A party challenging a rule or regulation adopted by a State agency has the heavy burden of showing that the regulation was unreasonable and unsupported by any evidence

A party challenging a rule or regulation adopted by a State agency has the heavy burden of showing that the regulation was unreasonable and unsupported by any evidence

New York State Corr. Officers and Police Benevolent Assn., Inc. v New York State Off. of Mental Health, 2016 NY Slip Op 02696, Appellate Division, Third Department

The New YorkState Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA], representing certain personnel at psychiatric centers operated by Office of Mental Health [OMH], brought an Article 78 action challenging an OMH emergency regulation* that required personnel employed at psychiatric centers operated by OMH and psychiatric facilities licensed under the Mental Hygiene Law who had not been vaccinated against influenza to wear face masks in areas where patients might be present during influenza season. NYSCOPBA contended that the emergency regulation was arbitrary and capricious. Supreme Court dismissed the petition and NYSCOPBA appealed.

In its appeal NYSCOPBA argued that the mandatory mask-wearing requirement was arbitrary and capricious because it fails to take into account the special circumstances present in psychiatric facilities. NYSCOPBA theory: the job responsibilities of the affected personnel included “such functions as assisting psychiatric patients in their treatment and rehabilitation, maintaining their safety and security and modeling appropriate behavior, and that the mask-wearing requirement interferes with their ability to communicate with patients, act as effective role models and otherwise perform their job responsibilities.”

In support of the challenged regulation, OMH submitted, among other things, the affidavit of Lloyd Sederer, Chief Medical Officer for OMH. Sederer said that in promulgating the emergency regulation OMH was "following the lead" of the New York State Department of Health [DOH] which had earlier promulgated a rule** addressing the use of masks to prevent influenza transmission in health care facilities. Sederer said that OMH relied upon the knowledge and expertise of DOH clinicians in deciding to adopt a similar regulation.

In addition to relying upon the expertise of DOH, OMH said that it had also considered research and recommendations from various authorities such as the Centers for Disease Control and the Food and Drug Administration concerning the use of face masks to control the spread of disease. 

OMH also noted its experience in treating the mentally ill indicated that individuals with chronic and serious mental illness suffer higher rates of chronic physical illness than other persons and that recent influenza seasons had been more severe than in the past. Thus OMH determined that the adoption of an emergency regulation, and ultimately a final regulation, in an effort to control influenza transmission was imperative to safeguard the health, safety and welfare of patients.

The Appellate Division said that "[OMH] is entitled to a high degree of judicial deference, especially when act[ing] in the area of its particular expertise,” and decided that NYSCOPBA had failed to meet its heavy burden of showing that the regulation was unreasonable and unsupported by any evidence.

In the words of the Appellate Division, “[t]aken as a whole, the record demonstrates that OMH did not disregard the special circumstances present in psychiatric facilities, but instead weighed these circumstances carefully and reached the reasonable conclusion that any disadvantages associated with mask-wearing in psychiatric facilities were outweighed by the substantial advantages they offered in preventing or reducing the transmission of influenza.”

As NYSCOPBA did not meet its burden of demonstrating that OMH acted arbitrarily, capriciously or unreasonably in promulgating the challenged regulation, the Appellate Division dismissed its appeal.

* The Appellate Division ruled that NYSCOPBA’s petition was not rendered moot by the expiration of the emergency regulation after 90 days. OMH subsequently adopted a permanent regulation that incorporated the mandatory mask-wearing requirement into its Rules concerning preventing influenza transmission [see 14 NYCRR 509].

** In Matter of Spence v Shah, 136 AD3d 1242, the Appellate Division determined that the DOH regulation was not arbitrary, capricious, irrational or contrary to law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02696.htm

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Stapleton v Ponte, 2016 NY Slip Op 02658, Appellate Division, Second Department

The Commissioner of the New York City Department of Correction, adopting and rejecting parts of the recommendation of an Administrative Law Judge [ALJ] following a hearing conducted pursuant to Civil Service Law §75, found Kadar Stapleton guilty of using excessive force upon an inmate and terminated his employment.

Supreme Court denied Stapleton’s CPLR Article 78 petition challenging the Commissioner’s determination and he appealed.

There was but one issue Stapleton raised in his appeal for the Appellate Division to consider: Did the Administrative Law Judge have the lawful authority and jurisdiction to conduct his §75 disciplinary hearing and “make findings and a recommendation?”

The Appellate Division, noting that Civil Service Law §75 governed the disciplinary proceeding at issue in this case, explained that §75 requires that "[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose."

Further, said the court, the failure to designate a hearing officer for a disciplinary hearing in writing, as required by Civil Service Law §75(2), “is a jurisdictional defect that renders the hearing officer's determination null and void.”

In this instance, however, the Appellate Division found that Supreme Court had correctly determined that the ALJ had been properly designated to conduct Stapleton’s §75 disciplinary hearing and to make findings of fact. Further, were the ALJ to find Stapleton guilty of one or more of the charges filed against him, the ALJ was properly authorized to make a recommendation as to the penalty to be imposed.

As the Appellate Division found that Supreme Court properly denied Stapleton’s petition and dismissed the Article 78 proceeding, the court dismissed his appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02658.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations,  disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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A public benefit corporation may not establish an alternate civil service system unless such action is authorized by law

A public benefit corporation may not establish an alternate civil service system unless such action is authorized by law

Civil Serv. Empls. Assn., Inc. v Westchester County Health Care Corp., 2016 NY Slip Op 02649, Appellate Division, Second Department

In Collins v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 361, the Court of Appeals held that “public benefit corporation was not subject to constitutional provisions regarding civil service appointment.” As a general rule, unless the law specifically makes the Civil Service Law applicable to the employees of a public benefit corporation, such persons are not subject to its provi­sions. 

For example, although Section 8087 of the Unconsolidated Laws provides that the employees of the New York City Off-track Betting Corporation are subject to the Civil Service Law and "other laws applicable to civil service personnel," statutes creating other OTBs do not include such a provision. Accordingly, New York courts have ruled that employees of such other OTBs are not in the public service for the purposes of the Civil Service Law.

In 1997 Article 10-C of the New York Health Care Corporations of the Public Authorities Law was amended by adding §§3300 – 3321 to create the Westchester County Health Care Corporation (WCHCC), a “public benefit corporation."* Significantly, §3304.4 provides that WCHCC shall be subject to the civil service law while §3305.12 grants WCHCC the authority “to appoint such officers, employees and agents as the corporation may require for the performance of its duties and to fix and determine their qualifications, duties, and compensation subject to the provisions of the civil service law and any applicable collective bargaining agreement, and to retain or employ counsel, auditors, engineers and private consultants on a contract basis or otherwise for rendering professional, management or technical services and advice.”

In 2013 WCHCC’s Board of Directors, WCHCC's governing body, adopted Resolution No. 29-2013 directing WCHCC's management to "take all steps and provide the resources necessary to establish, administer, and maintain its own civil service system." 

In response to this action by WCHCC the Civil Service Employees Association, Inc. and a number of other employee organizations [CSEA] initiated an Article 78 action contending that the Board acted in violation of the Act directing the establishment of its own civil service system when it approved the Resolution.

Supreme Court agreed, annulling the Resolution and WCHCC appealed.

The Appellate Division said that the standard of review in this proceeding pursuant to CPLR Article 78 is whether “the resolution under review was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.” In considering questions of statutory interpretation the Appellate Division explained that a court's "primary consideration is to ascertain and give effect to the intention of the Legislature" as "[T]he statutory text provides the clearest indication of legislative intent, and should be construed to give effect to its plain meaning."

In this Article 78 action the court ruled that CSEA met its burden of proving that WCHCC's adoption of the Resolution No. 29-2013 was affected by “an error of law” as the statute creating it did not explicitly nor implicitly transferred to the WCHCC and its Board of Directors the authority to self-administer its own civil service system.

Accordingly, the Appellate Division ruled that the Supreme Court properly annulled the Resolution.

* The significant provisions of §3304 addressing the transfer of certain officers and employees of Westchester County to WCHCC provide that [1] such officers and employees shall become officers and employees of WCHCC with equivalent offices, positions and employment and shall be deemed public officers or public employees for all purposes; [2] the provisions of §70 shall apply to such transfers as appropriate; [3] individuals holding a temporary or provisional appointment so transferred shall be subject to the same right of removal, examination or termination as though such transfer had not been made consistent with the provisions of the applicable collective bargaining agreement [CBA]; [4] WCHCC shall recognize the existing certified or recognized employee organizations for those persons who become WCHCC employees and be bound by the relevant provisions of CBAs with respect to existing terms and conditions of employment which CBAs shall remain in effect until altered by the terms of a successor contract; [5] successor employees to the positions held by such employees shall, consistent with the provisions of Article Fourteen of the Civil Service Law, be included in the same unit as their predecessors; [6] the salary or compensation of any such officer or employee, after such transfer, shall be paid by WCHCC and WCHCC shall acknowledge and give credit for all leave balances held by such officers and employees on the date of transfer; and [7] WCHCC shall be subject to the civil service law

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02649.htm
[Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.]

Selected reports issued by the Office of the State Comptroller during the week ending April 9, 2016

Selected reports issued by the Office of the State Comptroller during the week ending April 9, 2016

Click on text highlighted incolor to access the entire report

State Comptroller’s auditors stop $25 million in suspicious tax refunds
State Comptroller Thomas P. DiNapoli announced his office stopped $25 million in questionable or fraudulent personal income tax refunds from being paid so far in 2016.

http://www.osc.state.ny.us/press/releases/apr16/040716.htm?utm_source=weekly+news&utm_medium=email&utm_term=tax+refunds&utm_content=20160410&utm_campaign=fiscal+oversight

Franklin Central School District saves $256,000 in health care costs
Franklin Central School District officials saved more than $800,000 in health insurance costs by switching carriers and offering employees a buyout incentive, according to an auditreleased by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/apr16/040616.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20160410&utm_campaign=fiscal+oversight

State Comptroller and the Attorney General announce $10.75 million oil spill settlement reached with Exxon Mobil

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced a $10.75 million settlement with Exxon Mobil Corporation and ExxonMobil Oil Corporation, individually and as successors-in-interest to Mobil Oil Corporation and Mobil Corporation, to reimburse the New York Environmental Protection and Spill Compensation Fund (Oil Spill Fund) for oil spill cleanup and petroleum contamination removal costs at eight locations across the state. The settlement reimburses the Oil Spill Fund for all of its costs with interest for the eight sites. http://www.osc.state.ny.us/press/releases/apr16/040716a.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160410&utm_campaign=pension+fund

School audits completed:

Canajoharie Central School District, Financial Condition and Extra-Classroom Activity Fund

Delaware-Chenango-Madison-Otsego BOCES, Procurement of School Food

East Moriches Union Free School District - Review of the District’s budget for the 2016-17 fiscal year

Fishers Island Union Free School District - Five Point Plan

Franklin-Essex-Hamilton BOCES - Payroll

Indian Lake Central School District - Claims Auditing

Liberty Central School District - Financial Operations

Longwood Central School District - Purchasing

Minerva Central School District - Payroll

Newark Valley Central School District - Financial Management

Questar III BOCES - Purchasing

Custodian of a public record may decline to release pre-decision materials prepared to assist in final decision making being sought pursuant to a Freedom of Information request

Custodian of a public record may decline to release pre-decision materials prepared to assist in final decision making being sought pursuant to a Freedom of Information request

Thomas v New York City Dept. of Educ., Decided on March 31, 2016, Appellate Division, First Department

Supreme Court denied the Article 78 petition filed by Michael P. Thomas seeking the disclosure of certain records pursuant to Public Officers Law §87, New York State’s Freedom of Information Law [FOIL].

Thomas has submitted a FOIL request to the New York City Department of Education [DOE] in order to obtain records* pertaining to the Department’s investigation of his allegations that certain students improperly received mathematics credits or diplomas.

Citing Public Officers Law §87(2)(g), the Appellate Division sustained the Supreme Court’s ruling. The court said that DOE had acted properly in finding that the intra-agency documents at issue were exempt from disclosure as “the documents constituted, among other things, pre-decisional materials prepared to assist DOE in making its final decision."

Public Officers Law §87(2)(g) provides that an agency, in accordance with its published rules, shall make available for public inspection and copying all records, “except that such agency may deny access to records or portions thereof that are inter-agency or intra-agency materials which are not:

“i. statistical or factual tabulations or data;

“ii. instructions to staff that affect the public;

“iii. final agency policy or determinations;

“iv. external audits, including but not limited to audits performed by the comptroller and the federal government.”

* The release of some public records may be limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_02520.htm