A grievance filed pursuant to the relevant collective bargaining agreement bars the grievant's simultaneously submitting an Education Law §310 appeal concerning the same issue to the Commissioner of Education

Citing Matter of Board of Education, Commack UFSD v. Ambach, 70 NY2d 501, Interim Commissioner of Education Betty A. Rosa noted that "it is well-settled that a school employee who elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner [of Education] pursuant to Education Law §310 for review of the same matter."

In this appeal to Interim Commissioner of Education Rosa the educator [Petitioner] challenged a determination of the Board of Education [Board] not to appoint him to a coaching position. Petitioner also joined the individual [Individual] whom the Board appointed to fill the position as a respondent.*

Petitioner holds permanent certification in the area of physical education, is a tenured physical education teacher and served as coach of the School District's boys’ varsity basketball team for 11 consecutive seasons prior to 2019. In 2019 the district’s director of physical education, health, and athletics informed Petitioner of numerous concerns with his performance as a coach and identified a number of “standards” that Petitioner would be required to comply with “[i]f [he] wish[ed] to continue to be recommended for the position of Varsity Boys[’] Basketball Coach.”** Petitioner signed this "counseling memorandum" which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.

In April, 2019, Petitioner was advised in writing of [1] “the termination of [his] assignment as Boys[’] Varsity Basketball Coach, effective immediately” and [2] that the letter that it was issued pursuant to the Faculty Association’s collective bargaining agreement. Thereafter, the Board advertised for the position of boys’ varsity basketball coach.  Four individuals applied to the position, including Petitioner and Individual.  The Board interviewed all four applicants and determined that Individual was the best candidate for the position.  In September 2019 the president of the Faculty Association requested that the reasons for Petitioner’s non-appointment.

Individual was appointed by the Board to serve as the boys’ varsity basketball coach and this appeal ensued in which Petitioner argued that [1] The Board violated 8 NYCRR §135.4 in appointing Individual to the boys’ varsity basketball coach position and [2] sought an order annulling Individual's appointment and ordering the Board to appoint Petitioner as the boys’ varsity basketball coach for the 2019-2020 season.

Respondents argue that the appeal must be dismissed because [1] Petitioner had pursued a grievance under the relevant collective bargaining agreement and [2] the Board further contends that its determination to appoint Individual to the position was neither arbitrary nor capricious.

The Commissioner ruled that Petitioner's appeal must be dismissed for lack of jurisdiction, observing that on the same day Respondents were served with a copy of the this §310 Appeal Petitioner filed a grievance under the Faculty Association’s collective bargaining agreement.  In that grievance, Petitioner requests that the Board “rescind the appointment” of Individual and appoint Petitioner as the boys’ varsity basketball coach for the 2019-2020 season.***

Noting that Petitioner raised the same claims in his §310 appeal as he raised in his grievance, the Commission dismissed his appeal, explaining that under the holding of in Board of Education, Commack UFSD v. Ambach, Petitioner’s "initiation of the grievance process [had] divested the Commissioner of jurisdiction over his instant claims for purposes of an appeal pursuant to Education Law §310."

Further, opined the Commissioner, "[i]n any event, Petitioner’s claims would be dismissed under the doctrine of election of remedies," as his prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner, explaining that "[i]t would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum."

Finally, although the Commissioner dismissed Petitioner's appeal on procedural grounds, the Commissioner pointed out that Petitioner's "prior misconduct does not fit neatly within the 'coaching qualifications' set forth in 8 NYCRR §135.4(c)(7)(i)(c)," earlier decisions of the  Commissioner of Education indicate that the Commissioner "has previously declined to find a board of education’s refusal to appoint a certified teacher as a coach to be arbitrary or capricious where the teacher, by his own affirmative acts of misconduct, removed himself from eligibility for such appointment."

* Petitioner also joined the individual whom the Board appointed to fill the position as a respondent. Respondent Board and the individual are referred to collectively as “Respondents” where appropriate.

** Petitioner signed this memorandum, which reflected his receipt of the memorandum and his acknowledgement that it would be placed in his personnel file.

*** The record reflects that the Board denied Petitioner’s grievance during the pendency of this §310 appeal and subsequently Petitioner sought to submit the Board’s determination to arbitration.

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume60/d17927

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Freedom of Information disclosure exemptions involving inter-agency or intra-agency materials

§86.3 of Article 6, "Freedom of Information" [FOIL] of the Public Officers Law, defines the term "Agency" as "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature."

Riverkeeper, Inc. [Riverkeeper] filed a FOIL request with the Port Authority of New York and New Jersey [Authority] seeking copies of certain communications between the Authority and the Federal Aviation Administration [FAA]. 

The Authority declined to provide these materials* and Riverkeeper filed a CPLR Article 78 petition seeking a court order requiring the Authority to provide it with the information it demanded. Supreme Court ordered the Authority to disclose the materials sought in Riverkeeper's FOIL request and the Authority appealed.

Citing Public Officers Law §87[2][g], and Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, the Appellate Division held that Supreme Court "properly determined that the exemption to FOIL disclosure requirements for inter-agency or intra-agency materials ... does not apply to the communications between the Port Authority and the Federal Aviation Administration [FAA] because the FAA is a federal entity."

The Appellate Division also noted that Supreme Court "properly concluded that the common interest doctrine does not apply in this case."

* The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.  The release of some public records, however, may be limited by statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records. 

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05833.htm

 

 

State and municipal audits issued on October 20, 2020

On October 20, 2020, New York State Comptroller Thomas P. DiNapoli announced the following agency and school district audits had been issued.

Click on the text in blue to access the full text of the audit. 

Agency Audits:

Office of General Services (OGS): Compliance with Executive Order 88 – Energy Efficiency of State Buildings (Follow-Up) (2020-F-18)

An audit, covering the period April 1, 2014 to May 13, 2019, found OGS generally had developed targets and plans to contribute toward EO 88 and complied with the guidelines. However, auditors found OGS had relied on one capital project to provide the majority of its energy savings. OGS also needed to develop a contingency plan to replace the project and to continue developing energy-saving capital projects to contribute toward the collective 20 percent energy reduction. In a follow-up, auditors found OGS has made significant progress in correcting the problems identified in the initial report. 

 

Department of Health (DOH): Improper Medicaid Payments for Recipients in Hospice Care (Follow-Up) (2019-F-59)

An audit released in December 2018 identified over $8 million in improper Medicaid payments for medical services provided to recipients receiving hospice care. Many of the overpayments occurred because the DOH did not have a process to identify and track Medicaid recipients receiving hospice care. In a follow-up, auditors found DOH officials did not make much progress in addressing the problems identified in the initial audit, and significant action is still required to prevent future Medicaid overpayments.

 

New York City Department of Education (DOE): Compliance with Special Education Regulations for the Provision of Services (2018-N-5)

Auditors determined that DOE did not arrange for special education services within the required 60 school days for 18 percent of the eligible students in school year 2016-17. Noncompliance ranged from 32 percent in District 9 (located in the South Bronx) to 4 percent in District 11 (Northeast Bronx). Auditors also found situations where DOE provided services without the required parental consent.

 

Metropolitan Transportation Authority (MTA): Administration of Self-Insured Workers’ Compensation Plans (2018-S-33)

There is room for improvement in how the MTA’s three self-insured agencies administer workers’ compensation plans making sure they meet the self-insurers’ obligations. Auditors found inconsistent processes and application of the law across agencies have resulted in late, inaccurate, or sometimes missed administration of benefits, placing an undue financial burden on injured employees.

 

New York City Department of Transportation: Oversight of Selected Aspects of Traffic Controls (2018-N-6)

The department monitored traffic flow at intersections, but did not address the concerns of the public and officials in a timely manner. Auditors reviewed several units that were supposed to perform monitoring and operational tasks and found that all of them need to improve their performance. 

 

New York City Department of Transportation: Controls over Revocable Consents (2010-N-1)

A revocable consent grants an individual or organization the right to construct and maintain certain structures on, over, or under New York City streets and sidewalks. To obtain this right, the property owner must file a petition for the revocable consent. The department charges an annual rate for eligible revocable consents, based on either a formula or a flat rate. Auditors found the department did not bill and collect the correct annual rates for the majority of consents reviewed. It was inconsistent in its application of the rules and did not always apply them as written when calculating the annual rate to be billed. As a result, the grantees were undercharged an estimated $1,056,242.

 

New York State Health Insurance Program: CVS Health – Temporary Holding Account Rebate Revenue (Follow-Up) (2020-F-25)

An audit issued in October 2019 found that CVS Health improperly designated a temporary holding account used to process certain prescription drug claims, as “non-rebate-eligible.” As a result, CVS Health did not seek rebates from drug manufacturers on claims in the temporary holding account that were, in fact, rebate-eligible. In a follow-up, auditors found CVS Health has made significant progress in correcting the problems identified in the initial report, having implemented both recommendations.

 

New York State Liquor Authority (SLA): Internal Controls Over Selected Financial Operations (2019-S-69)

Auditors found SLA has adequate internal controls in the areas of revenues, payroll, procurement and procurement card expenditures, asset management, and travel expenses to ensure assets and information are properly managed and safeguarded.

 

State Education Department (SED): Oversight of Pupil Transportation Services (2019-S-49)

Auditors determined SED could further enhance its efforts to monitor school districts’ compliance with its own requirements for school bus drivers, monitors and attendants. As a result, SED does not have assurance that school bus drivers, monitors, and attendants across the state are qualified and have completed the required training. 

 

School District Audit:

Dalton-Nunda Central School District – Financial Management (Allegany County, Livingston County and Wyoming County)

The board and district officials did not adopt realistic budgets and effectively manage fund balance and reserves. The board’s actions to manage fund balance were not transparent and made it appear that the district needed to both increase taxes and use appropriated fund balance to close projected budget gaps. The board circumvented the statutory limit on surplus fund balance by making $7.8 million in unbudgeted year-end transfers to reserves and appropriating $900,000 in fund balance that was not used. As of June 30, 2019, recalculated surplus fund balance exceeded the statutory limit by more than $1.3 million or 8 percentage points and two general fund reserves were overfunded.

 

Naples Central School District – Information Technology (Livingston County, Ontario County Steuben County and Yates County)

District officials did not ensure that the district’s network access controls were secure. Officials did not regularly review network user accounts and permissions to determine whether they were appropriate or needed to be disabled. The district had 63 unneeded network user accounts that had not been used in at least six months. In addition, sensitive information technology control weaknesses were communicated confidentially to officials.

 

Oneida City School District – Information Technology (Madison County and Oneida County)

The district’s network was not adequately secure to protect the student information system against unauthorized use, access and loss. District officials did not adequately manage user accounts or administrative permissions to limit access to assets and data. In addition, some district computers were used for personal activity, increasing the likelihood of the district’s network being exposed to malicious software. A written disaster recovery plan was not made available to the Comptroller’s auditors or the board of education for review and approval. Sensitive information technology control weaknesses were communicated confidentially to officials.

 

Courts apply longstanding basic rules of statutory interpretation to ascertain and give effect to the intention of the legislature

In July 1976 legislation that fundamentally reformed the state pension systems was enacted and signed into law. Included were changes providing that "any public employee hired on or after July 1, 1976 would be enrolled in the newly-created Tier 3 [a system]  characterized as one 'designed to provid[e] uniform benefits for all public employees and eliminat[e] the costly special treatment of selected groups ... inherent in the previous program.'"

An exception to this pension reform allowed all police officers and firefighters who subsequently entered or reentered a public retirement system to continue as Tier 2 members pursuant to "regular two-year extender bills" until 2009 and, as relevant here, all NYPD officers appointed between July 1, 2009 and March 31, 2012 were placed in Tier 3 of the New York City Police Pension Fund (PPF) while all officers appointed on or after April 1, 2012 were placed in revised but functionally similar Tier 3 plans of the same pension fund.

The focus in this appeal was City of New York's policy to the effect that certain Tier 3 officers were not eligible for certain benefits available to officers in Tier 2 of the PPF retirement plan, including the "credit for service" mechanism* that allows police officers to obtain credit for certain periods of absence without pay for childcare leave, while other PPF retirement plan member absent without pay for childcare leave permitted under NYPD regulations would be eligible for a limited amount of credit for that leave if certain filing and reimbursement requirements were met.

Plaintiffs in this action, among other things, sought a decision declaring that "all police officers hired by the NYPD, including those hired on or after July 1, 2009, are eligible for the benefits afforded by the second subdivision (h) of §13-218," notwithstanding the absence of any extender bill after 2009, and all members of the PPF - regardless of hire date - may purchase pension credit for time spent on unpaid childcare leave."

The City, in contrast, asserted that the relevant provisions of the RSSL "conflict with the Administrative Code and that the pension rights of Tier 3 police officers are exclusively governed by article 14 of the Retirement and Social Security Law [RSSL]." Specifically, the City argued that RSSL §513(h) [1] "addresses the issue of service credit for [childcare] leave," [2] overrides any like provision of Administrative Code §13-218, and [3] "limits the eligibility for such credit to New York City correction officers hired before April 1, 2012."

Supreme Court reasoned that Administrative Code §13-218 (h), on its face, renders any member of the PPF eligible for the childcare leave service credit benefit, and that the RSSL does not conflict with or preempt that part of the Administrative Code**. 

The Appellate Division reversed the Supreme Court's ruling, denying Plaintiffs' motion for summary judgment and granting the City's cross motion for accelerated relief. The Appellate Division reasoned that "because the RSSL expressly makes the childcare leave service credit benefit in question available to correction officers, but does not expressly confer the same benefit upon police officers, the legislature meant to nullify the part of the Administrative Code allowing the buyback to police members of the retirement system."

Referencing the longstanding, basic rules of statutory interpretation, the Court of Appeals said that in such matters a court's "primary consideration is to ascertain and give effect to the intention of the [l]egislature", citing Samiento v World Yacht Inc., 10 NY3d 70. The rule of statutory interpretation relevant here, said the court, is that the literal language of a statute controls "unless the plain intent and purpose of [the] statute would otherwise be defeated."

Noting that Administrative Code §13-218(h) "Credit for service" provides, in relevant part, that: "any member who is absent without pay for child care le[a]ve of absence pursuant to regulations of the New York city police department shall be eligible for credit for such period of child care leave provided such member files a claim for such service credit with the pension fund by December [31, 2001], or within [90] days following termination of the child care leave, whichever is later, and contributes to the pension fund an amount which such member would have contributed during the period of such child care leave, together with interest thereon", the Court of Appeals opined that "none of the pertinent parts of the statute are ambiguous and 'Any member' can mean only what it says."

In the words of the court, "The reference to 'any member' is unbounded and unfixed to employees of a particular Tier, and the absence of an exception applicable to Tier 3 employees cannot reasonably be attributed to carelessness or mistake."

Rejecting the principal contentions advance by the City in support of its position, the Court of Appeals, Judge Rivera dissenting in an opinion in which Chief Judge DiFiore concurred, held that the Appellate Division order should be reversed and, applying "longstanding, basic rules of statutory interpretation," that the relevant part of "Administrative Code §13-218 renders officers of the New York City Police Department (NYPD) who are members of the Tier 3 retirement system eligible for credit for certain periods of unpaid childcare leave, and that the grant of such benefits for those officers is consistent with the Retirement and Social Security Law."

* See Administrative Code §13-218 [h].

** See 56 Misc 3d at 442-443. 

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05841.htm