Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 24, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 24, 2017

Click on text highlighted in color  to access the full report

Public Drinking Water Needs More Protection
New York's public water supplies need stronger protections to ensure clean drinking water and prevent contamination that could result in health problems, according to a reportby State Comptroller Thomas P. DiNapoli.

Former Mahopac VFD Treasurer Sentenced After $5.6 Million Embezzlement

State Comptroller Thomas P. DiNapoli and Joon H. Kim, the Acting United States Attorney for the Southern District of New York, announced that Michael Klein, the former treasurer of the Mahopac Volunteer Fire Department (MVFD), was sentenced by U.S. District Judge Cathy Seibel to 77 months in prison for wire fraud, subscription to false tax returns, obstruction of the grand jury, and false statement charges arising out of his embezzlement of more than $5.6 million from the MVFD.

DiNapoli Announces State Contract and Payment Actions for May 2017

State Comptroller Thomas P. DiNapoli announced his office approved 1,531 contracts valued at $14 billion and approved nearly 2.3 million payments worth more than $12 billion in May. His office also rejected 219 contracts and related transactions valued at $400 million and nearly 1,900 payments valued at more than $7 million due to fraud, waste or other improprieties.


New York StateComptroller Thomas P. DiNapoli announced his office completed audits of

Chestertown Volunteer Fire Company,

Town of Ithaca and the

Town of Smithtown.

OATH disciplinary hearing held in absentia

OATH disciplinary hearing held in absentia 

OATH Index #728/17

A tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations.

The auditor failed to appear at trial and the matter proceeded by inquest. Based on credible testimony from a supervisor and documentary evidence, ALJ Addison sustained the charges.

Judge Addison found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct and recommended that the auditor be terminated from her employment.

Posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-728.pdf

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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Educator terminated for a continuing pattern of inappropriate behavior involving students

Educator terminated for a continuing pattern of inappropriate behavior involving students

Vagianos v City of New York, 2017 NY Slip Op 04779, Appellate Division, First Department

Kristopher Vagianos appealed Supreme Court's dismissal of his Article 75 petition to vacate a disciplinary arbitration award that resulted his termination as a tenured school teacher.

Sustaining the lower court's ruling, the Appellate Division noted that Vagianos had been previously disciplined and found guilty of similar misconduct and had neither taken responsibility for such misconduct that involved his "verbal abuse of one student and corporal punishment of a student confined to a wheelchair" nor was he deterred by that earlier disciplinary action from continuing his pattern of inappropriate behavior.

The record in the current appeal indicated that the hearing officer found that Vagianos, a teacher of special-needs students, made denigrating comments about a students' limitations in the presence of other teachers, including referring to such students as "waste products," made inappropriate comments to a student with autism, and made threatening comments to another teacher.

Under the circumstances, the Appellate Division said that its sense of fairness was not shocked by imposing the penalty of termination in this disciplinary action, explaining that Vagianos' insensitivity to and disrespect for his students "compromised his ability to function as a teacher."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04779.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?

Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?

2017 NY Slip Op 04624, Appellate Division, Fourth Department

The Board of Education [School Board] sought to remove one of its members [Member] from her position on the School Board pursuant to Education Law §1709(18).

Subdivision 18 of §1709 sets out the relevant procedures to be followed in the event a school board seeks to "remove any member ... for official misconduct" and requires that a "written copy of all charges made of such misconduct shall be served upon him [or her] at least ten days before the time appointed for a hearing of the same; and he [or she] shall be allowed a full and fair opportunity to refute such charges before removal."

Member challenged the School Board's procedure in holding the hearing concerning her removal from the board, contending that the School Board had violated her First Amendment right of access when it closed the first three days of the Member's removal hearing to general public. Supreme Court denied her motion for summary judgment and Member appealed.

The Appellate Division unanimously affirmed the Supreme Court's ruling and, addressing the School Board's action barring the public from "the first three days" of the hearing, said:

1. "The First Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the government from 'abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances';

2. "[A] trial courtroom ... is a public place where the people generally — and representatives of the media — have a right to be present, and where their presence historically has been thought to enhance the integrity and the quality of what takes place;

3. "The United States Supreme Court has applied a two-part test to determine whether there was a right of access under the First Amendment [see Press-Enterprise Co. v Superior Ct. of Cal., County of Riverside, 478 US 1, 8-10], and the [New York State] Court of Appeals has used that test to determine whether there is a right of access to a professional disciplinary hearing;

4. "The test requires a court to consider 'whether the place and process have historically been open to the press and general public and whether public access plays a significant positive role in the functioning of the particular process in question'; and

5. "Once it has been determined that there is such a right of access, then the proceeding 'cannot be closed unless specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'"

The Appellate Division found that Member failed to submit evidence establishing that, as a matter of law, removal hearings conducted pursuant to Education Law §1709(18) have historically been open to the public and that the public has played a significant positive role in such proceedings.

Accordingly, the court concluded that Supreme Court "properly denied [Member's] motion on the ground that [Member] failed to meet her burden of establishing as a matter of law that there is a First Amendment right of access to an Education Law §1709(18) removal proceeding."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04624.htm

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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A collective bargaining agreement may expand an employer's obligation to provide information to an employee organization not specifically provided for by law

A collective bargaining agreement may expand an employer's obligation to provide information to an employee organization not specifically provided for by law

City of New York v New York State Nurses Assn., 2017 NY Slip Op 04492, Court of Appeals

New York State Nurses Association (Union) filed an improper practice petition with the Board of Collective Bargaining of the City of New York (the Board), alleging that it had a right to certain information pursuant to New York City's Collective Bargaining Law (NYCCBL) §12-306(c)(4), in connection with disciplinary proceedings brought against two nurses employed by the City's Human Resources Administration (HRA).

HRA refused to provide the information the Union sought in connection with its representing the two nurses in the disciplinary action, including the "relevant policies and the HRA Code of Conduct, information on time-keeping, patient treatment records for the relevant dates, witness statements, and a written statement detailing how the nurses violated the HRA Code of Conduct." HRA also refused to permit the Union to question "the witnesses who gave statements and the nurses' supervisors."

The Board, with two members dissenting, ruled that it was an improper practice for the City to refuse to comply with certain of the information requests, finding that §12-306(c)(4) extends to information "relevant to and reasonably necessary to the administration of the parties' agreements, such as processing grievances." The Board, however, found that the Union was not entitled to witness statements or a written explanation regarding the violation or the opportunity to question the identified witnesses or supervisors, concluding that §12-306(c)(4) is limited to information "normally maintained in the regular course of business."

The City filed an Article 78 petition challenging the Board's determination.

Supreme Court granted the City's petition and annulled the Board's determination, concluding that the Board improperly extended the Union's right to obtain information for grievances pursuant to contract administration to disciplinary proceedings, noting that "the agreement does not explicitly require the City to provide information in disciplinary proceedings."

The Appellate Division unanimously reversed, holding that "the Board's decision, which was entitled to 'substantial deference,' had a rational basis" but granted the City leave to appeal on a certified question of whether its order was properly made.

The Court of Appeals affirmed the Appellate Division's ruling, Judge Garcia dissenting, explaining:

1. NYCCBL provides that it is improper practice for a public employer "to refuse to bargain collectively in good faith on matters within the scope of collective bargaining with certified or designated representatives of its public employees" and requires both employers and unions "to furnish to the other party, upon request, data normally maintained in the regular course of business, reasonably available and necessary for full and proper discussion, understanding and negotiation of subjects within the scope of collective bargaining."

2. The Board held that NYCCBL §12-306(c)(4) extended to information "relevant to and reasonably necessary for the administration of the parties' agreements, such as processing grievances, and/or for collective negotiations on mandatory subjects of bargaining."

3. The Appellate Division noted, "... the City and HRA do not dispute the Board's precedent holding that the duty to furnish information already applied to 'contract administration' and 'grievances' (including potential grievances)."

4. Union had bargained for and obtained the right to obtain such information in the context of a disciplinary proceedings and not just "contract" grievances by defining "grievance" to include disciplinary action in the relevant collective bargaining agreement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04492.htm