ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

May 02, 2014

New York State Comptroller Thomas P. DiNapoli issues fiscal stress scores for upstate political subdivisions of the State


New York State Comptroller Thomas P. DiNapoli issues fiscal stress scores for upstate political subdivisions of the State
Monitoring System Has Evaluated Nearly 2,300 Local Governments

On May 2, 2014 New York State Comptroller Thomas P. DiNapoli announced fiscal stress rankings for several upstate cities. With today’s announcement, DiNapoli’s office has completed the initial scoring for all local governments and school districts in New York.

The creation of the ‘early warning’ monitoring system is the centerpiece of the Comptroller’s fiscal stress initiative. The Fiscal Stress Monitoring System is based on financial information provided to DiNapoli’s office by local communities and uses financial indicators that include year-end fund balance, cash position and patterns of operating deficits, to create an overall fiscal stress score. The system uses a 100-point scale to classify whether a municipality is in significant fiscal stress (65-100%), in moderate fiscal stress (55-65%), is susceptible to fiscal stress (45-55%), or no designation (below 45%).

Since implementing the system in 2013, the Comptroller’s staff has evaluated the fiscal condition of nearly 2,300 municipalities and school districts across the state.To date, DiNapoli’s monitoring system has identified a total of 142 municipalities in some level of fiscal stress. This includes 16 counties, 18 towns, five cities, 16 villages and 87 school districts.

The fiscal stress scores for 15 cities and villages with fiscal year ends that range from March 31, 2013 to July 3, 2013 announced on May 2, 2014 includes the cities of Batavia (0%), Buffalo (15.8%), Corning (15.8%), Olean (11.7%), Rochester (20.4%), Syracuse (34.2%) and Watertown (9.6%). These municipalities were each classified in the no designation category.

To search for a specific local government’s fiscal stress scores, visit:
http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsi1a.cfm

For an overview of Comptroller DiNapoli’s Fiscal Monitoring System, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

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Employee benefits available to retirees set out in a "memorandum of agreement" to a collective bargaining agreement


Employee benefits available to retirees set out in a "memorandum of agreement" to a collective bargaining agreement
Port Auth. of N.Y. & N.J. v Local Union No. 3, 2014 NY Slip Op 03025, Appellate Division, First Department

A Memorandum of Agreement (MOA) supplementing the collective bargaining agreement between the parties provided that "During the term of the Agreement [June 4, 2002 through June 3, 2006], employees in the covered membership will continue to be eligible to receive employee commutation passes and personal passes as per the current practice."

As to retired negotiating unit employees, the relevant portion of the MOA included the following provision: "Retired employees . . . receive the same allowance to which they would be entitled if their Port Authority service was not interrupted."

An arbitrator ruled that this language in the MOA supported Local Union #3’s contention that the Port Authority may not unilaterally eliminate the "E-ZPass" benefit, i.e., free passage at Port Authority bridges and tunnels, for retirees. 

In addressing the Port Authority's challenge to the arbitration award the Appellate Division said that the arbitrator did not "give a totally irrational construction to the contractual provisions in dispute."

Thus, said the court, the arbitrator’s ruling did not constitute a remaking of the collective bargaining agreement between the parties.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_03025.htm

May 01, 2014

Employer’s unilateral discontinuing its past practice of paying the full cost of health insurance for its retirees held a violation of §209-a.1(d) of the Taylor Law


Employer’s unilateral discontinuing its past practice of paying the full cost of health insurance for its retirees held a violation of §209-a.1(d) of the Taylor Law
Improper Employer Practice Case No. U-31625 [PERB]

A collective bargaining agreement [CBA] with a term of June 1, 2003 to May 31, 2007, was the last agreement that a former collective bargaining representative negotiated with the Village. Article 15, §4 of that agreement provides that the Village will pay the full cost of health insurance premiums for unit employees hired before December 31,1988, and that employees hired after that date will contribute to the cost of their health insurance premiums if future annual increases exceed a certain amount. Article 15 also authorizes the Village to collect the amount of the employee contribution through payroll deduction. That provision was first included in the 1988-1991 CBA and was continued unchanged in all subsequent agreements, up to and including the 2003-2007 CBA.

Despite the existence and continuation of language set out in the 1988-1991 CBA providing for a contribution to health insurance premiums by post-1988 employees, for seventeen years the Village never sought to require unit employees to pay such contributions. However, on June 1, 2005, the Village began deducting the contractual health insurance contribution from the pay of post-1988 employees.

A contract grievance was filed and the arbitrator, in an award dated June 23, 2006, found that the Village did not violate the CBA when it began collecting the contractual health insurance contribution in 2005.

The first CBA negotiated by a successor collective bargaining representative with the Village had a term of June 1, 2007 to May 31, 2012 and provided for employee contributions for health insurance.   

However, all CBAs up to and including the 2003-2007 agreement were silent with respect to the payment of health insurance benefits to employees during their retirement from the Village and until August 2011, the Village paid the entire cost of health insurance premiums for all unit employees upon and during their retirement. Further, there was testimony in the record in the instant hearing that when the parties were negotiating employee contributions towards health care premiums, they were discussing contributions to be paid by active employees and that as the “offer letter” that resulted in the new CBAs did not contain the word “active,” it was subsequently added “to ensure that the health insurance provision [in the collective bargaining agreement] was not interpreted to apply to retirees.”

The parties stipulated that two post-1988 employees retired in, respectively, April and September, 2004, and that the Village paid the full cost of health insurance for them while they were employed and has continued to do so during their retirement

In August 2011 a unit employee, who had initially commenced his employment with the Village after December 31, 1988, retired. Immediately before his retirement, the employee was contributing towards the  cost of his health insurance premium and the Village was paying the remainder. Upon his retirement, the Village continued to charge the individual a ten percent contribution and to pay the remainder of the cost of his health insurance premium. This individual was the first unit employee who, upon retirement, was required to pay a contribution towards the cost of his health insurance premium.

A Public Employment Relations Board Administrative Law Judge found that the 2007-2012 CBAs, and all prior agreements, “simply does not refer to retirees or what health insurance benefit current employees will receive in retirement.” Further, the ALJ found §4 of Article 15 of the 1988-1991 agreement is appropriately interpreted as silent with respect to the practice here in issue. This finding, said the ALJ, was supported not only by the plain language of that provision but by the fact that "when the parties intended to affect a benefit granted to current employees that continues into retirement, they specifically so state.”

Further, said the ALJ, “the record evidence regarding the negotiations for the 2003-2007 CBA clearly shows that the parties did not negotiate the issue of what current employees would receive in retirement.”

Addressing the employee organization’s alleged past practice claim, the Administrative Law Judge explained that “To establish an enforceable past practice that cannot be unilaterally changed without negotiation, the charging party must demonstrate that the ‘practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected unit employees that the [practice] would continue.’ In addition, the practice must concern a mandatory subject of negotiation.”

As to the argument advanced by the Village that PERB lacked jurisdiction and the employee organization lacked standing to consider the employee organization's allegations because the complaint pertains to retirees, the ALJ said that the charge filed by the employee organization “makes clear that it is not seeking to enforce the rights of already retired persons, but to enforce the practice with respect to current employees who retire in the future.”

The Village also contended that the subject matter in issue is nonmandatorily and not negotiable because it pertains to retirement benefits,* The ALJ pointed out that although PERB has held that a demand for health insurance benefits for former employees who have already retired is nonmandatory, the subject of health insurance benefits for current employees upon their retirement constitutes a form of deferred compensation and is mandatorily negotiable.

The Administrative Law Judge found that an employer’s unilateral change of an enforceable past practice concerning health care benefits for current employees upon their retirement violates §209-a.1(d) of the Taylor Law.The ALJ also found that the record shows that the unit employees were aware of the practice regarding their receipt of fully paid health insurance during retirement and that they expected the practice to continue.

Holding that the Village violated §209-a.1(d) of the Taylor Law, the Administrative Law Judge ordered the Village to:

1. Rescind its directive that unit employees hired after December 31, 1988, will be required to pay a health insurance contribution during retirement; and

2. Not unilaterally change the past practice of paying the full cost of health insurance premiums for current unit employees during retirement; and

3. Make whole any unit employees who retired during or after August 2011 and who have been required to contribute towards the cost of health insurance.

* In Lippman v Sewanhaka Central High School District, 66 NY2d 313, the court held that health insurance was not a retirement benefit within the meaning of Article 5, Section 7, of the State Constitution.
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April 30, 2014

Post-hearing conduct of the employee not considered by the hearing officer in making an administrative decision


Post-hearing conduct of the employee not considered by the hearing officer in making an administrative decision
OATH Index No. 1233/14

OATH Administrative Law Judge Tynia D. Richard presided at a Civil Service Law §72 disability proceeding initiated by the appointing authority. The employer alleged that the individual was “mentally unfit to perform the duties of his position.” The employee denied the allegation.

Judge Richard found the evidence supported the medical opinion of a board certified psychiatrist that the individual was unfit to perform the duties of his position due to a psychotic condition, known as delusional disorder of a persecutory nature, that impeded his ability to make basic engagements with reality and recommended that the employee be placed on leave pursuant to Civil Service Law §72.

The employer subsequently submitted an e-mail requested an “expedited decision” based on the employee’s conduct after the hearing had been closed. The employee’s attorney sent an e-mail objecting to the employee’s post hearing conduct being made a part of the record in this case so as to form the basis for expediting a decision.

The ALJ advised the parties that “it was not proper to put additional facts before me as the record of the case is closed.”  Judge Richard also noted the procedure that the parities were to use in seeking an expedited decision. However, said Judge Richard, a formal request for an expedited decision was never filed.

Although Judge Richard entered the e-mails into the record, she advised the parties that she had not taken the new allegations into account in her analysis of the case nor in making her determination.

The determination: Judge Richard found that the employee was unfit to remain in his position and recommended that he be placed on leave pursuant to §72 of the Civil Service Law, which recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:
 http://archive.citylaw.org/oath/11_Cases/14-1233.pdf
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April 29, 2014

Filing fraudulent documents to obtain a benefit


Filing fraudulent documents to obtain a benefit
OATH Index No. 229/14

A New York City correction officer was charged with tendering fraudulent documents to obtain subsidized housing benefits, establishing residency in another state for purposes of engaging in unauthorized outside employment, and engaging in unauthorized outside employment.

OATH Administrative Law Judge Astrid B. Gloade found that the officer underreported her income to obtain Section 8 housing benefits*and that although this misconduct   occurred when the employee was “off-duty” an employer may discipline an employee for off-duty misconduct where there is sufficient nexus between the conduct to be
sanctioned and the employee’s job position, citing Villanueva v. Simpson, 69 N.Y.2d 1034.

Judge Gloade also found the the employee had an unauthorized job while on a leave of absence from the Department.

The residency charge was dismissed by the ALJ, who found that the employer failed to prove that the correction officer established residency in another state for purposes of engaging in outside employment..

Judge Gloade, however, recommended that the correction officer be terminated from her position on the basis of charges that were proven by the agency.

* The employee “plead guilty to disorderly conduct (Penal Law §240.20) and agreed to pay restitution in the amount of $19,127 to the federal government within one year” with respect to her obtaining Section 8 housing benefits.

The decision is posted on the Internet at:
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CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com