Recent decisions by New York City’s Office of Administrative Tribunals and Hearings Administrative Law Judges

Recent decisions by New York City’s Office of Administrative Tribunals and Hearings Administrative Law Judges

The material highlighted inblue links to the full text of the decision

Absence on Family Medical Leave - In 2008 respondent was granted leave under the Family Medical Leave Act (FMLA) and was instructed to provide a certificate of clearance from his doctor before returning to duty. After his leave was exhausted, respondent failed to return to work. He was charged with being AWOL and was demoted without a hearing. Respondent subsequently reported to work in 2009 and presented medical documentation that he was fit to return to work. Respondent was advised that he was not cleared for duty and that the agency would get back to him. Five years later, the agency charged respondent with being AWOL between 2009 and 2014. Administrative Law Judge Alessandra F. Zorgniotti found that the agency did not prove the charges because respondent made several attempts to return to work and that the agency left his employment status in an indeterminate state.   DOITT v. Anonymous, OATH Index No. 051/15.

Off-duty assault - Respondent, a civilian employee working as a cement mason in a City jail, was charged with misconduct for two alleged off-duty assaults. Respondent presented testimony from his therapist showing that he suffers from bipolar disorder, and he has taken substantial steps to keep his disorder under control with medication and therapy. Administrative Law Judge [ALJ]. Kevin F. Casey found that only one of the assaults was proven. ALJ Casey found that termination of employment would be excessive, since misconduct was attributable to respondent's disability. He recommended a 45-day suspension without pay, with credit for time served.   Dep't of Correction v. A.A., OATH Index No. 2757/14.

Use of excessive force by a correction officer -  A correction officer was charged with using excessive force against an inmate on two occasions. Administrative Law Judge John B. Spooner found that one set of charges was barred by the 18-month statute of limitations in the Civil Service Law. Regarding the second set of charges, which were timely, the Department proved that the officer hit an inmate in the head, while escorting him on a gurney, and had submitted a false report denying that he had used force. The recommended penalty was a forty-day suspension without pay.   Dep't of Correction v. Arias, OATH Index No. 920/15, [adopted.] 

Making a false statement - A correction officer was charged with failing to comply with the Department's undue familiarity rules and making false statements. Respondent notified the Department that a "family member" was housed in a City jail and that she would be posting his bail and sending mail and money to him. The inmate was later transferred to a state prison and, for a year, respondent failed to notify the Department that she would have similar contact with the inmate while he was in the state facility. At trial respondent acknowledged that the inmate is her significant other with whom she had lived with for more than seven years. Administrative Law Judge [ALJ] Tynia D. Richard recommended that false statement charges be sustained but the undue familiarity charges be dismissed. The ALJ found that respondent provided sufficient notification to comply with the undue familiarity rules, and her identification of the inmate as a "family member" was not misleading since Department rules do not require a more detailed description. The ALJ recommended a penalty of 15-day suspension for false statements.   Dep't of Correction v. Caldwell, OATH Index No. 2702/14.

Throwing an object at a co-worker - An employee was charged with raising her voice to a co-worker stating "you messed up" and "I am tired of this", and throwing a binder clip at the co-worker. The employee admitted that she had raised her voice and that she threw the binder clip in the co-workers' direction, but did not mean to hit her with the clip. Administrative Law Judge [ALJ] Kara J. Miller found the employee's testimony to be credible and ruled that she could only be disciplined for throwing the binder clip in the co-workers' direction. Statements made during the argument did not constitute misconduct as it was not shown that the disagreement, which was brief, disrupted the office. ALJ Miller recommended a five-day suspension, with credit for time served in pre-hearing suspension.   Dep't of Education v. Collins-Jackson, OATH Index No. 832/15. 

Videotape evidence - Administrative Law Judge [ALJ] Faye Lewis found that a correction officer used unnecessary and excessive force against an inmate. Videotape evidence, documentary proof of the inmate's head injuries and testimony from an officer who witnessed the incident, proved that the officer struck the inmate in the head without provocation and stomped the inmate's head two times while he was lying on the floor. Respondent's claim that he used force because he reasonably believed that the inmate had a weapon and he feared for his life, was not supported by any evidence other than respondent's testimony, which ALJ Lewis found to be incredible. Termination of employment was recommended.   Dep't of Correction v. Victor, OATH Index No. 388/15, [adopted,]

Claiming and denying benefits available pursuant to General Municipal Law §207-c

Claiming and denying benefits available pursuant to General Municipal Law §207-c

2015 NY Slip Op 05476, Appellate Division, Second Department

This decision by the Appellate Division illustrates some of the procedural elements involved in claiming and providing benefits available to law enforcement personnel injured in the performance of his or her official duties.

The genesis of the case was the Town’s adopting the findings and recommendations of a hearing officer that a Town Police Officer [Officer] was [1] not physically able to perform his regular police duties and [2] that his continuing left knee complaints were not related to a certain line-of-duty incident. The Town adopted the hearing officer’s findings and terminated the Officer’s General Municipal Law §207-c, benefits. The Town also declined to re-credit Officers leave credits that used to remain on the payroll while absent from work under color of his having a work-connected disability.

Ultimately the Appellate Division found that Officer had been injured in the line of duty and received benefits pursuant to General Municipal Law §207-c. However the court also found that an orthopedic surgeon appointed by the Town to examine Officer subsequently concluded that Officer had a preexisting "condition" involving his left knee that was the proximate cause of his present knee condition, and that Officer was fit for full duty.

The Appellate Division’s decision states that when the Town's Chief of Police directed Officer to report for full duty he protested and the Chief then directed him to return to work in a "transitional, restricted-duty" capacity. Officer’s treating orthopedic surgeon submitted a letter disputing the Town’s medical examiner’s conclusion that Officer was fit to return to full duty but opined that Officer was fit for a light duty assignment that would accommodate his physical limitations.

When directed to report for restricted duty, Officer requested a hearing in order to challenge the Town discontinuing his General Municipal Law §207-c benefits as was his right under the controlling the collective bargaining agreement between the Town and the Officer's employee organization. Officer then returned to work in a restricted-duty capacity. The Town denied Officer’s request for a hearing.

The Officer’s employee organization then demanded that the issue of Officer’s right to a hearing be submitted to arbitration. The arbitrator ruled that Officer did have a right to a hearing concerning the termination of his General Municipal Law §207-c benefits. Upon receipt of the arbitrator's award Officer “advised his superior officer of his position that he was not required to report for work in any capacity until the conclusion of the hearing.”

Officer’s superior, in turn, advised Officer that he was required to continue his "light duty" assignment in accordance with provisions set out in General Municipal Law §207-c and that his failure to report for duty would be  considered being absent from duty without proper authorization. Officer elected to absent himself from work and used his accumulated leave credits [1] in order to be continue on the payroll in lieu of General Municipal Law §207-c payments to cover his absence from work pending the hearing and [2] to avoid disciplinary action.

The hearing officer appointed to determine if Officer was physically able to perform his regular duties and whether his continuing disability, if any, was related to the line-of-duty incident found that Officer:

[1] Was not physically able to perform his regular duties and

[2] His inability to perform his regular duties was not the result of any work-related incident.

The Town Board adopted the hearing officer's findings of fact and recommendations and terminated the Officer’s General Municipal Law §207-c benefits. The Town also determined that Officer was not entitled to be re-credited with any of the leave credits he used during his absence from work after being told to report for duty by his superior.

Officer next commenced a proceeding pursuant to CPLR Article 78 to review the Town’s determinations. The Supreme Court granted that part of Officer’s petition providing for the annulment of the Town’s determination not to re-credit Officer’s leave time he used from January 17, 2012, to November 20, 2012 and the Town was directed to re-credit him with that leave time. The court then transferred the proceeding to Appellate Division.

Having the full record before it, the Appellate Division, “in the interest of judicial economy,” decided to consider the case “on the merits.”

The court said:

1. A disabled officer receiving General Municipal Law §207-c benefits is entitled to a due process hearing before those benefits may be terminated when the officer submits medical evidence contesting the finding of a municipality's appointed physician that the officer is fit for duty.

2. Once such evidence has been submitted, an "order to report for duty may not be enforced, or benefits terminated,” pending adjudication of the individual's claim in an administrative hearing, which hearing decision itself is subject to review under CPLR Article 78.

3. Where the municipality's physician is of the opinion that the officer is able "to perform specified types of light police duty," payment of the full amount of salary or wages may be discontinued should the officer refuse to perform such light police duty if an appropriate assignment "is available and offered to [the officer]" and enables him or her "to continue to be entitled to his [or her] regular salary or wages."

4. If an officer who refuses to return to light duty fails to provide medical proof that he or she is unable to do so, the municipality may discontinue his or her §207-c benefits without a hearing.

Here, said the Appellate Division, there is no dispute that Officer [a] was able to perform a light-duty assignment; [b] received and followed an order to return to work and perform a restricted duty assignment, for which he received his full salary; [c] refused an offer to continue performing this light-duty assignment, although he remained able to so; [d] the granting of a General Municipal Law §207-c hearing did not excuse Officer from performing his light-duty assignment; and [e] received an unequivocal order to return to his light-duty assignment, which her refused to obey, electing instead to use his accumulated leave time in order to remain on the Town's payroll.

The Appellate Division concluded that when Officer refused to return to his light-duty assignment, the Town was entitled to discontinue his §207-c benefits without a hearing. Accordingly, the Town's determination not to re-credit the accumulated leave time he used to remain on the payroll was not arbitrary and capricious and must be sustained.

The court also commented that the hearing officer's determination that Officer’s disability was not causally related to the line-of-duty incident was supported by substantial evidence. The hearing officer, said the Appellate Division, was free to credit the testimony and reports of the Town's medical expert over the conflicting opinion of the Officer's treating orthopedic surgeon.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05476.htm

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Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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Unpaid interns may be deemed employee depending on the beneficiary of their services

Unpaid interns may be deemed employee depending on the beneficiary of their services

Glatt et al. v. Fox Searchlight Pictures, Inc. et al., USCA, 2^nd Circuit, #13-4478

In a class action brought by unpaid interns claiming compensation as employees under the Fair Labor Standards Act [29 USC 207-06] and New York Labor Law [§652], the Circuit Court of Appeals said that when determining when is an unpaid intern entitled to compensation as an employee under the FLSA, the proper question is whether the intern or the employer is the primary beneficiary of the relationship.

The U.S. Department of Labor Division of Wages and Hours Fact Sheet #71 addresses Internship Programs under the Fair Labor Standards Act. This fact sheet provides general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act for the services that they provide to “for-profit” private sector employers.

Interns in the “for-profit” private sector who qualify as employees rather than trainees typically must be paid at least the minimum wage and overtime compensation for hours worked over forty in a workweek

However interns who receive training for their own educational benefit may not fall within the ambit of the FLSA if the training meets certain criteria.  The determination of whether an internship or training program meets this exclusion depends upon all of the facts and circumstances of each such program.

Fact Sheet #71 states that the following six criteria must be applied when making this determination:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;

2. The internship experience is for the benefit of the intern;

3. The intern does not displace regular employees, but works under close supervision of existing staff;

4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;

5. The intern is not necessarily entitled to a job at the conclusion of the internship; and

6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, an employment relationship does not exist within the meaning of the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.  This exclusion from the definition of employment is necessarily quite narrow because the FLSA’s definition of “employ” is very broad.

Fact Sheet #71 is posted on the Internet at:

http://www.dol.gov/whd/regs/compliance/whdfs71.htm

The Circuit Court of Appeals decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/b92372d4-7346-4577-8924-55627b066916/2/doc/13-4478_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b92372d4-7346-4577-8924-55627b066916/2/hilite/

Tenure by estoppel

Tenure by estoppel

2015 NY Slip Op 05471, Appellate Division, Second Department

In response to the School District’s denying the petitioner [Teacher] tenure and terminating her employment, Teacher filed an Article 78 seeking reinstatement to her former position, back salary and benefits and other relief.

Teacher’s notice of appointment stated that her probationary period was to run through June 30, 2010. From September 2, 2008, through January 21, 2009, Teacher was absent from work for 87 work days on an approved unpaid maternity leave.

Teacher was later placed on “contractual paid medical leave” due to complications with a second pregnancy. While on such leave, Teacher was served with a notice that she would not be recommended for tenure at the expiration of her three-year probationary period. She returned to work on January 13, 2011 only to her employment terminated effective January 21, 2011.

Teacher sued, contending that she had attained tenure by estoppel. Supreme Court granted Teacher’s petition, expressly rejecting the School District’s claim that Teacher’s maternity leave tolled the probationary period by the total sum of the calendar days of her leave, rather than by the number of days that school was actually in session.

Supreme Court directed the School District to recalculate Teacher’s probationary period end date, using an original end date of June 30, 2010, rejecting the School District’s recalculation of Teacher’s probationary period end date and declared that she acquired tenure by estoppel. The court also directed Teacher’s reinstatement effective January 21, 2011, with back pay, reimbursement of benefits, and an award of compensatory damages in an amount to be determined at a hearing.

In response to the School District’s appeal, the Appellate Division said:

1. The Education Law specifically distinguishes between probationary teachers and tenured teachers. Tenure by estoppel results "when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term."

2. A teacher who has acquired tenure by estoppel, but is nonetheless improperly terminated, is entitled to reinstatement, retroactive to the last date of employment, back pay, and all accrued benefits.

3. Where a teacher is granted a period of unpaid maternity leave during her three-year probationary period, that period of leave may properly be excluded from computation of a teacher's three-year probationary period.

4. An extension of a teacher's probationary period is to be performed utilizing a workday-to-calendar day methodology and not, as the School District argued, by the corresponding number of calendar days’*

Applying the foregoing principles to this proceeding, the Appellate Division conclude that Teacher had worked past her extended probationary period end date and that Supreme Court properly determined that Teacher acquired tenure by estoppel, and that she is entitled to reinstatement to her position, with tenure and back pay from the date her employment was terminated, January 21, 2011.

Addressing a collateral issue, the removal of certain documents for Teacher’s personnel file the Appellate Division agreed with Supreme Court's determination that the School District was in breach of certain provisions set out in a Taylor Law (Civil Service Law Article 14) collective bargaining agreement.

Although it is well settled that a board of education will not be liable for the unauthorized acts of its agents, under the Taylor Law agreements that are negotiated between a public employer, by its chief executive officer, and a union and/or a unionized employee are enforceable and binding upon the public employer to the extent that the provisions thereof do not require approval by a legislative body.** The court noted that the chief executive officer of the School District, and pursuant to the powers and duties set forth in Education Law §1711(2)(e), was authorized to enter into the Taylor Law agreement insofar as it pertained to the maintenance of Teacher’s personnel file.

* Education Law § 3012(3) provides that "no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights."

**§204-a of the Civil Service Law states that provisions in a written agreements between the employer and an employee organization are conditional to the extent that provisions set out in such agreement requiring legislative action to permit its implementation by amendment of law or by providing the additional funds therefor, shall not become effective until the appropriate legislative body has given approval.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05471.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 4, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 4, 2015

[Click on the material highlighted in blue to access the full report] 

State Comptroller seeks to return lost or forgotten money held the Department of Audit and Control's unclaimed fund account to it rightful owners

Staff from New York State Comptroller Thomas P. DiNapoli’s office will attend community events around the state this month to help residents search for lost and forgotten money, also known as unclaimed funds. DiNapoli oversees 33 million unclaimed funds accounts until the money can be returned to its rightful owners.

“I encourage everyone to come out to the community events to search for money that may be waiting for you,” DiNapoli said. “We return more than a million dollars a day to residents across the state, but we want to do more. It’s your money, we want to give it back.”

Unclaimed funds is more than $14 billion in lost and forgotten money dating back to the 1940s. The money comes from old bank accounts, utility deposits, uncashed checks, insurance claims, stocks and other sources that have been dormant for a number of years.

Residents who cannot make it to the events can search for and claim their money by using the online claiming system or by calling 1-800-221-9311.

View a map of unclaimed fundsowed to New Yorkers by county and region. Learn more about Unclaimed Funds.

Date	Event	Location	County
Southern Tier Region
July 13-18 10:00am-10:00pm	Allegany County Fair	15 North Street Angelica, New York	Allegany
Finger Lakes Region
July 11 10:00am-6:00pm   July 12 10:00am-5:00pm	Corn Hill Arts Festival	11 Atkinson Street Rochester, New York	Monroe
Central New York
July 10 12:00pm-7:00pm   July 11 8:00am-4:30pm	Boilermaker Health & Fitness Expo	Mohawk Valley Community College 1101 Sherman Drive Utica, New York	Oneida
Western New York
July 18 10:00am-6:00pm   July 19 10:00am-5:30pm	Oatka Festival	Trigon Park Wolcott Street Leroy, New York	Genesee
Adirondack Mountains
July 24 5:00pm-11:00pm   July 25 11:00am-11:00pm   July 26 11:00am-5:00pm	Great American Irish Festival	Herkimer County Fairgrounds 198 Cemetery Street Frankfort, New York	Herkimer

Agriculture and Market – Uncollected Penalties
An initial report issued in July 2013 found that outstanding penalties routinely had no collection activity for two years or more and were often deemed uncollectible. This audit also found that there was a lack of a separation of duties associated with the collection of payments. The system used to track outstanding penalties was incomplete and often inaccurate and there was a lack of communication and information flow in the department. In a follow-up, auditors found department officials have made progress in addressing the problems identified in the initial audit. Of the eight prior audit recommendations, six were implemented and two were not implemented. 
http://osc.state.ny.us/audits/allaudits/093015/15f8.pdf

NYC Adminsitration for Children’s Services – Limited Competition Contracts

Auditors found ACS officials did not always comply with the Procurement Rules and document their justification for awarding certain non-competitive and limited-competition contracts. ACS officials did not provide sufficient oversight of contractor performance. Officials renewed or extended contracts with some vendors that had poor performance. In fact, 12 sampled contract vendors received less-than-satisfactory performance ratings. For 9 of the 12 vendors, children in their care were abused by employees or foster parents. Consequently, in some cases, the health and safety of children were placed at risk.

http://osc.state.ny.us/audits/allaudits/093015/13n2.pdf

Education Department – Compliance with Reimbursement Cost Manual

Whispering Pines, a for-profit special education provider of center- and home-based services to infants, toddlers, and preschool-age children in nine counties, claimed $146,972 in ineligible costs for three rate-based programs for the two years covered in the audit. The ineligible costs included: $71,397 in personal service costs consisting of salary and fringe benefits paid to the director’s husband and bonuses paid to some personnel; and $75,575 in non-personal service costs, including $33,688 in ineligible or unnecessary vehicle and equipment costs, $25,644 in ineligible interest expense, $3,798 in unnecessary contracted services, and $12,445 in other non-reimbursable costs.

http://osc.state.ny.us/audits/allaudits/093015/13s48.pdf

Department of Health – Facility Structure

DOH waiver practices do not effectively ensure that safety and structural risks related to physical plant standards at health care facilities are appropriately addressed. DOH’s internal controls, including monitoring and internal communications efforts, were lacking and led to a backlog of at least 179 unprocessed waiver requests at the time of the audit. DOH lacked formal written policies and procedures governing the waiver process, and did not maintain sufficient collective documentation supporting waiver applications, approvals, and monitoring efforts.

http://osc.state.ny.us/audits/allaudits/093015/14s27.pdf

Department of Health – Medicad payments

DOH officials have made minimal progress in recovering the $7.3 million in Medicaid overpayments auditors identified in a report issued in July 2013. At the time of the follow-up audit, $3,125 was recovered, but more than $1 million in potential recoveries were likely lost due to the inaction on overpayments for claims that are now more than six years old.

http://osc.state.ny.us/audits/allaudits/093015/15f4.pdf

Clifton Park-Halfmoon Fire District #1

The district’s Length of Service Awards Program (LOSAP) point system is not consistent with state law. Some firefighters did not receive all of the LOSAP points to which they were entitled.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/cliftonparkhalfmoon.pdf

Clifton ParkVolunteer Fire Department

Overall, auditors found that the department has good controls over financial activity. However, officials have not adopted written procedures to provide specific guidance to the department treasurer.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/cliftonpark.pdf

Town of Fishkill

The town has made progress implementing corrective action. Of the six previous audit recommendations, two recommendations were fully implemented and four recommendations were partially implemented.

http://www.osc.state.ny.us/localgov/audits/towns/2015/fishkillfollowup.pdf

Hamburg Industrial Development Agency

IDA officials developed a uniform tax exemption policy for project selection, but the method of determining the benefits to be provided is not well defined. The board did not implement an adequate system to monitor approved projects and did not develop an adequate recapture policy to allow for the recovery of previously granted benefits if job creation, economic goals or other terms of the agreements are not met.

http://www.osc.state.ny.us/localgov/audits/ida/2015/hamburg.pdf

Town of Hebron

The supervisor did not provide the board with adequate monthly financial reports, and the town’s procedures for auditing claims and signing checks were not in compliance with town law.

http://www.osc.state.ny.us/localgov/audits/towns/2015/hebron.pdf

Pultneyville Fire District

The board generally provides adequate oversight of the district’s financial activities, but should make certain improvements. For example, the board did not complete, or contract with an independent accountant to complete, an annual audit of the district’s records.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/pultneyville.pdf

 
Waterford Volunteer Fire District

The board ensured that the controls over the cash disbursement process were adequate and auditors did not find any questionable bank withdrawals or payments.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/waterford.pdf