Was the decision supported by substantial evidence is the judicial standard of review of a decision made after an administrative hearing required by law

Was the decision supported by substantial evidence is the judicial standard of review of a decision made after an administrative hearing required by law

The Westchester County Commissioner of the Department of Environmental Facilities adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the individual guilty of certain disciplinary charges, and terminated the individual's employment.

The Appellate Division sustained the Commissioner’s decision, explaining that “The standard of review of an administrative determination ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ is whether the determination is supported by substantial evidence.”

Finding that substantial evidence in the record supported the determination that the individual was guilty of the disciplinary charges, the court said that in this instance the penalty imposed, termination, was not so disproportionate to the offense as to be shocking to one's sense of fairness.

In contrast, in Christopher v Phillips, 160 A.D.2d 1165, motion to appeal denied, 76 N.Y.2d 706, the Appellate Division, Third Department, decided a case in which the due process implications of a “non-mandatory” disciplinary hearing were considered.

In Christopher the court ruled that “if a hearing is not required by law, the substantial evidence standard of review does not apply....” Instead, said the Appellate Division, “the appropriate standard for the purpose of judicial review [in such a situation] is whether the determination is arbitrary or capricious.” The fact that a hearing was held even when not required by law does not alter the applicability of that standard.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02071.htm

The appeal of a grievance challenging disciplinary action taken against an employee is controlled by the appeal procedure set out in the collective bargaining agreement

The appeal of a grievance challenging disciplinary action taken against an employee is controlled by the appeal procedure set out in the collective bargaining agreement
State of New York - Unified Ct. Sys. v Association of Surrogate's & Supreme Ct. Reporters within the City of New York, 2013 NY Slip Op 02155, Appellate Division, First Department

In Unified Court System the Appellate Division considered the viability of demanding that an appeal of a grievance challenging disciplinary action taken against an employee be submitted to arbitration. Its conclusion: the availability of arbitration to challenge an employer’s disciplinary decision is controlled by the appeal procedure set out in the collective bargaining agreement.

Although the typical collective bargaining agreement [CBA] provides that an appeal of a grievance challenging disciplinary action taken against an employee is ultimately to be submitted to arbitration, in this instance the Appellate Division unanimously reversed a Supreme Court order compelling the arbitration of a disciplinary termination of an employee in the collective bargaining unit and “permanently stayed” the arbitration.

The court explained that although it did not find any statutory, constitutional or public policy prohibition barring the arbitration of this dispute involving the termination of an employee, the relevant CBA did not provide for the arbitration of the employer's disciplinary determination.

The Appellate Division said that its review of the CBA indicated that the parties had not agreed to arbitrate such a dispute. Rather, said the court, the CBA provided that an employee aggrieved by a disciplinary penalty or punishment “may appeal from the determination by petition to the Chief Administrative Judge or by an application pursuant to CPLR Article 78.”

Accordingly, the arguments presented in support of the Association's demand for arbitration to consider the matter as a contract grievance or, in the alternative, as a non-contract grievance, were deemed irrelevant and the Article set out in the CBA that the Association contended provided for the arbitration of this dispute was held inapplicable in this instance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02155.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 March 31, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Best Buy and Bed Bath & Beyond Agree to Promote Sustainable Business Practices With Suppliers

New York State Comptroller Thomas P. DiNapoli Friday announced agreements with Best Buy and Bed Bath & Beyond to encourage their suppliers to report on workplace safety, human and worker rights and environmental compliance.

DiNapoli: Rensselaer County Employee Stole $200,000

Poor financial controls allowed a county employee to bilk Rensselaer County out of $208,597 over a six–year period, according to an audit released Tuesday by State Comptroller Thomas P. DiNapoli. The former employee was charged in July with grand larceny, falsifying business records and defrauding the government. The extent of her fraud, however, was not determined until county officials contacted DiNapoli’s office requesting a full audit.

State Pension Fund Invests $3.4 Million in Auburn Armature

New York State Comptroller Thomas P. DiNapoli announced Thursday that DeltaPoint Capital Management has acquired a majority stake in Auburn Armature, Inc., an electrical products distributor, manufacturer, and service company in Cayuga County. The New York State Common Retirement Fund is an investor in DeltaPoint through the In–State Private Equity Program.

DiNapoli: State Contractor Underpaid Workers More Than $82,000; CUNY Failed to Monitor Vendor

A vendor with blanket approval to sell audio visual equipment to public entities admitted underpaying its employees at least $82,000 by ignoring prevailing wage laws, according to an audit released Monday by State Comptroller Thomas P. DiNapoli.

ORDA’s Ongoing Fiscal Challenges Prompt DiNapoli Audit

State Comptroller Thomas P. DiNapoli will launch a full financial audit of the Olympic Regional Development Authority after a report by his office found that financial issues persist at a time when its operations have been expanded to include the Catskills–based Belleayre Mountain Ski Center.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of

the East Moriches Union Free School District;

the Liberty Central School District;

he Rotterdam–Mohonasen Central School District; and,

the Wayne Central School District.

Audits published by New York State's Comptroller Thomas P. DiNapoli

Audits published by New York State's Comptroller Thomas P. DiNapoli 

Issued during the week ending March 29, 2013 [Click on the caption to access the full report]

Department of Health, Medicaid Claims Submitted by Accordis Inc. on Behalf of HHC (2011-S-29)
Healthcare providers submit Medicaid claims to the Department of Health’s eMedNY claims processing system for payment of their services. For various reasons, eMedNY denies payment of many claims. Claims that are denied can be modified and resubmitted to eMedNY for payment. In March 2005, HHC hired Accordis to provide billing services for HHC-affiliated providers. For the three-year period ended Dec. 31, 2010, Accordis submitted 192,296 claims totaling more than $26.2 million on behalf of HHC providers. Auditors found eMedNY does not provide a mechanism for associating a paid claim to its previously denied claim. As a result, auditors could not determine whether changes made by Accordis to previously denied claims were appropriate.

Department of Health, Medicaid Overpayments for Non-Emergency Out-of-State Inpatient Services (Follow-Up) (2012-F-25)
In an initial report, auditors found that for the period May 1, 2002 through April 30, 2009, Medicaid made potential overpayments totaling $9.2 million to out-of-state hospitals. Auditors further identified $10.8 million in claim payments for which DOH had not granted the required prior approvals. In a follow up report, auditors found DOH made progress in addressing those issues.

Office of the Attorney General, Accounts Receivable Collections (2011-S-25)
Auditors determined OAG’s Civil Recoveries Bureau was generally effective in its collection of accounts receivable referred by state agencies. Auditors recommended the bureau enhance its collection actions through computer matches with state and New York City payrolls to locate debtors.

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities:

State University of New York, The College of Fredonia - Selected Employee Travel Expenses (2012-S-138)
Two of these employees worked at the College at Fredonia and had travel costs totaling $689,762. Auditors also examined other travel expenses including three employees with outliers in air and train fares that totaled $148,505. The travel expenses for the five employees were documented and adhered to state travel rules and regulations.

State University of New York, College at Geneseo - Selected Employee Travel Expenses (2012-S-139)
Three of these employees worked at SUNY Geneseo and had travel costs totaling $252,042. The travel expenses for the three college employees selected for audit were documented and adhered to state travel rules and regulations.

State University of New York, Institute of Technology at Utica/Rome - Selected Employee Travel Expenses (2012-S-146)
One of these employees worked at the State University of New York Institute of Technology (SUNYIT) and had travel costs totaling $101,605. Auditors found that the travel expenses for the SUNYIT employee selected for audit were documented and adhered to state travel rules and regulations.

State University of New York, College at Brockport - Selected Employee Travel Expenses (2012-S-150)
One of these employees worked at the College at Brockport (college) and had travel expenses totaling $143,258.  Auditors found that the employee’s travel expenses were documented and adhered to state travel rules and regulations.

Religious holidays provision in Taylor Law agreement held unconstitutional

Religious holidays provision in Taylor Law agreement held unconstitutional

Board of Education of the Mineola UFSD v Mineola Teachers Assn., 2013 NY Slip Op 02070, Appellate Division, Second Department

The Mineola Teachers Association appealed an order of the Supreme Court, Nassau County that granted the School District’s petition seeking to permanently stay the arbitration of a grievance alleging that the School District breached the “religious holiday” provision set out in the collective bargaining agreement [CBA] between the School District and the Association.

The CBA clause in question provided that “members of the Association” could receive up to five of the religious holidays “designated by the New York State Commissioner of Education” as paid days off, “two of which would not be charged to any other leave.” Although the New York State Commissioner of Education had discontinued designating “religious holidays,” the religious holidays provision in the CBA was not amended and the School District continued to permit Association members who requested time off for religious observance to avail themselves of the religious holidays provision.

In October 2010, the School District advised the Association that it would no longer abide by the religious holidays provision because it was unconstitutional. The Association filed a grievance, which was denied. The Association then demanded that the grievance be submitted to arbitration.

The Appellate Division said that the first issue to be resolved when determining whether a dispute is subject to public sector employment arbitration is "whether the subject of the claim sought to be arbitrated is the type authorized by the Taylor Law” citing Matter of Blackburne, 87 NY2d 660. The court explained that "If a statute, decisional law or public policy precludes the governmental employer and employee from referring the dispute to arbitration, then the answer to this inquiry is no and the claim is not arbitrable."

Noting that "There is no firmer or more settled principle of Establishment Clause jurisprudence than that prohibiting the use of the State's power to force one to profess a religious belief," the Appellate Division said that the clear wording of the religious holidays provision in the CBA rewarded members of the Association who claimed to be religiously observant with more paid days off than those afforded to agnostics, atheists, and members who were less observant.

Similarly, in Port Washington Union Free School Dist. v Port Washington Teachers Assn., 268 AD2d 523, the Appellate Division ruled that a CBA provision that allowed a teacher to be absent with pay on "any of the religious holidays designated by the New York State Commissioner of Education" without charging his or her absence to leave credits violated the Establishment Clause of the First Amendment of the United States Constitution.

In contrast to the language of the provision included in the Port Washington CBA, the Port Washington court noted that many Taylor Law collective bargaining agreements provide for absences with pay charged to "personal leave," which leave may be used for any "personal business" including the observation of religious holidays. Presumably such provisions would pass the “Constitutional test” as they neither favor the "religiously observant" nor penalize "agnostics, atheists, and members who were less observant."

The Appellate Division ruled that Supreme Court properly granted the School District's petition to permanently stay arbitration and denied the Association's motion to compel arbitration.

The Mineola decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02070.htm