US Department of Labor – Decisions of the Administrative Review Board

US Department of Labor – Decisions of the Administrative Review Board

January 2013

Case summaries and links to the decisions for the Board’s January 2013 decisions are posted on the Internet at:

http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/01_2013.HTM

A FOIL request seeking the names of a public retirement system’s retirees may be denied by the custodian of the records as exempt from disclosure

A FOIL request seeking the names of a public retirement system’s retirees may be denied by the custodian of the records as exempt from disclosure

Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2013 NY Slip Op 01117, Appellate Division, Third Department

The Empire Center for New York State Policy, [Policy] a nonprofit corporation, operates a website "aimed at educating and informing the general public about government spending."

In 2012, Policy filed a Freedom of Information Law* [Public Officers Law Article 6 (FOIL)] request seeking an updated database containing information pertaining to the Teachers’ Retirement System's [Retirement] retired members. Such request sought the same information that System had provided to Policy in previous years pursuant to FOIL requests, including the name of each retiree.

Retirement furnished most of the requested information, but refused to disclose the names of the retirees to whom the information corresponded, contending that "such information is exempt from disclosure under Public Officers Law §89(7)."

Public Officers Law §89(7), in pertinent part, provides: “Nothing in this article shall require the disclosure of the home address of … a retiree of a public employees' retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees' retirement system … provided however, that nothing in this subdivision shall limit or abridge the right of an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to article fourteen of the civil service law, to obtain the name or home address of any … retiree of such employer, if such name or home address is otherwise available under this article.”

Citing the foregoing provisions of law, Policy contended that the plain language of Public Officers Law §89(7) exempts from disclosure only the home address, not the name, of a retiree. Noting that the statute makes a clear distinction between retirees and beneficiaries, Policy further argued that to read the term "beneficiary" to include a "retiree" would both deprive the word "retiree" of its own meaning and render the first clause of the provision superfluous.

Although conceding that “Well-settled principles of statutory construction lend support to the interpretation advanced by Policy,” the Appellate Division said that it was bound by the Court of Appeals' decision in Matter of New York Veteran Police Association. v New York City Police Dept. Art. I Pension Fund (61 NY2d 659 [1983]).

In Veterans Police Association the Court of Appeals interpreted Public Officers Law §89(7) as exempting from disclosure both the names and home addresses of retirees of a public employees' retirement system.

Policy attempts to distinguish its FOIL request from that relevant in Veterans by contending that the Veteran’s FOIL request was for both the names and the addresses of the retirees, whereas its request here was for the names only.

The Appellate Division ruled that the Retirement System properly denied Policy's FOIL request for the names of its retired members, noting that the First Department, relying on Veterans, reached this same conclusion in addressing a similar FOIL request by Policy for the names of the retirees of the New York City Police Pension Fund (see Empire Ctr. for N.Y. State Policy v New York City Police Pension Fund, 88 AD3d 520, 521 [2011], lv dismissed, 18 NY3d 901 [2012]).

* The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute [see, for example, Education Law, §1127 - Confidentiality of records and §33.13, Mental Hygiene Law - Clinical records; confidentiality], are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise properly within the ambit of the several exceptions to disclosure permitted by FOIL.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01117.htm

Bath Volunteer Fire Department not a public agency for the purpose of contractor's paying prevailing wages pursuant to Labor Law §220

Bath Volunteer Fire Department not a public agency for the purpose of contractor's paying prevailing wages pursuant to Labor Law §220*
M.G.M. Insulation, Inc. v Gardner, 2013 NY Slip Op 01017, Court of Appeals

The Bath Volunteer Fire Department [BVFD], a not-for-profit fire corporation under Not-for-Profit Corporation Law §1402, historically operated from a building owned by the Village of Bath.

After BVFD determined that the facility was no longer adequate for its needs and the Village declined to build it a new firehouse, BVFD commissioned a feasibility study and obtained its own financing for the construction of a new facility. Ultimately BVFD acquired land and in 2006 employed R-J Taylor General Contractors, Inc. (Taylor) as the general contractor to build the facility. Taylor subsequently hired a number of subcontractors to construct the various portions of the firehouse.

Following an investigation, the Department of Labor (DOL) issued an opinion letter, concluding that the firehouse project was a public work subject to the prevailing wage law and ultimately an administrative hearing was held on the question of the applicability of the prevailing wage law to the firehouse project.**

A DOL Hearing Officer subsequently determined that the project was subject to the prevailing wage law, concluding that the firehouse project satisfied both prongs of the so-called Erie County test for prevailing wage law applicability, (see Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532, affd 63 NY2d 810), holding that volunteer fire corporations such as BVFD are the "functional equivalent[s]" of municipal corporations and are therefore "covered entities" under Labor Law §220.

In the alternative, the Hearing Officer said that even if a volunteer fire corporation did not generally satisfy the public entity test, the protection services agreement between BVFD and the Village of Bath satisfied the first prong of the test and, because the Village authorized and supported the firehouse project, and the object of the project entailed provision of fire protection services for the community, the project satisfied the "public works" requirement.

The Court of Appeals disagreed with the Hearing Officer’s determination on both theories, holding that BVDF was not a public agency as contemplated by the statute nor was any other public entity a party to the 2006 contract. Accordingly, said the court, the prevailing wage law did not apply with respect to this project.

Had the Legislature intended to include volunteer fire corporations under the statute, said the court, it could easily have done so, explaining that in 2007, the Legislature expanded the statute's coverage to include contracts involving other types of entities [see Labor Law § 220(2)], but only when it can be shown they were acting on behalf of the public entity, citing New York Charter School Association v Smith, 15 NY3d 403, at 410.

  

* N.B. The court said that “Indeed, certain volunteer fire department contracts may fall under the prevailing wage law based on the 2007 “amendment language” of Labor Law §220(2) but at the time of contract relevant in this litigation, i.e., 2006, “the 2007 amendment of the prevailing wage law did not exist.”

** Once the subcontractors learned of the DOL's determination, work on the project halted. In December 2006, BVFD agreed to indemnify Taylor and its subcontractors against any liability resulting from their failure to pay the prevailing wages, and construction resumed and the project was completed.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01017.htm

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 February 24, 2013 [Click on text highlighted in bold to access the full report] 


Independent Review of State Pension Fund Finds DiNapoli’s Reforms Highly Effective

New York State Comptroller Thomas P. DiNapoli Tuesday released an independent review of the New York State Common Retirement Fund (Fund) that found it is well–run, operates with an industry–leading level of transparency and invests effectively on behalf of its members. The review by Funston Advisory Services, required as part of robust oversight reforms pushed by DiNapoli, determined the Comptroller is fulfilling his fiduciary responsibilities and that Fund employees act within ethical and professional standards.

A.G. Schneiderman and Comptroller Dinapoli Announce Guilty Pleas Of Former Senator Shirley Huntley’s Co–Defendants

Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli Wednesday announced that the co–defendants in the case of former New York Senator Shirley L. Huntley have pleaded guilty for their roles in an illegal member item theft scheme and a cover up. Patricia Savage, Senator Huntley’s aide and president of Parent Workshop, a bogus nonprofit, and Lynn Smith, Senator Huntley’s niece and the treasurer of Parent Workshop, pleaded guilty today to the felony of Attempted Grand Larceny in the Third Degree, and agreed to pay $29,950 in restitution to the state of New York, the full amount of taxpayer dollars they had stolen. A third co–defendant, David Gantt, pleaded guilty to the charge of Falsifying Business Records in the Second Degree.

New York State Common Retirement Fund Announces Third Quarter Results

The New York State Common Retirement Fund’s (Fund) rate of return for the third quarter ending December 31, 2012 was 1.74 percent, according to New York State Comptroller Thomas P. DiNapoli. The Fund’s estimated value at the end of the third quarter was $152.9 billion, near its historical high.

DiNapoli: Yonkers Challenged by School Finances, Declining Property Values

The City of Yonkers has persistently faced significant budget gaps which have caused the city to draw down its fund balance. Recent declines in state aid, property values and growing school demands have added to the city’s financial challenges, according to a report released Wednesday by New York State Comptroller Thomas P. DiNapoli. Yonkers officials have started making tough choices needed to bring the City’s budget into structural balance. The report is the latest in a series of fiscal profiles on cities across the state released by the Comptroller’s office.

DiNapoli: Syracuse’s Fiscal Condition Challenged by Systemic Problems

The City of Syracuse is confronted by a large number of vacant and tax–exempt properties, low rates of home ownership and decreased home values, according to a report released Wednesday by State Comptroller Thomas P. DiNapoli. The rating agencies credit Syracuse for having a relatively strong financial position, but caution the City is susceptible to adverse economic conditions. The report is the latest in a series of fiscal profiles DiNapoli will issue on cities across the state.

Qualcomm Implements Industry–Leading Political Spending Disclosure Policy; DiNapoli Commends Action

Qualcomm Incorporated and the New York State Common Retirement Fund (Fund) were pleased to announce Friday that following informative discussions, the Fund has decided to withdraw the lawsuit it filed on January 2, 2013. Qualcomm will implement a revised political spending disclosure policy which is now available on its website.

Governor Cuomo introduced 30-day amendments to the Executive Budget

Governor Cuomo introduced 30-day amendments to the Executive Budget

Among the measures introduced by Governor Cuomo having a direct effect on public employees of the State are the following:

1. Implement teacher evaluation system in New York City. Under the Governor’s leadership, the state passed a comprehensive teacher evaluation system for every district across New York State. Though 99 percent of districts were able to reach an agreement on a plan with their local teacher unions, submit it to the state, and have their plan approved by the State Education Department before their January deadline, New York City failed to so. As a result, it lost $240 million in state aid and is in danger of losing additional funds if an evaluation system is not in place this year.

In the event the City and its collective bargaining units fail to reach agreement on a teacher evaluation system by the end of May, an expedited arbitration process, led by the Commissioner of Education, will occur. Following hearings and a review of evidence, the Commissioner, by June 1^st, will make a final, written determination on the structure of a teacher evaluation system for New York City schools. This legislation will ensure that New York City students and educators will not see another school year go by without the timely feedback, professional development, and accountability that a robust teacher evaluation plan will provide.


2. Expand availability of the Stable Pension option. The stable pension contribution rate for local governments and schools, submitted as part of the Executive Budget, will provide a new tool for local governments to access the long-term savings from Tier VI and have greater predictability in their fiscal planning. Given the positive response to this proposal from sectors who asked to take advantage of the program but were not initially included, the Governor would expand eligibility to include BOCES and three local public hospitals – Nassau University Medical Center, Westchester Medical Center, and Erie County Medical Center. The county sponsors of the three hospitals included in this amendment, as well as their taxpayers, have a direct interest in financial condition of these institutions and, therefore, the stable pension option is a viable approach to meeting local fiscal demands.

3. Provide retraining funds for state employees. The Executive Budget included a $5 million appropriation to be used to retrain State employees impacted by 2012-13 and 2013-14 facility closures at OMH, OPWDD, DOCCS and OCFS. Funding would be available to retrain employees for which comparable State positions could not be found nearby their current work location. This amendment reduces the radius to 25 miles, allowing the funds to be used to help a larger number of impacted employees.

The entire list of 30-day amendments is available at http://budget.ny.gov  

The Governor said that his 2013-14 Executive Budget and Management Plan builds on two years of balanced, fiscally responsible budgeting and invests in economic development, education reform, rebuilding after Superstorm Sandy, provides support to local governments and school districts, and includes no new taxes or fees. The budget is required to be passed by April 1.