Unfunded Mandate Relief [revised summary]

Unfunded Mandate Relief [revised summary]
Sources: NYSBA Municipal Law Section, Special Committee on Mandate Relief; Office of the Governor

On February 28, 2011 the New York State Bar Association’s Municipal Law Section’s Special Committee on Mandate Relief sent its comments* concerning the need for relief of certain mandates imposed on political subdivisions of the State, i.e., counties, cities, towns, villages and school districts, to the Governor’s Office.

The Governor’s Office reports that on March 2, 2011 Governor Cuomo accepted a preliminary report issued by the Mandate Relief Redesign Team** on ways to curb the proliferation of unfunded and underfunded mandates.

The Special Committee said that:

“Municipal officials have long been managing mandates handed down by the state government, whether the mandate is funded, under-funded or unfunded.1 As there is no uniformly accepted definition of what constitutes an “unfunded mandate,” there is no recognized, comprehensive inventory of the unfunded mandates that are placed on municipalities. Nevertheless, there are a number of laws and regulations that are universally recognized as such due to their prevalence and associated costs on municipal affairs.

“Some require that certain services or programs be offered to the public by the municipality for the benefit of the public at large. Others establish procedural or administrative parameters within which a municipality must operate, but do not provide any identifiable benefit to the municipality or the public at large. Often, this latter mandate category is designed to promote a legislatively determined public policy of the state, benefiting a narrow class of individuals, at the cost of the municipality. It is from this latter category of mandate that the need for fiscal relief is greatest”.

Noting that its comments “are not intended to question the validity or wisdom of the various public policies underlying mandates; rather, these comments are intended to identify those mandates that have the greatest impact on municipal expenses and to highlight the inequity of having municipalities bear the financial burden of carrying out these policies.”

The Special Committee addressed the following issues:

Disability Benefits for Law Enforcement and Firefighters (GML §§ 207-c; 207-a)

Public Pensions

Wicks Law (Gen. Mun. Law 101)

Prevailing Wage (Labor Law § 220)

Triborough Amendment to the Taylor Law [Civil Service Law § 209-a.1(e)]


The Mandate Relief Redesign Team details findings in three key areas.

First, its report addresses reform and redesign the current system to stop the proliferation of unfunded mandates by:

1. Prohibiting New Unfunded Mandates: Permanently fix the problem of unfunded mandates by advancing a state law and eventual constitutional amendment prohibiting any new state mandate (with very limited exceptions) on local governments or school districts unless the state fully funds the mandate or the local entity votes to comply with the mandate;

2. Requiring Independent Cost Analysis of Mandates: Strengthen the currently ineffective fiscal impact statement process by requiring legislative fiscal committees to determine the need for and prepare such statements. This would involve codifying Executive Order 17's fiscal impact statement methodology and local government consultation requirements and making the reports available to the public; and

3. Enforcing Limits on Unfunded Mandates: Using existing resources, establish an Office of Mandate Reform to act as a clearinghouse that will work with local governments and state agencies to address unfunded mandates.

Second, its report addresses cost-drivers to provide meaningful mandate relief by:

1. Creating a Pension Tier 6: A new Tier will help municipalities and school districts address rapidly escalating pension costs; and

2. Avoiding the Wicks Requirement by Removing Barriers to Project Labor Agreements: In order to reduce the costs that localities and schools face due to Wicks, ease the burdens associated with project labor agreements (PLA) by eliminating the study requirement and developing regionally-negotiated PLA templates that together can reduce the costs of public works projects by 15 percent or more.

Third, its report addresses the current unsustainable burden of state mandates by:

1. Giving Local Governments Greater Flexibility to Administer Existing Mandates: The State Administrative Procedure Act (“SAPA”) §204-a should be streamlined and expanded to allow localities to propose alternatives to current regulations and to request waivers of regulations; and

2. Conducting a Comprehensive Review of All State Mandates: Conduct a full agency review and accounting of state and regulatory mandates that burden school districts and local governments.

* A complimentary copy of the Special Committee’s report is available from NYPPL. E-mail your request to publications@nycap.rr.com

** The Mandate Relief Redesign Team report is posted at: http://governor.ny.gov/assets/documents/finalmandate.pdf .
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Hearing officer recommends termination of Emergency Medical Technician who made a false report after responding to a 911 call

Hearing officer recommends termination of Emergency Medical Technician who made a false report after responding to a 911 call
NYC Fire Department v Prosper, OATH Index #192/11

OATH Administrative Law Judge John Spooner found that an emergency medical technician failed to follow protocol and made false reports when he responded to a 911 call from an elderly man who reported difficulty breathing.

The EMT and his partner arrived at the patient's apartment and argued with the patient about which hospital to go to. The patient, however, refused treatment and the EMTs returned to the ambulance.

Rather than calling a supervisor for help, as required, the EMTs reported “10-90” or unfounded, to the dispatcher.

Believing that there had been no contact with the patient, the dispatcher sent firefighters to gain entry to the apartment. In the meantime, the patient came downstairs and told the EMTs that he was taking a bus to the hospital. The EMT gave firefighters no information about the patient and they entered the empty apartment by breaking the door lock

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2885.pdf

Employer held liable under the Uniformed Services Employment and Reemployment Rights Act for adverse action taken against an individual by supervisor

Employer held liable under the Uniformed Services Employment and Reemployment Rights Act for adverse action taken against an individual by supervisor
Vincent E. Staub, Petitioner v. Proctor Hospital , USSC, No. 09-400, [March 1, 2011]

While employed by Proctor Hospital, Vincent Staub served as a member of the United States Army Reserve. As such, he was required to attend drills one weekend per month and to train full time for two to three weeks a year.

Both Janice Mulally, Staub's immediate supervisor, and Michael Korenchuk, Mulally's supervisor, were hostile to Staub's military obligations. Mulally scheduled Staub for additional shifts without notice so that he would " 'pa[y] back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.’"

Mulally also informed Staub's co-worker, Leslie Sweborg, that Staub's "military duty had been a strain on th[e] department," and asked Sweborg to help her "get rid of him". Korenchuk referred to Staub's military obligations as "a b[u]nch of smoking and joking and [a] waste of taxpayers['] money”' "He was also aware that Mulally was "out to get" Staub.

The Supreme Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate [adverse] employment action, then the employer is liable under USERRA [Uniformed Services Employment and Reemployment Rights Act of 1994].”
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Removal from the payroll

Removal from the payroll
Kahn v SUNY Health Science Center, 271 AD2d 656

The employer tells the employee that he or she is off the payroll. The employee sues, seeking a court order barring this action pending the trial challenging his or her termination on the ground that he or she would suffer irreparable harm if the injunction were not issued because:

(1) If he or she were removed from the payroll he or she would have no one to support him;

(2) He or she he would be unable to live in the New York metropolitan area; and

(3) He or she would be unable to prosecute the lawsuit challenging the termination.

These were the claims made by Mahmood Khan when the State University of New York Health Science told him it was removing him from his faculty position with the university. Although a State Supreme Court judge issued granted the injunction, the Appellate Division, reversed the lower court and vacated the order.

The standards for granting a preliminary injunction are such situations are clear. The party seeking the order must show that:

(1) He or she is likely to succeed on the merits;

(2) He or she would suffer irreparable injury if the provisional relief is withheld; and

(3) A balancing of the equities weighing in favor of the moving party.

The Appellate Division, assuming that Kahn had indeed made an adequate showing of merit and that the equities balance in his favor, said that he failed to establish irreparable injury, the third element he was required to demonstrate. According to the court, Khan’s contentions were wholly speculative and conclusory, and, therefore, are insufficient to satisfy the burden of demonstrating irreparable injury.

Kahn also argued that if he were to be out of work for an extended period, he would have to return to Australia and would never be able to obtain United States citizenship. As he had not raised this argument before the Supreme Court, the Appellate Division said he was precluded from raising it in the appeal because absent matters that may be judicially noticed, new facts may not be injected at the appellate level.
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Governor Cuomo to propose school superintendent salary cap

Governor Cuomo to propose school superintendent salary cap
Source: Office of the Governor

On February 28, 2011, Governor Andrew M. Cuomo announced that he will submit a program bill to cap the salaries of school superintendents across the state. The cap would be based upon student enrollment and if approved would save a combined $15 million.

The cap would impose salary limits as follows:

if 250 or fewer pupils, $125,000
if 251 to 750 pupils, $135,000
if 751 to 1,500 pupils, $145,000
if 1,501 to 3,000 pupils, $155,000
if 3,001to 6,500 pupils, $165,000
if 6,501 or more pupils, $175,000

The cap will apply only to school superintendents and will be applied prospectively as contracts expire. Local communities will have the ability to vote on overriding the salary cap, limited only to specific contracts. These votes will be held during normal school budget votes.

According to the Governor’s Office, currently, 223, or 33 percent of school district superintendents earn more than $175,000.

There is already a salary cap in place for BOCES district superintendents. The BOCES cap sets a single flat salary level ($166,572).

The Governor's press release is posted on the Internet at:
http://governor.ny.gov/press/salarycap
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