Selected Reports issued by the Office of the State Comptroller during the week ending October 17, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending October 17, 2015

Click on text highlighted in color to access the full report

School Audits:

Bayport-Blue Point Union Free School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/bayportbluepoint.pdf?utm_source=weeklynews20151018&utm_medium=email&utm_campaign=101515release

Chappaqua Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/chappaqua.pdf?utm_source=weeklynews20151018&utm_medium=email&utm_campaign=101515release

Copiague Union Free School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/copiague.pdf?utm_source=weeklynews20151018&utm_medium=email&utm_campaign=101515release

Spackenkill Union Free School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/spackenkill.pdf?utm_source=weeklynews20151018&utm_medium=email&utm_campaign=101515release

Western New York Maritime Charter School

http://www.osc.state.ny.us/localgov/audits/schools/2015/western_ny_maritimecharter.pdf?utm_source=weeklynews20151018&utm_medium=email&utm_campaign=101515release

Capital Planning Problems at NY Racing Association

Problems with capital planning remain for the New York Racing Association (NYRA) years after a reorganization that was intended to strengthen its finances and operations. Auditors found that NYRA failed to adequately prioritize important capital projects and formally estimate project costs funded by Video Lottery Terminal (VLT) revenue, according to an audit released by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/audits/allaudits/093016/14s54.pdf

Some exceptions to the Doctrine of the Exhaustion of Administrative Remedies

Some exceptions to the Doctrine of the Exhaustion of Administrative Remedies

McLaughlin v Hankin, 2015 NY Slip Op 07272, Appellate Division, Second Department

In a CPLR Article 78 proceeding challenging the determination of the president of Westchester Community College to terminate petitioner Catherine McLaughlin’s employment with the college, the college raised an affirmative defense contending that McLaughlin failed to exhaust her administrative remedies under the relevant collective bargaining agreement [CBA] between the college and the Westchester Community College Federation of Teachers, American Federation of Teachers Local 2431 [Local 2431].

Supreme Court granted McLaughlin’s petition, finding that the McLaughlin was prevented from availing herself of the remedial provisions of the CBA by Local 2431’s decision not to press her claim.*

The Appellate Division reversed the lower court’s ruling, explaining that, as a general rule, an employee covered by a CBA that provides for a grievance procedure must exhaust administrative remedies prior to seeking judicial remedies except where the individual can prove that the union breached its duty of fair representation in the handling of the employee's grievance. Further, said the court, citing Civil Service Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188, a union’s breach of its duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or its decision was made in bad faith.**

In her complaint McLaughlin did not allege that Local 2431’s conduct was arbitrary, discriminatory, or that its decision was made in bad faith, and, said the court, the record does not support such a conclusion.  

Accordingly, the Appellate Division ruled that as McLaughlin failed to establish that an exception to the exhaustion doctrine was applicable, Supreme Court should have denied her petition and dismissed the proceeding on the merits.

Additionally, in Cox v Subway Surface Supervisors Association, et al., 69 AD3d 438, the Appellate Division, addressing a union’s duty of fair representation, said:

1. The individual must be in the negotiating unit represented by the union when the breach of the union’s duty of fair representation is alleged to have occurred;*** and

2. In the event the individual has standing to claim a breach in his or her union’s duty of fair representation, the fact that the individual disagrees with the union’s action or negotiating position does not, without more, constitute proof of union’s failure of its duty of fair representation.

* In Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, the court held that "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation.”

** Should a unit member sues a union for its alleged violation of its duty of fair representation, he or she must name the specific individual or individuals involved in, or whose actions constituted, the violation [see Grahame v Rochester Teachers’ Associations, 262 AD2d 963, motion for leave to appeal denied, 94 NY2d 796].

*** In Burnham and UFT, 28 PERB 4590, PERB ruled that the union's "duty of fair representation" runs only to employees; there is no such duty with respect to former unit members such as retirees. 

N.B. In Baker v Irondequoit CSD, 70 NY2d 314, the Court of Appeals held that a union's duty to process a former employee's grievance, under some circumstances, survives the employee's separation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07272.htm

Unemployment insurance benefits denied because claimant’s employment was terminated due to misconduct

Unemployment insurance benefits denied because claimant’s employment was terminated due to misconduct

Matter of Malcolm (Honeoye Falls-Lima Cent. Sch. Dist.--Commissioner of Labor), 2015 NY Slip Op 07306, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled, among other things, that Bernice Malcolm was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

Malcolm, a special education teacher, challenged the Board’s finding that she lost her employment due to disqualifying misconduct, stemming from conduct and circumstances that led to the preferment of charges by the employer against her.

The Appellate Division said that it is well settled that a "[v]iolation of an employer's known policies, as well as unauthorized absence from work, have been held to constitute disqualifying misconduct," citing Matter of Maldonado, 118 AD3d 1246.

Here, said the court, the record establishes that, although the employer informed Malcolm that approval for an unpaid leave of absence was required before she commenced an administrative internship at another school, Malcolm failed to request any leave of absence and, instead, used paid sick leave for part of that period. In addition, the record indicated that Malcolm did not submit to a scheduled medical examination required by her employer in order to validate her absence from work or comply with her employer's directive to return to work. The decision also noted that testimony by her employer also established that Malcolm abused the employer's paid leave and bereavement polices on various other occasions.

Under the circumstances presented herein, the Appellate Division found that the Board's finding of misconduct is supported by substantial evidence in the record. As to Malcolm assertion that her absences were justified and not improper, the court said that “this claim presented a credibility issue for the Board to resolve.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07306.htm

A correction officer’s work-related injury must be caused by direct interaction with an inmate in order to qualify for RSSL §507-b disability retirement benefits

A correction officer’s work-related injury must be caused by direct interaction with an inmate in order to qualify for RSSL §507-b disability retirement benefits

Laurino v DiNapoli, 2015 NY Slip Op 07327, Appellate Division, Third Department

Helena T. Laurino, a correction officer, worked in the Regional Medical Unit at Fishkill Correctional Facility. When an inmate informed her that another inmate was having a seizure, she investigated and found the inmate walking in a daze. When Laurino and a nurse “slowly lowered him to the floor, he went limp and started to fall.”

Although the inmate did not struggle or strike Laurino while she was holding on to him, she, nevertheless,  injured her right shoulder while guiding his fall. As a result of this incident, she filed an application for performance of duty disability retirement benefits pursuant to Retirement and Social Security Law §507-b.

Laurino’s application was denied by the NYS Employees' Retirement System on the ground that her injury was not the result of an act of an inmate. Following a hearing, a Hearing Officer agreed and recommended that Laurino's application be denied. The Comptroller accepted the Hearing Officer's recommendation and issued a final determination denying her benefits.

The Appellate Division affirmed the Comptroller’s decision, noting that Retirement and Social Security Law §507-b (a) provides for performance of duty disability retirement benefits to correction officers employed by the Department of Corrections and Community Supervision who are unable to perform their job duties "as the natural and proximate result of an injury, sustained in the performance or discharge of [their] duties by, or as a natural and proximate result of, an act of an inmate."

While the statute does not specifically define an "act of an inmate," the court said that the legislative history reveals that "the statute was clearly intended to compensate correction officers who, because of the risks created by their 'daily contact with certain persons who are dangerous [and] profoundly antisocial' . . . become permanently disabled."

The Appellate Division explained that, in accordance with this intent, courts have construed the language to require that the injuries be caused by direct interaction with an inmate in order to qualify for benefits under the statute.

Although Laurino contended that she had direct interaction with the inmate while she was lowering him to the floor during his seizure, citing Esposito v Hevesi, 30 AD3d 667, the court pointed out that in analogous circumstances where a correction officer was injured while assisting an incapacitated inmate during a medical emergency, it held that the "inmate was not engaged in any act that was a proximate cause of [Esposito's] . . . injury."

The Appellate Division ruled that substantial evidence in the record supported the Comptroller’s denial of Laurino‘s application on the basis that her injuries were not the result of an act of an inmate within the meaning of Retirement and Social Security Law §507-b, explaining that it perceived no meaningful distinction between this case and the ruling in Esposito v Hevesi.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07327.htm

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Only persons who are directly affected by the act or omission being challenged have standing to appeal to the Commissioner of Education pursuant to Education Law §310

Only persons who are directly affected by the act or omission being challenged have standing to appeal to the Commissioner of Education pursuant to Education Law §310

Appeal of Diane Payson, Decisions of the Commissioner of Education, Decision 16,830

This appeal challenged the elimination of certain school counselor positions and implementation of its guidance program. 

Diane Payson, a certified school counselor, was previously employed by the Mount Pleasant Cottage Union Free School District, a special act school district.  The district made staff reductions in its counseling program. Initially Payson’s full-time position was changed to a part-time position, effective June 30, 2014 and subsequently her position was abolished effective September 23, 2014.

Payson contended, on behalf of students in grades nine through twelve, that the School District’s guidance counselor program does not meet the requirements set forth in §100.2 of the Commissioner’s regulations, alleging that as a result of the elimination of her position there are no certified school counselors in the district and that School District is improperly using untrained certified social workers and school psychologists to take on the duties of a school counselor.  Payson asked the Commission to direct the School District to reinstate her to her full-time school counselor position in the guidance program, “with compensation for lost salary.”

Addressing a procedural issue, standing, the Commissioner said that an individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights and only persons who are directly affected by the action being appealed have standing to bring an appeal.

To the extent that Payson’s appeal alleges that by eliminating her school counselor position and those of others, the School District is not in compliance with Commissioner’s regulations in providing guidance programs to students in grades nine through twelve the Commissioner noted that [1] she did not allege that she is the parent of any student in School District and [2] she may not assert the rights of children not her own. Accordingly, the Commissioner ruled that to the extent that Payson asserted claims on behalf of students, she lacks standing to maintain the appeal and such claims must be dismissed. 

To the extent that Payson complains of the loss of her employment as a result of the School District’s alleged noncompliance with Commissioner’s regulations, for which she seeks reinstatement and back pay as relief, she has alleged the requisite personal injury.  Consequently, said the Commissioner, Payson had standing to maintain that claim.

The Commissioner then dismissed Payson’s appeal on the merits, explaining that in  an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. Citing Steele v. Bd. Of Educ. of the City of New York, 40 NY2d 456, the Commissioner noted that the Court of Appeals has held that “[i]t is not enough to merely show ... that all guidance counseling positions have been eliminated....  The requisite programs could likely be maintained by utilizing the services of certified personnel whose primary duties are in other positions.  Since there has been no showing that any guidance and counseling programs have been wholly eliminated, we conclude that this portion of the petition was properly dismissed....”

Other than speculation, the Commissioner said that Payson did not introduce any evidence that School District is not providing a guidance program in compliance with §100.2(j) of the Commissioner’s regulations. Accordingly, the Commissioner said that “On this record” she could not conclude that Payson has carried her burden and established a clear right to relief.

Notwithstanding the Commissioner’s being “constrained to dismiss the appeal,” she said  “I am mindful that the student population in respondent’s school district consists of students with disabilities and that any failure to provide services prescribed in a student’s individualized education program, including the provision of transition services, may constitute a violation of the federal Individuals with Disabilities Education Act, Article 89 of the Education Law, and/or Part 200 of the Commissioner’s regulations.”

The Commissioner then opined that although Payson did not carry her “burden of proof sufficient to warrant relief in this appeal, the record does present issues worthy of review by my Office of Special Education.” The Commissioner then said she would refer this matter to that office for review to ensure that the School District’s guidance program “is sufficient to ensure compliance with requirements of federal and State law pertaining to students with disabilities.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16830

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