Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit

Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit

Caetano v DiNapoli, 2016 NY Slip Op 05222, Appellate Division, Third Department

Sharon Caetano, an employee of the Erie County Board of Elections, experienced a “slip and fall” while at work. Ultimately she filed an application for disability retirement benefits with New York State and Local Employees' Retirement System [ERS] alleging that she was permanently incapacitated from performing her job duties due to injuries she suffered as the result of the fall she experienced while at work.

ERS denied Caetano’s application on the grounds that [1] she had less than 10 years of member service credit in ERS and [2] that she had not established that her falling while at work constituted an accident within the meaning of the Retirement and Social Security Law [RSSL].

Caetano then appealed ERS' denial of her application for disability retirement. Following an administrative hearing, the Hearing Officer upheld ERS’ denial of Caetano’s application for disability retirement benefits. The Comptroller adopted the Hearing Officer's decision, and Caetano filed a CPLR Article 78 petition challenging the Comptroller’s decision.

The Appellate Division affirmed the Comptroller’s ruling, explaining that RSSL §605[b][1]) provides that a member of ERS is eligible for disability retirement benefits where the disability was not job related if the member has "at least [10] years of total service credit."

In contrast, RSSL §605[b][3] provides that a member of ERS with less than 10 years of members service credit is eligible for accidental disability retirement benefits if the member can show that his or her disability was "the natural and proximate result of an accident not caused by his [or her] own willful negligence sustained in the performance of his [or her] duties."

Although Caetano alleged that the Comptroller erred in calculating her member service credit, the court said that "The Comptroller is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence." Further, said the Appellate Division, Caetano has the burden of establishing an entitlement to any additional member service credit she may claim greater than that determined by the Comptroller.

While the Comptroller ruled that Caetano had only attained 9.95 years of member service credit, Caetano contended that her yearly “service credits in her records” were inaccurate. She claimed that the Comptroller did not “take into account time that she was out of work and being paid workers' compensation benefits” in lieu of her salary based her belief that Erie County credited her with that time for retirement purposes.*

However, said the court, Erie County employment records do not reflect such “credit” and she failed to present any authority supporting her contention.

Considering Caetano’s employment records, the Appellate Division concluded that the Comptroller's determination that she had not attained 10 years of member service credit at the time she applied for disability retirement was rational and supported by substantial evidence. Further, said the court, Caetano did not satisfy her burden of establishing that she was entitled to additional service credit.

To be eligible for accidental disability retirement benefits, Caetano was required to demonstrate that her disability was the natural and proximate result of a work-related accident. For purposes of the RSSL, an accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and "[A]n injury is not accidental in nature if it occurs as the result of an applicant's routine employment duties and does not involve an unexpected event."

Based on the record, the Comptroller determined that Caetano’s injuries were sustained as the result of her own misstep or inattention, and not because of an accident within the meaning of the RSSL. As that determination was supported by substantial evidence, the Appellate Division declined to disturb it. 

* Typically an employee on workers' compensation leave pursuant to Civil Service Law §71 earns sick leave and similar credits only while the individual remains "on the payroll" of the employer as the result of the employee electing to use available leave credits, overtime credits or similar accruals to do so [see Andrews v State of New York, 138 AD3d 1297, summarized on NYPPL at: http://publicpersonnellaw.blogspot.com/2016/04/accruing-vacation-and-sick-leave.html ].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05222.htm

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers

Decisions of the Commissioner of Education, Decision No. 16,917

Mary Farber-Peck challenged the Herkimer Central School District's Board of Education's decision to abolish the position in which she had been serving and assign the courses previously taught by her in that positition to other teachers in the school district.

Farber-Peck was initially appointed as a teacher of business and distributive education and subsequently granted tenure in the business education tenure area.*  The Board voted to abolish two positions in the business education tenure area. Presumably, Farber-Peck was one of the two least senior teachers in that tenure area. Accordingly, she was "excessed" and  her name was placed on a “preferred eligibility list.” as the result of the Board's action. 

Subsequently the Board assigned certain courses previously taught by Farber-Peck to three other teachers, Michelle Ploss, Kristin Smith and Glen Manning. 

Farber-Peck appealed the Board's action to the Commissioner of Education, alleging that the Board had “improperly abolished her position to circumvent her tenure and seniority rights.”  She also alleged that during the 2011-2012 school year, teachers were improperly assigned to teach certain business education courses, previously taught by her, outside of their respective certification areas. 

The District argued that  Farber-Peck has not met her burden of proving that it improperly abolished her position; that its assignment of certain courses previously taught by her to other teachers was permissible and that no new position has been created to which she has any clear legal right. 

The District also asserted that certain necessary parties were not joined in the action and thus Farber-Peck's appeal must be dismissed.

Clearly, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such, which requires that the individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Here, however, the Commissioner said that with respect to such "other parties" there is “no evidence that Ploss, Smith or Manning would be adversely affected should [Farber-Peck] prevail herein because such a result would impact only one course in their overall workload.” Further, said the Commissioner, Farber-Peck does not seek dismissal or reassignment of those teachers and there is no evidence that the employment status of those individuals would be adversely affected.  Accordingly, ruled the Commissioner, the three were not necessary parties and need not be joined as respondents and the appeal would not be dismissed on that procedural basis.

Turning to the merits of Farber-Peck’s appeal, the Commissioner said that a board of education may abolish and, or, consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith. Further, in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief he or she requested and the burden of establishing the facts upon which he or she seeks relief.

The record before the Commissioner indicated that, at a budget information meeting, the Board discussed the difficult economic climate facing the District and indicated that it was necessary to make significant cuts in the school budget due to cost increases and revenue constraints, and potential staff reductions, including two business teacher positions, were discussed. 

Noting that Farber-Peck “does not claim otherwise in her petition,"  the Commissioner said that, on the record before her, Farber-Peck has not met her burden of established that Board acted in bad faith or was motivated to abolish positions for other than economic reasons and thus “there is no basis on which to conclude that [the Board] abolition of [Farber-Peck] position was improper."

In addition, the Commissioner observed that the record indicated that “no vacancy occurred and no new position was created; instead, [Farber-Peck’s] former teaching duties were redistributed … albeit to teachers who [Farber-Peck] asserts lack the proper certification."  Further, the District's interim superintendent of schools indicated that the District would not offer any courses that otherwise would have been assigned to Farber-Peck in the subsequent school year and that, consequently, Smith and Manning would not be assigned to teach those courses.** 

However, said the Commissioner, were the Board to subsequently creates a new position in the business education tenure area Farber-Peck “may, indeed, be entitled to such position by virtue of her place on the preferred eligible list of candidates.”  However, ruled the Commissioner, Farber-Peck had not demonstrated legal right to relief she requested -- an order that the Board create a new part-time position rather than a claim of a right to an appointment to a position the Board has created.

Accordingly, Commissioner dismissed Farber-Peck’s appeal.

* The Commissioner of Education noted that, pursuant to 8 NYCRR §30-1.8 (c)(4), Farber-Peck should have been appointed “to serve in a special subject tenure area co-extensive with her teaching certificate in business and distributive education.”

** See, also, Decisions of the Commissioner Number 13,433 in which the Commissioner cites Appeal of Chaney, 33 Ed Dept Rep 12; Young v. Board of Education, 41 AD2d 966, aff'd 35 NY2d 31, [distribution or reassignment of “duties” consistent with the principle of "fractionalization, i.e., the division and, or, consolidation of certain work duties formerly performed by incumbents of abolished and unfilled titles [See Jodre v Locust Val. Cent. School Dist., 2011 NY Slip Op 31076(U), [ Not officially reported].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16917

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

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Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law

Seeking public records the custodian contends are exempt from disclosure within the meaning of the Freedom of Information Law

Spring v County of Monroe, 2016 NY Slip Op 05465, Appellate Division, Fourth Department

Todd Springinitiated an Article 78 proceeding seeking disclosure of approximately 200 documents, emails, memoranda, and reports pursuant to the Freedom of Information Law (FOIL). The Monroe County [County] custodian of the documents and records had declined to provide the material demanded, which were characterized as being “confidential records” and thus could be “exempted” under one or more of the exceptions permitted by the Freedom of Information Law.*

After conducting an in camera review of the records at issue, Supreme Court directed the County to provide Todd with several of the documents it claimed were “exempt” and County appealed the court’s decision.

The Appellate Division, notwithstanding its holding that Supreme Court erred in applying the “arbitrary and capricious standard of review” and instead should have determined whether the Records Appeal Officer's determination "was affected by an error of law,” elected to conduct a de novo review of the documents at issue.

Applying the appropriate standard with respect to the disputed documents in the “confidential record,” the Appellate Division concluded that:

1. E-mail correspondence between Spring and the "in-house" counsel for the County found in the confidential record at certain pages were exempt from FOIL disclosure as "counsel for the County represented Spring only in Spring's capacity as a County employee." Accordingly, only the County could waive the attorney-client privilege protecting the correspondence. The fact that Spring believed that he was the client was, said the court, “of no moment;”

2. E-mail correspondence found in the confidential record at certain pages between a County employee and counsel employed by the County were protected by attorney-client privilege;

3. A “draft informal dispute resolution [IDR]” request found in the confidential record at certain pages was exempt from FOIL disclosure inasmuch as it was protected by attorney-client privilege, by attorney work product privilege, and as inter-agency material pursuant to Public Officers Law §87(2)(g). The Appellate Division noted that draft IDR request "does not contain statistical or factual tabulations or data … or final agency policies or determinations but rather consisted “solely of . . . evaluations, recommendations and other subjective material and was therefore exempt from disclosure;"

4. Documents found in the confidential record at certain pages representing a "chronological explanation" of a County Human Resources investigation were exempt from disclosure by attorney-client privilege and under Public Officers Law §87(2)(g);

5. Documents found in the confidential record at certain pages were exempt from disclosure under Public Officers Law §87(2)(g) as those documents contained "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making;" and

6. The hearing transcript found in the confidential record at certain pages constituted pre-decisional intra-agency material and was exempt from FOIL disclosure.

With respect to the remaining materials at issue, the Appellate Division said that it concluded that the County failed to show that the Freedom of Information Law permitted their exemption from disclosure.

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise a FOIL request is not required as a condition precedent to obtaining public documents or 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 desired information or records. It should also be noted that other than such disclosure being prohibited by law, there is no bar to providing information pursuant to a FOIL request, or otherwise, that could otherwise be denied pursuant to one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05465.htm

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits 

Sica v DiNapoli, 2016 NY Slip Op 05420, Appellate Division, Third Department

An accident, for the purposes of the Retirement and Social Security Law [RSSL], is defined as “a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact”* that “must result from an activity that is not undertaken in the performance of ordinary job duties and that is not an inherent risk of such job duties.”**

Pat Sica, a firefighter with the City of Yonkers Fire Department for approximately 17 years, was injured when he was exposed to and inhaled carbon monoxide and cyanogen chloride, both colorless and odorless gases, while responding to an emergency at a supermarket. Subsequently Sica filed an application for accidental disability retirement benefits based upon, among other things, the supermarket incident.

The Retirement System denied Sica’s application on the ground that the supermarket incident did not constitute an accident within the meaning of RSSL§363. Sica appealed the System's decision and at the administrative hearing that followed he testified that in the course of his responding the medical emergency call from a local supermarket reporting an individual experiencing difficulty with breathing:

[1] he was directed to the walk-in freezer located at the back of the supermarket where he discovered two unconscious individuals:

[2] he provided cardiopulmonary resuscitation and breathing assistance to the unconscious victim inside the freezer until an ambulance crew arrived to assist;

[3] he had not smelled, heard, or saw anything that might have indicated that chemical gases or fumes were involved in the medical emergency; and

[4] he did not learn that chemical gases were present at the scene until he himself was transported to a hospital for medical evaluation.

The Hearing Officer concluded that the incident was an accident within the meaning of the RSSL as "[t]he combination of unforeseeable and exigent circumstances made it virtually impossible for [Sica] to recognize the danger." The Comptroller, however, ultimately sustained the initial denial of Sica's application for accidental disability retirement. Sica then commenced an Article 78 proceeding challenging the Comptroller's determination.

In analyzing Sica’s appeal of the Comptroller’s decision, the Appellate Division said:

[1] An applicant for accidental disability retirement benefits has the burden of establishing that the event producing the injury was an accident; and 

[2] The Comptroller's decision denying the application for accidental disability retirement benefits will be upheld where it is supported by substantial evidence. 

Here, however, the Appellate Division found that the Comptroller’s determination that the incident was not an accident for the purposes of eligibility for accidental disability retirement benefits was not supported by substantial evidence in the record before it.  

The court explained that it has "held that exposure to toxic fumes while fighting firesis an inherent risk of a firefighter's regular duties." In Sica’s situation, however, unlike its consideration of prior cases involving exposure to toxic gases or smoke, the Appellate Division noted that Sica was not responding to a fire that presented the inherent and foreseeable risk of inhaling toxic gases.

The record indicates that Sica “was neither aware that the air within the supermarket contained toxic chemical gases … nor did he have any information that could reasonably have led him to anticipate, expect or foresee the precise hazard when responding to the medical emergency at the supermarket.” 

In contrast, the Comptroller, in reversing the Hearing Officer’s determination, relied upon the job description for Sica’s position, which indicated that he was required to respond to medical emergencies and to be exposed to hazardous conditions such as fumes and toxic materials.

Relying on such a job description, said the court, “may wholly eviscerate accidental disability retirement protection for emergency responders in rescue situations,” explaining that “if a broadly written job description that requires the rescue of individuals in hazardous situations is allowed to replace a factual analysis of the particular circumstances of each incident, those who put themselves in harm's way may be left without recourse.”

Accordingly, the court opined, “Whether an incident is so ‘sudden, fortuitous . . ., unexpected [and] out of the ordinary’ … that it qualifies as an accident within the meaning of the [RSSL] remains a factual issue that should not be determined merely by reference to job descriptions.” 

Clearly the mischief in merely considering the job description is that emergency personnel will be rendered ineligible for accidental disability retirement in any rescue situation, without regard to how exigent, unexpected or unforeseeable the circumstances of their injury may be. This, said the court,  “cannot have been the Legislature's intent in establishing the accidental disability retirement program for rescue workers.”

The Appellate Division concluded that the Comptroller’s determination that Sica’s disability resulting from his exposure to carbon monoxide and cyanogen chloride while responding to a “medical emergency” did not constitute an accident within the meaning of Retirement and Social Security Law §363 was unsupported by substantial evidence in the record.

As the review of the administrative hearing and determination of Comptroller was limited to the question of whether substantial evidence in the record support such determination, the Appellate Division “declined to address in the first instance [the Comptroller’s] arguments regarding the presumption set forth by [the RSSL] §363-a or the issue of causation.”

The court, Justices McCarthy and Devine dissenting, annulled the Comptroller’s decision and remitted the matter to him “for further proceedings not inconsistent with this Court's decision.”

* See Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010

** See Matter of Schultz v DiNapoli, 137 AD3d 1454

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05420.htm

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on http://section207.blogspot.com/

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Selected reports issued by the Office of the State Comptroller during the week ending July 16, 2016

Selected reports issued by the Office of the State Comptroller during the week ending July 16, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

Bradford Fire Co. Treasurer Arrested for Stealing Public Funds

New York State Comptroller Thomas P. DiNapoli announced the arrest of Bradford Volunteer Fire Company Treasurer Sherry Hamilton. She was charged with grand larceny in the third degree, a class D felony, after an audit and investigation by DiNapoli’s office, working with the New York State Police and Steuben County District Attorney Brooks Baker, uncovered that Hamilton misappropriated more than $8,000 in fire company funds by allegedly taking "advance" payments on company activities and manipulating company bank accounts and records.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online athttp://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Independent Review Finds State Pension Fund Strong, But Warns of Risks Posed by Limited Staffing

New York State Comptroller Thomas P. DiNapoli released an independent fiduciary and conflict of interest reviewof the New York State Common Retirement Fund (Fund) that commended the Fund for its strong policies and ethical management, stating that DiNapoli’s office "maintains a very high level of ethical, professional and conflict of interest standards." Funston Advisory Services, who conducted the review, repeatedly warned, however, that existing constraints on the Fund’s staffing and compensation could have current and future consequences.

Managed Care Companies Wasting Millions in State Medicaid Dollars

United HealthCare and Amerigroup, managed care organizations that contract with the Department of Health to provide health services under the state’s Medicaid program, made at least $6.6 million in improper and questionable payments to ineligible providers over a four-year period, including almost $60,000 in payments to pharmacies for medications that were prescribed by deceased doctors, according to an auditreleased by State Comptroller Thomas P. DiNapoli.

Audits of State entities released by State Comptroller DiNapoli

Port Authority of New York and New Jersey (PANYNJ): Inspecting Highway Bridges and Repairing Defects (Follow-Up) (2015-F-19)

An audit issued in May 2014 found the authority did not follow state Department of Transportation (DOT) requirements for classifying, reporting and repairing bridge defects. Instead, the PANYNJ followed its own methods and did not always comply with DOT’s requirement for an annual interim inspection if the repairs are not completed. Further, auditors noted that 10 of the 17 safety conditions sampled were not repaired for more than two years, including three which were open for five years. In a follow-up, auditors determined PANYNJ officials made progress in correcting the problems identified.

Higher Education Services Corporation: College of Westchester Tuition Assistance Program (2015-T-5)

Auditors determined that the procedures used by Westchesterofficials to certify students for state financial aid substantially complied with the governing law and regulations.

Office of General Services (OGS) and State Education Department (SED): Preferred Source Contracting (2014-S-77)

Although SED is responsible for monitoring the New York State Industries for the Disabled (NYSID) preferred source contracting program activities, it has provided only minimal oversight. As such, there is little assurance that NYSID is awarding contracts in a manner that best meets the purpose of the program, that member agencies and corporate partners are meeting contract requirements, and that the majority of the contracted work is being completed by disabled workers. Auditors also looked at the role that OGS plays in the program and found OGS is appropriately fulfilling its current responsibilities under the program. Nonetheless, auditors identified opportunities for OGS to improve its effectiveness.