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 March 10, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Dunkin’ Donuts Agrees to Run on Sustainable Palm Oil

New York State Comptroller Thomas P. DiNapoli announced Thursday that Dunkin’ Brands Group, owner of Dunkin’ Donuts, has agreed to set a date for sourcing 100 percent of the palm oil used to make its products from sustainable sources.

DiNapoli: State and Local Public Authority Debt Nears $250 Billion

Public authority debt increased to nearly a quarter of a trillion dollars in the latest reported fiscal year, according to a reportreleased Tuesday by State Comptroller Thomas P. DiNapoli. New York relies on authorities to undertake most borrowing on its behalf, and routinely uses authority resources to plug state budget gaps.

MTA’s East Side Access Project 10 Years Late and $4.4 Billion Over Budget

The Metropolitan Transportation Authority’s (MTA’s) East Side Access project, which will bring Long Island Rail Road service to Grand Central Terminal for the first time, is expected to cost nearly $9 billion when finished in 2019, more than twice the MTA’s initial cost estimate and a decade later than expected, according to a reportreleased Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Announces Results of General Obligation Bond Sale: $566,560,000 Awarded

State Comptroller Thomas P. DiNapoli Thursday awarded three series of New York State General Obligation Bonds, totaling $566,560,000, through a competitive sale. Specifically, the sales were $348,065,000 of Series 2013A Tax–Exempt Bonds, $47,810,000 of Series 2013B Taxable Bonds and $170,685,000 of Series 2013C Tax–Exempt Refunding Bonds. The bonds are scheduled to be delivered on March 19, 2013.

DiNapoli Urges Caution as Budget Progresses

The amendments to the Executive Budget for state fiscal year 2013–14 curtailed some risks contained in the originally proposed budget, but the impact from federal sequester cuts represent a risk to the Financial Plan according to a reportreleased by Comptroller Thomas P. DiNapoli.

DiNapoli: Rochester Faces Serious Fiscal and Demographic Challenges

The city of Rochester, hampered by increasing budget gaps and the highest percentage of families living in poverty of any city in New York, is expected to face heightened fiscal stress in coming years, according to a reportreleased Monday by State Comptroller Thomas P. DiNapoli. The city’s revenues have grown at a higher rate than other cities, giving it some flexibility that other cities do not have. The report is the latest in a series of fiscal profiles DiNapoli will issue on cities across the state.

Comptroller DiNapoli Releases Municipal Audits

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

the Town of Prattsville;

the Town of Riverhead; and,

the City of Rome.

Accrual of a cause of action commences upon the receipt of the final administrative determination

Accrual of a cause of action commences upon the receipt of the final administrative determination

In this Article 78 action the Appellate Division affirmed Supreme Court’s determination that the employee’s claim  did not accrue until she received the final administration decision, citing Education Law §3813.2-b.

As the individual commenced her action within one year of her receiving the final determination, the Supreme Court ruled that she had satisfied the relevant statute of limitations.

In some case, however, the final administrative determination may not initially be sent to the individual.

Significantly, the delivery of a final administrative decision to an employee's union does not count with respect to the commencement of the running of the statute of limitations. In Weeks v State of New York, 198 AD2d 615, the court held that the statute of limitations begins to run when the decision is served on the employee, not from the date on which the union received its copy.

The basic rules are:

1. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to commence the running of the statute of limitations.

2. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.

It should be remembered, however, that an individual’s request for reconsideration of a “final administrative determination” neither tolls the running of the statute of limitations [see Lavin v Lawrence, 54 AD3d 412] nor extends the statute of limitations [see Raykowski v NYC DOT, 259 AD2d 367] for the purposes of perfecting an appeal.  

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01358.htm

Alcohol-related misconduct

Alcohol-related misconduct

OATH Index No 543/13

OATH Administrative Law Judge Kevin F. Casey found that the Department of Sanitation sustained seven charges relating to time and leave violations brought against a sanitation worker, R.M.

R.M. admitted much of the charged misconduct.

ALJ Casey, however, found that most of R.M.’s time and leave issues were related to an alcohol problem, that R.M. had completed inpatient alcohol rehabilitation, and that R.M. had not been late or AWOL since completing the program.

Citing McEniry v. Landi, 84 N.Y.2d 554, in which the Court of Appeals ruled that an employee should not be terminated for alcohol-related misconduct that occurred before rehabilitation if he or she completed it successfully and maintains satisfactory performance afterwards, Judge Casey recommended that R.M. should not be terminated from his position. Rather, the ALJ recommended that R.M. be suspended without pay for 30-days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-543.pdf

Alleged violation of a job security clause in a collective bargaining agreement not always subject to arbitration

Alleged violation of a job security clause in a collective bargaining agreement not always subject to arbitration

Village of Monticello v Monticello Police Benevolent Association, Supreme Court, Sullivan County, Index #2974-12

Contending that the Village of Monticello had breached the relevant collective bargaining agreement which provided that the Monticello Police Department shall not consist of less than a Chief of Police and twenty-three sworn officers, the Monticello Police Benevolent Association [PBA] demanded that its grievance be submitted to arbitration.

The Village filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to stay the arbitration, contending that the staffing provision as set out in the agreement, which it characterized as a “job security clause,” violated public policy and thus was not subject to arbitration.

Supreme Court Justice Christopher E. Cahill said the sole issue to be resolved was whether the so-called “job security clause” in the collective bargaining agreement satisfies the stringent test the Court of Appeals referred to in deciding Johnson City Professional Firefighters Local 921, 18 NY3d 32, i.e., did the employer explicitly agree to bargain away its rights to eliminate positions and terminate or layoff employees for budgetary or other reasons.

In Board of Educ. of Yonkers City Sch. Dist. v Yonkers Federation of Teachers, 40 NY2d 268, the Court of Appeals noted that “Not all job security clauses are valid and enforceable, nor are they ‘valid and enforceable under all circumstances.’" In Yonkers Federation of Teachers the court found that a "job security" was “explicit in its protection of the [workers] from abolition of their positions due to budgetary stringencies" and thus enforceable.

In contrast, in CSEA v City of Yonkers [Crossing Guard Union], 39 NY2d 964, the Court of Appeals concluded that the "job security" clause in the collective bargaining agreement relied upon by the Crossing Guard Union was ambiguous and thus not enforceable.

Similarly, the clause relied upon by the Monticello PBA, said Justice Cahill, did not explicitly protect the police officers from the abolition of their positions due to economic and budgetary stringencies. Concluding that provision was ambiguous, the court ruled that it did not constitute an “explicit” provision barring such layoffs.

__________________

Brian D. Nugent, Esq., Feerick Lynch MacCartney PLLC, represented the Village of Monticello in this proceeding and sent a copy of Justice Cahill’s February 21, 2013 decision to NYPPL.

Court cites the “principle of stare decisis” in affirming a custodian of public record’s denial of a Freedom of Information Law request

Court cites the “principle of stare decisis” in affirming a custodian of public record’s denial of a Freedom of Information Law request

Empire Ctr. for N.Y. State Policy v Teachers' Retirement Sys. of the City of N.Y, 2013 NY Slip Op 01329, Appellate Division, First Department

The Appellate Division, Third Department recently considered another “FOIL case” involving the not-for-profit Empire Center for New York State Policy’s request seeking the names of the New York State Teachers’ Retirement Systems [NYSTRS] retirees and concluded that the NYSTRS could lawfully deny such request within the exemptions from disclosure permitted by Public Officers Law §89(7)."*

The First Department came to the same conclusion in this action, holding “[The New York City Retirement System’s] decision to withhold the names of retirees of the public retirement system pursuant to the exemption set forth in Public Officers Law § 89(7) was not affected by an error of law.”

The City Retirement System’s determination, explained the court “is in accord with [the court’s] interpretation of that exemption in Empire Ctr. for N.Y. State Policy v New York City Police Pension Fund (88 AD3d 520 [1st Dept 2011]), motion for leave to appeal dismissed, 18 NY3d 901 [2012]).**

Accordingly, said the First Department, “we adhere to our prior holding under the principle of stare decisis,*** which applies with particular force to issues of statutory interpretation.”

 * Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2013 NY Slip Op 01117, Appellate Division, Third Department at http://publicpersonnellaw.blogspot.com/2013/02/a-foil-request-seeking-names-of-public.html

** The First Department also noted the decision in New York Veteran Police Assn. v New York City Police Dept. Art. I Pension Fund, 61 NY2d 659, cited by the Third Department in its ruling.

*** Latin for "to stand by things decided."

The decision is posted on the Internet at:

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