Although an administrator may have certain powers to administer a statute, he or she lacks authority to supplement or amend duly enacted legislation

Although an administrator may have certain powers to administer a statute, he or she lacks authority to supplement or amend duly enacted legislation

Hazan v WTC Volunteer Fund, 2014 NY Slip Op 04103, Appellate Division, Third Department

A former emergency medical technician [EMT] went to World Trade Center site to offer assistance in the rescue and recovery efforts on September 11, 2001. He served as a volunteer at a triage center that was being established at the Chelsea Piers and sorting supplies and setting up a treatment area. The following day, EMT went to ground zero, using his emergency medical technician card and badge to gain access to the site and attempted to search for survivors. The EMT, however, was not registered or affiliated with any volunteer organization or agency during the course of these two days, and he did not aid in the rescue or recovery operations after September 12, 2001.

In March 2010, EMT registered his participation as a volunteer in the World Trade Center rescue, recovery and/or cleanup operations with the Workers' Compensation Board and filed this claim for workers' compensation benefits for injuries allegedly sustained as a result of his exposure to dust and toxins at the sites at which he served as a volunteer pursuant to Workers' Compensation Law Article 8-A. A Workers' Compensation Law Judge [WCLJ] found that EMT had sustained a compensable injury and awarded him certain benefits. The World Trade Center Volunteer Fund, however, sought review of the WCLJ's decision, contending that EMT t failed to meet the definition of "volunteer" because he did not provide proof that he was acting under the direction and control of a volunteer agency.

The Workers’ Compensation Appeal reversed the WCLJ's decision, finding that EMT did not meet the definition of "first response emergency services personnel" as set forth in the final revised Order of the Chair No. 967 issued by the Board's chair in 2006 and, thus he did not qualify as a volunteer. EMT appealed.

The Appellate Division overturned the Board’s determination in view of the legislative history of Article 8-A, several bills were circulated in the Legislature that defined a "volunteer rescue worker" as one who "rendered service under the direction and control of an authorized rescue entity." Significantly, said the court, r, such language is not included in Workers' Compensation Law Article 8-A, and "[t]he deletion of this explicit language from the version of [Workers' Compensation Law Article 8-A]; that finally passed is persuasive evidence that the Legislature rejected" the more restrictive definition of volunteer that originally was proposed.

Further, the Appellate Division said that to the extent that the Board has consistently relied upon the final revised Order of the Chair No. 9 in denying benefits to volunteers who were not affiliated with an authorized rescue entity or volunteer association, “we need note only that while Workers' Compensation Law §141 vests the Board's chair with certain powers to administer the provisions of the Workers' Compensation Law, it does not vest him or her with the authority to supplement or amend duly enacted legislation.”

Citing Russomanno v Leon Decorating Co., whatever the net effect of such orders may be, they "cannot overrule the statute itself," neither the statutory language nor the legislative history supports the Board's requirement that an individual be affiliated with an authorized rescue entity or volunteer agency in order to qualify as a volunteer and, hence, be eligible for the coverage afforded under the statute.

Accordingly, the Appellate Division held that the Board's decision denying EMTs application for benefits upon this particular ground cannot stand, although EMT must still satisfy the time, location and activity elements of Workers' Compensation Law Article 8-A in order to be entitled to benefits. The court then remitted the matter to the Board “for consideration of those issues and, more to the point, the sufficiency of claimant's proof thereon.”

Wrongfully obtaining and divulging confidential information from a department’s computer database

Wrongfully obtaining and divulging confidential information from a department’s computer database
2014 NY Slip Op 04421, Appellate Division, First Department

In this appeal the Appellate Division affirmed the termination of a police officer [Officer] but awarded the individual “back pay for the period in which he was suspended without pay beyond the 30 days permitted by Civil Service Law §75(3-a).”*

Following a disciplinary hearing, the hearing officer sustained three of the charges filed against Officer: that Officer wrongfully accessed and subsequently obtained confidential information from the agency's Computer System and which was not related to the official business of the Department; Officer did wrongfully divulge or discuss official Department business without permission or authority to do so; and that “with intent to obtain a benefit or deprive another of a benefit, ... [Officer] obtained confidential information” from the Computer System, which was not related to the official business of the Department and divulged said information to another police officer.

The Appellate Division rejected Officer’s argument that his actions did not constitute official misconduct because there is no evidence that he acted "with intent to obtain a benefit or deprive another person of a benefit" (see Penal Law §195.00[1]).

The court explained that the term “Benefit” means “any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary," citing Penal Law §10.00[17]. This "includes more than financial gain and can encompass political or other types of advantage."

Here, said the Appellate Division, it can be reasonably inferred that Officer intended to obtain a benefit for his fellow officer and friend within the meaning of the statute when he accessed confidential information in the computer system and confirmed for the friend the scope of the allegations of the complainant in the disciplinary investigation against him.

Under the circumstances, the Appellate Division held that “The penalty of termination is not so disproportionate to the offense as to be shocking to one's sense of fairness,” citing Kelly v Safir, 96 NY2d 32,

Officer, said the court, “betrayed his position of trust as [an individual] who was privy to very sensitive information, and breached his confidentiality agreement with the police department, which stated that the wrongful disclosure of information would not be tolerated by the department and that divulging or discussing official department business except as authorized, constituted prohibited conduct and might constitute official misconduct under Penal Law §195.00(1).

* The appointing authority conceded that Officer was entitled to back pay for the period of time for which he was suspended without pay in excess of 30 days.

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Individuals applying for State Civil Service Examinations must use a new application form dated (6/14)

Individuals applying for State Civil Service Examinations must use a new application form dated (6/14)

Source: New York State Department of Civil Service General Information Bulletin No. 14-02

Scott DeFruscio, Director of Staffing Services, New York State Department of Civil Service has advised that the Department has revised its examination application, NYSAPP, to allow the Department to collect the necessary information to determine if disabled veterans are eligible for additional credits for subsequent open-competitive or promotion appointments, as provided for in an amendment to Article 5, §6 to the New York Constitution.

For more information on the amendment, see GIB #13-01.

Revisions have been made in the online application as well as the PDF version of the application available for candidate use from the Department’s web site. In addition, most special applications available to candidates from the Department’s web site have also been revised. It is anticipated that all special applications will be revised and reissued by the end of July 2014.

Agencies having any announced examinations requiring the use of a special application and need more specific information concerning the status of your agency’s special examination application, are requested to contact its Staffing Services Representative.

Candidates must use the new application dated (6/14) to apply for any future examinations. The Department requests that any copies of previous versions of State applications be destroyed and that agencies request a supply of new form using the information below.

Agencies requiring a supply of paper copies of Examination Applications should send an email to printshop@cs.ny.gov. Requesters should enter “Exam Application Order” in the subject line. The body of the email should include

:

1. The name of the person to whom the applications are to be sent;

2. The number of applications needed; and,

3. A mailing address where the applications should be sent.

The Department advises that when ordering copies of applications, agencies should allow three weeks for delivery.
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An administrative body may overrule its administrative precedent

An administrative body may overrule its own administrative precedent

2014 NY Slip Op 04550, Appellate Division, Third Department

In this appeal one of the issued concerned an administrative agency, the Workers’ Compensation Board, overruling its own precedent. The Appellate Division sustained the Board’s action, noting that in so doing:

1. The Board discussed its precedent at length and overruled it;

2. The Board was free to overrule its precedent given that it "set forth its reasons for doing so;" and

3. The Board had considered appropriate statutory and judicial authorities in concluding that its precedent should be overruled.

The Appellate Division said that the interpretation of the relevant Workers' Compensation Law presents a question "of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent" and thus it need not defer to the Board's reading of the statute. However, said the court, “We nevertheless agree with the Board's present interpretation thereof.”

Unemployment insurance claim filed by terminated employee may be denied on the basis of the findings of a disciplinary arbitrator under the doctrine of “collateral estoppel”

Unemployment insurance claim filed by terminated employee may be denied on the basis of the findings of a disciplinary arbitrator under the doctrine of “collateral estoppel”

2014 NY Slip Op 04546, Appellate Division, Third Department

An employee [Claimant] challenged his termination from his position in accordance with the disciplinary grievance procedure set out in the relevant collective bargaining agreement. After a full evidentiary arbitration hearing, at which Claimant was represented by counsel, the arbitrator determined that Claimant was guilty of the charges filed against him and that there was “just cause” for his dismissal from his position.

Claimant then applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board, adopting the arbitrator's findings of fact and denied Claimant's application for unemployment insurance benefits. The Board ruled that Claimant had lost his employment due to disqualifying misconduct within the meaning of the Unemployment Insurance Law.

Contending that the Board erred in giving “collateral estoppel effect" to the arbitrator's factual findings and that the Board's decision was not supported by substantial evidence, Claimant appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling explaining that where the record establishes that there was “a full and fair opportunity to litigate the issue of the conduct precipitating termination in an arbitration proceeding, the arbitrator's factual findings must be accorded collateral estoppel effect."

Here, said the court, a review of the record confirms that the Board properly took into account the arbitrator's factual findings regarding Claimant's conduct underlying the disciplinary charges filed against him and made an independent evaluation as to whether Claimant's behavior constituted “disqualifying misconduct” for the purposes of unemployment insurance.

Noting that the arbitrator had found Claimant guilty of fighting with a coworker – behavior that has been held to constitute “disqualifying misconduct” -- the Appellate Division said that substantial evidence supported the Board's finding that Claimant was disqualified from receiving unemployment insurance benefits under the circumstances and affirmed the Board’s decision.

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