Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB

Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB

City of New York v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 09130, Appellate Division, Third Department

The State’s Public Employment Relations Board found that the Board of Education of the City School District of the City of New York [Board] committed an improper employer practice in response to a complaint filed by the union representing certain employees employed by the Board. The union had alleged that the Board unilaterally changed a condition of employment by eliminating the automatic granting of parking permits after the City adopted a new plan aimed at reducing traffic congestion in the City. 

The City of New York filed a petition in Supreme Court seeking an annulment of PERB's decision. PERB counterclaimed seeking enforcement of its remedial order. Supreme Court dismissed the City’s petition and granted PERB's counterclaim.

Addressing a “procedural issue,” the Appellate Division, noting that PERB's order did not make any findings against the City nor did it order the City to do anything, ruled that the City did not have standing to commence a proceeding seeking to annul PERB's decision. Thus, said the court, Supreme Court properly dismissed that the petition brought by the City, explaining that the City and the Board are separate legal entities.

Further, said the court, the City was not a party to the PERB proceeding and although it was argued that “the City could have intervened,” the court noted that PERB’s regulations only permit intervention by public employees, a union acting on their behalf or the public employer, citing 4 NYCRR 212.1 [a]. In this instance, said the court, the relevant employer was the Board and not the City of New York.

As to PERB’s ruling concerning the merits of the alleged improper practice charge filed against the Board, the Appellate Division considered Board’s argument that it had no control over changes with respect to parking that was imposed upon it by the City and therefore had no power to negotiate anything regarding this parking permit situation.

Conceding that the power to regulate traffic and parking on city streets is expressly delegated to the City, the Appellate Division said that the relevant questions for it to address were [1] did the Board had any control over the change in producing and distributing parking permits and [2] did PERB intruded on an area under the authority of the City or its Department of Transportation [DOT].

The Appellate Division’s answer: it agreed with PERB that the Board did have control over some aspects of the new parking permit situation as DOT produced and provided to Board 10,007 site-specific placards and 1,000 three-hour permits for on-street parking and did not have any oversight responsibilities as to the distribution of such placards and permits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09130.htm

Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely

Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely

Feuer v State of New York, 2012 NY Slip Op 09129, Appellate Division, Third Department

Prior to retiring in June 2009, a teacher, a Tier 4 member of the New York State Teachers' Retirement System [TRS], met her financial advisor and a TRS representative for a preretirement consultation. The teacher then submitted her application for retirement, selecting the option entitled "Largest Lump Sum," which provided the "largest possible lump sum payment to a beneficiary" following the member's death (emphasis in the decision), and designated her niece and nephew as her beneficiaries.

The retirement application the teacher completed also detailed another option available to a retiree entitled the "Maximum" option. It described this option as follows: "MAXIMUM — Do notdesignate a beneficiary if you select this option. This election will provide you with the largest possible annual benefit. All payments will cease at your death."

In addition, the application stated that, in the event an applicant wished to change options, notice of such a change had to be received by the Retirement System "within 30 days after [the] effective date of retirement" —  in this retiree's case, no later than July 30, 2009.

After submitting her application, the retiree received a letter from the Retirement System dated March 23, 2010, summarizing her retirement benefits and established her monthly pension payment. More then 30 days after the effective date of her retirement, however, the now retired teacher notified the Retirement System that she wanted to change her retirement option selection from "the Largest Lump Sum" option to the "Maximum" option.

The Retirement System denied her request and the retiree filed a petition with the Court of Claims seeking permission to file a late notice of claim.*

The Court of Claims denied her request because the retiree, by her own admission, did not notify the Retirement System that she wanted to change her retirement option within 30 days of the effective date of her retirement. The Appellate Division affirmed the Court of Claims’ ruling, explaining that the Court of Claims is a court of limited jurisdiction that has no capacity "to grant strictly equitable relief, [although it] may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases."

Although the relief that the retiree seeks is couched in money damages,** the Appellate Division characterized her application as requiring  the review of an administrative agency's determination. In that regard, the Appellate Division noted that the money damages that the retiree sought were calculated by using as a base figure what she would have received as her pension benefit had she initially selected the "Maximum" option.

The bottom line: The Appellate Division ruled that as the retiree, in essence sought judicial review and reversal of an administrative determination made by the Retirement System, the Court of Claims lacked subject matter jurisdiction and it properly denied the retiree's motion for leave to file a late notice of claim.

* The retiree also sued TRS’ representative in Supreme Court, contending that the representative was negligent regarding the her retirement options. Supreme Court dismissed this action as it sought money damages from a state employee in connection with the performance of her duties and, as such, could only be commenced in the Court of Claims.

** The Appellate Division said that the relief that the retiree sought would result in her receiving “windfall, because not only would she receive the monthly pension benefit under the Maximum option, but she still would have a lump sum available to her beneficiaries upon her demise.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09129.htm

The relationship of a statute to the provisions of a Taylor Law agreement

The relationship of a statute to the provisions of a Taylor Law agreement

Civil Service Employees Association v. Town of Harrison, 48 NY2d 66

Where the court determines that a statute sets out a strong public policy, that provision will trump a  provision in a collective bargaining agreement inconsistent with the statute.

In the Town of Harrison case the Court of Appeals said that there is only one way a new position in the classified service of a municipality may be created: the way the controlling law requires.

In this instance the statutory imperatives of §22 of the Civil Service Law were viewed as reflecting such a strong public policy with respect to establishing new positions that it may not be ignored nor may it be circumvented under color of an “alternative” to the provisions of §22 contained in a collective bargaining agreement negotiated pursuant to the Taylor Law (§200 et seq, Civil Service Law). Failing to comply with the mandates of Civil Service Law §22 was fatal and no new position can come into being unless it is created as prescribed by Section.

Although the court did not address the “status” of the incumbent of the “new position” in its decision, it would appear that the “status” of the individual is not dependent on the “existence” of any position and, presumably, other relevant provisions of the Civil Service Law (i.e., §80, Layoff) would control if the “nonexistent new position” could no longer serve as a “position” for payroll purposes.

Another example of a provision in the Civil Service Law nullifying a provision in a collective bargaining agreement is City of Plattsburgh v Local 788, 108 AD2d 1045. In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a demotion involving a layoff situation.

The collective bargaining agreement between the City and Local 788 provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

In this instance the employee retained by the City had been initially appointed after the individual that Plattsburgh had been demoted. However the retained employee had been permanently appointed to the position prior to the effective date of the permanent appointment of the individual Plattsburgh had demoted.

The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away and granted the City’s Article 75 petition to permanently stay the Local from submitting its grievance alleging a contract violation to arbitration.

Does the State’s Son of Sam Law allow recovery from any and all of a convicted person’s assets, including his or her NYSERS retirement allowance?

Does the State’s Son of Sam Law allow recovery from any and all of a convicted person’s assets, including his or her NYSERS retirement allowance? 

New York State Off. of Victim Servs. v Raucci, 2012 NY Slip Op 04440 [97 AD3d 235], Appellate Division, Third Department, Motion before the Court of Appeals for Leave to Appeal Granted, Slip Opinion No: 2012 NY Slip Op 84607

The Court of Appeals will consider the appeal of Steven C. Raucci and his spouse, Shelley Raucci, a nonparty-appellant from an Appellate Division ruling that held that the Son of Sam Law, which does not expressly exempt pension funds from its reach, trumps §110 of the Retirement and Social Security Law. §110 exempts the pension funds from garnishment or any other legal process.

Steven C. Raucci was sentenced to a lengthy prison term upon his conviction of numerous crimes related to his employment with a school district. After receiving notice from two victims of these crimes of their intent to commence civil actions against Raucci for money damages, the New York State Office of Victim Services commenced this proceeding on their behalf pursuant to the Son of Sam Law (see Executive Law §632-a).

Victim Services contended that Raucci’s pension checks from the New York State and Local Employees' Retirement System are delivered to his wife, Shelley Raucci, who holds a power of attorney that enables her to cash such monthly pension checks, thereby giving her control over the funds and threatening their disbursement in a manner that would render ineffectual any civil judgments obtained by the crime victims.

The Appellate Division noting that in 1991 the Legislature, subject to certain limitations,  "expand[ed] the [Son of Sam] [L]aw to cover money and property that a convicted criminal receives from any source," concluded that the statute, as amended, permits crime victims to commence an action “within three years of the discovery of any profits from a crime or funds of a convicted person."

In the words of the Appellate Division, “Apart from [certain] exceptions, however, the amendments to the Son of Sam Law were intended to ensure that convicted criminals are ‘held accountable to their victims financially, regardless of their source of wealth’" Thus, said the court, it its view both the unambiguous statutory language of the Son of Sam Law and the legislative history of the 2001 amendments support Victim Services’ argument that Raucci's pension funds are not exempt from the statute's reach.

The New York Law School Law Review has published an article by Jessica Yager, Esq. that addresses various aspects of the Sun of Sam Law titled Investigating New York’s 2001 Son Of Sam Law: Problems with the Recent Extension of Tort Liability for People Convicted Of Crimes,  [Vol. 48, 2004, Pages 433-488]  Ms. Yager’s Law Review article is posted on the Internet at: http://www.nyls.edu/user_files/1/3/4/17/49/Vol48no3p433-488.pdf

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 ending December 28, 2012 [Click on the caption to access the full report]

New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued:

SUNY at New Paltz Selected Employee Travel Expenses (2012-S-140)

Auditors examined the travel expenses for one college employee whose travel charges totaled $269,627. They found that the selected employee was responsible for arranging travel for other college staff members, charging these travel expenses to her travel card. Auditors reviewed a sample of charges to this employee’s travel card and found the expenses were documented and adhered to state travel rules and regulations. 


Department of Economic Development Quality of Internal Control Certification (2012-S-48)

In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring state agencies and public authorities to each institute a comprehensive system of internal controls over their operations. Each covered State agency and public authority is required to certify compliance with act by April 30 of each year. DED's Internal Control Certification was submitted timely. 

However, auditors identified several areas where the quality of the certification could be improved. In three instances, DED's certification did not provide the required level of detail to explain the actual steps taken to implement certain provisions, including describing its internal control testing and monitoring processes and the results of its reviews of high risk activities. Although DED certified full compliance with all provisions of the act, its internal audit function has not had an external quality control assessment completed as required by professional auditing standards. 


Office of General Services Disposal of Electronic Devices (2012-S-4) 

The New York State Office of Cyber Security requires all state entities to establish formal processes to address the risk that information may be improperly disclosed. Information can be compromised through careless disposal of electronic equipment. OGS' surplus unit disposes of such equipment for many State agencies. 

The Surplus Unit does not accept any responsibility for clearing the data from these devices. However, OGS' Information Resource Management (IRM) bureau provides IT support for some state agencies. In these cases, IRM is responsible for removing information from the devices prior to making them available to the surplus unit. 

At the time of the audit, the surplus unit had 429 electronic devices in its possession for disposal and IRM was responsible for removing information from 25 of the devices on hand. Of these, three did not have information completely removed. One of the three devices still had sensitive information on a hard drive, including multiple social security numbers, medical records and confidential human resource information. 


New York State Health Insurance Program -Department of Civil Service Empire BlueCross BlueShield Selected Payments for Special Items for the Period April 1 Through June 30, 2011 (2011-S-42) 

Empire processes claims for hospital services in accordance to agreements they negotiate with member hospitals. Payments for hospital services are generally based on standard fee schedules. However, hospitals may be entitled to additional payments for special items that are not covered by the standard fee schedules. 

Many of Empire's agreements with member hospitals limit charges for special items, while agreements with other hospitals do not have such limitations. Auditors found Empire did not have adequate controls to ensure special items were paid according to contract limitations. 

As a result, Empire made a net overpayment of $119,141 on 33 claims. Empire made an excessive payment to a hospital that did not have formal contract provisions limiting reimbursements for special items. On one claim we reviewed, Empire paid about $52,755 (or 444 percent) more than the costs of the three special items in question.