Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of August 13 - 19, 2012 [Click on the caption to access the full report]

DiNapoli: Investment in New York–Based Buddy Media Yields Fifteen–Fold Return

The sale of the social media marketing company Buddy Media to Salesforce.com generated an estimated $41.2 million net return from an initial investment of $2.7 million, nearly 15 times the original investment, for the New York State Common Retirement Fund, New York State Comptroller Thomas P. DiNapoli announced Thursday. The sale, announced on Monday, was for approximately $750 million.

DiNapoli: Missing Funds Concealed by Town Clerk

The clerk in the Town of Greig used funds intended for an environmental improvement project to conceal a shortage in a tax collection bank account, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The case has been referred to State Police officials for investigation.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced Monday the following audits: the New York City Department of Education, Herbert H. Lehman High School; the Division of the Lottery; the State Education Department; and, the New York City Department of Education, James Madison High School.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits: the Champion Volunteer Fire Company, Inc.; the Village of Chester; and, the City of Lackawanna. the Village of Canton; the Town of Champlain; the City of Rochester; and, the Spencerport Volunteer Fireman’s Association, Inc.

Termination for violating workplace rules defeats a claim for unemployment insurance benefits

Termination for violating workplace rules defeats a claim for unemployment insurance benefits
Smith v Commissioner of Labor, 296 A.D.2d 803

Violating the employer's policy or work rules concerning sexual harassment may not only result in the termination of the employee. It may also disqualify the individual for unemployment insurance benefits.

The Appellate Division, Third Department, said that it is clear that an employee who is terminated because he or she "knowing" violated his or her employer's established policy or workplace rules may have been dismissed for "disqualifying misconduct" for the purposes of his or her eligibility for unemployment insurance benefits is concerned. In the Smith case, the Appellate Division, citing the Campbell decision, 271 AD2d 787, demonstrated this principle in a case involving an employee's termination for violating the employer's policy prohibiting sexual harassment.

An employee was dismissed from his position for violating his employer's policy prohibiting its employees from "sending inappropriate communications by e-mail." When his application for unemployment insurance benefits was rejected by the Unemployment Insurance Appeals Board, The applicant sued.

According to the evidence introduced in the course of an unemployment insurance administrative hearing, the individual had sent "questionable e-mail" to his co-employees to notify them of a meeting with the e-mail's subject line reading "NUDE PICTURES - NUDE PICTURES". The applicant's explanation for this: he had used the phrase as a means of gaining the attention of his readers.

About a year later the employee was terminated following his sending an e-mail to his co-employees the employer determined had again violated its policy of transmitting "inappropriate communications by e-mail."

The Appellate Division sustained the Unemployment Insurance Appeals Board's decision that the employee had lost his employment under disqualifying circumstances -- i.e., he lost his employment due to his misconduct in violating the employer's workplace rules..

The court said that there was substantial evidence in the record to sustain the Board's determination and any issue concerning the credibility of the testimony of witness was for the Board to resolve.

A personnel management book to watch for: Help Them Grow or Watch Them Go

A personnel management book to watch for: Help Them Grow or Watch Them Go

Berrett-Koehler Publishers, ISBN-10: 1609946324; ISBN-13: 978-1609946326

This book by co-authors by Beverly Kaye and Julie Winkle Giulioni is designed for personnel officers, supervisors, managers, directors, team leaders, training personnel and others involved in personnel management and development. Focusing on employment models and personnel management situations common to the private sector, it provides insights to help management develop and retain valuable personnel that are applicable to employment in the public sector as well.

The basic premise of the authors: “Career development is one of the most powerful and underutilized levers managers have to drive engagement, retention and results. Even during challenging economic times, an organization’s best and brightest have options. Failing to help them grow can lead employees to quit and leave or quit and stay which can sometimes be even more devastating.” 

This is an easy to read handbook, with easy to apply insights, that will prove valuable to those having personnel management responsibilities as well as those aspiring to such positions.

To download an excerpt from this book to your computer, visit www.help-them-grow.com

Scheduled for publication September 17, 2012, Watch Them Grow may be pre-ordered from your local bookstore or Amazon. It will be available in a soft-cover edition and in an e-book edition.

Below is a sampling of the author’s suggestions set out in this 144 page “hands on, how to handbook” that could make a difference.

Just talk with people. In today’s workplace, everyone knows that employees own their careers. But there’s a lot you can do through conversation to help focus, energize, and activate that ownership toward satisfying results by merely talking with employees.

Keep learning about employees — and help them learn about themselves throughout their careers.  Genuine interest is too frequently in short supply, yet it goes a long way toward building loyalty, retention, and results.

Encourage and enable foresight. What people are good at, what they love, and how they like to work needs to be filtered through a foresight lens. When you help employees develop the ability to scan the environment, anticipate trends, and spot opportunities, you provide a constructive context for career development.

Leverage insights... Opportunities exist where what the employee wants to do can find expression in the real, ever-changing world of work. Help employees mine that intersection. 

Paint a more expansive picture of career development and available growth opportunities.

Most people have blinders on when it comes to how to advance their careers, and they look only upward. Encourage them to develop in all directions.

Help others think through how to turn their career goals into action. Ideas and objectives are a good starting point, but they don’t get far without the creativity of opportunity mindedness, the tactical focus of planning, and the ongoing conversations that help employees recognize and make the most of education, exposure, and experiences designed for development.

Find ways to bring development to life day in and day out. Waiting for an annual or pre-scheduled meeting to discuss career matters robs you and the employee of the energy and opportunities that are present always and everywhere. Infuse development conversations into the workflow and see how quickly they permeate the culture.

The terms of a collective bargaining agreement may permit the employee organization to demand arbitration of a grievance on behalf of retirees

The terms of a collective bargaining agreement may permit the employee organization to demand arbitration of a grievance on behalf of retirees
City of Niagara Falls v Niagara Falls Police Club, Inc., 52 AD3d 1327

The City of Niagara Falls resisted efforts by the Niagara Falls Police Club to submit a grievance concerning healthcare benefits for retired police officers to arbitration.

Supreme Court rejected the City’s application for a stay of arbitration and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that dispute between the parties over healthcare benefits for retired police officers is properly the subject of arbitration based on the terms of the parties' collective bargaining agreement (CBA).

The court pointed out that the CBA sets out a grievance procedure to resolve disputes that arises "concerning the interpretation or application of the terms of this contract or of the rights claimed to exist, hereunder." Further, said the court, the CBA specifically provides that, in the event that there is not a satisfactory resolution of a grievance, "either party may seek resolution by arbitration."

As the CBA expressly refers to retirement benefits in defining the term grievance, and the grievance procedure set forth in the CBA is "not predicated upon the status of the affected beneficiaries" – i.e., it does not distinguish between active employees or retirees – the Appellate Division concluded that the Police Club “is entitled to pursue arbitration on behalf of the retirees.”

Tenure by estoppel

Tenure by estoppel
Tucker v Bd. of Education SD #10, 189 AD2d 704

Under certain circumstances a probationary teacher may attain tenure by estoppel, sometimes referred to as "tenure by acquisition."

As the court said in Pascal v Board of Education, 100 AD2d 622, tenure by estoppel results when a school board fails to take the action required by law to grant or deny tenure and, with its full knowledge and consent, permits a teacher to continue to teach beyond the expiration of his or her probationary period.

§3031 of the Education Law requires that the board of education review "all recommendations not to appoint a person on tenure." The individual is to be advised of the date on which the board will consider the recommendation at least 30 days prior to the date of the meeting.

Another §3031 provision: the probationary teacher "may, not later than 21 days prior to such meeting" ask for a written statement setting out the reasons for the superintendent's recommendation and may file a response to such reasons "not later than 7 days prior to the day of the board meeting."

What is the potential impact on a school district if it is found that it did not comply with the provisions set by §3031?

In Tucker v Bd. of Education SD #10, 189 AD2d 704, the court found that a probationary teacher was advised that she was to be denied tenure 22 days before her probationary period was to end. The court ruled that the individual was entitled to an award of a day's pay for each day the district's notice to her that she would not be granted tenure was late. In other words, the probationary teacher was entitled to pay  corre­sponding to the number of days for which she was not given the statutory number of days of notice prior to effective date of her termination.

Implicit in this ruling is that in the event a probationary teacher is not provided with timely notice that he or she is to be denied tenure, the failure to provide such notice is not a fatal defect insofar as a defense to the individual claiming tenure by estoppel or by default is concerned, provided the teacher was given formal written notice of this deci­sion by the appropriate party prior to expiration of his or her probationary period and he or she receives payment for each day that the notice was "late."

Further, the removal of the probationary employee from the payroll does not have to take effect on or before the last day of the applicable probationary period. In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez on the payroll until the end of payroll period for administrative convenience did not result in his attaining tenure in the position. The Court held that under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that [1] it was of a short duration;[2] it was for "administrative convenience;" and [3] he was provided with timely prior notice of the termination from his probationary appointment. .

Stated another way, the appointing authority has until the last day of the individual's probationary period to decide whether to retain the employee, extend the employee's probationary period, or to terminate the employee from his or her position. Although the employee's actual removal from the payroll may occur after this date, the required notice of the termination delivered to the employee before the end of his or her probationary period is deemed timely notice of termination for the purposes of determining if the individual has attained tenure by estoppel.

Addressing another variation concerning the individual's attaining tenure in his or her position, in Yastion v Mills, 229 AD2 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of continuous service. The decision points out that Yastion's con­tinued employment was contingent on the district's receipt of federal funding and his annual employment contracts specifically indicated that "tenure does not apply to this position."