Court rules that the disciplinary penalty imposed by the arbitrator after finding the employee guilty “well-tailored to the misconduct” charged

Court rules that the disciplinary penalty imposed by the arbitrator after finding the employee guilty “well-tailored to the misconduct” charged

Disciplinary charges were filed against a teacher including an allegation that the teacher had made a remark comparing the elementary school where she worked "to the shootings and killings of individuals in the Iraq war."

The arbitrator found a teacher guilty of the disciplinary charges filed against her and imposed a fine of $8,000 and directing that the teacher receive up to 48 hours of pedagogical training.

The teacher appealed but Supreme Court confirmed the arbitration award and dismissed the proceeding, which decision was unanimously affirmed by the Appellate Division.

The Appellate Division explained while making the remark, the teacher stood up and feigned pulling the trigger of a gun, which was worrisome to her colleagues.

As to the teacher’s claim that the arbitrator had gone beyond that which he was authorized to hear, the Appellate Division ruled that the There exists no basis to disturb the credibility determinations of the arbitrator arbitrator's reference to teacher's miming of shooting a gun flowed naturally from the credited witnesses' testimony, and did not go beyond what the arbitrator was authorized to hear.

Finding that the charges preferred against teacher specifically notified her of the misconduct that she was accused of and were sufficiently specific to permit petitioner to prepare her defense, the court sustained the arbitrator’s decision and the penalty he imposed, ruling that it did not shock the court’s sense of fairness and in fact was well-tailored to the misconduct of which teacher was found guilty.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02509.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 April 20, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Stops $21.2 Million in Dubious Tax Refunds

The State Comptroller’s office has halted $21.2 million in questionable personal income tax refunds after finding 6,353 improper filings among those filed so far this year, State Comptroller Thomas P. DiNapoli announced Tuesday. DiNapoli’s office audited and approved 3.9 million refund requests totaling $3.3 billion in 2013. Another 271,000 refund requests totaling $303 million are expected to be paid in the coming days.

DiNapoli Joins with 500,000 Americans to Urge SEC to Require Disclosure of Corporate Political Spending

The Corporate Reform Coalition calls on newly confirmed SEC Chair Mary Jo White to act now to require disclosure of corporate political spending. A record–breaking 500,000 investors and members of the public have submitted comments supporting the rule, demonstrating the importance of this issue. Chair White should seize this pivotal opportunity to safeguard shareholders by providing them with information necessary for their investing decisions.

DiNapoli Concerned With Rockland County Budget

Rockland County’s 2013 budget contains unreasonable revenue and spending projections that could increase the county’s deficit, warned State Comptroller Thomas P. DiNapoli in a budget review issued Friday.

DiNapoli: Local Governments Submit Property Tax Cap Reports

State Comptroller Thomas P. DiNapoli announced that 2,416 counties, cities, towns, school districts and fire districts have filed their 2013 property tax cap report. More than 18 percent of these entities indicated they plan to override the tax cap in 2013.

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 April 19, 2013 [Click on text highlighted in bold to access the full report] 

Office of Alcoholism and Substance Abuse Services, Contract with Daytop Village, Inc (Follow-Up) (2011-F-18)
The Office of Alcoholism and Substance Abuse Services (OASAS) oversees programs for preventing and treating alcohol and substance abuse. Many of these programs are provided by not-for-profit organizations. One such contract is with Daytop Village Inc. under which OASAS paid Daytop about $97 million through the end of 2009. In an initial report, auditors found that Daytop did not fulfill its fiscal responsibilities under the contract and as a result, OASAS paid Daytop $11.5 million more than it was entitled to. In a follow-up report, auditors found OASAS has made progress correcting the problems.

Office of Alcoholism and Substance Abuse Services, Chemical Dependency Program Payments to Selected Contractors in New York City (Follow-Up) (2011-F-17)
In an initial report, auditors examined $8.4 million in payments made to the two contractors and found that neither contractor could provide documentation showing that the expenses reimbursed by these payments related to authorized contract activities. Auditors recommended OASAS recover the $8.4 million. In a follow-up report, auditors determined OASAS has made progress in addressing the matters.

New York State Health Insurance Program, United HealthCare: Compensation and Benefit Costs for the Empire Plan for the Period January 1, 2008 through December 31, 2010 (2011-S-50)
The New York State Health Insurance Program provides health insurance coverage to more than 1.2 million active and retired state employees, participating local government employees and school district employees and their dependents. NYSHIP includes several health plan options, of which the Empire Plan is the largest. The Department of Civil Service contracts with United HealthCare (United) to process and pay medical and surgical claims for services provided to Empire Plan members. The state’s contract with United requires all administrative costs charged to the state to be related to United’s administration of the Empire Plan’s medical/surgical program. In addition, a state contractor must maintain complete and accurate records to support its claims for six years. United did not always maintain certain source and summary data to support the charges for time worked by claims and call center staff assigned to the Empire Plan. United also did not have a uniform method to track and account for the time worked by claims center staff.

Department of Health, Medicaid Payments for Excessive Dental Services (Follow-Up) (2012-F-30)
An initial audit report examined Medicaid payments for routine dental services provided during the period September 1, 2004 through August 31, 2009. The audit identified $40 million of excessive dental services that exceeded certain frequency limits. Auditors also determined that if DOH adjusted its Medicaid fees for these services to the averages of other comparable states, it could have saved more than $60 million during the audit period. In a follow-up report, auditors found DOH officials have made progress in addressing several of the issues previously identified. In particular, changes to payment schedules for routine dental services saved Medicaid more than $11 million. However, additional actions still need to be taken.

Department of Motor Vehicles, Motor Vehicle Financial Security and Safety Responsibility Acts Statement of Assessable Expenses for the Three Fiscal Years Ended March 31, 2011 (2012-S-25)
New York State’s Vehicle and Traffic Law stipulates that the DMV commissioner and the Office of the State Comptroller shall ascertain the total amount of expenses the Department of Motor Vehicles incurs in its administration of the Motor Vehicle Financial Security Act and the Motor Vehicle Safety Responsibility Act. Auditors found the statements for those acts reflect the expenditures of the two acts for the three fiscal years ended March 31, 2011, in accordance with cash basis accounting.

Also: Statewide Travel Audits of the following entities were issued

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:

New York State Department of Financial Services, Selected Employee Travel Expenses (2012-S-77)
Auditors found ten of the highest-cost travelers  worked at the New York State Department of Financial Services and had travel costs totaling $1,248,144. Auditors also examined other travel totaling $627,902. Auditors were only able to audit two of the three years of travel expenditures totaling $1,876,046 because the DFS was not required to and did not maintain records prior to April 2009. The travel expenses for the 27 employees selected for audit were documented and adhered to state travel rules and regulations. Most of the employees were either insurance or bank examiners; while the rest were executive managers and administrative staff. The majority of travel expenses for the 27 department employees included lodging, airfare, train fare, fuel charges and meal reimbursements.

Division of Military and Naval Affairs, Selected Employee Travel Expenses (2012-S-130)
Auditors identified two travel cards used by staff at the Division of Military and Naval Affairs as high risk due to substantial charges for car rentals. The total costs associated with these travel cards was $118,843. Auditors found that the travel expenses for the two travel cards selected for audit were documented and adhered to state travel rules and regulations.

State University of New York, University at Buffalo - Selected Employee Travel Expenses (2012-S-135)
Twelve of the state’s highest cost travelers worked at the University at Buffalo (University) and had travel costs totaling $3,593,928. We also audited one employee with an outlier in fuel expenses that totaled $45,882. In total, auditors examined $3,639,810 of the University’s travel payments. They found the travel expenses for the 13 university employees selected for audit were documented and adhered to state travel rules and regulations. The 13 employees are athletic coaches or administrative staff whose travel consisted primarily of team travel to athletic events.

Neither a judicial or quasi-judicial administrative proceeding may be conducted on a Saturday where such day is kept as a holy day by any party to the case or on a Sunday

Neither a judicial or quasi-judicial administrative proceeding may be conducted on a Saturday  where such day is kept as a holy day by any party to the case or on a Sunday

May judicial or quasi-judicial proceeding be conducted on a Sunday?

This was one of the issues raised by the petitioner in her CPLR Article 78 petition seeking to vacate the appointing authority’s disciplinary determination that resulted in her being dismissed from her position. The petitioner contended that she was impermissibly discharged from her position because one of the dates on which her disciplinary hearing was conducted was a Sunday, citing Judiciary Law §5.

Judiciary Law §5, in pertinent part, provides that: “A court shall not be opened, or transact any business on Sunday, nor shall a court transact any business on a Saturday in any case where such day is kept as a holy day by any party to the case, except to receive a verdict or discharge a jury and for the receipt by the criminal court of the city of New York or a court of special sessions of a plea of guilty and the pronouncement of sentence thereon in any case in which such court has jurisdiction.”

In rebuttal, the appointing authority argued that out of “a multiple day hearing, only one of the days was a Sunday, and therefore the proceedings cannot be held invalid.”

Supreme Court Justice Catherine M. Bartlett disagreed with the argument advanced by the appointing authority, annulling the appointing authority’s' decision and remanding the matter for “a new hearing and determination de novo in compliance with New York law Judiciary Law §5.

The court, citing Jones v E. Meadow Fire Dist., 21 AD2d 129, explained at common law no judicial act could be done on Sunday; and, in the absence of a permissive statute, a judge had no authority to hold court or to conduct a trial on Sunday.  Judiciary Law §5, said the court, was enacted as a substitute for the common-law rule. The Jones court held that “quasi-judicial proceedings such as disciplinary proceedings before a review board fall under Judiciary Law §5's auspices.”*

On a related point, Justice Bartlett also noted that the mandates of Judiciary Law §5 may not be waived by a party as §5 expresses the public policy of the State.

* In Matter of Brody [Owen], 259 App.Div. 720, the Appellate Division held that an arbitration hearing and award were both “illegal and void,” because both occurred on a Sunday and “An arbitration is a judicial proceeding and arbitrators perform a judicial function.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_23122.htm

Performing “out of title” work may be lawful under certain circumstances

Performing “out of title” work may be lawful under certain circumstances

New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. Of Empl. Relations, 2013 NY Slip Op 02445, Appellate Division, Third Department

Kevin Ashby was employed as a correction sergeant, SG 17, by the NYS Department of Corrections and Community Supervision [DOCCS]. Ashby filed two out-of-title work* grievances alleging that on eight occasion in April 2010 and seven occasions in June 2010 he was assigned as shift supervisor, thereby requiring him to perform the work of a correction lieutenant, salary grade 20, and he sought to be compensated accordingly.

The Governor’s Office of Employee Relations [GOER] denied all 15 grievances and Ashby appealed.

The Appellate Division though it noteworthy to comment that during the administrative review processes before GOER the only evidence that was presented concerning the duties that Ashby actually performed on the relevant dates was submitted by DOCCS.

Neither Ashby nor his union submitted any information regarding the facts surrounding the grievances or specific duties that Ashby performed. Although the collective bargaining agreement [CBA] provided the union the right, to submit to DCC a "written brief of the facts surrounding the grievance," during the administrative appeal to the GOER, it never did so.

Ashby, while assigned as shift supervisor, did perform some duties that are listed in the classification standard of a correction lieutenant. However, the Appellate Division noted that “there are many duties that a correction lieutenant performs pursuant to the classification standard that [Ashby] never performed.” In addition, the court said that “While there is some overlap between the duties that [Ashby] performed and the duties of a correction lieutenant, most of the duties that he performed fall within or are a reasonable outgrowth of the duties of his current position.

The Appellate Division sustained GOER’s determination, explaining that “Given the similarities between the duties actually performed by [Ashby] as a shift supervisor and those enumerated in the correction sergeant classification standard, … the infrequent nature of such assignments and the absence of evidence establishing that [Ashby] performed a distinctive aspect of the correction lieutenant job title (namely, supervision of correction sergeants), GOER's determinations are supported by a rational basis in the records.” 

Also noted was that although “Civil Service Law 61(2) seemingly provides an ‘unqualified prohibition against nonemergency out-of-title work, case law has made the standard somewhat more flexible based on practicality’" as demonstrated by the decisions in Sprague v Governor's Off. of Empl. Relations, 13 AD3d at 850; City of Saratoga Springs v Saratoga Springs Civ. Serv. Commn., 90 AD3d at 1400; and Cushing v Governor's Off. of Empl. Relations, 58 AD3d 1095.

May a Taylor Agreement provided that an employee who was offered a temporary or acting higher level position and who was on a Civil Service eligible list for such position shall be required to accept and perform the duties of the higher level position or "the employee shall remove his name from the Civil Service eligible list?"

The employer sought a judgment declaring such a contract provision valid notwithstanding the fact that §61.2 of the Civil Service Law prohibited such out of title work "... except ... during ... a temporary emergency situation.…”

In City of Newburgh v Potter, 168 A.D.2d 779, motion for leave to appeal denied 78 N.Y.2d 857, the Appellate Division concluded that the contract provision was not valid as a waiver of statutory rights and declared the contract provision void and of no force and effect.

Another possible “out-of-title” work situation was the genesis of Yanis v McGuire, 98 A.D.2d 669, affirmed 62 N.Y.2d 723. Yanis, employee with a special skill or talent, his knowledge of both English and Spanish, refused to accept an assignment that required his use of that skill or talent.

Is an employee subject to disciplinary action if he or she refused to accept the assignment? The Appellate Division said he or she could be subjected to disciplinary action based on his or her refusing the assignment.

Yanis, because of his knowledge of both English and Spanish, was instructed to aid detectives in the interrogation of a Spanish speaking witness to a homicide. Yanis failed to report for the assignment and in the disciplinary action that followed the hearing officer found that Yanis' refusal to serve as an interpreter was unjustified and a violation of a reasonable order.

The disciplinary penalty imposed: Yanis could forfeit of six days of vacation credit or he could elect to perform extra tours in lieu thereof.

According to the decision, Yanis had previously served as an interpreter on some 40 occasions in connection with police work and that the "true motive" in refusing to serve as a translator was "his desire to be compensated or to be recognized with a detective designation for what (Yanis) claimed was a special skill."

The dissenting opinion by Justice Asch suggests that the use of such special skill or talent might, under certain circumstances, constitute “out-of-title work.” Accordingly, Justice Asch opined that the assignment could be lawfully refused “unless an emergency situation existed” as the title "interpreter" exists in the New York City Police Department.

.

* An out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time . . ." (see Caruso v Mayor of Vil. of S. Glens Falls, 278 AD2d 608

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02445.htm