Failure to serve a timely notice of claim otherwise required by law on a public entity

The Nassau BOCES Educational Administrators Association [Association] commenced this CPLR Article 78 seeking a court order annulling a determination made by the Board of Cooperative Educational Services of Nassau County BOCES and Robert Dillon, its superintendent, [Respondents], that certain BOCES employees are not entitled to annual leave under the controlling Collective Bargaining Agreement [CBA], alleging among other things, that Respondents had "breached the contract" between the parties.

The Respondents filed its answer to the Association's petition/complaint but simultaneously asked the court to dismiss the petition/complaint "for failure to serve a notice of claim." Supreme Court granted the Respondents' motion, in effect, dismissed the Association's petition/complaint and the Association appealed the Supreme Court's ruling.

The Appellate Division introduced its ruling by explaining that although there were "certain limited exceptions," service of a notice of claim is a condition precedent to the commencement of any action and/or special proceeding against any BOCES or BOCES officer, citing Education Law §3813[1].

One such exception, said the court, is where the parties to the contract have indicated their intention to make Education Law §3813[1] inapplicable by affirmatively acting in a manner that demonstrates that the statutory requirement is inapplicable, or, at least, "they have set out detailed procedures which are plainly inconsistent with those contained in that section."

In the absence of any such action by the parties, opined the Appellate Division, "the provisions of the statute are to be deemed part and parcel of any contract entered into by [the parties]."

Noting that here the controlling CBA set forth a detailed, three-step grievance procedure but limits the definition of the term "grievance" to disputes concerning the interpretation and construction of the CBA, the Appellate Division concluded that it was not clear, "as it must be," that the parties intended to make Education Law §3813[1] inapplicable, "particularly in a case such as this one, which seeks not only equitable relief concerning the interpretation of the CBA but also to recover damages for breach of contract."

Under such circumstances, the Appellate Division said that it agreed with the Supreme Court's determination to grant Respondents' motion to dismiss the petition/complaint consistent with requirements of Education Law §3813[1].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07260.htm

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

Emerging green synergy in the science/religion relationship: from conflict to potentially planet-saving cooperation

The science/religion relationship has proved to be of great interest, given the crushing economic burden of global climate change on the insurance industry, and the close association of science denial and climate change denial in some religious communities.  Below is the abstract of an article by Dr. Robert A. Michaels [bam@ramtrac.com] recently published in the Environmental Claims Journal.  

The full text of the article can be downloaded from ResearchGate.net at no charge, via the following URL:

https://www.researchgate.net/publication/328051664_Emerging_Green_Synergy_in_the_ScienceReligion_Relationship_From_Conflict_to_Potentially_Planet-Saving_Cooperation

Abstract

Nature has inspired awe throughout history, stimulating scientific study often conflicting with theology.  Conflict is manifest as promotion of creationism and its euphemisms in school curricula, and in science denial, recently in the U.S. Government.  Unification, however, is an emerging reality for the science/ religion relationship, driven by convergent evolution of each toward saving our shared planet from ourselves.  No longer can religion deny science, nor science overlook the power of religious institutions toward achieving our common existential goal.  

==================================

Audits issued by the New York State Comptroller during the week ending October 11, 2019

On October 9, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued. Click on the text highlighted in color below to access entire report.

Office of Children and Family Services (OCFS): Financial Oversight of the Advantage After School Program (Follow-Up) (2019-F-27)

A report issued in February 2018 identified a risk that providers could exceed their maximum cost per child if they were serving significantly fewer children and did not reduce their expenditures proportionately. Based on observations of program attendance at selected providers, the cost per child on five contracts ranged from $1,981 to $5,332. Auditors also identified $38,514 paid to six providers for program expenses that could not be supported or included errors. In a follow-up, auditors found OCFS has made progress in addressing the problems identified in the 2018 audit.

Department of Health (DOH): Medicaid Program: Claims Processing Activity October 1, 2018 through March 31, 2019 (2018-S-55)

Auditors identified over $5.7 million in Medicaid payments that require DOH’s prompt attention, including: $1.9 million that was paid for inpatient claims that were billed at a higher level of care than what was actually provided; $1.4 million was paid for newborn birth claims that contained inaccurate birth information; and $1 million was paid for practitioner, pharmacy, inpatient, lab, and clinic claims that did not comply with Medicaid policies.

Thruway Authority: Compliance With Payment Card Industry Standards (Follow-Up) (2019-F-14)

An audit issued in September 2017 found the authority did not have a developed information security policy that addressed all the requirements in the Payment Card Industry Security Standards Council. It could also improve certain other technical safeguards over the cardholder data it processes. In a follow-up, auditors found the authority made significant progress in addressing the issues identified in the initial audit. 

Department of Transportation (DOT): Collection of Special Hauling and Divisible Load Overweight Permit Fees (Follow-Up) (2019-F-24)

An audit, covering the period April 1, 2012through Feb. 5, 2015, found significant weaknesses in the internal controls over the special hauling permits issued by four DOT regional offices. This included poor accountability over permits issued and fees collected, a lack of segregation of duties for permit transactions, and minimal oversight by management at both the central and regional levels. In a follow-up, auditors found that DOT has implemented the recommendations from the original audit.

State University of New York, University at Buffalo: Procurement Practices (2018-S-37)

A review of $8 million in spending between April 2016 and September 2018 uncovered various issues within its procurement processes, leading auditors to question whether $895,839 was spent appropriately and in the best interest of the state. Buffalo’s poor monitoring of spending and contracting practices resulted in potential lost savings and cost avoidance, overcharges by vendors, and purchases that lack support for business need or reasonableness of price.

State University of New York: Upstate Medical University: Human Resource (HR) Practices (2018-S-57)

Insufficient HR monitoring and oversight and poorly enforced policies and procedures have contributed to questionable and weak practices that render Upstate vulnerable to misuse of funds and security risks. For example, Upstate paid 12 employees a total of $4.7 million in additional compensation for work beyond their regular job duties but did not maintain adequate documentation to support either the basis for the dollar amount or the additional duties that employees were tasked with. Upstate has not established policies or procedures for alternate work (off-campus) assignments. Additionally SUNY System Administration continued to pay a former president her presidential salary of $608,000 while she was on leave in the job title of special assistant to the president. 

Professor M. Stanley Whittingham joins other SUNY faculty members who have been awarded the Nobel Prize

On October 9, 2019 New York's Governor Andrew M. Cuomo congratulated SUNY at Binghamton Distinguished Professor M. Stanley Whittingham upon his receiving the 2019 Nobel Prize in Chemistry.

Professor Whittingham won the prize for his work leading to the development of the lithium-ion battery together with John B. Goodenough, Virginia H. Cockrell Centennial Chair in Engineering at the University of Texas at Austin and Akira Yoshino, an honorary fellow for the Asahi Kasei Corporation in Tokyo and a professor at Meijo University in Nagoya, Japan.

The Governor said "Professor Whittingham's work has far-reaching applications, including helping New York reach our goals to reduce carbon emissions and achieve 100 percent zero carbon electricity by 2040."

The names and vita of other SUNY faculty Nobel Laureates are posted on the Internet at https://www.rfsuny.org/rf-news/nobel-laureates/