Selected Reports issued by the Office of the State Comptroller during the week ending February 13, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending

February 13, 2016

Click on text highlighted in color to access the full report

Rochester area businessman enters guilty plea for bid rigging

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Daniel Lynch, a Rochester-area businessman, for working with others to rig the bidding process for multi-million dollar public works contracts in Monroe County.
http://www.osc.state.ny.us/press/releases/feb16/020916.htm?utm_source=weeklynews20160214&utm_medium=email&utm_campaign=020916release

Amount of overtime worked by employees of state agencies continues to increase
Overtime pay at state agencies jumped for the sixth straight year to a record $716 million in 2015 – up nearly $55 million from the year before, according to a reportreleased by State Comptroller Thomas P. DiNapoli. The total number of overtime hours worked also increased, continuing a trend that began in 2011.

http://www.osc.state.ny.us/press/releases/feb16/021216.htm?utm_source=weeklynews20160214&utm_medium=email&utm_campaign=021216release

Municipal audits completed

Ballston Area Recreation Commission, - Board oversight

Longwood Public Library - Managing bank accounts

Upper Mohawk Valley Regional Water Board – Water accountability

School audits completed

Madison Central School District – Procurement of professional services

Starpoint Central School District – Financial condition

Hearing officer credits the agency's witnesses' testimony that their conduct towards the disciplined employee was not discriminatory or retaliatory

Hearing officer credits the agency's witnesses' testimony that their conduct towards the disciplined employee was not discriminatory or retaliatory
Rigaud v City of New York, 2016 NY Slip Op 00628, Appellate Division, First Department

The New York City Police Commissioner approved the disciplinary hearing officer's finding that Clifford M. Rigaud was guilty of misconduct and imposed a penalty of a “one-year dismissal probation period” and the forfeiture of 30 suspension days and 20 vacation days. The Appellate Division sustained the Commissioner’s decision.

The court said that substantial evidence supports the findings of misconduct, rejecting Rigaud’s contentions that his conduct and loss of temper were justified responses to allegedly discriminatory conduct by coworkers and superiors and retaliation for discrimination complaints which he filed, noting that the hearing officer credited the agency's witnesses' testimony, including their testimony that their conduct was not discriminatory or retaliatory.

Citing Berenhaus v Ward, 70 NY2d 436, the Appellate Division ruled that the Commissioner did not abuse his discretion in imposing the penalty, “which is not shockingly disproportionate to the offense.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00628.htm

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Arbitrator to determine if contract clauses alleged in a grievance involve substantive contract provisions

Arbitrator to determine if contract clauses alleged in a grievance involve substantive contract provisions

Matter of Onondaga-Cortland-Madison Bd. of Coop. Educ. Servs. (Onondaga-Cortland-Madison BOCES Federation of Teachers, 2016 NY Slip Op 00796, Appellate Division, Fourth Department

Onondaga-Cortland-Madison Bd. of Coop. Educ. Servs. [BOCES] initiated an Article 75 proceeding seeking a permanent stay of arbitration of a grievance that alleged that BOCES violated certain provisions of relevant collective bargaining agreement (CBA) by changing the prescription copay benefit for its retirees. Supreme Court denied the petition and granted the cross-petition of the Onondaga-Cortland-Madison BOCES Fedn. of Teachers [Federation] to compel arbitration. The Appellate Division affirmed Supreme Court’s ruling.

The Appellate Division rejected BOCES’ contention that the matter was not arbitrable because the CBA provisions applied to the employees and not to retirees, and thus that there is no reasonable relationship between the copay benefit for retirees and the general subject matter of the respective CBAs.

Citing Village of Kenmore [Kenmore Club Police Benevolent Association, 114 AD3d 1185, (leave to appeal denied, 23 NY3d 903), the court explained that the issues concerning [the Federation’s] relationship to retired employees and the issues concerning [1] whether retirees are covered by the grievance procedure and [2] whether the clauses of the contract[s] support the grievance “are matters involving the scope of the substantive contractual provisions and, as such, are for the arbitrator" to resolve.

The Appellate Division said that it was “well settled that the court must conduct a two-part analysis in determining whether an issue is subject to arbitration pursuant to a CBA.” The first test: is there any statutory, constitutional or public policy prohibition against arbitration of the grievance. The second test: "is there a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Unanimously denying its appeal, the Appellate Division noted that BOCES “correctly concedes that the second test considered in the analysis is at issue here.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00785.htm

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Francois v Walcott, 2016 NY Slip Op 00760, Appellate Division, First Department

The Appellate Division unanimously affirmed a determination by Supreme Court, New which denied the petition filed by Coquita Francois seeking to annul her termination during her probationary employee, to vacate her unsatisfactory rating for the 2012-2013 school year, and to reinstate her employment.

The Appellate Division explained that “[i]t is well established that a ‘probationary employee may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law.’”

Francois, said the Appellate Division, failed to demonstrate an improper basis for the termination of her probationary employment. In contrast, the employer’s documentary evidence provided a rational basis for the determination that Francois’ job performance was unsatisfactory.

Although Francois disputed the principal's account of events and the principal's opinion of her job performance, the Appellate Division said that she “failed to show that certain irregularities in the review process demonstrated bad faith or deprived her of a substantial right” and dismissed her appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00760.htm

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Matter of Hopton (Commissioner of Labor), 2016 NY Slip Op 00743, Appellate Division, Third Department

Nina Hopton, a correction officer, was served with disciplinary charges alleging that she had violated her employer's rules [1] by having an improper personal relationship with an inmate and [2] by giving false statements to investigators regarding that relationship.

Following a disciplinary hearing held in accordance with Civil Service Law §75, an Administrative Law Judge found there was evidence sufficient to support the bulk of the charges filed against Hopton and recommended that she be dismissed from her position. The appointing authority accepted the findings and recommendations of the Administrative Law Judge and terminated Hopton employment.

Hopton applied for unemployment insurance benefits but the Unemployment Insurance Appeal Board [Board] denied her claim on the ground that she lost her employment due to misconduct. Hopton appealed the Board’s ruling.

The Appellate Division sustained the Board’s decision, explaining that the Board “properly gave collateral estoppel effect to the factual findings stemming from the disciplinary hearing inasmuch as the record establishes that [Hopton] had a full and fair opportunity to litigate the issue of misconduct at that hearing."

Although Hopton contended that she was appealing the disciplinary determination, the Appellate Division said that such an appeal “does not preclude the application of collateral estoppel.” In any event, said the court, the Board “drew its own conclusions that [Hopton’s] behavior, which involved violations of known policies of the employer and were detrimental to the employer's best interest, constituted disqualifying misconduct for the purpose of [eligibility for] unemployment insurance benefits."

Finding that substantial evidence supported the Board's decision, the Appellate Division said “it will not be disturbed.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00743.htm

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