The Unemployment Insurance Appeal Board may apply the doctrine of collateral estoppel in denying a claimant UI benefits based on a disciplinary arbitration that led to the claimant’s dismissal

The Unemployment Insurance Appeal Board may apply the doctrine of collateral estoppel in denying a claimant UI benefits based on a disciplinary arbitration that led to the claimant’s dismissal

2013 NY Slip Op 05280, Appellate Division, Third Department

A claimant for unemployment insurance benefits challenged his dismissal from his position by the employer but an arbitrator concluded that there was just cause for his termination.

Subsequently the Unemployment Insurance Appeal Board denied the claimant’s application for unemployment insurance benefits, ruling that he was disqualified from receiving such benefits because he was terminated for disqualifying misconduct. The claimant then appealed the Board’s ruling.

The Appellate Division affirmed the Board’s decision explaining that "as there was a full and fair opportunity to litigate the issue in the prior [arbitration] proceeding, collateral estoppel effect must be given to the arbitrator's factual findings regarding claimant's misconduct."

As the Board had appropriately taken into account the arbitrator's factual findings and made "an independent evaluation as to whether that conduct constitutes 'misconduct' for the purposes of unemployment insurance" the Appellate Division found no basis to overturn the Board's ruling.

Although the individual contended that “at worst, the alleged conduct constituted an excusable error in judgment,” the Board disagreed.

The decision notes that the individual had been counseled by the employer prior to this incident "for various safety violations" and where the misconduct is potentially detrimental to the employer's best interest may, “as in this instance, be sufficient to constitute disqualifying misconduct.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05280.htm

Contract provision providing for the temporary appointment of a substitute teachers held a waiver of the educator’s statutory entitlement to a permanent appointment

Contract provision providing for the temporary appointment of a substitute teachers held a waiver of the educator’s statutory entitlement to a permanent appointment

Decisions of the Commissioner of Education, Decision 10918

The relevant collective bargaining agreement provided that a temporary appointment was to be made when a substitute teacher was to be so employed for more than 40 consecutive days.

When the teacher for whom she was substituting died, the School Board, at the request of the Union to fill the position in accordance with the terms of the CBA, “temporarily appointed” the substitute teacher to the vacancy.

The substitute was subsequently notified that she was not under consideration for permanent appointment. She sued contending that she was a probationer in the vacant position “by operation of law”. 

Following a series of administrative and Court proceedings, the question was remanded to the Commissioner of Education for further consideration.

The Commissioner, in considering the merits of the teacher's appeal, held that although the Board has no authority to make other than probationary appointments to fill permanent vacancies, a teacher may waive the statutory entitlement.

The Commissioner then found that the CBA provision, with which the Board had complied at the request of the Union, provided for a “temporary appointment.” Accordingly, the Commissioner concluded that the CBA’s provision constituted such a waiver and the substitute teacher could not challenge the School Board’s appointing her as a temporary teacher rather than as a permanent appointee subject to the satisfactory completion of a probationary period under the circumstances.

Employee terminated after being found guilty of misuse of funds

Employee terminated after being found guilty of misuse of funds

OATH Index No. 494/13

The New York City Department of Educationcharged a custodial engineer with the misuse of funds. 

OATH Administrative Law Judge Kevin F. Casey found that the custodian failed to repay more than $43,000 he owed to the Department in excess funds, that he wrote a check to the Department for $43,620, knowing that there were insufficient funds in his account to cover the check, and that he overpaid himself by $14,000

The Department apportions funds to custodian engineers based on the square footage of buildings that they maintain. Funds are kept in a custodial bank account which custodian engineers can access online. Custodian engineers must repay the Department any excess funds that they receive each year. In this instance the custodian acknowledged overpaying himself and his staff.

Judge Casey recommended termination of the employee, which recommendation was adopted by the Chancellor of the New York City Department of Education.

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The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-494.pdf

An administrative agency’s rules and regulations must be consistent with and supplemental to the legislation relied upon by the agency for their promulgation

An administrative agency’s rules and regulations must be consistent with and supplemental to the legislation relied upon by the agency for their promulgation
Kigin v State of N.Y. Workers' Compensation Bd., 2013 NY Slip Op 05360, Appellate Division, Third Department

In this challenge to a determination by the Workers’ Compensation Appeal Board, one of the arguments advanced by the claimant denied certain benefits was that the Board lacked the authority to promulgate the regulations and the “incorporated Guidelines” relied upon by the Board for its ruling, contending that they were inconsistent with the enabling legislation and the workers' compensation statutory scheme.

Addressing this argument, the Appellate Division said that “[a]lthough administrative agencies have no inherent legislative power, they have ‘all the powers expressly delegated to [them] by the Legislature and are authorized to ‘fill in the interstices in the legislati[on]’ by promulgating rules and regulations consistent with their enabling legislation.”

Further, said the court, "[I]t is not always necessary that the Legislature provide precise guidelines to an agency charged with carrying out the policies embodied in a legislative delegation of power. In certain technical areas, where flexibility is required to enable an administrative agency to adapt to changing conditions, it is sufficient if the Legislature confers broad power upon the agency to fulfill the policy goals embodied in the statute, leaving it up to the agency itself to promulgate the necessary regulatory details."

Also, said the Appellate Division, courts will uphold regulations that are consistent with and supplemental to the relevant statute “provided they have a rational basis and [are] not unreasonable, arbitrary, capricious or contrary to the statute under which [they were] promulgated."

The Appellate Division ruled that the Board acted within its legislatively conferred authority in this instance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05360.htm

Governor Cuomo announces approval of 2014 health insurance plan rates for New York Health Benefit Exchange

Governor Cuomo announces approval of 2014 health insurance plan rates for New York Health Benefit Exchange

Governor Andrew M. Cuomo announced that the Department of Financial Services (DFS) has approved health insurance plan rates for 17 insurers seeking to offer coverage through New York’s Health Benefits Exchange, including eight new entrants into the market that do not currently offer commercial health insurance plans.

In 2012 Governor Cuomo took action to issue an Executive Order establishing the New York Health Benefit Exchange, which is expected to help more than one million uninsured New Yorkers access quality, affordable health care coverage.

The following companies had health insurance plan rates for the health benefits exchange approved today by DFS. The rates approved are subject to final certification of the insurers’ participation in the exchange.

· Aetna

· Affinity Health Plan, Inc.

· American Progressive Life & Health Insurance Company of New York

· Capital District Physicians Health Plan, Inc.

· Health Insurance Plan of Greater New York

· Empire BlueCross BlueShield

· Excellus

· Fidelis Care

· Freelancers Co-Op

· Healthfirst New York

· HealthNow New York, Inc.

· Independent Health

· MetroPlus Health Plan

· MVP Health Plan, Inc.

· North Shore LIJ

· Oscar Health Insurance Co.

· United Healthcare

Enrollment for the exchange begins on October 1, 2013 for coverage that will be effective January 1, 2014.

Additional information about the New York Health Benefit Exchange is available on the Internet at: www.HealthBenefitExchange.ny.gov

An article, Municipalites Need to be Well Positioned in 2013 to Address the Health Care Reform Act, has been posted on the Internet by NYMuniBlog, a LawBlog published by Harris Beach PLLC, a law firm, as a public service, at http://nymuniblog.com/?p=2869

The U.S. Department of Health and Human Services Internet page dedicated to the Affordable Health Care Act is at: http://www.hhs.gov/healthcare/rights/law/index.html