Courts will strictly construe the terms of a disciplinary settlement agreement setting out the reason permitting the employee to be summarily terminated from his or her position

Courts will strictly construe the terms of a disciplinary settlement agreement setting out the reason permitting the employee to be summarily terminated from his or her position

2015 NY Slip Op 01181, Appellate Division, First Department 

Supreme Court denied an Article 78 petition filed by an individual [Plaintiff] seeking to annul the appointing authority’s decision to terminate his employment. The court held that the parties' disciplinary settlement agreement executed in 2012 served to waive Plaintiff's right to appeal or seek judicial review of his termination of employment “in all scenarios.”

The 2012 settlement agreement's introductory paragraph stated that the parties agreed to settle Plaintiff's violation of an earlier disciplinary settlement agreement that addressed Petitioner’s violation of the appointing authority’s policy concerning the "Sales of Goods and Services in Hospital." 2012 settlement agreement provided that should Plaintiff engage in misconduct that was the "same or similar to" that constituting the violation of the prior agreement, to be determined solely by the Director of Labor Relations or her designee, he would be terminated and could not appeal the penalty in any administrative or legal forum.*

The Appellate Division reversed the Supreme Court’s decision and remanded the matter “for further consideration” as the Supreme Court “never reached the merits of Plaintiff’s petition.”

The Appellate Division explained that courts should not "adopt an interpretation that renders a portion of the contract meaningless," citing Wallace v 600 Partners Co., 205 AD2d 202. In this instance, said the court, the appointing authority terminated Plaintiff for allegedly taking leave under color of the Family Medical Leave Act (29 USC §§ 2611 et seq.) without obtaining prior approval from his department or the Office of Labor Relations.

Such conduct is not the "same or similar to" the sale of goods in the hospital  and,  hence, the terms and conditions of set out in Paragraph 1 of the 2012 settlement agreement, including Plaintiff's waiver of judicial review, are inapplicable. The Appellate Division said that to hold otherwise “would be to render superfluous paragraph three, which speaks to the penalty for failing to adhere to policies and procedures generally, but does not include such additional restrictions.”

Further, noted the court, the employer “failed to follow” its own procedures and the terms of the settlement agreement by effectively precluding Plaintiff “from having an opportunity to explain why he should not be terminated.”

Similarly, Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement providing for a disciplinary probation award that provided that the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.”

Taylor was terminated during his disciplinary probationary period without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. However, there was no allegation that he had been intoxicated on the job as a reason for his dismissal as a disciplinary probation employee.

Taylor sued, challenging his dismissal and won reinstatement with back salary. The Appellate Division said that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

* Paragraph three of the agreement separately provided that Plaintiff agreed to adhere to departmental policies and procedures and would be terminated for his failure to do so, but provided no limitation on who would determine his guilt, nor did it waive any judicial review.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2015/2015_01181.htm

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Certification to teach in the position sought critical to teacher’s reinstatement from a preferred list following his or her layoff

Certification to teach in the position sought critical to teacher’s reinstatement from a preferred list following his or her layoff

2015 NY Slip Op 04492, Appellate Division, Second Department

A teacher [Teacher] certified to teach Spanish, was appointed as a foreign language teacher in the school district’s elementary school. Teacher taught Spanish and acquired tenure in that position.

The school board [Board] subsequently abolished the elementary school Spanish teacher position for economic reasons and Teacher’s name was placed on a "preferred eligible list" for appointment to any vacancy which may arise in a similar position within seven years from the date that her position was abolished as provided by Education Law §§2510[3][a]; 3013[3][a]).

In 2011, the Board of Education created a new a full-time position of "French/Spanish Teacher 7-12" and appointed an individual who was certified to teach both French and Spanish to fill that vacancy.

Teacher commenced a CPLR Article 78 in the nature of mandamus to compel the Board to appoint her to a position of part-time Spanish teacher. 

Teacher argued that the Board, in effect, had created "a teaching position that is [part-time] Spanish and [part-time] French," and that she was entitled pursuant to Education Law §§2510(3)(a) and 3013(3)(a) to be appointed to the purported part-time Spanish teacher position.

Supreme Court denied the petition and dismissed the proceeding on the merits and Teacher appealed.

The Appellate Division affirmed the Supreme Court’s action, explaining that "[CPLR] Article 78 relief in the form of mandamus to compel may be granted only where a petitioner establishes a clear legal right to the relief requested." In determining whether Teacher is entitled to re-employment pursuant to Education Law §§2510 or 3013 in this action, "the threshold question must be one of certification to teach in the position sought. Absent such certification, re-employment rights cannot attach."

Noting that Teacher did not challenge the propriety of the Board's decision to create a single full-time position encompassing instruction of both French and Spanish, the Appellate Division ruled the her “claim must fail because, as [Teacher] conceded, she lacks the dual certification necessary for [appointment to] the full-time position.”

Thus, held the Appellate Division, as Teacher “failed to demonstrate a clear legal right to the relief sought,” the Supreme Court properly denied the petition and dismissed the proceeding on the merits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04492.htm

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Civil Service Commission overturns agency’s disqualification of applicant for examination

Civil Service Commission overturns agency’s disqualification of applicant for examination

Matter of City of New York v New York City Civ. Serv. Commn., 2015 NY Slip Op 03036

The New York City Civil Service Commission, after a hearing, reversed a determination by the City’s Department of Citywide Administrative Services that an applicant for the examination for “Principal Administrative Associate” did not meet the minimum qualifications for admission to the examination.

The Appellate Division, sustaining the Commission’s determination, found that the Commission's decision was supported by substantial evidence. The court said that the evidence presented by the applicant for the examination at the hearing before the Commission demonstrated that she possessed the requisite supervisory and/or administrative experience to qualify for admission to the examination for appointment to the position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03036.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 30, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 30, 2015

Click on text highlighted in color  to access the full report

Audits of State Agencies:

Department of Agriculture and Markets: Annual Assessment of Market Orders for 2012, 2013, and 2014 (2014-S-58)
The department has adequate procedures in place to ensure that it accurately reports its assessable expenses in all material aspects. However, the department needs to improve its oversight of its Market Order Program, particularly its Apple Market Order, which is administered pursuant to a contract with the New York Apple Association.


Department of Health: Medicaid Claims Processing Activity October 1, 2013 Through March 31, 2014 (2013-S-50)
For the period October 1, 2013 through March 31, 2014. Auditors identified about $3.3 million in inappropriate Medicaid payments, including $1,335,151 in overpayments for hospital claims for which eMedNY did not properly factor Medicare coverage or a lower level of care into the payment; $682,022 in overpayments for pharmacy claims that were not in compliance with various regulations and policies; and $416,314 in improper payments for claims that were not subjected to the appropriate claims processing logic in eMedNY. By the end of the audit fieldwork, auditors recovered about $2 million of the overpayments identified.

Department of Labor (DOL): Wage Theft Investigations (Follow-Up) (2015-F-9)
In an initial report, issued in June 2014, auditors determined DOL was not completing wage theft investigations in a timely manner. As of August 2013, DOL had a caseload of 17,191 cases, including 9,331 active investigations and 7,860 cases pending payment. Of these, 12,938 cases (75 percent) had been open more than one year since the initial claim was received. In a follow-up report, auditors found DOL has made substantial progress in addressing the issues identified in the initial report. For example, DOL is now completing 80 percent of its wage investigations within six months. At the time of this follow up, DOL only had 305 cases that were open for more than one year.

Office of Mental Health (OMH): Assertive Community Treatment (ACT) Program (2014-S-25)
OMH is not effectively overseeing the ACT program to ensure that provider teams are complying with certain important program requirements. Provider teams are not recertified in a timely manner; program data in the CAIRS system is not complete or accurate; some program staff do not receive required training; and program recipients’ treatment plans are not completed on time, with required team leaders’ approvals. As a result, program recipients’ service needs may not be adequately addressed. The office has also not established methods to assess the extent to which it is achieving overall program goals.

Metropolitan Transportation Authority: Selected Aspects of Travel Expenses (2013-S-79)
Auditors found the Metropolitan Transportation Authority’s New York City Transit, MTA Bus Company, and MTA Bridges and Tunnels units should strengthen certain controls over travel to help reduce costs. For trips booked by MTA’s travel agent, auditors projected that 753 hotel stays exceeded the government lodging rates established by the General Services Administration (GSA) and the U.S. Department of State by at least $127,963. Transit paid more than the GSA maximum lodging rate for 12 of 15 rooms booked by a total of $3,962.

Office of the Nassau County Public Administrator (NCPA): Selected Financial Management and Administrative Practices (2013-S-37)
Among several issues noted by auditors, the NCPA did not have documentation to support the hiring and compensation of employees who are paid through the suspense account. The average monthly balance in the NCPA’s suspense account dropped from $241,214 in 2010, to $74,442. Although the NCPA publicly advertised for vendors annually, it did not prepare the required list of preferred vendors until 2013. Additionally, several vendors did not complete the required “Application to Provide Services.” The NCPA also did not maintain written documentation justifying the selection of particular vendors as required and certain estate assets were put up for sale without the documented formal prior approval of the Surrogate’s Court pursuant to statute. Additionally, the NCPA’s annual reports to the State Comptroller did not list non-cash estate assets as required by law. 

Municipal Audits 

Town of Hume,  

Town of Marilla,  

Village of Round Lake,  

Village of Shortsville; and the 

Village of Suffern. 
 

DiNapoli: Canal Corp. Must Address Gaps in Inspection Performance

The New York State Canal Corporation has not performed inspections as required on a significant number of critical structures along the system’s 524 miles of waterways, according to an audit released by State Comptroller Thomas P. DiNapoli.

DiNapoli: Local Governments Should Improve Enforcement of State Fire Code Regulations

A sampling of municipalities from across New York reveals gaps in the review of fire safety plans or evacuation procedures for public buildings such as adult care facilities, hospitals, hotels, preschools, libraries and shopping malls, according to an audit released by State Comptroller Thomas P. DiNapoli. The audit reviewed enforcement of the state’s Uniform Fire Code in seven cities and three villages.

DiNapoli: Former Treasurer Pleads Guilty to Felony in Theft of More than $5,000 in Fire District Funds

The former treasurer for Pulteney Fire District No. 2 pleaded guilty to stealing more than $5,000 in public funds, after an audit and investigation by State Comptroller Thomas P. DiNapoli revealed that she falsified vouchers and paid herself an additional, illegal salary.

DiNapoli: State Needs to Ensure Timely Execution of Contracts with Not-for-Profits

State agencies were late more than 77 percent of the time in approving contracts with not-for-profit providers in 2014, according to a report released by State Comptroller Thomas P. DiNapoli. The late approvals prompted interest payments, mandated under the Prompt Contracting Law, that cost the state $195,663 last year, the report found.

Discrimination against applicants having limited proficiency in English constitutes unlawful discrimination based on national origin

Discrimination against applicants having limited proficiency in English constitutes unlawful discrimination based on national origin

2015 NY Slip Op 04239, Appellate Division, First Department

The Appellate Division held that the New York City Human Resources Administration, the City’s department in charge of the majority of the City’s social services programs, as a “provider of public accommodation,” violated New York City’s Human Rights Law’s* prohibition against discrimination on the basis of national origin by withholding from or denying “accommodations, advantages, facilities, or privileges” from individuals having  limited English proficiency as such action constitutes discrimination based on national origin.

* See Administrative Code § 8-107[4][a]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04239.htm