Laws of 2018 of particular relevance to public employers and public employees in New York State

Laws of 2018 of particular relevance to public employers and public employees in New York State

Perhaps 2018's must significant legislative action affecting public employer sand employees in New York State was the amendment of Section 209-a.2 of the Civil Service Law by §4 of Part RRR of Chapter 59 of the Laws of 2018. This amendment set out New York State's response to the United States Supreme Court's decision in Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 138 SCt 2448.

In Janus the high court held that states and public-sector unions may no longer require "nonconsenting employees" in a collective bargaining unit to pay an "agency shop fee" in lieu of becoming a member the certified or recognized employee organization representing employees in a negotiating unit for the purposes of collective bargaining.

§209-a.2 of the Civil Service Law now provides that it is not a violation of an employee organization's duty of fair representation if the employee organization limits its services to, and representation of, nonmembers by declining to provide representation to the nonmember in the relevant negotiating unit at any stage of a grievance, arbitration or other contractual procedure involving the evaluation or discipline of a public employee where the non-member is permitted to [i] proceed without the employee organization and [ii] be represented by his or her own advocate; during questioning by the employer; or as an advocate to enforce statutory or regulatory rights alleged by the nonmember or in administrative or judicial proceedings where the nonmember is a party.

Additional bills of particular relevance to public employers and public employees in New York State signed in to law by the Governor:

CHAPTER Bill No.     Sponsor and Title

16               S7289        CROCI -- Relates to authorizing additional paid leave for certain employees

47               S7431        MURPHY -- Provides that each state agency that maintains a website shall ensure its website provides for online submission of requests for records subject to FOIL

49               A8929       Rozic -- Relates to requiring the president of the civil service commission to prepare a triennial report relating to programs within state agencies that allow for alternative work   schedules or flexible work hours

67               A9728       Lentol -- Relates to tuition waivers for police officer students of CUNY

71               S7440A     GOLDEN -- Relates to terms and conditions of employment of certain nonjudicial officers and employees of the unified court system

72               S7715        BONACIC -- Relates to the terms and conditions of certain non-judiciary officers and employees in the unified court system

76               A10606     Abbate -- Relates to compensation, benefits and other terms and conditions of employment of certain state officers and employees; appropriation; repealer

207             A208E       Lupardo -- Provides for pre-employment and random drug and alcohol testing of school bus drivers

214             A2954B     McDonald -- Authorizes educational institutions to agree to pay for all or a portion of the salaries and compensation payable to municipal school crossing guards

220             A7070A    Abbate -- Relates to residency requirements for members of municipal departments of sanitation

231             A8177       Skartados -- Relates to justices presiding in an off-hours arraignment part

233             A8382B     Galef -- Requires immediate notification by law enforcement of the filing of an accusatory instrument alleging a sex offense by an employee

248             A10327A  Gunther -- Relates to the cost of insurance to provide firefighters with an enhanced cancer disability benefit insurance program

262             A11128     Rules (Jones) -- Includes persons appointed as Indian police officers within the definition of the term "law enforcement agency" for the purposes of the law enforcement accreditation council

263             A11227     Rules (Abbate) -- Relates to implementing an agreement between the state and an employee organization; appropriation

271             S8973        GOLDEN -- Relates to disciplinary action against persons employed in the labor class

308             A3076       Cymbrowitz (MS) -- Relates to the qualifications of members of the gaming commission

330             A11020     Rules (Epstein) -- Relates to authorized absences by healthcare professionals who volunteer to fight the Ebola virus overseas; extends effectiveness

331             S2496B     HANNON -- Enacts the "living donor protection act of 2018"

355             S8805        RULES -- Relates to salary adjustments according to plan and step-ups or increments

356             S1124B     MARCHIONE -- Provides for an increase in the rates of compensation for gold star parents

368             A10615     Titus -- Relates to permitted deductions from wages; extends the effectiveness of such provisions

387             S8251        ROBACH -- Relates to warranties of fire vehicles and ambulances

403             A2549       Lifton (MS) -- Directs the president of the civil service commission to study and publish a report evaluating wage disparities among public employers

406            A8057B    Abbate -- Relates to the qualifications of fire chiefs

410            A10311B  Wallace -- Develops a plan for skill training for firefighters to occur at such trainee's home department or online

419            A11241    Rules (Abbate) -- Relates to civil service provisional employees in NYC

426            S5593A    GOLDEN -- Relates to repayment of loans by members of the New York state and local employees' retirement system

433            S6939A    GALLIVAN -- Authorizes the county of Erie to offer an optional twenty year retirement plan to certain deputy sheriffs employed by such county

441            S7935A    HELMING -- Authorizes the town justice court of the town of Canandaigua to hold justice court in the city of Canandaigua

461            A5487      Seawright -- Requires the secretary of state to compile, make public and keep current certain information on persons subjected to section 73-a of the public officers law and who hold policy-making positions

475            S5686A    GOLDEN -- Authorizes the port authority of New York and New Jersey to offer a certain retirement option to certain port authority police officers

476            S6542B    LITTLE -- Relates to replacing all instances of the words or variations of the words fireman or policeman with the words firefighter or police officer or variation thereof

477            S6683A    GOLDEN -- Relates to the certification of a deputy sheriff as a police officer

486            S7351A    VALESKY -- Relates to the removal of all police markings prior to decommissioning

500            S8249A    DEFRANCISCO -- Exempts Nedrow Fire Department from the requirement that the percentage of non-resident fire department members not exceed forty-five percent of the membership

513            S8979A    TEDISCO -- Exempts the Pleasant Square Fire Company, Inc. from the requirement that the percentage of non-resident fire department members not exceed forty-five percent of the membership

Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions

Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions

Appeal of Diana Marie Van Vleet, Decisions of the Commissioner of Education, Decision No. 17,538

Diana Marie Van Vleet appealed an action of Molloy College, an institution of post-secondary education concerning Ms. Van Vleet's being given a failing grade in a course. 

The record before the Commissioner of Education indicated that at the time of the events described in this appeal, Ms. Van Vleet was enrolled as a student at Molloy College and here presents claims against Molloy College and several of its officers and employees asserting that she was improperly given a failing grade in one of her courses. 

The Commissioner said that Ms. Van Vleet's appeal must be dismissed as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  The pertinent portion of Education Law §310 reads as follows:

"Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action: 7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools."

In the words of the Commissioner, "[t]his grant of jurisdiction does not extend to acts or omissions of institutions of post-secondary education. The Commissioner explained that while the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, " the text do not stand alone and are "circumscribed and modified by the contextual words which precede and follow them.”

Citing Bd. of Educ. of City Sch. Dist. of City of Rome v. Ambach, 118 AD2d 932 and Application of Bowen, 17 AD2d 12, aff’d 13 NY2d 663, the Commissioner said courts have held that “the statute deals throughout with the common schools and, inferentially, ... it does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law,” the Commissioner dismissed Ms. Van Vleet's appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17538

Audits and reports issued by New York State Comptroller Thomas P. DiNapoli during the week ending December 21, 2018

Audits and reports issued by New York StateComptroller Thomas P. DiNapoli during the week ending December 21, 2018

Source: Office of the State Comptroller

Click on text highlighted in color to access the full report

Department of Health: Medicaid Overpayments for Medicare Part B Services Billed Directly to eMedNY (2017-S-36)
Auditors identified up to $8.7 million in improper payments for costs related to Medicare Part B deductibles and coinsurance between 2012 and 2017. Auditors found that Medicaid made: questionable payments totaling $5.3 million to providers who claimed excessive Part B coinsurance amounts; overpayments totaling $2.3 million to providers for the Part B coinsurance on services Medicaid did not cover; and overpayments totaling $1.1 million to providers for Part B deductibles that exceeded yearly limits.

Department of Health: Medicaid Overpayments for Medicare Advantage Plan Services (2017-S-46)
During the audit period, 2013 through 2017, Medicaid was the primary payer on 92,296 claims totaling almost $12.8 million for services typically covered by a recipient’s plan. Auditors sampled 266 such claims (totaling $220,661 in Medicaid payments) to determine the appropriateness of the payments. Auditors found that for 187 claims the provider either never billed the plan for the services, incorrectly indicated a plan payment of zero on its Medicaid claim or did not follow the plan’s billing guidelines. Medicaid paid $183,019 on these claims, while its actual obligation amounted to only $5,484. During the audit, certain providers acknowledged receiving overpayments and repaid Medicaid $25,300, leaving $152,235 to be recovered.

Department of Health: Improper Medicaid Payments for Recipients in Hospice Care (2017-S-76)
Auditors identified about $8 million in inappropriate Medicaid payments for services provided to hospice recipients, including: $2.9 million for services that were not allowed in combination with the daily hospice rate; $2.4 million for drugs, durable medical equipment, home care, and other services that are covered under the daily hospice rate; $2.6 million for services that should have been covered by Medicare or a Medicaid managed care organization; and $107,141 for hospice services while the patient was in the hospital.

Department of Labor (DOL): Protection of Child Performers (Follow-Up) (2018-F-24)
An initial audit found DOL had not created a sound and effective system of internal controls for the Child Performers Unit and did not have the necessary controls to monitor and enforce compliance with regulations designed to protect child performers’ earnings. Auditors also found that DOL’s electronic permit application system had significant data entry, maintenance, and functionality deficiencies that limited its effectiveness and reliability as a monitoring tool. In a follow-up, auditors found DOL officials have not made progress in addressing the issues identified in the initial report.

Department of Motor Vehicles (DMV): Registration and Enforcement of Automotive Service, Sales, and Salvage Facilities (Follow-Up) (2018-F-25)
State law outlines DMV’s responsibilities for administering the registration and licensing for certain types of automotive businesses, including registration of repair shops, dealers, dismantlers, and junk and salvage facilities and licensing of inspection stations. Where facilities are found to be in violation of laws, rules, or regulations, DMV must take necessary actions against them, which may include issuing penalties, suspending or revoking registrations/licenses to operate, or referring the operator or facility for criminal prosecution. An audit issued in August 2017 identified many locations where businesses could potentially be operating without a license. Auditors also identified delays in DMV’s process for handling consumer complaints. In a follow-up, auditors found DMV officials have made significant progress in correcting the problems identified in the initial report.

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 150,000 contracts, billions in state payments and public authority data. 

 

Procedural considerations relevant to conducting a disciplinary hearing pursuant to §75 of the Civil Service Law

Procedural considerations relevant to conducting a disciplinary hearing pursuant to §75 of the Civil Service Law

Tinter v Board of Trustees of the Pound Ridge Lib. Dist., 2017 NY Slip Op 08385, Appellate Division, Second Department

In this appeal from a disciplinary determination following a Civil Service Law §75 disciplinary hearing that resulted in the termination of the employee [Petitioner], the Petitioner challenged, among other things, the authority of the hearing officer to conduct the hearing.

The Appellate Division said that the Board of Trustees of the Pound Ridge Library District's [Board] minutes reflecting a resolution to appoint the Hearing Officer and the letter addressed to the Hearing Officer on Pound Ridge Library letterhead and signed by the Board's president, advising that the Hearing Officer had been designated to hold a hearing on the disciplinary charges preferred against Petitioner and on "amendments or supplements to the charges as might thereafter be preferred ... sufficiently documented the validity of the Hearing Officer's appointment and satisfied the relevant provisions of Civil Service Law §75(2), citing McKenzie v Board of Education, City School District of Albany, 100 AD3d 1096.

Petitioner also challenged certain members of the Board participating in the Board's review of the findings and recommendations of the Hearing Officer.

Citing Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714, the Appellate Division stated that while individuals "who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges", the "[i]nvolvement in the disciplinary process does not automatically require recusal." The court opined that the Board members who reviewed the recommendations of the Hearing Officer and acted on the charges "were not so personally or extensively involved in the disciplinary process so as to compel the conclusion that they could not fairly consider the evidence and recommendation resulting from the hearing and, thus, that their recusal was necessary."

Another issue raised by Petitioner was the Hearing Officer's involvement in another matter. The Appellate Division said that "[c]ontrary to the [Petitioner's] contention, the Hearing Officer's undisclosed participation in another matter involving the Board's counsel did not compel the Hearing Officer's disqualification."

With respect to Petitioner's claim that the Board's determination should be annulled because the Board made no independent review of the record, the Appellate Division found that the Board "had an opportunity to review the record, transcripts, exhibits, and post-hearing memorandum," and Petitioner "failed to make any clear showing that the Board did not make an independent appraisal and did not reach an independent conclusion."

Note:With respect to an appointing authority's review of the hearing record, in cases in which a board is the appointing authority and is voting to accept a hearing officer’s finding of fact, each member of the board must make an independent review of the record. This means a copy of the transcript must be made available to each member of the board who votes. The appointing authority, however, is not required to read every page of the transcript taken at a disciplinary hearing. In McKinney v Bennett, 31 AD3d 860, the Appellate Division held that the appointing authority was not required to read all 1,228 pages of the hearing transcript and each document submitted, citing Matter of Taub v Pirnie, 3 NY2d 188. In Stanton v Board of Trustees, 157 AD2d 712, the court commented that Stanton failed to demonstrate that the appointing authority "made no independent appraisal and reached no independent conclusion”, quoting Matter of Kilgus v Board of Estimate of City of N.Y., 308 NY 620.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08385.htm

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

Sears v DiNapoli, 2018 NY Slip Op 08610, Appellate Division, Third Department

§803.a of the Retirement and Social Security Law [RSSL] addresses processing applications for retroactive membership in a public retirement system of New York State and provides, in pertinent part, that "A public retirement system shall have the authority to grant relief from a failure to file an application for membership in that system in connection with service rendered prior to April first, nineteen hundred ninety-three in accordance with the provisions of this [§803]."

Patricia Sears, a permanent employee of the Department of Taxation and Finance [T&F] from November 1977 until her retirement in July 2015 was enrolled in ERS as a Tier 3 member.  Prior thereto her permanent appointment in 1977, Sears had been employed by T&F as a seasonal employment on two occasions, initially from March 4, 1976 to June 30, 1976 and then again from January 6, 1977 until September 16, 1977. Prior to the commencement of her second temporary period of employment with T&F Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*

After RSSL §803 was enacted in 1993, Sears sought, but was denied, retroactive Tier 2 membership in ERS. Shortly before Sears retired in July 2015, she again sought to have her ERS membership in Tier 3 changed to a Tier 2 membership. Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.

The Appellate Division said the ERS conceded, and its review of the record confirms, that the underlying determination denying Sears' application to Tier 2 membership in ERS was not supported by substantial evidence. In words of the court, "As the Hearing Officer aptly observed, the waiver signed by [Sears] in December 1976 cannot be applied retroactively to encompass [Sears'] initial period of seasonal employment from March 1976 to June 1976, and Sears testified without contradiction that she was neither offered an opportunity to join nor declined membership in the Retirement System at that time."

The court explained that there was no information in Sears' personnel file regarding her membership options or opportunities when she was first hired in 1976, nor were there any current employees who could attest to the membership notification procedures that were in place when Sears was initially employed by T&F. Further, said the court, the documentary proof offered at the hearing was insufficient to establish, among other things, that Sears participated in a procedure that a reasonable person would recognize as an opportunity to join or decline membership in the Retirement System.

Accordingly, the Appellate Division annulled the Comptroller's determination, granted Sears application for retroactive Tier 2 status in ERS and remitted the matter to ERS "further proceedings not inconsistent with this Court's decision."

In contrast, see Schuyler v New York State & Local Employees' Retirement System at http://www.nycourts.gov/reporter/3dseries/2018/2018_00874.htm where the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit."

* Frequently employees, other than employees in the Labor Class, eligible for membership in ERS but not required to become a member, declined becoming a member in order to avoid being required to make employee contributions to ERS and participating in Social Security. Employees in the Labor Class were required to participate in Social Security regardless of their membership in ERS.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08610.htm