ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

October 23, 2017

Administrative due process must be provided the accused employee in a disciplinary arbitration proceeding


Administrative due process must be provided the accused employee in a disciplinary arbitration proceeding
2017 NY Slip Op 03853, Appellate Division, First Department

Petitioner, a tenured educator, initiated a CPLR Article 75 action seeking a court order vacating an arbitration award in which Petitioner was found guilty of multiple disciplinary charges and was terminated.

The Appellate Division sustained the arbitration award, noting that the following administrative due process requirements were satisfied:

1. Petitioner's right to administrative due process was not violated as Petitioner [a] was provided with appropriate notice, [b] was represented by counsel at a 13-day hearing and [c] had the opportunity to present evidence and cross-examine witnesses;

2. The hearing officer issued a detailed decision in which she [a] thoroughly analyzed the facts, [b] evaluated the credibility of witnesses and evidence presented and [c] arrived at a reasoned conclusion; and

3. Petitioner's claim that the arbitrator was bias was speculative and unsupported by the evidence.

As to the penalty imposed by the arbitrator, dismissal from the position, the Appellate Division opined that considering "Petitioner's teaching deficiencies over the course of three years, the absence of any improvement despite assistance offered by the appointing authority," and Petitioner's "refusal to acknowledge her shortcomings," imposing the penalty of termination "does not shock the court's sense of fairness," citing the so-called Pell standard [Pell v Board of Education,  34 NY2d 222.


Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

The decision is posted on the Internet at:

Failure to comply with contractual grievance procedures may not always serve as a basis a for a court's issuing a stay of arbitration where such issues are to be resolved by the arbitrator


Failure to comply with contractual grievance procedures may not always serve as a basis a for a court's issuing a stay of arbitration where such issues are to be resolved by the arbitrator
Matter of Arbitration Between Town of Greece and Civil Service Employees Association, Inc., Local 828, AFSCME, AFL-CIO, 2017 NY Slip Op 06785, Appellate Division, Fourth Department

The Town of Greece [Greece] initiated a CPLR Article 75 action seeking a permanent stay of the arbitration of a grievance arising from its termination of one of the Civil Service Employees Association, Inc., Local 828 [Local 828] members. Supreme Court denied Greece's application for a permanent stay of arbitration and directed it to hold a hearing pursuant to step two of the three-step grievance procedure set out in the collective bargaining agreement [CBA] between the parties "within 30 days."

Greece appealed and although the Appellate Division affirmed the Supreme Court's denial of the permanent stay of arbitration sought by Greece, it vacated that part of the Supreme Court's order that directed Greece "to hold a step two hearing."

The Appellate Division explained that Supreme Court erred in directing Greece to hold a step two hearing. Contrary to the court's determination, the Appellate Division said that "a step two hearing is not a condition precedent to arbitration under the terms of the CBA."

As the CBA contained "a broad arbitration clause and does not expressly identify any conditions precedent to arbitration," the Appellate Division said that any alleged failure of a party to comply strictly with the contractual grievance procedures or time limits is not a proper ground for a stay of arbitration because such issues are to be resolved by the arbitrator.

With respect to CBA between Greece and Local 828,  Appellate Division held that  "... as a step two hearing is a permissive and not a mandatory part of the CBA's grievance and arbitration procedure, strict compliance with each step in the procedure is not a condition precedent to arbitration."

The decision is posted on the Internet at:


October 21, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 21, 2017


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 21, 2017
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report


New York StateComptroller Thomas P. DiNapoli issued the following audits and examinations:


Auditors identified vulnerabilities in DOH’s provider enrollment and revalidating procedures that undermine its ability to ensure that only qualified providers participate in the Medicaid program and prevent improper payments for services. As a result of these weaknesses, six eye care professionals who did not fully comply with the DOH’s Medicaid policies for provider enrollment and revalidation were able to obtain Medicaid eligibility under questionable circumstances.  


Department of Health: Medicaid Program, Managed Long Term Care Premium Rate Setting (2015-S-30)

Two managed care organizations reported medical costs for services procured through a corporate affiliate that would have been more accurately classified as administrative costs. These costs, which should have been subject to an administrative cap, were included in the medical costs component of the premium rate, which is not capped. Based on an analysis of the corresponding impact on the 2013-14 Managed Long Term Care premium rates, auditors estimated the misclassification of costs led to questionable payments of at least $82.3 million.

An initial audit released in June 2015 determined DOH did not implement adequate controls to enforce Ambulatory Patient Groups (APG) policy and payment rules. As a result, Medicaid made $32.1 million in actual and potential overpayments. Additionally, DOH did not have controls in place to prevent duplicate claims, resulting in $7.5 million in overpayments. In a follow-up, auditors found DOH officials made some progress in addressing the problems identified in the initial audit report. About $800,000 of the identified overpayments were recovered and DOH updated policy manuals to give clearer billing guidance to providers.


Metropolitan Transportation Authority: New York City Transit Subway Wait Assessment (Follow-up) (2017-F-7)

A prior audit determined that wait assessment performance did not improve during the audit period and that New York City Transit had not developed a full and comprehensive plan to deal with the long-term causes of service disruptions, including matters related to major structural and technology improvements. In a follow-up, auditors found the MTA made some progress in addressing the problems identified in the prior report. However, additional actions are warranted.  


State Education Department (SED): Brookville Center for Children’s Services Inc., Compliance with the Reimbursable Cost Manual (2016-S-75)

Brookville is a Nassau County-based not-for-profit organization providing preschool special education services to children with disabilities between the ages of three and five years. For the three fiscal years ended June 30, 2014, auditors identified $1,089,215 in reported costs that did not comply with requirements for reimbursement and recommended these costs be disallowed. The costs included: $305,207 in duplicative administrative costs; $240,673 in ineligible lease expenses; $273,100 in ineligible management fees; $234,291 in ineligible and/or insufficiently documented fringe benefit expenses; and $35,944 in over-allocated compensation, ineligible tuition reimbursements, and other insufficiently documented expenses.


State Education Department: Building Blocks Developmental Preschool Inc., Compliance With the Reimbursable Cost Manual (2017-S-1)

 
Building Blocks is a not-for-profit special education provider located in Commack. Building Blocks provides preschool special education services to children with disabilities who are between three and five years of age. For the three fiscal years ended June 30, 2015, auditors identified $56,966 in ineligible costs that Building Blocks reported for reimbursement. These ineligible costs included: $53,073 in non-reimbursable lease costs, $3,497 in non-reimbursable consultant costs, and $396 in non-reimbursable food costs.


State Education Department: Hawthorne Foundation Inc., Compliance With the Reimbursable Cost Manual (2017-S-3)

Hawthorne is a not-for-profit special education provider located in Westchester County. Hawthorne provides preschool special education services to children with disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $75,189 in ineligible costs that Hawthorne reported for reimbursement for the rate-based preschool special education program that it operated. The ineligible costs included: $56,619 in personal service costs for insufficiently documented staff time; and $18,570 in other than personal service costs. Auditors also determined Hawthorne did not disclose related-party transactions with three entities.


CSC, a not-for-profit organization located in Jericho, is authorized by SED to provide preschool special education services to children with disabilities who are between three and five years of age. For the fiscal year ended June 30, 2014, auditors identified $127,101 in ineligible costs CSC reported for reimbursement. The ineligible costs included $121,255 in employee fringe benefit costs that were incorrectly allocated and $5,846 in ineligible costs for food, personal travel, gifts, and other non-reimbursable expenses.

The department has not established policies and systems to sufficiently ensure that wireless telecommunication service providers comply with the tax law and that the state receives all monies to which it is entitled. In particular, the department does not have adequate controls to ensure that all eligible providers supplying services in the state collect, report, and remit the surcharges for all eligible devices to the department.


Comptroller's audits reveals local water systems losing millions in revenue

Audits of municipal water systems estimate local governments are losing millions of dollars in revenue due to water loss, inaccurate meters or improper billing, according to a report issued today by State Comptroller Thomas P. DiNapoli. The report analyzed the results of audits conducted by DiNapoli’s office of 161 local government and seven public authority water systems from January 2012 through May 2017.

“Water leaks, broken pipes and aging infrastructure are costing local governments millions of dollars annually,” said DiNapoli. “Across New York, my audits have revealed infrastructure problems, poor budget practices and a lack of long-term planning are straining municipal finances and increasing costs for taxpayers. If these problems aren’t addressed, the issues plaguing water systems will only get worse.”

Of the audits, 22 pointed to water loss as an issue and estimated that fixes could yield as much as $2.2 million in savings.

More often than not, water loss is caused by leaks from broken or aging underground pipes.  In some cases, however, auditors found inaccurate meters or improper billing to be the problem. As a result, some customers are paying too much and others too little. Efficient operations would require that officials upgrade meters or improve the accuracy of the billing process.

Auditors also found that several local governments had insufficient revenues to operate their water systems, which was aggravated by incorrect billing. As with water loss, these practices negatively affected water system operating budgets and overall municipal finances. During the five-year period, a review of 16 municipalities with revenue or billing deficiencies revealed that corrective action could increase revenues by more than $400,000.

DiNapoli’s report also noted:

1.
Several municipalities were routinely transferring money into the water fund from other funds, which continued to mask revenue shortfalls;

2.
Water fund surpluses were being improperly used to subsidize general operating costs for municipalities;

3.
The lack of adequate monitoring of system finances left local officials unaware of ongoing deficits and the dangers of depleting fund balances; and

4. 
Some local officials had no strategies to eliminate long-term deficits, improve infrastructure or replace aging equipment, or spend down significant surpluses.

The Comptroller’s office has expanded its audit focus to include issues regarding local water supplies. Recently, DiNapoli’s staff conducted an audit of a county’s oversight of water testing, identifying opportunities for improvement. In addition, upcoming audits are planned that will examine the cybersecurity of computer-based systems used to monitor, modify, regulate or manage municipal water facilities. In the wake of recent cyberattacks that have disrupted a number of local governments, including a municipal-owned dam in the Hudson Valley, these systems have come to the forefront as a critical risk area.

The U.S. House of Representatives’ Energy and Commerce Committee recently advanced a bill that would reauthorize the Drinking Water State Revolving Fund, which provides grants for water systems. This financial assistance helps local governments address critical drinking water issues, including protecting water quality, repairing infrastructure, and modernizing water meters.

This report is the second in a series examining various aspects of municipal water systems, including infrastructure, finances and organization.

The first report, Drinking Water Systems in New York: The Challenges of Aging Infrastructure, was issued in February 2017. To view the report, visit:



October 20, 2017

Pension Plan limitations for "Tax year 2018


Pension Plan limitations for "Tax year  2018
Source: The Internal Revenue Service

The Internal Revenue Service has issued information concerning cost of living adjustments affecting dollar limits for pension plans and other retirement-related items for tax year 2018. 

Go to 2018 cost of living adjustments for information concerning Pension Plan Limitations and 401(k) Contribution Limits.

October 19, 2017

Determining the scope of a grievance/arbitration clause set out in a collective bargaining agreement


Determining the scope of a grievance/arbitration clause set out in a collective bargaining agreement
Thousand Is. Cent. Sch. Dist. v Thousand Is. Educ. Assn., 2017 NY Slip Op 06759, Appellate Division, Fourth Department

The Thousand Island Central School District [District] and the Thousand Island Education Association [Association] entered into a collective bargaining agreement [CBA] that provided for the arbitration of "any alleged violation of this agreement or any dispute with respect to its meaning or application."

The Association filed a grievance on behalf of one of its members [Teacher] alleging that the District had violated the provisions of the CBA that require the District to maintain salary schedules in an ethical manner, to adjust teacher salaries based on graduate credits earned, and to abide by the salary schedules.

The Association alleged that when Teacher was hired the District mistakenly placed her on the salary schedule without properly taking into account the graduate credits that she had earned and, as a result of that error, Teacher had been underpaid since the effective date of Teacher's employment by the District.

In response to the Association's demand for arbitration of the grievance the District commenced a CPLR Article 75 proceeding seeking a permanent stay of arbitration. In response to the District's action, the Association cross-moved to compel arbitration.

Supreme Court denied the Association's cross motion to compel arbitration. The Association appealed and the Appellate Division reversed and directed the parties to proceed to arbitration.

The Appellate Division again applied the two-part test used by the courts to determine whether a matter is subject to arbitration under a CBA, finding, first, that there was no statutory, constitutional or public policy prohibition against arbitration of the grievance.*

Turning to the second test, the Appellate Division decided that "the parties in fact agreed to arbitrate the particular dispute" as there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

With respect to second prong of the test, the court said "[t]he dispute concerns whether [the District] placed Teacher at the correct step of the salary schedule and paid her properly based on the graduate credits that she earned, and thus it is reasonably related to the general subject matter of the CBA." In view of this, "it is the role of the arbitrator, and not the court, to make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, e.g. does the scope of the CBA's grievance provisions encompass "the initial placement of a new employee on the salary schedule, as opposed to the proper payment of an existing employee, and whether the subject matter of the dispute fits within them?"

* The District conceded that arbitrating grievance concerning salaries to be paid to individuals is not proscribed by law or public policy and thus only the second prong test was at issue.

The decision is posted on the Internet at:


CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com