involving inmates.
One of 10 civilian supervisory-level employees assigned such duties, Woodward conducted an average of 61 tier III disciplinary hearings per year between May 1, 1994 and June 1, 1999.
In September 1994 Longwood asked that either his name be removed from the list of individuals assigned to conduct Tier III hearings or that he be compensated for performing the tasks of a Hearing Officer, a grade 25 position.
When GOER denied his grievance, relying on an advisory opinion by the State Department of Civil Service's Director of Classification and Compensation indicating that "the grieved assignment [did] not constitute out-of-title work * * * [as] [t]he limited assignment of [petitioner ] to serve as a disciplinary hearing officer [was] a logical and proper extension of the duties of a Senior Correction Counselor and other civilians at this organizational level of correctional facility staffing". Accordingly, GOER denied Woodward's grievance.
Woodward's union, the Public Employees Federation, filed an Article 78 action seeking to annul GOER's denial of the out-of-title grievance and to obtain a determination that Woodward is entitled to back pay at the grade 25 level.
A State Supreme Court judge annulled GOER's determination and remitted this matter to it for a "redetermination and appropriate award of back pay." GOER appealed. The Appellate Division affirmed the lower court's determination, ruling that out-of-title work, other than that performed on an emergency basis, is prohibited by Civil Service Law Section 61(2).
Section 61(2) essentially provides that:
"[n]o person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder".
The court, however, pointed out that "not all additional duties constitute out-of-title work, and the mere fact that there may be some overlap between two particular positions does not mandate a finding that a petitioner is being compelled to perform out-of-title work."
The Appellate Division said that test to be used in considering complaints involving alleged out-of-title work is whether "the record as a whole provides a rational basis for the determination that the duties [the employee] performed were 'substantially similar' to those detailed in his job description and that he was not performing out-of-title work."
In this instance the court concluded that the Department of Civil Service specifications for Senior Correction Counselor, did not encompass "presiding over quasi-judicial adversarial proceedings, hearing and receiving evidence, making appropriate findings of fact and conclusions of law and imposing punishment."
In the words of the court, such duties "simply cannot be said to be reasonably related to or viewed as a logical extension of [Longwood's] duties as a Senior Correction Counselor.
Accordingly, Supreme Court appropriately concluded that respondents' determination denying Woodward's out-of-title grievance lacked a rational basis and was wholly arbitrary and capricious. Significantly, the Appellate Division noted that the Supreme Court did refer to a regulation, 7 NYCRR 253.1, which permits a facility superintendent to designate employees to conduct such disciplinary hearings.
However, said the court, "such designation is valid only to the extent that it does not violate Civil Service Law Section 61(2)." In other words, a regulation may not be relied to support a decision if it is inconsistent with the specific mandates of a statute.
Ultimately back pay was awarded to Woodward for his out-of-title work in conducting tier III hearings.
An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"
An employee placed on Section 72 leave for ordinary disability subsequently terminated for "abandonment of position"
Fronczak v NYS Dept. of Correctional Services, CA2, LEXIS 2167
Section 72 of the Civil Service Law -- leave for ordinary disability -- permits an appointing authority to place on employee on involuntary leave without pay if he or she is found unable to perform the duties of his or her position as a result of an illness or a disability that is not an occupational injury or disease as defined in the Workers' Compensation Law.*
The Fronczak case involved the placement of a state worker on an involuntary leave pursuant to Section 72 of the Civil Service Law.
Daniel T. Fronczak sued the New York State Department of Correctional Services [DOCS], claiming that this action violated Americans with Disabilities Act, 42 USC Sections 12112-12117 and subjected him to unlawful retaliatory adverse employment actions in violation of 42 USC 1983.
According to the decision by the U.S. Circuit Court of Appeals, Fronczak was a correctional officer employed by DOCS at its Wyoming facility.
Critical of the facility's handling of hazardous waste materials, he began "exhibiting both bizarre and threatening behavior."
In 1993 DOCS asked Fronczak to undergo a psychiatric examination to determine his ability to perform the duties of his job.
Dr. Jeffrey Bernstein, employed by the New York Department of Civil Service's Employee Health Service, examined Fronczak and determined that Fronczak was:"in need of psychiatric care ... was a risk for not being able to manage the inmates, possibly even losing control, further control of his emotions and his temper, and having difficulty working with co-workers ... [t]hat he was unable from a psychiatric perspective to continue his duties as a corrections officer."
Based on this evaluation, in 1993 Fronczak was placed on an involuntary leave of absence. He unsuccessfully appealed the determination to the Civil Service Commission.
Section 72.2 provides that an employee placed on leave pursuant to Section 72.1 may, within one year after the date of commencement of such leave of absence, or thereafter at any time until his or her employment status is terminated, make application to the civil service department or municipal commission having jurisdiction over the position from which such employee is on leave, for a medical examination by a medical officer selected for that purpose by such department or commission.
In 1996, after a further evaluation, Fronczak was found fit to perform the duties of a corrections officer and, in accordance with DOCS policy, was required to undergo seven weeks of retraining prior to resuming active employment as a corrections officer.
During this training period Fronczak had "an altercation with an instructor" and ultimately "gathered his belongings, and departed" the facility.
Fronczak was sent a letter warning him that as provided under the terms of the collective bargaining agreement then in place, his absence for ten days would be considered "a constructive resignation."
When Fronczak failed to return with the ten-day period, DOCS notified him by mail that his absence had been deemed a constructive resignation and that his employment with DOCS was terminated.
After losing his administrative appeals before the State Civil Service Commission and exhausting his federal administrative remedies through the Equal Employment Opportunity Commission (EEOC), Fronczak filed a lawsuit in federal district court.
As set out in the Circuit Court's opinion:
"A liberal reading of [Fronczak's] complaint reveals the following alleged causes of action: (1) by placing Fronczak on involuntary leave in 1993 and terminating him in 1996, DOCS retaliated against Fronczak's exercise of his First Amendment rights, in violation of 42 USC Section 1983, for his complaints concerning its waste management; (2) the same 1993 involuntary leave and 1996 termination resulted from discrimination on the basis of a perceived mental disability in violation of the ADA."**
A federal magistrate judge dismissed Fronczak's petition on the grounds that he failed to establish a prima facie case that he had been discharged either as the result of discrimination on the basis of a perceived disability or in retaliation for his filing waste management complaints.
Instead, the magistrate concluded, "[t]he undisputed record reflects that ... [Fronczak] was discharged because he failed to show up for work." The Circuit Court sustained the magistrate's determination.
However, the Circuit Court went further. The court said that:
"assuming arguendo that Fronczak has presented a prima facie case of discrimination on the basis of a perceived mental disability in 1993, DOCS has come forward with a legitimate nondiscriminatory explanation for placing him on involuntary leave at that time, namely that he was not capable of performing the essential job duties of a corrections officer."
In addition, said the court, Fronczak did not present any evidence indicating that DOCS' proffered explanation was a pretext for discrimination.
The court's conclusion: After considering "all of Fronczak's claims and finding them without merit," the judgment of the district court is affirmed.
* Section 71 of the Civil Service Law provides for leaves of absences in connection with an "occupational injury or disease" within the meaning of the Workers' Compensation Law
** The US Supreme Court ruled that the states enjoy Eleventh Amendment immunity from lawsuit in federal court alleging violations of the Americans With Disabilities Act [Garrett v. University of Alabama, 193 F.3d 1214].
Fronczak v NYS Dept. of Correctional Services, CA2, LEXIS 2167
Section 72 of the Civil Service Law -- leave for ordinary disability -- permits an appointing authority to place on employee on involuntary leave without pay if he or she is found unable to perform the duties of his or her position as a result of an illness or a disability that is not an occupational injury or disease as defined in the Workers' Compensation Law.*
The Fronczak case involved the placement of a state worker on an involuntary leave pursuant to Section 72 of the Civil Service Law.
Daniel T. Fronczak sued the New York State Department of Correctional Services [DOCS], claiming that this action violated Americans with Disabilities Act, 42 USC Sections 12112-12117 and subjected him to unlawful retaliatory adverse employment actions in violation of 42 USC 1983.
According to the decision by the U.S. Circuit Court of Appeals, Fronczak was a correctional officer employed by DOCS at its Wyoming facility.
Critical of the facility's handling of hazardous waste materials, he began "exhibiting both bizarre and threatening behavior."
In 1993 DOCS asked Fronczak to undergo a psychiatric examination to determine his ability to perform the duties of his job.
Dr. Jeffrey Bernstein, employed by the New York Department of Civil Service's Employee Health Service, examined Fronczak and determined that Fronczak was:"in need of psychiatric care ... was a risk for not being able to manage the inmates, possibly even losing control, further control of his emotions and his temper, and having difficulty working with co-workers ... [t]hat he was unable from a psychiatric perspective to continue his duties as a corrections officer."
Based on this evaluation, in 1993 Fronczak was placed on an involuntary leave of absence. He unsuccessfully appealed the determination to the Civil Service Commission.
Section 72.2 provides that an employee placed on leave pursuant to Section 72.1 may, within one year after the date of commencement of such leave of absence, or thereafter at any time until his or her employment status is terminated, make application to the civil service department or municipal commission having jurisdiction over the position from which such employee is on leave, for a medical examination by a medical officer selected for that purpose by such department or commission.
In 1996, after a further evaluation, Fronczak was found fit to perform the duties of a corrections officer and, in accordance with DOCS policy, was required to undergo seven weeks of retraining prior to resuming active employment as a corrections officer.
During this training period Fronczak had "an altercation with an instructor" and ultimately "gathered his belongings, and departed" the facility.
Fronczak was sent a letter warning him that as provided under the terms of the collective bargaining agreement then in place, his absence for ten days would be considered "a constructive resignation."
When Fronczak failed to return with the ten-day period, DOCS notified him by mail that his absence had been deemed a constructive resignation and that his employment with DOCS was terminated.
After losing his administrative appeals before the State Civil Service Commission and exhausting his federal administrative remedies through the Equal Employment Opportunity Commission (EEOC), Fronczak filed a lawsuit in federal district court.
As set out in the Circuit Court's opinion:
"A liberal reading of [Fronczak's] complaint reveals the following alleged causes of action: (1) by placing Fronczak on involuntary leave in 1993 and terminating him in 1996, DOCS retaliated against Fronczak's exercise of his First Amendment rights, in violation of 42 USC Section 1983, for his complaints concerning its waste management; (2) the same 1993 involuntary leave and 1996 termination resulted from discrimination on the basis of a perceived mental disability in violation of the ADA."**
A federal magistrate judge dismissed Fronczak's petition on the grounds that he failed to establish a prima facie case that he had been discharged either as the result of discrimination on the basis of a perceived disability or in retaliation for his filing waste management complaints.
Instead, the magistrate concluded, "[t]he undisputed record reflects that ... [Fronczak] was discharged because he failed to show up for work." The Circuit Court sustained the magistrate's determination.
However, the Circuit Court went further. The court said that:
"assuming arguendo that Fronczak has presented a prima facie case of discrimination on the basis of a perceived mental disability in 1993, DOCS has come forward with a legitimate nondiscriminatory explanation for placing him on involuntary leave at that time, namely that he was not capable of performing the essential job duties of a corrections officer."
In addition, said the court, Fronczak did not present any evidence indicating that DOCS' proffered explanation was a pretext for discrimination.
The court's conclusion: After considering "all of Fronczak's claims and finding them without merit," the judgment of the district court is affirmed.
* Section 71 of the Civil Service Law provides for leaves of absences in connection with an "occupational injury or disease" within the meaning of the Workers' Compensation Law
** The US Supreme Court ruled that the states enjoy Eleventh Amendment immunity from lawsuit in federal court alleging violations of the Americans With Disabilities Act [Garrett v. University of Alabama, 193 F.3d 1214].
Employee terminated after being found guilty of off-duty misconduct
Employee terminated after being found guilty of off-duty misconduct
Losada v Safir, 278 A.D.2d 59
The Appellate Division sustained the disciplinary termination of New York City police officer Fernando Losada based on a finding that Losada, while off-duty, was in a traffic-related altercation during which he "wrongfully punched and kicked the driver of the other vehicle, causing him physical injury."
Another element: Losada was found guilty of filing a criminal complaint regarding the incident "that falsely portrayed the other driver as the aggressor, which resulted in the other driver being arrested and placed in detention."
The court said that the penalty of dismissal does not shock its sense of fairness, particularly given that this was Losada's second adjudication of violent misconduct within 16 months.
Losada v Safir, 278 A.D.2d 59
The Appellate Division sustained the disciplinary termination of New York City police officer Fernando Losada based on a finding that Losada, while off-duty, was in a traffic-related altercation during which he "wrongfully punched and kicked the driver of the other vehicle, causing him physical injury."
Another element: Losada was found guilty of filing a criminal complaint regarding the incident "that falsely portrayed the other driver as the aggressor, which resulted in the other driver being arrested and placed in detention."
The court said that the penalty of dismissal does not shock its sense of fairness, particularly given that this was Losada's second adjudication of violent misconduct within 16 months.
Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits
Employee terminated after failing to follow the employer's policy denied unemployment insurance benefits
Matter of Cruz , 288 A.D.2d 813
Angel Cruz was dismissed from his position of Director of Public Safety and Security at the City University's Queens College campus. The reason for his termination: he failed to report allegations of sexual harassment made against members of his staff to the College's Sexual Harassment Panel. The College's policy required supervisors to report such incidents to the Panel.
The Unemployment Insurance Appeal Board subsequently rejected Cruz's claim for unemployment insurance benefits after finding that he was discharged for "disqualifying misconduct."
The Appellate Division affirmed the Board's ruling, holding that "[i]t is well settled that a claimant's knowing failure to comply with the employer's established policies and procedures can constitute disqualifying misconduct, especially in cases where such failure could jeopardize the employer's best interest."
According to the decision, Cruz admitted that he had twice failed to report allegations of sexual harassment that had been filed against members of his staff. His failure to do so, said the court, prevented the College from taking prompt action to address the allegations, thereby exposing it to potential liability.
Under these circumstances, the Appellate Division said that there was "no reason to disturb the decision of the Board finding that [Cruz] lost his job under disqualifying circumstances."
Matter of Cruz , 288 A.D.2d 813
Angel Cruz was dismissed from his position of Director of Public Safety and Security at the City University's Queens College campus. The reason for his termination: he failed to report allegations of sexual harassment made against members of his staff to the College's Sexual Harassment Panel. The College's policy required supervisors to report such incidents to the Panel.
The Unemployment Insurance Appeal Board subsequently rejected Cruz's claim for unemployment insurance benefits after finding that he was discharged for "disqualifying misconduct."
The Appellate Division affirmed the Board's ruling, holding that "[i]t is well settled that a claimant's knowing failure to comply with the employer's established policies and procedures can constitute disqualifying misconduct, especially in cases where such failure could jeopardize the employer's best interest."
According to the decision, Cruz admitted that he had twice failed to report allegations of sexual harassment that had been filed against members of his staff. His failure to do so, said the court, prevented the College from taking prompt action to address the allegations, thereby exposing it to potential liability.
Under these circumstances, the Appellate Division said that there was "no reason to disturb the decision of the Board finding that [Cruz] lost his job under disqualifying circumstances."
Subscribe to:
Posts (Atom)
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law.
Email: publications@nycap.rr.com