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 20 – 26, 2012 [Click on the caption to access the full report]

DiNapoli: New York’s Fiscal Picture Remains Tied to Pace of Recovery

New York State tax revenues were close to expected levels in July after falling short of estimates in May and June, according to the July Cash Report released Monday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Tuesday his office completed the following audits:

Town of Carrollton;

Town of New Scotland; and,

Town of Woodstock.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed the following audits:

Department of Health;

Office for People with Developmental Disabilities;

New York State Health Insurance Program, Empire Blue Cross and Blue Shield Payments Made to Hudson Valley Hospital Center;

New York State Health Insurance Program, United HealthCare;

New York State Health Insurance Program, Empire Blue Cross and Blue Shield Payments Made to Stony Brook; and,

Department of Motor Vehicles.

Termination recommended after a special police officer found guilty of giving false information to a police officer

Termination recommended after a special police officer found guilty of giving false information to a police officer
NYC Administration for Children’s Services v Toro, OATH Index No. #1023/12 and OATH Index #1024/12

Two Administration for Children’s Services [ACS] special officers were found to have made false statements to supervisors and to an investigator regarding their involvement in connection with the traffic stop of a relative and former ACS special officer. It was alleged that a photocopy of an unauthorized ACS identification card was displayed to a NY/NJ Port Authority police officer in the course of the traffic stop.

One of the special officers at the scene of the traffic stop displayed his ACS ID card and badge and falsely told a Port Authority police officer that his relative would be getting a new ACS ID when his problems at work were resolved.

Due to the severity of the misconduct, OATH Administrative Law Judge Faye Lewis recommended termination of employment for one of the special officers, the brother of the former officer, despite the lack of his having any prior disciplinary record. The officer resigned shortly after the decision was issued.

Judge Lewis did not recommend a penalty to be imposed on the other special officer as his employment was terminated by ACS in connection with a different matter.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1023.pdf

Discipline involving alleged off-duty misconduct

Discipline involving alleged off-duty misconduct
Local 342 v Town of Huntington, 52 AD3d 720

Local 342 brought an Article 75 action seeking to vacate an arbitrator’s award based on a “finding that the Town had just cause for suspending [an employee] from his position with the Town."

The genesis of the Town’s action: An Ordinance Inspector from the Town cited a building owned by the accused employee and his wife for numerous violations of the Huntington Town Code. Local 342 had appealed the ruling, contended that the award was irrational because the employee’s performance of his duties was completely unrelated to the off-duty misconduct of which he was accused.

Supreme Court vacated the arbitration ward on the ground that it was irrational and, therefore, the arbitrator had exceeded her authority. The Appellate Division sustained the lower court’s ruling.

The Appellate Division ruled that while the charges against the employee emanating from his ownership of premises situated in the Town were "substantial and directly affect the safety of the public," they did not relate to his character, neglect of duty, or fitness to properly discharge the duties of his position. In this regard the Appellate Division decided that the Local had met its burden of showing that the award is irrational because there was "no proof whatever” to justify the award in view of the fact that the employee’s performance of his official duties “were completely unrelated to the off-duty misconduct of which he is accused.”

If an arbitrator's award is completely irrational, "it may be said that [s]he exceeded [her] power" and thus, said the Appellate Division, Supreme Court properly vacated the award.

NYPPL Comments: In New York State, unless otherwise provided by a collective bargaining agreement or by statute, typically only incompetence or misconduct related to job performance or off-duty misconduct adversely reflecting on the public employer [see, for example, Smith v Kerick, 292 A.D.2d 223 and Wilburn v McMahon, 296 A.D.2d 805] may serve as a lawful basis for an appointing authority initiating disciplinary action against a public officer or employee.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/discipline-related-to-alleged-off-duty.html

Court will not assume that the arbitrator will be unable to fashion an appropriate remedy

Court will not assume that the arbitrator will be unable to fashion an appropriate remedy
Board of Education of City School Dist. of City of Buffalo, 53 AD3d 1071

The Buffalo Fiscal Stability Authority (BFSA) imposed a wage freeze with respect to public employees of the City of Buffalo, including employees of the Buffalo City School District. In accordance with the freeze, the District did not pay wage increases mandated by the parties' collective bargaining agreement (CBA).

The unions initially sued in federal court challenging the constitutionality of the wage freeze under the Contracts and Takings Clauses of the United States Constitution but were unsuccessful [Buffalo Teachers Fedn. v Tobe, 446 F Supp 2d 134, affd 464 F3d 362, cert denied, 127 S Ct 2133].

The unions then filed a demand for arbitration and the District filed a petition pursuant to CPLR Article 75 seeking a permanent stay of arbitration.

The Appellate Division affirmed Supreme Court’s dismissal of the District’s petition, rejecting its argument that “any remedy awarded in the arbitration would violate public policy and thus that the grievance is not subject to arbitration.” The court said while a court may stay arbitration if it "examines an arbitration agreement . . . on its face and concludes that the granting of any relief would violate public policy" it would not “presume in advance of arbitration that the arbitrator will fashion a remedy that will violate public policy.”

Neither was the Appellate Division persuaded by the District’s claim that having litigated the issue in federal court, the union’s demand for arbitration was improper as the issue had already be the subject of a judicial review. It noted that the federal litigation was limited to constitutional challenges to the wage freeze, while the grievance filed by the union concerns is whether there was a violation of the CBA between the parties.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/court-will-not-assume-that-arbitrator.html

National security trumps federal employee’s civil service protection

National security trumps federal employee’s civil service protection

Various media reports

Newspapers and others have published articles about a United States Circuit Court decision that concluded that the federal Merit Systems Protective Board cannot consider appeals from federal workers demoted or terminated from their position based on their lack of  “security clearance.”

The Circuit Court held that ”the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.”

In response to a number of inquiries seeking a copy of the decision, the case is Berry [as Director, Office of Personnel Management] v Conyers and Northover and the Merit Systems Protective Board, # 2011-3207, Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1, US Circuit Court of Appeal, Federal Circuit.

The decision is posted on the Internet at:

http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-3207.pdf