Appointing authority adopts the recommendation of the hearing officer in part

A volunteer member [Petitioner] of a fire department [Department] was served with disciplinary charges alleging gross misconduct and conduct unbecoming a member of the Department as the result of a physical confrontation between Petitioner and another member of the Department.

Following a disciplinary hearing conducted pursuant to §209-l of the General Municipal Law, the hearing officer found Petitioner not guilty of gross misconduct but guilty of conduct unbecoming a member of the Department. The hearing officer then recommended Petitioner be suspended for 60-days. The Board of Fire Commissioners [Board] determined that Petitioner was guilty of both charges and imposed the penalty of expulsion from the Department and "disqualified [Petitioner] from membership for life." 

Supreme Court dismissed Petitioner's appeal of the Board's determination, which decision was sustained by the Appellate Division after it rejected Petitioner's argument that the sanction of expulsion and disqualification from membership for life was an abuse of discretion by the Board. 

Citing DeStefano v Incorporated Vil. of Mineola, 167 AD3d 740, and other decisions, the Appellate Division turned to a procedural issue, noting that Petitioner had  raised the question of whether the Board's determination was supported by substantial evidence. Accordingly, said the court, the lower tribunal should have transferred the proceeding to it without deciding that issue. Notwithstanding this procedural defect, "because the complete record" was now before it, the Appellate Division elected to treat the matter as one that had been transferred to it and reviewed the determination de novo. 

The Appellate Division then explained the "Upon judicial review of a determination rendered by an administrative body following a hearing, [the Appellate Division's] function is limited to consideration of whether the determination is supported by substantial evidence". Noting that "substantial evidence" means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," Appellate Division opined that the Board's determination sustaining the charges of gross misconduct and conduct unbecoming a member of the Department was supported by substantial evidence. 

Although Petitioner argued that the confrontation between himself and the other member of the Department constituted "harmless horseplay," it is undisputed that Petitioner causing an injury to that member, in violation of Department policy.

Noting the "judicial review of an administrative penalty" is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law" the Appellate Division, citing Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222, concluded that the penalty of expulsion from the Department and disqualification from membership for life is not so disproportionate to the offenses as to be shocking to one's sense of fairness.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00413.htm

Standing to maintain a proceeding alleging a violation of the Open Meetings Law

Noting that case law addressing the issue of standing to commence a proceeding/action to enforce the provisions of the Open Meetings Law [OML]* is sparse, the Appellate Division, citing Matter of Sanna v Lindenhurst Bd. of Educ., 85 AD2d 157, said in fashioning a remedy for a violation of the OML the reviewing court must focus solely upon the public injury," noting than in Sanna the Appellate Division "expressly centered on the 'public injury' or injury to the 'citizenry' of which Sanna was a member, not on her status as the subject of the board's deliberation.** 

In Friends of Pine Bush v Planning Bd. of City of Albany (71 AD2d 780), Appellate Division, Third Department, found that "[a]s residents of the city, the individual petitioners are persons aggrieved by a decision of the planning board and thus have standing to bring this proceeding", while in Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 29 Misc 3d 1206[A], the court determined that, as a lawful attendee of the meeting in question, the Zehner was an aggrieved party and had standing to challenge the school board's activities.

Guided by the settled principle that "[w]hen presented with a question of statutory interpretation, a court's primary consideration is to ascertain and give effect to the intention of the Legislature," the Appellate Division opined that the purpose of the OML and the intent of the Legislature in enacting that law dictate that the harm or injury is the alleged unlawful exclusion of the public from a municipal meeting. Citing Public Officers Law § 100, The court said that the OML "plainly confers upon the public the right to attend certain meetings of public bodies."

Accordingly, the harm or injury of being excluded from municipal meetings that should be open to the public is sufficient to establish standing in cases based upon alleged violations of the OML. To require a petitioner to demonstrate an additional personal damage or injury to his or her civil, personal, or property rights in order to assert a violation of the OML would, in effect, interject a counter-intuitive restriction upon the general citizenry's access and participatory freedoms to attend certain meetings of a public body. 

Such a requirement or condition, said the Appellate Division, "would undermine, erode, and emasculate the stated objective of this statute, which was designed to benefit the citizens of this state and the general commonweal, assure the public's right to be informed, and prevent secrecy by governmental bodies."

The Appellate Division the held that the branch of the Village Board's motion to dismiss the Appellants' petition/complaint in this action for lack of standing should be denied. 

The Appellate Division then noted that it found "only that the Appellants established their standing to maintain this proceeding/action" and took no position on the merits of the remaining allegations asserted by the parties, "including whether the Village Board, in fact, violated the Open Meetings Law by excluding the appellants or whether the Village Board properly conducted executive sessions."

* Public Officers Law, Article 7.

** The Court of Appeals later affirmed Appellate Division's decision and order in Sanna, without expressly addressing the issue of standing (Matter of Sanna v Lindenhurst Bd. of Educ., 58 NY2d 626).

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_00864.htm

Portions of an arbitration award challenged as moot, exceeding the authority of the arbitrator and "nonfinal and indefinite"

In compliance with an arbitration award, the school district [District] appointed 16 teachers' aides. The District subsequently announced its intention to eliminate 5½ teaching positions for the 2017-2018 school year in order to offset the cost of employing these teachers' aides. 

The Teacher Federation [Union] filed a grievance in an effort to prevent the elimination of the teaching positions on the ground that District's intended conduct was retaliatory. An arbitrator issued an opinion which directed the District to "rescind its decision to eliminate . . . teaching positions . . . for the 2017-2018 school year." 

Citing Hearst Corp. v Clyne, 50 NY2d 707, the Appellate Division vacated this portion of the arbitrator's award explaining that it "is well established that an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment."

Because the 2017-2018 school year had concluded, said the court, a determination in this appeal would have no effect on the parties' rights.

The court also agreed with the District that the arbitrator had exceeded his authority by requiring it to make the elimination of teaching positions in accordance with the "School Based Development Guide", opining that an arbitration award may be vacated where an arbitrator, 'in effect, made a new contract for the parties in contravention of [an] explicit provision of [the] arbitration agreement which denied [the] arbitrator power to alter, add to or detract from" the collective bargaining agreement (CBA). Noting that the CBA does not require the District to make its staffing or budgetary decisions in accordance with the Guide,  the Appellate Division ruled that the arbitrator contravened an express provision in the CBA that denied him the "authority to modify or amend it." 

Finally, the District contended that a paragraph of the arbitration award was nonfinal and indefinite insofar as it directed that "[a]ny future elimination of teaching positions at [the affected school] as a result of hiring teacher aides must be narrowly tailored to meet the economic needs of [the District] and be applied in a Union membership neutral manner." 

The Appellate Division agreed, indicating that an award is nonfinal and indefinite if "it leaves the parties unable to determine their rights and obligations." The court said that here  the language in the award was "nonfinal and indefinite" except to the extent that it prohibited the District from discriminating on the basis of "Union membership status." 

Concluding that the Supreme Court had erred in confirming these parts of the arbitration award challenged by the District, the Appellate Division modified the order and judgment accordingly.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_00794.htm

New York State Comptroller releases audits of various public entities

On February 10, 2020, New York State Comptroller Thomas P. DiNapoli issued the following audits.

Click on the text in blue to access the full report.

Gaming Commission: Oversight of Casino Revenues and Regulatory Oversight Reimbursement Collections (2019-S-8)

Auditors found an estimated $13 million has not been billed or collected from commercial casinos for oversight costs. The commission also did not have policies regarding dispute resolution procedures when a casino disagrees with oversight cost charges, leaving the commission unprepared to address disputes that may arise.

Office of General Services (OGS): Efficiency of Warehouse Space (2019-S-1)

OGS has made progress in reducing leased warehouse space, having evaluated 29 leased warehouses, resulting in: the consolidation of 14, liquidation of nine, square footage reduction for three, and no changes in the remaining three. The initiative realized cost savings of $1,699,020 during the audit scope and a reduction of 434,266 square feet. However, auditors could not determine the initiative’s overall success, as an inventory of all state warehouses – leased and state owned – did not exist.

Metropolitan Transportation Authority (MTA) New York City Transit: New Customer-Focused Subway Metrics (2018-S-72)

Under the Public Authorities Law, the MTA is required to issue an annual report on its mission statement, measurements, and performance indicators. One of the goals the MTA cites in its annual report is to provide on-time and reliable service to customers. Auditors found Transit’s new customer-focused measures do not appear to meet the plan’s goals. For a metric to be relevant, it should be closely connected to the goals, easily understood, and straightforward.

Metropolitan Transportation Authority: Selected Performance Measures (2018-S-18)

For two key performance measures – mean distance between failures and ridership – auditors identified deficiencies and inconsistencies in MTA’s methodology and calculations that may result in misleading or inaccurate results. 

Metropolitan Transportation Authority: Safety at Stations (Follow-Up) (2019-F-16)

An audit issued in June 2017, found that the Staten Island Railroad (SIR) documented its inspections of facilities where safety-related incidents occurred and the actions taken to remediate conditions that might have contributed to such incidents. However, in certain instances, responses to safety-related incidents were not documented. In a follow-up, auditors found that SIR officials made progress in addressing the problems identified in the initial audit.

New York City Department of Finance (DOF): Selected Controls Over the Property Tax Assessment Process (Follow-Up) (2019-F-30)

An audit issued in July 2017 found that DOF's Property Division did not conduct necessary inspections for over half of the parcels reviewed and assessors frequently did not document the basis for assessment changes. In a follow-up, auditors found that DOF made progress in addressing the problems identified in the initial report. 

New York City Health and Hospitals Corp. Oversight of Nurse Hiring and Retention (Follow-Up) (2018-F-45)

An audit issued in July 2018 found that, while Health and Hospitals generally complied with its policies for the screening of its direct hire and temporary nurses, it had not taken action to ensure that direct hire nurses who began before 2002 or any of its temporary nurses were fingerprinted. Auditors also identified numerous instances of deficient screening and monitoring. In a follow-up, auditors found that of the four recommendations from the initial report, two had been implemented and two had been partially implemented.

New York State Health Insurance Program: UnitedHealthcare: Out-of-Network Providers Upcoding Selected Evaluation and Management Services (Follow-Up) (2019-F-46)

For the period Jan. 1, 2016 through Dec. 31, 2016, auditors determined 42 claims (47 percent of the 90 claims sampled) totaling $28,731 were unsupported for the higher level of care billed. United’s method for monitoring out-of-network providers who billed for higher-level services needed improvements. In a follow-up, auditors found United made progress in addressing the problems identified in the initial audit. In particular, United saved the Empire Plan $862,334 through reviews of claims from three of nine providers identified in the initial audit.

The Research Foundation for the State University of New York (SUNY): Technology Transfer Program and Royalty Payments (2019-S-10)

The Research Foundation has taken steps to protect SUNY’s interest in the transfer of technology and royalties for projects developed at SUNY schools. The Research Foundation has not developed routine monitoring mechanisms to determine whether a licensee is paying the full royalty owed. Since 1992, Downstate Health Sciences University has accumulated $1,019,390 in campus royalty revenue, none of which has been used to support SUNY research programs.

State Education Department (SED): St. Anne Institute: Compliance with the Reimbursable Cost Manual (2019-S-20) 

St. Anne is an SED-approved, not-for-profit private school located in Albany that provides preschool special education services to children with developmental disabilities. Auditor identified $14,204 in in ineligible costs that St. Anne reported for state reimbursement.

State Education Department: Children’s Education Services Inc. (CES): Compliance with the Reimbursable Cost Manual (2019-S-24)

Located in Jamestown, CES is a for-profit special education provider that services children with disabilities between three and four years of age. Auditors identified $2,509 in other than personal service costs reported by CES on its for the fiscal year ended June 30, 2015 that were ineligible for reimbursement.

State Education Department: Minds in Motion Inc. (MIM): Compliance with the Reimbursable Cost Manual (2019-S-28)

MIM is a for-profit special education provider located in Newburgh. MIM provides preschool special education services to children with disabilities between three and four years of age. Auditors identified $27,970 in costs reported by MIM that were ineligible for reimbursement.

Contaminants of Emergent Concern discussed at New York State Bar Association meeting

Dr. Robert A. Michaels, NYPER's Environmental Science Consultant, made an invited presentation to the New York State Bar Association, Energy and Environmental Law Section on January 31, 2020.  

The presentation, titled Contaminants of Emergent Concern, is available for viewing and/or download at no charge, at the following URL: 

https://www.researchgate.net/publication/339055672_Legacy_Contaminants_of_Emergent_Concern.  

The Focus of Dr. Michaels' Presentation

Concern about historic (‘legacy’) contaminants may be emerging as information about their toxic effects and toxic potency increases, and with discovery of their presence at toxic levels in various environmental media. 

Two classes of substances exemplify such concerns: lead (Pb) and its compounds, and perfluorinated compounds (PFAs). PFAs have been termed ‘forever chemicals’, but Pb qualifies as well. 

Concern about these contaminants is emerging because of at least three issues: failures of environmental justice, the need for international agreements regarding globe-trotting contaminants, and the conflict between protecting science and public health exemplified by inadequately probative study designs for identifying cancer clusters.

Click here for summaries of selected articles by Dr. Michaels posted on NYPPL:

https://publicpersonnellaw.blogspot.com/2020/01/articles-by-dr-robert-michaels-nypers.html

You may contact Dr. Michaels at bam@ramtrac.com .