Maggie Miller named Chief Information Officer of the New York State Office of Information Technology Services

Maggie Miller named Chief Information Officer of the New York State Office of Information Technology Services
Source: Office of the Governor

On December 3, 2014, Governor Andrew M. Cuomo announced that he has appointed Maggie Miller Chief Information Officer of the New York State Office of Information Technology Services. Miller will oversee the agency’s centralized IT services to the State and government entities; set statewide technology policy for all state government agencies; and monitor all large technology expenditures in the state to find more efficient, low cost and innovative solutions. Ms. Miller, the former Chief Information Officer of Girl Scouts USA, is expert in IT strategy, innovation, business transformation, multi-channel strategies, M&A evaluation and integration, business intelligence and analytics, and outsourcing.

Ms. Miller will begin her position as Chief Information Officer of the State Information Technology Services on December 8, 2014. This appointment does not require Senate confirmation.

Retirement Update from the Internal Revenue Service

Retirement plan updates issued by the Internal Revenue Service

Click on highlighted text to access the complete advisory

Updated Model Notices

Updated model eligible rollover distribution notices

For Sponsors of 401(a), 403(a), 403(b) and governmental 457(b) plans to notify participants of rollover options for their distributions from Roth and non-Roth accounts, including the right to direct pre-tax and after-tax amounts to separate destinations(Notice 2014-74)

Retirement Plan Webinars

Remember to registerfor these upcoming retirement plan webinars – 2 p.m. EST:

• Dec. 4 - Properly Defining Retirement Plan Compensation 
• Dec. 11 - Retirement Plan Distributions: What Every Participant Should Know
  

Updated Publications 

• Publication 1-EP, Understanding the Employee Plans Examination Process (10-2014)
• Publication 1020, Appeal Procedures Employee Plans Examinations (11-2014)
  
  

Placing an employee on an involuntary leave pursuant to Civil Service Law §72.5

Placing an employee on an involuntary leave pursuant to Civil Service Law §72.5

OATH Index No. 2443/14

Following an investigation of several complaints of workplace violence involving an employee, Anonymous, the individual was referred to a psychiatrist for evaluation. The psychiatrist found that Anonymous presented a risk of danger in the workplace. The appointing authority placed Anonymous on involuntary leave pursuant to §72.5 of the Civil Service Law.

At the §72 disability hearing that followed, the appointing authority presented testimony from an investigator and both sides presented medical expert testimony.

OATH Administrative Law Judge Alessandra F. Zorgniotti found the opinion of  Anonymous’s expert to be “conclusory” as he did not explain how Anonymous’s culture would cause him to be paranoid and aggressive with others.

Judge Zorgniotti recommended that Anonymous remain on involuntary leave pursuant to §72.5, finding that the appointing authority had properly placed Anonymous on pre-hearing involuntary leave based upon documented instances of threats, hostility and anger to co-workers, and the evaluation of an independent psychiatrist.

With respect the placement of an employee involuntarily on leave pursuant to Civil Service Law §72.5, the appointing authority is authorized to immediately place an individual on such an involuntary leave of absence in the event the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with agency operations.

§72 leave is leave without pay. However, an employee placed on a §72.5 involuntary leave of absence is entitled to use all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit in order to remain on the payroll. If the employee declines to use his or her accumulated leave credits in order to remain on the payroll, or having elected to remain on the payroll, exhausts his or her accumulated leave credits, he or she is placed in leave without pay status.

§72.5, in pertinent part, provides that if, after the hearing, the employee is determined not to be physically or mentally unfit to perform the duties of his or her position, “he or she shall be restored to his or her position and shall have any leave credits or salary that he or she may have lost because of such involuntary leave of absence restored to him or her".

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2443.pdf
.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on December 2, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on December 2, 2014
Click on texthighlighted in color  to access the full report

Village of Bainbridge – Financial Operations (Chenango County)
The board did not request adequate reports from the clerk-treasurer and was unable to make informed financial decisions. In addition, the clerk-treasurer’s records understated the total fund balance of the general, water and sewer funds by $114,572, $74,000 and $42,300. 

Village of Bellerose – Procurement and Cash Receipts (Nassau County)
Village officials do not require the use of requisitions and purchase orders when purchasing goods and services. The village did not seek competition when purchasing goods and services that are not subject to bidding and when selecting professional service providers. In addition, the board did not provide sufficient oversight of purchases made with village credit cards. 

Village of Brushton – Fiscal Oversight (Franklin County)
The clerk-treasurer did not perform monthly bank reconciliations or provide the board with complete and accurate monthly financial reports. In addition, the clerk-treasurer has not filed an annual financial report with the Office of the State Comptroller since the 2008-09 fiscal year. Also, the board did not annually audit the clerk-treasurer’s records and reports. 

Town of Day – Supervisor’s Records and Reports (Saratoga County)
Expenditures were accurately recorded in the accounting records, however, monthly reports contained inaccurate monthly cash balances. Additionally, revenues received in 2014 totaling more than $500,000 were not recorded in the accounting records or reported to the board. 

Limestone Volunteer Firemen, Inc. – Controls Over Financial Activities (Cattaraugus County)
The board did not develop and implement adequate internal controls over cash disbursement and receipt functions. Auditors found approximately $38,000 in unsupported disbursements that may not have been for appropriate company purposes, including approximately $3,800 paid to the treasurer and nearly $3,000 paid to the fire chief.

An employer is neither required to create a new light-duty position to accommodate a disability nor to assign an employee with more than a temporary disability to a light-duty program designed to accommodate a temporary disability

An employer is neither required to create a new light-duty position to accommodate a disability nor to assign an employee with more than a temporary disability to a light-duty program designed to accommodate a temporary disability*

Coles v New York State Div. of Human Rights, 2014 NY Slip Op 07788, Appellate Division, Fourth Department

Geraldine Colescommenced this proceeding pursuant to Executive Law §298 seeking to annul the determination of the Commissioner of the State Division of Human Rights [SDHR] that she failed to establish that her employer, the Erie County Sheriff's Office (ECSO), discriminated against her based on a disability.

Although initially the Division’s investigators found that Cole had alleged probable cause a Division Administrative Law Judge (ALJ) found that Coles did not establish that ECSO failed to provide her with reasonable accommodations for her disability.** The Commissioner of SDHR adopted the ALJ’s findings and recommendation and dismissed Coles complaint.  We now confirm the determination.

Confirming the Commissioner’s decision, the Appellate Division said that "[i]n reviewing the determination of SDHR's Commissioner, this Court may not substitute its judgment for that of the Commissioner . . . , and we must confirm the determination so long as it is based on substantial evidence."

ECSO did not dispute that Coles condition constituted a disability and Coles did not dispute that as a deputy sheriff assigned to the position of "inmate escort" at ECSO's correctional facility, her disability does not permit her to be assigned to duties involving direct inmate contact, i.e., duties that require uninterrupted vigilance and emergency response capability. Further, said the Appellate Division, Coles did not dispute the representation that she cannot perform the essential functions of an "inmate escort" without presenting a direct threat to her own safety and others in the workplace.

The accommodation Coles sought was for ECSO to assign her to a “light-duty position.”

The Appellate Division observed that “[i]t is well settled that an employer is neither required to create a new light-duty position to accommodate a disability … nor to assign an employee with more than a temporary disability to a position in a light-duty program designed to accommodate only temporary disabilities.

Noting that ECSO maintained a "light-duty" program,*** the court said that the purpose of that program is to assist employees with temporary disabilities by modifying work assignments and duties or arranging for a temporary transfer to a "Transitional Duty Assignment (TDA)" until the employee is medically released to resume his or her regular duties. Significantly, the Appellate Division said that “The fact that an employer has been lax in enforcing the temporary nature of its light-duty policy does not convert the policy into a permanent one,” explaining that the expressed intent of ECSO's policy “is not to create a permanent Transitional Duty Assignment, nor is [the policy] to be used in cases where an employee cannot perform the essential functions of a job with reasonable accommodation."

The Appellate Division concluded that there was no basis to disturb the Commissioner's determination that Coles’ disability was of a permanent nature and that ECSO had no permanent light-duty police assignments available. Thus, said the court, ECSO was not required under the Americans with Disabilities Act (42 USC §12101 et seq.) or the New York State Human Rights Law (Executive Law §296) to accommodate her disability by creating such a light duty position for her.

* See also County of Erie v New York State Div. of Human Rights, 2014 NY Slip Op 07829, Appellate Division, Fourth Department

** Executive Law §296(3)(b) requires employers to make reasonable accommodations to permit the employment of disabled employees, provided that the accommodations do not impose an undue hardship on the employer. A reasonable accommodation is defined as an action that permits an employee with a disability to perform the duties of his or her job position in a reasonable manner.

*** ECSO Policy # 03-01-07, Light Duty Assignments

The Doles decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07788.htm

The County of Erie decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07829.htm