State Comptroller finds that some school districts paid for health benefits for deceased or ineligible retirees and dependents

State Comptroller finds that some school districts paid for health benefits for deceased or ineligible retirees and dependents
Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli reports that his auditors found that ten school districts in New York State paid nearly $239,000 for health insurance benefits for deceased or ineligible retirees. DiNapoli also said $117,556 had been recovered.

The audit, which covered July 1, 2008 to May 31, 2010, examined school districts with a high percentage of retirees who do not contribute toward the cost of their health insurance.

The auditors found that only two districts of those audited – Somers Central School District and Yonkers City School District – had written guidelines to ensure the accuracy and appropriateness of health insurance payments.

DiNapoli’s audit recommended that school district officials:

1. Develop written policies and procedures to periodically monitor the status of all retirees, their spouses and dependents receiving health insurance coverage; and

2. Consider establishing systems to maintain adequate information on retirees and their dependents, including social security numbers and emergency contact information, which can be used to ensure eligibility for health insurance coverage.

The Comptroller’s report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/swr/retireehealth/global.pdf

Use of leave credits and the FMLA

Use of leave credits and the FMLA
Repa v. Roadway Express, Inc. USCA, 7th Circuit, 477 F.3d 938

Alice M. Repa complained that her employer, Roadway Express, Inc., required her to use her sick and vacation leave accruals while she was on FMLA leave although she was simultaneously receiving short-term disability benefit – i.e., paid leave - under Roadway’s disability plan.

The Circuit Court sustained a federal district court’s ruling that Roadway had violated the FMLA by requiring Repa to charge her FMLA-absence to her leave accruals. The lower court held that absence from work under a temporary disability benefit plan is not subject to a provision in the FMLA that allows employers to require employees to substitute paid leave for unpaid FMLA leave.

The decision states that “the purpose of the FMLA is, in part, “to entitle employees to take reasonable leave for medical reasons . . . in a manner that accommodates the legitimate interests of employers.” Although the employer is not required to pay an employee while the employee is on FMLA leave, [see 29 U.S.C. §2612(c)], the “employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation leave, personal leave, or family leave of the employee for [FMLA] leave provided” [see 29 U.S.C. § 2612(d)(2)].*

In this instance, said the court, short-term disability leave pursuant to Roadways’ temporary disability benefit plan was not unpaid leave. Accordingly, the FMLA provision allowing the employer to require the employee to substitute paid leave for unpaid FMLA absences was inapplicable.

In addition, the decision noted that the employer may designate the short-term disability leave as FMLA leave and count the disability leave as running concurrently for purposes of both the benefit plan and the employee’s FMLA leave entitlement. Further, said the court, “If the requirements to qualify for payments pursuant to the employer’s temporary disability plan are more stringent than those of FMLA, the employee must meet the more stringent requirements of the plan, or may choose not to meet the requirements of the plan and instead receive no payments.”

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/short-term-disability-program-use-of.html

* The Circuit Court noted that Department of Labor regulations [29 C.F.R. §825.207(d)(1)] places certain limitations with respect to the application of this provision and indicated that disability leave for the birth of a child would be considered “FMLA leave for a serious health condition” and counted in the 12 weeks of leave permitted under FMLA.

Failing to appear for an examination trumps non-selection retaliation claim

Failing to appear for an examination trumps non-selection retaliation claim
Williams v City of New York, 38 A.D.3d 238

Gina Williams, complained that she was rejected for employment as a correction officer with the New York City Department of Corrections in retaliation for her filing a sexual harassment claim against her employer, the New York City Housing Authority.

The Appellate Division, First Department ruled that Williams failed to establish a prima facie claim of retaliation as there was no evidence of a causal connection between the filing of the harassment claim in 1998 and the denial of her appointment as a correction officer some two years later.

Significantly, Williams had been approved for appointment as a corrections officer on the condition that she take a psychological examination. She failed to appear for the examination.

This, said the court, was fatal to Williams’ lawsuit claiming retaliation since “even were it determined that there was a prima facie case of retaliation, [Williams] failed to show that the legitimate, nondiscriminatory reasons given by Corrections for their actions were mere pretext.”

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/sexual-harassment-claim-rejected.html

Eligibility for unemployment insurance determined by the law in place at the time of the filing of a claim for benefits

Eligibility for unemployment insurance determined by the law in place at the time of the filing of a claim for benefits
Dwyer v Commissioner of Labor, 273 A.D.2d 675

In June 1997 the Unemployment Insurance Appeals Board ruled that former Orange County Personnel Director Joseph M. Dwyer was entitled to unemployment insurance benefits.

The Board subsequently reopened its prior decision and on March 19, 1998 issued a ruling rescinding its June 1997 decision. This action reinstated a prior determination that Dwyer’s work as Orange County Commissioner of Personnel ending in November 1994 was excluded from coverage under Labor Law Section 565(2)(e) because it was a major nontenured policy making or advisory position. Dwyer did not appeal the Board’s March 1998 ruling.

On May 18, 1999 the Board agreed with the department that Dwyer had to pay a recoverable overpayment of $7,800 in unemployment insurance benefits. Dwyer appealed the May 1999 determination.

The Appellate Division affirmed the Board’s determination, noting that while Dwyer contended that the Board abused its discretion when it reopened its June 1997 decision in his favor, he did not appeal the March 1998 decision that held he was not eligible for unemployment insurance benefits. Accordingly, the court said it could not consider any challenge to the March 1998 ruling by the Board in this appeal.

The Appellate Division noted that while Section 597 was amended in 1998 so as to limit the recoverability of certain unemployment insurance overpayments, the legislation is not retroactive and applies only to benefit claims filed on or after May 19, 1998, the effective date of the amendment.

Accordingly, Dwyer was not covered by any of its provisions.

Veteran who served in time of war employed and characterized as an “independent officer” held not within the ambit of §75 of the Civil Service Law

Veteran who served in time of war employed and characterized as an “independent officer” held not within the ambit of §75 of the Civil Service Law
Matter of DiBattista v Mcdonough, 2011 NY Slip Op 00131, Appellate Division, Third Department

After the Chief of Police of the Town of Rosendale Chief of Police, Michael DiBattista, was notified by the Town Supervisor, Patrick McDonough, that he had not been reappointed to the position at the annual organizational meeting of the Town Board, DiBattista filed a petition pursuant to CPLR Article 78 seeking a court order reinstating him to the position of Chief of Police with back pay, longevity pay and compensatory time.

DiBattista argued that as an honorably discharged veteran of the armed services, he should not have been discharged without a hearing.*

Supreme Court determined that DiBattista was not entitled to the statutory protection because he did not hold his position as Chief of Police "by permanent appointment."

Noting that §16-3 of the Town’s Code provides that the Chief of Police "shall be appointed annually on January 1 of each year" and his or her term shall continue "until he [or she] is reappointed or succeeded," Supreme Court apparently deemed DiBattista to hold a “term appointment” and thus “permanent” for the purposes of the Civil Service Law only during the specified statutory term of the office.**

The Appellate Division said it agreed and affirm the lower court’s determination.

As to DiBattista’s “permanent status” in the position, the Appellate Division ruled that that time of the Board’s action, DiBattista “no longer held the status of an appointed official with tenure for a limited term; instead, he held his position as a holdover and was an at-will employee not entitled to the protections of Civil Service Law §75.”***

Additionally, the Appellate Division said that DiBattista “was further excluded from the protection of Civil Service Law §75 because his position as Chief of Police was independent in nature.”

Citing Matter of Nolan v Tully, 52 AD2d 295, 297 [1976], appeal dismissed 40 NY2d 844 [1976], lv denied 40 NY2d 803 [1976], the Appellate Division explained that Civil Service Law §75(1)(b) was intended to apply only to veterans in subordinate positions and does not include those who "may be characterized as independent officers." Based on the job description for Chief of Police, the Appellate Division concluded that the position clearly requires independent judgment and initiative and thus he was an “independent” officer.

As to DiBattista’s argument that, as a member of the Town of Rosendale Police Department, he had the right to a pretermination hearing under Town Law §155, the Appellate Division said that both Town Law §155 and Civil Service Law §75 relate to the discipline of civil service employees, they are in pari materia**** and are to be read in conjunction so that they complement one another.

However, the court explained, “it is apparent that Town Law §155 only applies to police department members who, unlike [DiBattista], hold permanent appointments. Ruling that DiBattista did not have property interest in the position, the Appellate Division concluded that he was not entitled to the protection of Town Law §155.

* Civil Service Law §75(1)(b) provides, in pertinent part, that a person holding a position by permanent appointment or employment in the classified service “who was honorably discharged or released under honorable circumstances from the armed forces of the United States having served therein as such member in time of war as defined in section eighty-five of this chapter” is subject to its provisions.

** Section 15.1(b) sets out another example of a statutory “term of office” whereby “The term of office of a [county] personnel officer shall be six years.”

*** Presumably §75 would obtain had the Town sought to remove DiBattista while he was serving as a “one-year appointee” in contrast to his serving in a “holdover” capacity.

**** Two laws relating to the same subject matter that must be analyzed with each other.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00131.htm