Employment Law News from WK WorkDay Source: Wolters Kulwer

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted in WK Workday distributed July 19, 2017

Click on text highlighted in color  to access the full report

Per CBA, Teamsters had sole right to integrate pilot seniority lists post-merger

Macy’s ‘offer’ to decline ‘benefits of arbitration’ was no offer; employee’s silence was no acceptance

Fired medical marijuana user can sue Massachusetts employer for disability discrimination

  

Petitioning the Commissioner of Education to remove a member of a school board from his or her office

Petitioning the Commissioner of Education to remove a member of a school board from his or her office 

Decisions of the Commissioner of Education, Decision #17,055

A number of district residents, taxpayers and current or former members of the Board of Education [Petitioners] sought to have a sitting member of the Board of Education [Respondent] removed from his office by action of the Commissioner of Education pursuant to §306 Education Law. Petitioners alleged that the Respondent was guilty of "willful violation of the Education Law, General Municipal Law §805-a(1)(b) and Public Officers Law §105, and engaging in acts of willful misconduct in violation of the [school] district's code of ethics and policies concerning the confidential nature of the board's executive sessions."

Finding that there were a number of procedural defects in their appeal, the Commissioner dismissed Petitioners' complaint without reaching its merits.

First, said the Commissioner, Petitioners' application must be denied as moot as only matters in actual controversy will be considered and no decision will be rendered "on a state of facts which no longer exist or which subsequent events have laid to rest." In arriving at this ruling the Commissioner took "administrative notice that the official website" of the school district indicated that the Respondent "no longer serves on the board of education." Thus the issue of his removal from office was a  matter that had been "laid to rest."

The Commissioner then said that even if the Petitioners' application had not been dismissed as moot, it would have been denied because of the following procedural error or omissions:

1. Lack of proper service" as Petitioners did not personally serve their complaint "upon each named respondent;" and

2. The notice of petition was defective as it did not specifically advise a school officer that an application was being made for his or her removal from office by using the notice prescribed under 8 NCYRR §275.11(a) for appeals brought pursuant to Education Law §310.  

The Commissioner explained that "A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent" as it is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings. Thus the Petitioners' "failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal."

That said, the Commissioner noted that although the Petitioners' application must be dismissed on procedural grounds, there was yet "one administrative matter" to be consider.

The Respondent in this action had requested that the Commissioner issue a "certificate of good faith" pursuant to Education Law §3811(1) thereby authorizing the Board to indemnify him for "legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a board member."

The Commissioner explained that it was appropriate to issue such certification "unless it is established on the record that the requesting board member acted in bad faith."

As the Petitioners' application in this action was denied on procedural grounds and there had been no finding that Respondent acted in bad faith, the Commissioner certified, "solely for the purpose of Education Law §3811(1)" that the Respondent is entitled to a certificate of good faith.

The decision is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume56/d17055

An employer may be vicariously liable for an allegedly slanderous statement made by its employee

An employer may be vicariously liable for an allegedly slanderous statement made by its employee

2017 NY Slip Op 05353, Appellate Division, Fourth Department

The Plaintiff in this action against a village and an employee of the village [Defendants] alleged that an employee of the village made defamatory remarks*concerning the Plaintiff in the course of her employment as an administrative assistant of the village.

Addressing appeals concerning the disposition of motions for summary judgment dismissing the Plaintiff's petition filed by the Defendants, the Appellate Division said:

1. It is well established that, although "[s]lander as a rule is not actionable unless the plaintiff suffers special damage," where, as here, a statement charges plaintiff with a serious crime, the statement constitutes "slander per se" and special damage is not required.

2. In situations involving "slander per se," the defendants may claim a qualified privilege contending that there was a good faith, bona fidecommunication upon a subject in which the individual has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest.

3. In the event the defendants in such an action meet their initial burden of establishing that any of the alleged disparaging statements are protected by a qualified privilege inasmuch as they were made between members of the organization in connection with the plaintiff's application for employment, membership or a similar relationship, "the burden shifted to plaintiff to raise a triable issue of fact whether the statements were motivated solely by malice."

4. In the event the plaintiff raises an issue where a jury could reasonably conclude that malice was the one and only cause for the publication of the statements claimed by the plaintiff to constitute slander, the plaintiff has raised an issue of fact whether statements were motivated solely by malice and thus are not protected by a qualified privilege.

5. Citing Seymour v New York State Elec. & Gas Corp., 215 AD2d 971, the Appellate Division noted that an employer may be held vicariously liable for an allegedly slanderous statement made by an employee only if the employee was acting within the scope of his or her employment at the time that the statement was made.

In this action the Appellate Division concluded that the village failed to establish its  entitlement to summary judgment as a matter of law on the theory that the administrative assistant was not acting within the scope of her employment when she allegedly made disparaging statements concerning Plaintiff to other officials or employees of the village.

* A false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation. An oral utterance that inaccurately accuses a person of a serious crime can be slander per se as can oral statements alleging an individual's being infected with some disease that would result in his or her being ostracized from society, or being unfit to perform of his or her duties as an officer or employee. Defamatory words that could prejudice the individual in his or her profession or trade or the chastity of the individual have been held to constitute slander per se.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05353.htm

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law
Kirsch v Board of Educ. of Williamsville Cent. Sch. Dist., 2017 NY Slip Op 05547, Appellate Division, Fourth Department

Kim A. Kirsch filed a petition pursuant to CPLR Article 78 seeking a court order directing the Williamsville Central School District's Board of Education [Board] to comply with her Freedom of Information Law [FOIL] request. Kirsch's FOIL request sought certain email records.

In its review of a Supreme Court's ruling directing the Board to provide the records demanded by Kirsch the Appellate Division addressed the following objections raised by the Board:

1. Standing to submit a FOIL request.

The Board contended that Kirsch's attorney, Michael A. Starvaggi, Esq., the individual submitting the FOIL request, "lacked standing" to maintain the Article 78 action. The Appellate Division rejected this claim, explaining FOIL provides that "Any person denied access to a record may appeal and seek judicial review of any adverse appeal determination," and "any person on whose behalf a FOIL request was made has standing to maintain a proceeding to review the denial of disclosure of the records requested."

The court noted that the administrative appeal letter expressly stated that Starvaggi was making the request on behalf of Kirsch and concluded that Kirsch had "standing to maintain this proceeding."

2. Statute of Limitations.

Notwithstanding the fact that the Board's claim that the action was untimely was not "preserved for [the Appellate Division's] review," the court elected to consider the merits of its argument that the proceeding is barred by the statute of limitations. In so doing, the Appellate Division opined that the Board "failed to meet [its] burden of establishing that petitioners received notice of the final decision denying the administrative appeal more than four months before the proceeding was commenced.

3. Adding another party to the action.

The Board objected to Supreme Court's granting Starvaggi's oral motion to amend Kirsch's Article 78 petition "to add Starvaggi as a petitioner." The Appellate Division sustained the lower court's granting his oral motion "under the circumstances" in this action. Significantly, the court said that the relation back doctrine* permited the addition of Starvaggi after the expiration of the statute of limitations as the claims brought by Starvaggi and Kirsch are identical in substance - i.e., that Board improperly denied the FOIL request made by Starvaggi on behalf of Kirsch, and Starvaggi and Kirsch are united in interest in seeking compliance with that request.

4. Exemptions from disclosure.

The Board contended that the emails may contain "exempt material." The Appellate Division affirmed the Supreme Court directing the Board to provide Kirsch and Starvaggi  with the requested emails, "with any claimed exemptions from disclosure documented in a privilege log that may be reviewed by the court."

Addressing the Board's "broad allegation here that the [emails may] contain exempt material," the Appellate Division said that such a representation "is insufficient to overcome the presumption that the records are open for inspection . . . and categorically to deny petitioner[s] all access to the requested material."

Further, said the court, should the Board establish that a requested email contains exempt material, "the appropriate remedy is an in camera** review and disclosure of all nonexempt, appropriately redacted material."

5. Identification of the records demanded.

Noting that Kirsch and Starvaggi had "reasonably described" the requested emails thus enabling the Board to identify and produce the records, the Appellate Division, citing Konigsberg v Coughlin, 68 NY2d 245, held that the Board "cannot evade the broad disclosure provisions of [the] statute . . . upon the naked allegation that the request will require review of thousands of records."

It should be remembered that the basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The release of certain public records, such as those identified in Civil Rights Law §50-a, Education Law §1127 - Confidentiality of records and §33.13 Mental Hygiene Law - Clinical records, are examples of records to which access has been limited by statute. 

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. Submitting a "formal" FOIL request becomes necessary 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 formal 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 of the record could rely upon in denying a FOIL request, in whole or in part, for the information or records sought.

* Apply the Doctrine of Relation Back permits "something done today" to be treated as though it "were done earlier" notwithstanding the fact that the otherwise controlling statute of limitations had already expired.

** A hearing held conducted by the court or hearing officer in private or when the public is excluded from the proceeding to consider a particular issue is referred to as being held in camera.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05547.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 14, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 14, 2017

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports have been issued:

DiNapoli report highlights local government reliance on federal aid

On July 14, 2017, State Comptroller Thomas P. DiNapoli issued a report  detailing the impact of federal aid on New York’s municipalities and school districts. In 2015, local governments and school districts outside New York City received $4.7 billion in direct federal aid. Separately, New York City received $7 billion, of which $1.7 billion went to funding the city’s public schools. “Local governments receive much-needed federal aid that supports our schools, fixes our roads and keeps our communities safe,” said DiNapoli. “But potential policy changes in Washington could have a considerable impact on local government operations. In today’s political climate, it’s important for New Yorkers to get a sense of how much funding is at stake and what programs might be at risk.”

How heavily local governments rely on federal aid as part of their individual revenue mix varies by class.  In 2015, federal aid as a share of total revenue was the highest for counties (11.2 percent), followed by New York City (10.1 percent), New York City schools (6.5 percent), other cities in the state (5.7 percent), other school districts (4.1 percent), villages (2.9 percent) and towns (2.7 percent). Reliance on federal aid can also vary widely within these classes of government. Specific data on each county, city, town, village and school district for 2015 is available through a new, interactive feature on DiNapoli’s website.

Generally, the type of federal aid New York’s local governments received in 2015 supported a broad range of purposes, which includes social services, education, transportation, public safety, economic development, health, community services, culture and recreation, utilities and sanitation.

To read DiNapoli’s report “The Impact of Federal Aid on New York’s Local Governments,” go to:

 http://www.osc.state.ny.us/localgov/pubs/research/federal-aid-impact.pdf

To view the interactive data, go to: http://wwe1.osc.state.ny.us/localgov/fedaid/fedaid.cfm 


State audits and examinations issued:

Department of Health (DOH): Medicaid Program: Medicaid Payments for Pharmacy Claims - Joia Pharmacy and a Related Prescriber (2013-S-4)

Based on a statistical projection, auditors determined DOH overpaid Joia $1,485,121 for improper pharmacy claims. Disallowances included: claims billed for excess quantities of drugs; claims for drugs in which the prescriptions were missing or invalid; and claims for unauthorized and inappropriate refills. The audit also identified a range of practices by both Joia and a doctor that warrant further review. The doctor was listed as the prescriber on 63 percent of Joia’s claims; among these claims, auditors found high volumes of prescriptions for individual patients on single days, and instances of drug conflicts and prescriptions that exceeded utilization.

Department of Health (DOH): Inappropriate Payments for Recipients not Enrolled in Medicaid Mainstream Managed Care or Family Health Plus (2015-S-47)  
For the period Oct. 1, 2010 through Dec. 31, 2014, DOH made 190,686 improper or questionable premium payments, totaling about $72.6 million, on behalf of 105,358 recipients who were subsequently disenrolled retroactively from managed care plans and who did not receive medical services during the disenrollment periods. This included more than $10.5 million related to 7,415 deceased recipients. During the six-month period after auditors provided the claim details to DOH, 14,209 claims totaling more than $7.4 million in improper premium payments had been voided, leaving 176,477 premium payments totaling about $65.2 million that still needed to be reviewed and, if warranted, recovered.

New York State Health Insurance Program: Empire BlueCross BlueShield (Empire): Controls over Payments for Special Items (2016-S-67)
In response to prior audits, Empire improved its controls over the identification and recovery of overpayments for special items. As a result of Empire’s efforts, including contracts with two vendors, Empire recovered overpayments totaling $6,313,534 for special items. Nonetheless, auditors concluded that Empire needs to further enhance its reviews of special item payments by incorporating steps and techniques that result in additional recoveries.

New York State Liquor Authority (SLA): Statewide Compliance with Administrative Requirements for Retail Liquor License Approvals, Renewals, and Enforcement Actions (2016-S-32)
On a statewide basis, SLA generally approved new liquor licenses and license renewals consistent with state law and its prescribed administrative protocols. SLA adequately ensured that license applicants and parties seeking renewals complied with the prescribed documentation requirements. For the new license applications selected for review, SLA had 99 percent of the required documentation on file. SLA also complied with its administrative requirements pertaining to license revocations, cancellations, and suspensions.

Department of Health, Office of Parks, Recreation and Historic Preservation - Department of Environmental Conservation Oversight of Health and Safety Regulations at Public Pools, Beaches, and Spray Grounds (2016-S-55)
All three agencies have appropriate controls in place and are providing adequate oversight to ensure that public pools, beaches, and spray grounds under their jurisdiction are safe for public use. Each agency has developed procedures to address health and safety issues at each of the facilities it operates or oversees.

New York City Department of Finance: Selected Controls over Property Tax Assessments (2015-N-1)
Auditors reviewed 508 parcels valued during fiscal year 2014 to fiscal year 2016 and found the agency  did not conduct necessary inspections for 276 (54 percent) of them. Without the required inspections, DOF cannot be certain such changes are adequately considered when valuing a property.

Office of Temporary and Disability Assistance (OTDA):  Electronic Benefit Transfer Card Transactions and Prohibited Locations(2016-S-52)
OTDA has adopted appropriate policies and practices to avoid the risk of federal financial penalties. In addition, auditors found the office’s monitoring of EBT transactions to generally be adequate, but identified certain strategic refinements that could help the office to better monitor transactions and identify violations. Auditors analyzed client card usage at prohibited locations and identified 15 recipients with 20 or more EBT transactions. Of these, seven recipients had 20 or more transactions at the Turning Stone Casino, including one recipient with 71 EBT card transactions totaling more than $3,360.

Department of State (DOS): Monitoring of Not-for-Profit Cemetery Corporations for Fiscal Stability and Adequate Facility Maintenance (2016-S-79)
As of Sept. 30, 2016, DOS records indicate 642 cemeteries (37 percent) had overdue audits and 285 (16 percent) had delinquent annual reports. For 145 cemeteries (8 percent), audits were overdue and annual reports were delinquent as well. As of Dec. 1, 2016, 391 cemeteries (22 percent) had not been inspected in over seven years.

Municipal audits and examinations issued:

Village of Fleischmanns – Financial Condition and Clerk-Treasurer’s Duties (Delaware County)
The board has not developed a multiyear financial plan and did not adopt effective budgets because it did not receive accurate and sufficient financial information from the clerk-treasurer. Unpaid property taxes ($101,000) and water bills ($64,000) have severely impacted the village’s financial condition. The board also did not conduct an annual audit of the clerk-treasurer’s records and reports.

Village of Old Westbury – Justice Court (Nassau County)
The justices correctly reported financial activities to the Justice Court Fund on a monthly basis. However, they did not perform bank reconciliations or accountability analyses on a monthly basis during the audit period. As a result, two of the three judges had cash overages totaling $1,743.

Town of Orangetown – Overtime (Rockland County)
The board did not develop overtime budgets based on known needs and historical trends. Officials did not adequately monitor adopted budgets and allowed them to be over-expended each year. Auditors also found that although the police department’s collective bargaining agreement allows officers to accumulate up to 80 hours of overtime during the year, town officials did not adhere to those limits.

Town of Portland – Water Operations (Chautauqua County)
The town’s unaccounted-for water during the past two years was approximately 38 million gallons, or 40 percent of total production. Inaccurate master meters and customer meters have contributed to the unaccounted-for water. Water Districts 1, 3 and 7 reported deficit fund balances as of December 31, 2016, and all but two water districts realized operating deficits in 2016.

Rockville Centre Housing Authority – Claims Auditing and Cash Receipts (Nassau County)
The board needs to improve the claims auditing process to ensure all claims are properly audited, adequately supported and for legitimate authority purposes. The board also needs to improve its cash receipt process to ensure cash receipt functions are adequately segregated to safeguard authority assets.

Village of Southampton – Fire Department Length of Service Award Program (Suffolk County)
The village’s length of service award program (LOSAP) records for 47 of the department’s 138 active volunteers showed that at least 27 of these volunteers did not receive accurate LOSAP points. This may result in the loss of future benefits for volunteers or, conversely, in the village incurring more LOSAP costs than necessary.

Westchester Community College – Fixed Assets (Westchester County)
College officials have adopted effective fixed asset policies and procedures. The fixed asset policies and procedures establish the minimum cost to determine when assets should be recorded in the inventory records.

City of Yonkers – Budget Review (Westchester County)
The 2017-18 budget relies on nonrecurring revenue, such as fund balance, to balance its budget. The city could potentially face a shortfall of approximately $1.7 million in revenue if income tax surcharges remain at 2016-17 levels and a shortfall of $515,000 if revenue estimates from the Parking Violations Bureau are not realized. Police overtime costs could potentially be over budget by as much as $2.6 million based on the 2016-17 fiscal year overtime costs.

For access to state and local government spending and 50,000 state contracts, visit OpenBookNY. The easy-to-use website was created by Comptroller DiNapoli to promote openness in government and provide taxpayers with better access to the financial workings of government.