Employer has an obligation to provide information reasonably necessary for contract administration made in the context of disciplinary grievances

Employer has an obligation to provide information reasonably necessary for contract administration made in the context of disciplinary grievances

City of New York v New York State Nurses Assn., 2015 NY Slip Op 04437, Appellate Division, First Department

The Board of Collective Bargaining of the City of New York [Board] granted an improper practice petition to the extent of compelling the City of New York to disclose certain materials requested by the New York State Nurses Association in connection with employee disciplinary proceedings. 

The Appellate Division said that the question presented to this Court is not whether we agree with the administrative agency's determination that a union was entitled to obtain certain documents relevant to disciplinary proceedings against two of its members, but simply whether the determination was rationally based. 

The court said it found no basis to annul the Board’s determination, explaining that the Board’s decision is entitled to substantial deference as it engaged in a thorough analysis of its enabling statute, its own precedent, the underlying collective bargaining agreement, and relevant Appellate Division jurisprudence.

The Appellate Division also noted that in making its determination, the Board discussed several of its prior orders holding that the duty to furnish information pursuant to Administrative Code of the City of New York §12-306(c)(4) extends to information "relevant to and reasonably necessary for purposes of collective negotiations or contract administration," and that it also applies in the context of "processing grievances." 

Accordingly, said the court, the Board determined that although the agreement "does not explicitly obligate the parties to provide requested information in conjunction with the disciplinary process," the statutory "obligation to provide information reasonably necessary for contract administration applies to requests made in the context of disciplinary grievances, and that failure to provide such materials upon request" constitutes an improper practice.

Vacating the ruling of the Supreme Court annulling the Board’s determination, the Appellate Division reinstated the Board’s decision and dismissed this proceeding brought pursuant to CPLR Article 78.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04437.htm

Massachusetts adopts new disciplinary rules addressing lawyers maintaining confidentiality when using new technologies in the practice of law

Massachusettsadopts new disciplinary rules addressing lawyers maintaining confidentiality when using new technologies in the practice of law

Source: The Daily Record, Rochester, New York

Nicole Black, Esq., writing in the Daily Record, notes that technological change has increased dramatically in recent years, making it difficult for lawyers to keep abreast of new developments.

Ms. Black reports that on July 1, 2015 the revised Massachusetts Rules of Professional Conduct became effective. These new rules included revisions to sections addressing the obligation to maintain the confidentiality of client information when using new technologies and the duty to stay abreast of changes in technology.

In particular, Ms. Black notes that “Comment 8 to Rule 1.1, which addresses the duty of competence, was revised to require lawyers to stay abreast of changes in technology. It now states that ‘(t)o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, and engage in continuing study and education.’”

Ms. Black’s article is posted on the Internet at:

http://nylawblog.typepad.com/suigeneris/daily_recordlegal_currents_column/index.html

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 15, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 15, 2015

[Click on text highlighted in colorto access the full report]

Former Town Supervisor plead guilty to extortion and making false statements

Former Town of Halfmoon Supervisor Melinda Wormuth pled guilty to two felony counts charging her with extortion and making a false statement before Chief U.S. District Court Judge Gary L. Sharpe in federal court in Albany, announced by State Comptroller Thomas P. DiNapoli with United States Attorney Richard S. Hartunian and Andrew W. Vale, Special Agent in Charge of the Albany Division of the Federal Bureau of Investigation along with Attorney General Eric Schneiderman.

http://www.osc.state.ny.us/press/releases/aug15/081015a.htm?utm_source=weeklynews20150816&utm_medium=email&utm_campaign=081015arelease 

NYC Subway “on-time” performance deteriorating

Train delays have increased as the subway system’s on-time performance has steadily deteriorated and the Metropolitan Transportation Authority should do more to fix the underlying causes, many of which are controllable, according to an audit released by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/audits/allaudits/093015/14s56.pdf

NYS job growth in 2014 continued a four-year trend

New York reached its highest employment level ever of more than 9 million jobs in 2014, after adding 538,000 jobs since 2009, according to a report released by State Comptroller Thomas P. DiNapoli. The overall job growth in 2014 alone was 143,000 – the strongest growth since 2000 – and capped four years of steady gains.

http://www.osc.state.ny.us/reports/economic/employment_trends_nys_2015.pdf 

NYS Common Retirement Funds experienced a challenge during the first quarter of 2015
The New York State Common Retirement Fund’s overall return in the first quarter of the state fiscal year 2015-2016 was 0.52 percent for the three-month period ending June 30, 2015, with an estimated value of $182.5 billion, according to New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/aug15/081415.htm?utm_source=weeklynews20150816&utm_medium=email&utm_campaign=081415release

A court’s review of a decision of the Commissioner of Human Rights is not whether the court would have reached the same result but was the Commissioner's determination rational in light of the evidence presented

A court’s review of a decision of the Commissioner of Human Rights is not whether the court would have reached the same result but was the Commissioner's determination rational in light of the evidence presented
Rensselaer County Sheriff's Dept. v New York State Div. of Human Rights, 2015 NY Slip Op 06551, Appellate Division, Third Department

In this appeal to review a determination of the Commissioner of Human Rights [Commissioner] which, among other things, found Rensselaer County Sheriff’s Department [RCSD] guilty of an unlawful discriminatory practice based on gender, the Appellate Division said that when a court is reviewing a determination made by the Commissioner in a matter such as this one, the court’s purview is "extremely narrow" and must focus not on whether the court would have reached the same result as did the Commissioner, but instead on whether the Commissioner's determination was rational in light of the evidence presented.

An Administrative Law Judge, after holding a hearing, found that a woman employed [Employee] at the RCSD had shown that she was sexually harassed by male coworkers and recommended that the Department be ordered to pay the woman nearly $450,000 in economic damages and $300,000 in noneconomic damages. The Commissioner of Human Rights adjusted the amount of economic damages to approximately $315,000, but otherwise adopted the ALJ's recommendations in all pertinent respects.

RCSD appealed in an effort to have the court annul the Commissioner's final determination. 

The Appellate Division noted that "Where, as here, there is a finding of a hostile work environment as a result of sexual harassment, the evidence in the record must establish the pertinent elements, including proof that the discriminatory conduct occurred due to the complainant's gender."

Considering the evidence presented at the hearing, said the court, there is a rational basis for the determination that, but for Employee’s gender, she would not have suffered the harassment that she described and that such harassment altered the conditions of her employment so as to create an abusive work environment. Notably, said the court, the ALJ credited Employee’s testimony and the Appellate Division said that it would defer to that determination.

Relying on that credited testimony, the proof established that the persons harassing Employee were all male members of a group of friends and coworkers who were identified, as a group, by their gender.

The Appellate Division declined to reduce Employee's $300,000 award for noneconomic injuries, explaining that “[a]n award for noneconomic damages will be upheld where it is reasonably related to the wrongdoing, supported by substantial evidence and comparable to other awards for similar injuries.” Employee had testified that the male coworkers' harassment led to extensive psychological trauma that included "suicidal ideations" and required medication. Employee's psychiatrist confirmed such testimony and he testified that he had diagnosed Employee with post-traumatic stress disorder and major depressive disorder. The psychiatrist opined that the causes of such conditions were Employee’s frequent and recurring thoughts regarding the harassment that she suffered at the correctional facility.

Considering Employee's testimony and the medical proof elaborating on the severe effects that the discrimination had on her, the Appellate Division ruled that the award “is reasonably related to the wrongdoing, supported by substantial evidence and comparable to awards for similar injuries.”

Addressing another element in this appeal, the Appellate Division said that by its unambiguous terms, Workers' Compensation Law §29(1) grants a lien without any exception for when an award of damages has already been reduced in recognition of a workers' compensation award. However, said the court, it rejected “the notion that an award that would be subject to such a lien may be reduced at the outset, because such a scheme is inconsistent with Workers' Compensation Law §29(1). 

Accordingly, the Appellate Division found that the Commissioner erred as a matter of law by reducing Employee’s award for past lost wages by $88,200 and her award for future lost wages by $176,400 on the basis of workers' compensation benefits. 

Further, the court said it agreed with Employee that the damages should have properly reflected consideration of “the pension that she would have received absent the harassment,” given that any remedy should "make the victim whole for injuries suffered as a result of discriminatory employment practices," citing Beame v DeLeon, 87 NY2d 289. In Lamot v Gondek, 163 AD2d 678, the court said it had “unambiguously established” that such a remedy includes the consideration of "pension rights [that are] established with reasonable certainty" and ruled that the Commissioner's order that Employee “take steps to involve the Office of the State Comptroller and the New York State and Local Retirement System — presumably to have them provide an actual pension — was an abuse of discretion.” 

The court then remitted the matter for “the limited purpose of resolving the amount of damages that will make [Employee] whole to the extent that her pension has been diminished, in whole or in part."*

Finally, RCSD contended that Employee failed to mitigate damages relating to her pension to the extent that she failed to obtain a collateral offset in the form of disability retirement benefits. The court said that to the extent it is relevant here, RCSD and not Employee bore the burden of establishing its entitlement to a collateral offset* by clear and convincing evidence” that Employee was obligated to mitigate damages by obtaining a collateral offset and RCSD failed to meet its burden in that regard.

The Appellate Division then modified the Commissioner’s determination by (1) increasing the award for past lost wages from $107,558.51 to $195,758.51, (2) increasing the award for future lost wages from $208,837.02 to $385,237.02, and (3) remitting the matter to the New York State Division of Human Rights for a determination of damages related to Employee’s pension.

* The Appellate Division noted that in Weiss v New York State Human Rights Appeal Bd., 102 AD2d 471, the Weiss court had found that the “Commissioner erred in ordering [the] state employer to provide the promotion to a victim that the victim would have received absent age discrimination instead of providing a proper award of monetary damages.”

** A collateral source payment that particularly corresponds to a category of loss for which damages are awarded .

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06551.htm

NYS Comptroller DiNapoli releases state audits

NYS Comptroller DiNapoli releases state audits

Source: Office of the State Comptroller

On August 13, 2015 New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued [Click on text highlighted in color to access the full report]:

Development Authority of North Country [DNAC]

Auditors determined that DANC officials have provided appropriate oversight for procurements and the loan programs, having established policies and procedures and maintained sufficient monitoring systems. However, auditors did identify areas where DANC could improve its operations, specifically in terms of procurement reporting and determining reasonable cost.

http://osc.state.ny.us/audits/allaudits/093015/15s3.pdf

NYS Energy Research and Development Authority [NYSERDA]

Auditors found that although NYSERDA has policies and procedures governing the contract award process, certain policies and procedures were not always followed for 19 of the 69 contracts reviewed. NYSERDA did not effectively monitor contract expiration dates to ensure that successor contracts were in place prior to the expiration of the previously existing contracts for similar or related work. NYSERDA also did not adequately document the justification for allocating projects (related to four contracts) to certain contractors when there were nine additional contractors pre-qualified for the same work.

http://osc.state.ny.us/audits/allaudits/093015/15s35.pdf

Office of Temporary and Disability Assistance [OTDA]

Auditors found the OTDA’s internal control system appropriately addresses all five components of internal control. As a result, the office has multiple mechanisms in place for implementing and evaluating the effectiveness of its internal control system.

http://osc.state.ny.us/audits/allaudits/093015/14s49.pdf

State Education Department [SED] – Summit Educational Resources

For the fiscal year ended June 30, 2013, auditors identified $28,176 in other than personal service costs that did not comply with SED’s requirements for reimbursement. The disallowances included $26,754 for consultant services and $1,422 in various other costs that were ineligible for reimbursement. Auditors also questioned another $34,357 in costs for consultant services and information technology procurements that were not obtained through competitive bidding practices.

http://osc.state.ny.us/audits/allaudits/093015/14s49.pdf

State Education Department [SED] – Clinical Associates of the Finger Lakes

Auditors identified $72,401 in costs that did not comply with SED’s requirements for reimbursement. The disallowances included $54,751 in various other-than-personal-service costs, such as property related costs and vehicle expenses, and $17,650 in personal service costs.

http://osc.state.ny.us/audits/allaudits/093015/14s61.pdf

State Education Department – Hear 2 Learn, PLLC

For the fiscal year ended June 30, 2013, Hear 2 Learn charged $20,851 in costs that did not comply with SED’s requirements for reimbursement. The disallowances included $10,957 in other than personal service costs and $9,894 in personal service and associated fringe benefit costs that were either non-reimbursable, incorrectly reported, or not properly documented.

http://osc.state.ny.us/audits/allaudits/093015/14s74.pdf

Tuition Assistance Program, State Financial Aid at Barnard College

Auditors determined that Barnard was overpaid $106,333 because school officials incorrectly certified students as eligible for state financial aid awards. Incorrect certifications include 11 students who received awards but had not met the good academic standing requirements and six students who did not meet the full-time requirements. Additional incorrect certifications include two students who had not met matriculation requirements and one student who had not demonstrated the required academic preparedness.

http://osc.state.ny.us/audits/allaudits/093015/15t1.pdf