Applying the Principle of “Obey Now, Grieve Later"

Under the “obey now, grieve later” principle, employees are required to follow their supervisor's orders when given, and, if they have an objection, contest the order subsequently through formal grievance procedures.

A New York City public employee was served with disciplinary charges alleging that he had disobeyed a lawful order to report for drug testing and failed to timely provide medical documentation justifying his inability to travel to the clinic for testing.

Here, however, the worker claimed one of the recognized exceptions to the principle, a situation where obeying the order would present an imminent and serious threat to the worker’s health or safety.*

OATH Administrative Law Judge Garcia found that the worker made out an "imminent and serious threat" to the worker’s health or safety defense. The worker presented documentation from a hospital emergency room showing that he had fainted on a subway platform on his way to the clinic and was told by a doctor not to travel for several days.

Judge Garcia recommended that the charges against the employee be dismissed.

Other decisions in which ignoring the principle "work now, grieve later" was a consideration include  Ferreri v. New York State Thruway Authority, 62 N.Y.2d 855 [refusal to obey an order claimed justified as consistent with the advice of union officials], Scazafavo v Erie County Water Authority, 30 AD3d 1034, [refusal to comply with an order to submit to drug testing because the employee did not believe that he was subject to random drug testing] and Tanvikr v NYC Health and Hospital Corporation, 112 AD 3d 436, [employee refused to obey orders to undertake training for a new position after being reassigned].

* Other exceptions include situations in which it is indisputably clear that the order is beyond the power of management.

The OATH decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1454.pdf

Perfluoroalkyl compounds (PFAs) have become notorious global contaminants

PFAs were detected in water sources serving more than 7 million Californians, according to a new report* by the Environmental Working Group. EWG describes itself as "dedicated to protecting human health and the environment.” It reports finding PFA contamination in water sources for 74 community drinking water systems -- serving 7.5 million people in California.

Unlike other global contaminants such as lead (Pb) and other metals, PFAs have upended the environmental regulatory world.  Regulatory agencies usually have found that control to parts per billion (ppb) or parts per million (ppm) will protect public health reliably and adequately.  The drinking water standard for Pb, for example, is 15 ppb.  PFAs, however, exhibit potent toxicological effects in the usually-unregulated parts-per-trillion (ppt) range, posing new challenges for environmental monitoring and regulation.

These challenges posed by the disturbing toxicology and environmental dynamics of PFAs have been examined by Dr. Robert A. Michaels in two articles recently published in the Environmental Claims Journal. Michaels (2017; see below) addresses massive PFA contamination of drinking water and other  environmental media in Hoosick Falls, Rensselaer County, New York. This episode of corporate environmental impact has garnered national attention because it adversely affected the health of people and the market value of their homes. Michaels (2018; see below) critiques the New York State Health Department's cancer cluster study in Hoosick Falls. He finds major shortcomings, some particular to the study and others applying to cancer cluster studies generally.

Most notably, standard operating procedure in science requires application of the stringent p ≤0.05 confidence criterion of statistical significance.  The Health Department study, like other cancer cluster studies, used this standard inappropriately to confirm cancer clusters in Hoosick Falls.  Unsurprisingly, it found none related to PFAs.  Use of the p ≤0.05 confidence level is aimed at conservatively protecting the body of scientific knowledge.  As a trade-off, however, it may confuse real cancer clusters with statistical flukes, justifying ignoring them.  Consequently, the standard procedure may fail to protect public health conservatively.

Michaels (2018) and Michaels (2017) both are available for download at no charge via the following URL links:

Michaels (2018):

https://www.researchgate.net/publication/322746891_Protecting_Science_and_Public_Health_in_Communities_-_PFOA_and_Possible_Cancer_Clusters_in_the_Village_of_Hoosick_Falls_Rensselaer_County_New_York

Michaels (2017): 

https://www.researchgate.net/publication/313809847_Lessons_Learned_from_Legacy_Contaminants_of_Emerging_Concern_Perfluoroalkyl_Compounds_PFCs_in_the_Village_of_Hoosick_Falls_Rensselaer_County_New_York

Please direct questions or comments concerning this post, and/or Michaels (2018), and/or Michaels (2017) to Dr. Michaels at ram@ramtrac.com.

* See https://www.cnn.com/2019/09/27/us/pfas-california-contamination-trnd/index.html

New York's Adirondack Council's 2019-20 State of the Park report and blog postings

Wild Thoughts by Julia Randall, Adirondack Council's Clarence Petty Intern, is a three-part series on wilderness ethics and management written in anticipation of the 2020 Adirondack Wilderness Symposium. 

The Symposium and this three-part series will seek to offer a comprehensive, 21st Century consideration of wilderness as a legal concept, an ecological condition and cultural phenomenon. 

Click on the following links to access Part I, What is Wilderness; Part II, For Whom Does Wilderness Exist?; and Part III, Wilderness and a Livable World. 

In addition, Challenged by Success, New York's Adirondack Council's 2019-20 State of the Park report, is posted on the Internet at https://www.adirondackcouncil.org/vs-uploads/sop_archive/1567097203_SOP_2019_2.pdf

New York's Adirondack Council's 2019-20 State of the Park report and blog postings

Wild Thoughts by Julia Randall, Adirondack Council's Clarence Petty Intern, is a three-part series on wilderness ethics and management written in anticipation of the 2020 Adirondack Wilderness Symposium. 

The Symposium and this three-part series will seek to offer a comprehensive, 21st Century consideration of wilderness as a legal concept, an ecological condition and cultural phenomenon. 

Click on the following links to access Part I, What is Wilderness; Part II, For Whom Does Wilderness Exist?; and Part III, Wilderness and a Livable World. 

In addition, Challenged by Success, New York's Adirondack Council's 2019-20 State of the Park report, is posted on the Internet at https://www.adirondackcouncil.org/vs-uploads/sop_archive/1567097203_SOP_2019_2.pdf

New York State Comptroller Thomas P. DiNapoli issues report on local governments identified as under financial stress

Urging local communities to engage in more long-term planning, on September 27, 2019 State Comptroller Thomas P. DiNapoli issued reports concerning 25 local governments in fiscal stress identified under DiNapoli's Fiscal Stress Monitoring System (FSMS). Included are eight counties, nine cities, seven towns and one village. Ten of those municipalities are in the highest ranking designation of “significant fiscal stress.”

The Comptroller said “For those in fiscal stress, effective long-term planning is critical for charting a better path. These municipalities should use the tools my office provides and engage the public in those difficult, but important, discussions about community priorities.”

Click on text highlighted in color to access the complete text of the material.

The latest round of scores, released today, are based on financial information reported to DiNapoli’s office by local governments operating on a calendar year basis (Jan. 1 – Dec. 31). In New York that includes all counties and towns, 44 cities and 10 villages.

Eight municipalities designated to be in “significant fiscal stress” in this scoring round are in the same category for the second year in a row. They are: the large downstate counties of Nassau, Suffolk and Westchester, the cities of Niagara Falls and Poughkeepsie and the towns of German Flatts, Parish and Oyster Bay. The city of Elmira and the village of Islandia were designated as being in “significant fiscal stress” for the first time.

Monroe County and the town of Clarkstown are designated as being under “moderate stress” in 2018. The counties of Broome, Franklin, Montgomery and Onondaga, the cities of Plattsburgh, Albany, Glen Cove, Little Falls, Watervliet, Tonawanda  and the towns of Dayton, Colonie and Little Valley were designated as being “susceptible to fiscal stress.”

DiNapoli’s monitoring system, implemented in 2013, evaluates local governments on financial indicators and creates fiscal stress scores. Indicators assess year-end fund balance, cash-on-hand, short-term borrowing, fixed costs and patterns of operating deficits. The system also evaluates information such as population trends, poverty and unemployment in order to establish a separate “environmental” score for each municipality which can be used to help describe the environment in which these local governments operate.

In March, DiNapoli issued scores for all non-calendar year local governments, mostly villages, and found seven villages and three cities in fiscal stress.

The Comptroller also released a reporton the challenges faced by local governments in stress. The report looked at all 35 local governments in stress, regardless of when their fiscal year ended and found:  

Cities were the most likely to be in fiscal stress in FYE 2018. Almost 23 percent (12 out of 53 cities scored) were designated in some level of fiscal stress, up from 14.5 percent (eight of 55 scored) designated in stress in FYE 2017.

Counties also had a relatively high rate of stress, with just over 14 percent (eight of the 56 counties scored) found to be in some level of fiscal stress in FYE 2018. However, this is a decrease from the nearly 18 percent (10 of 56 scored) in fiscal stress in FYE 2017.

Only seven of 853 towns scored (less than 1 percent) and eight of 485 villages scored (less than 2 percent) were in fiscal stress, which is similar to FYE 2017 results.

This year, more local governments did not file their financial data with the Comptroller’s office in time to be included in the fiscal stress scores (139 in total), including the cities of Ithaca, Syracuse and Newburgh, which had each filed for FYE 2017.

The report also points to useful tools to help local governments experiencing stress, such as multiyear financial planning, to ensure that financial resources are available for future needs.

Most local governments (almost 98 percent of those that filed) were not in a stress category. However, a “no designation” rating does not necessarily indicate an absence of fiscal stress. Local officials should review their FSMS results, including performance on individual indicators, to identify potential risk areas and develop a plan to address problem areas.

For a list of municipalities in stress for fiscal year ending in 2018:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/localgovernments/pdf/2018/munis-stressed.pdf

To sort fiscal scores by year and entity name, visit:

http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsms.cfm

For more detailed information about the Comptroller’s fiscal stress monitoring system, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

For municipalities that have not filed or designated inconclusive, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/localgovernments/pdf/2018/not-filed.pdf