Employee entitled to go for a cancer-screening examination without loss of pay or charge to leave accruals

Employee entitled to go for a cancer-screening examination without loss of pay or charge to leave accruals
Moran v City of Saratoga Springs, et al, 21 Misc 3d 195

In Cruz et al v Wappingers CSD, Supreme Court, Dutchess County, Judge James V. Brand, Index #2197 /08 [not selected for publication in the Official Reports] a State Supreme Court ruled that Civil Service Law §159-b* requires employees to be paid for absences for cancer-screening examinations without charge to leave accruals and ordered the school district to restore sick leave accruals to three of its employees whom the district forced to use leave accruals in connection with absences for breast cancer screening.

In Moran, State Supreme Court Judge Thomas D. Nolan came to the same conclusion.

An City of Saratoga Springs employee took an hour off during the workday from her position in the City's accounts department to have a mammogram and reported this "leave of absence" on her weekly time report. The City's payroll department, however, advised Moran that she would not be paid for the one hour "leave", but if she wanted to be paid, she could charge the time against her accrued sick, personal or vacation leave.
The employee charged her absence to her leave accruals.

The Civil Service Employees Association Local 1000 (CSEA) asked the City restore those two hours to her accrued sick leave, stating that the §159-b leave was "to be paid leave" and that the City was in violation of the Civil Service Law when it required to charge her leave accruals or be deemed "on unpaid leave." The City refused to restore the employee’s leave credits to her and CSEA sued.

Judge Nolan said that the City's interpretation, though plausible, does not further the law's principal goal of encouraging public sector employees to be regularly screened for breast cancer. “Certainly,” said the court, “the screening leave was not intended to result in any financial detriment to the employee.” In addition, the court pointed out that the State's Civil Service Department's interpretation is that the statute provides for paid leave for New York State officers and employees with respect to the State as an employer.

Finding that the “legislative history” of §159-b is clear, the court concluded that the Legislature intended not only that annual cancer screening examinations would be excused and not be charged against any other leave, but also, that it would be a "paid" leave.**

In support of his conclusions, Judge Nolan cited two recent trial level court decisions – Cruz v Wappingers Cent. School Dist., [supra] and Fringuello v Wappingers Cent. School Dist., (Sup Ct, Dutchess County, July 15,2008, Dolan, J., index No. 2231/08, [Not selected for publication in the Official Reports].

Judge Nolan ruled that the City's determination to deny the employee paid leave of absence in connection with her absence for breast cancer screening "is arbitrary and capricious and cannot stand." Granting CSEA’s petition, the court order the City “to credit two hours to [the employee’s] sick leave accruals.

* §159-b.1, Excused leave to undertake a screening for breast cancer, provides, in pertinent part: “Every public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system….”

** The court's role in interpreting legislation was summarized in Matter of Monroe County Pub. School Dists. v Zyra (51 AD3d 125, 130

Selected Reports issued by the Office of the State Comptroller during the week of July 16 - 22, 2012

Selected Reports issued by the Office of the State Comptroller during the week of July 16 - 22, 2012

Source: Office of the State Comptroller

DiNapoli to Audit SUNY Downstate Medical Center

New York State Comptroller Thomas P. DiNapoli announced Tuesday that his office has commenced an independent financial review of the financially–troubled State University of New York Downstate Medical Center and its affiliates.

DiNapoli: Queens Special Education Contractor Overcharged State $1.5 Million

Bilingual SEIT & Preschool Inc., a Queens–based provider of special education services, inappropriately charged New York City’s Department of Education by nearly $1.5 million for salaries, vehicle leases and items such as cosmetics and children’s furniture, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The findings were referred to the Queens County District Attorney’s Office.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed an audit of the Mayfield Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed the following audits: the Clarksville Volunteer Fire Company; the Town of Homer; the City of Kingston Police Department; and, the Village of Sodus.

Comptroller DiNapoli Announces Upcoming Training for Local Officials

Two webinars providing critical training for local government officials will be held in August.

A webinar providing an Update on the Property Tax Cap and a Demonstration of Multiyear Financial Planning will be held on August 7th, from 2:00 p.m. to 4:00 p.m. Participants will learn about common errors made during the 1st year of calculating the property tax levy limit and tips for avoiding those errors. They will also benefit from a demonstration of OSC’s multi–year financial planning tool. Local officials should register at: https://www3.gotomeeting.com/register/838061582.

An Information Technology Governance webinar will be held on August 15th, from 2:00 p.m. to 4:00 p.m. Participants will gain an understanding of their responsibilities in managing government technology systems and how to properly protect electronic resources, data, and access to systems. Local officials should register at: https://www3.gotomeeting.com/register/213023830.

Compensation for 12-hour work shifts and vacation and days off canceled not considered in determining retirement allowance

Compensation for 12-hour work shifts and vacation and days off canceled not considered in determining retirement allowance
Port Auth. Police Benevolent Assn., Inc. v Anglin, 54 AD3d 495

The New York State and Local Police and Fire Retirement System determined that an Port Authority Police Sergeant’s final average salary was $166,432.83, a figure that did not include any of the premium payments the Sergeant had received for having to work instead of taking vacation days, etc., after the terrorist attack of September 11, 2001. All Port Authority police officers, including the Sergeant, were required to work daily 12-hour shifts and all vacation and days off were cancelled following the attack.

When the Sergeant retired, the Retirement System did not include any of the premium payments he had received for having to work instead of taking vacation days in calculating his retirement allowance. At the hearing held pursuant  the Sergeant's request for recalculation of this amount to include this additional compensation, the Hearing Officer found that the premium payments for lost vacation days were properly excluded from the calculation of his final average salary. The Deputy Comptroller adopted the decision of the Hearing Officer, denying the Sergeant’s application for recalculation of his final average salary. The Sergeant  appealed.

The Appellate Division sustained the Deputy Comptroller’s determination.

The court said that the Comptroller is vested with exclusive authority to determine applications for retirement benefits within the meaning of the applicable statutes. Accordingly, it said "we will uphold a determination of what constitutes a retiree's final average salary as long as it is not irrational."

The Appellate Division then noted that Retirement and Social Security Law §302(9)(d) and §431(1) expressly exclude lump-sum payments for accumulated vacation credit, and it has previously held that this exclusion applies even though the payments are made biweekly rather than in a lump sum upon retirement.

In this instance the Sergeant was seeking to have included in his final average salary payments that were made pursuant to the vacation provisions of a collective bargaining agreement that were invoked when his vacation days were cancelled. These premium payments were made in lieu of vacation and in addition to the regular, straight rate of pay that he received for working his normal eight-hour shift and the overtime pay he received for the hours he worked each day after his normal shift.

According to the decision, the fact that “a national emergency required [the Sergeant] to forgo his vacation time does not render the payments any less extraordinary” and the relevant statutes “attach no significance to whether the extra compensation was for vacation time lost voluntarily or involuntarily.”

Dismissing the Sergeant’s appeal, the court said that the Retirement System’s conclusion that such payments were compensation for lost accrued vacation credit, rather than for overtime work under General Municipal Law §90, cannot be said to be irrational.

For the full text of the opinion, go to:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06617.htm

Not reporting for drug test without submitting documentation showing employee was unable to report constitutes a refusal to submit to drug testing

Not reporting for drug test without submitting documentation showing employee was unable to report constitutes a refusal to submit to drug testing
OATH Index No. 1977/08

OATH Administrative Law Judge Faye Lewis sustained a charge that a sanitation worker had refused to comply with an order to report to the clinic for random drug testing.

The employee submitted a doctor's note requesting excusal from work for seven days due to back pain. The doctor's note, however, did not indicate, that the employee was unable to travel to the clinic for his drug test.

ALJ Lewis credited Department's argument that since the worker was able to visit his own doctor's office, he should have been able to travel to the clinic the next day.

The penalty recommended by the ALJ under the facts of this case: Termination.

Another FOIL Lesson: Be mindful of your audience

Another FOIL Lesson: Be mindful of your audience

Source Patrick M. Malgieri, Esq. – Posted on the NYMuniBlog* July 18, 2012 - Reprinted with the permission of NYMuniBlog

Another FOIL Lesson: Be mindful of your audience by Patrick M. Malgieri could be sub-title “Another example of the Doctrine of Unintended Consequences.”

Mr Malgieri writes:

“In a recent decision of the New York Court of Appeals, the state’s highest court determined that records exchanged by a state agency with a federal agency were not entitled to an exemption from disclosure under the state’s Freedom of Information Law set out in Article 6 of the New York Public Officers Law.**  In the case of Waterford v. New York State Department of Environmental Conservation, 18 N.Y.3d 652, 944 N.Y.S.2d 429 (March 22, 2012), the town of Waterford sought to obtain from the DEC records relating to the joint DEC and U.S. Environmental Protection Agency project in the Hudson River dredging PCBs deposited in the Hudson River.  While DEC complied with a portion of the request, it denied access to certain records that had been exchanged between it and the EPA, claiming that the “inter-agency” exception set out in Section 87(2)(g) of the Public Officers Law exempted those records from disclosure.

“The court, in an opinion by Chief Judge Lippman, found that the term 'agency' as defined in Section 86(3) of the Public Officers Law included only state and municipal agencies.  As such, the EPA, as a federal agency, did not constitute an agency for purposes of FOIL.  Consequently, the inter-agency exemption did not apply to the materials exchanged between the state and federal agencies.

“DEC also argued that the 'intra-agency' exemption would be applicable to these records.  The Court of Appeals had long ago found that, in furtherance of the deliberative process, the intra-agency exception could extend to records exchanged between a public agency and outside consultants engaged by that agency. 

However, the court in Waterford declined to apply the exemption, finding that, in this instance, the EPA was the lead agency on the project and ‘was not retained by the DEC and does not function as its employee or agent.’

“Public officials would do well to keep in mind that all public records and communications are presumptively subject to disclosure unless the record or the circumstance falls within one of the relative handful of express exceptions set out in the Public Officers Law or an exception to disclosure set out in another statute or is covered under a statutory or common law privilege (such as the attorney-client privilege).  One of the easiest traps in which public officials may fall is when they communicate with or share a record with someone to whom the exception or privilege does not extend.  In Waterford, that someone was a federal agency which, although concededly a governmental entity, was not among the governmental agencies identified in the FOIL statute. 

“Another ready trap is when a record or communication is shared with or made to a group of individuals and/or entities (such as an e-mail to a large number of recipients), not all of whom fall within the exception or privilege. One stray recipient can unwittingly subject the entire record to disclosure.”

* You may register to receive the NYMuniBlogvia e-mail at:

http://nymuniblog.com/?page_id=16

**  NYPPL Notes: The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited or prohibited by statute, are to be made available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise fall within the ambit of the several exceptions to such disclosure permitted by FOIL.