Providing benefits to employees greater than those mandated by law

In the course of collective bargaining pursuant to Article 14 of the Civil Service Law [the Taylor Law] the City of Troy agreed to permit its police officers to receive benefits from outside employment while on various types of sick leave, including leave pursuant to General Municipal Law §207-c. The City's discretion in permitting outside employment is conditioned by the terms of the settlement agreement in that "approval shall not be unreasonably withheld." 

Citing Matter of City Troy[Troy Police Benevolent & Protective Assn., Inc.], 191 AD3d at 1207, the Appellate Division observed that "Such a self-imposed restriction on its own discretion does not violate public policy" as the City  retained its discretion in approving outside employment to a police officer while on General Municipal Law §207-c leave but agreed that it would not unreasonably withhold approval.

In addition, the Appellate Division noted that as part of its collective bargaining negotiations, a municipality may "provide benefits to its employees in excess of those provided by General Municipal Law §207-c," citing Matter of City of Plattsburgh [Plattsburgh Police Officers Union AFSCME Local 82], 250 AD2d 327, leave to appeal  denied93 NY2d 807].

 Thus, said the court, the City "has not demonstrated that it would be unlawful under any statute, precedent or public policy to refer this grievance to arbitration," citing Matter of City of Ithaca [Ithaca Paid Fire Fighters Assn., IAFF, Local 737], 29 AD3d 1129.

In Matter of City of Plattsburgh the relevant collective bargaining agreement provided that disabled police officers were entitled to receive benefits in accordance with §207-a of the General Municipal Law otherwise available to disabled firefighter injured in the line of duty rather than §207-c available to police officers injured in the line of duty. When Plattsburgh refused to provide disabled police officers §207-a benefits, the union demanded that the resulting grievances be submitted to arbitration, Plattsburgh objected to arbitrating the issue and in an effort to obtain a stay of the arbitration, the City contended that the disputed contract provision:

    1. Had been included in the contract by mistake and

    2. The benefits to be provided disabled police officers are limited to those set out in General Municipal Law §207-c.

The Appellate Division held that the alleged mistake at issue, as well as the meaning and impact of the provision modifying the statutory §207-c benefits as set out in the collective bargaining agreement, was for the arbitrator to resolve and denied Plattsburgh’s application to stay arbitration. The arbitrator ruled in favor of the union and awarded the injured police officers §207-a benefits otherwise only available to firefighters injured in the line of duty.

Click HERE to access the Troy decision by the Appellate Division.

Per- and Polyfluoroalkyl Substances (PFAS) Articles

Per- and Polyfluoroalkyl Substances (PFAS) Articles by Dr. Robert A. Michaels, NYPPL's science consultant, are available for free download via https://www.researchgate.net/profile/Robert_Michaels3/publications

Michaels, RA. Protecting science and public health in communities – PFOA and possible cancer clusters in the Village of Hoosick Falls, Rensselaer County, New York. Environmental Claims Journal, 30(1):58-70, January-March 2018, doi: 10.1080/10406026.2017.1422660, (https://doi.org/10.1080/10406026.2017.1422660), published online 31 January 2018;

Michaels, RA.  Confidence in courts: a delicate balance. Science Magazine, 357(6353):764, Letters, http://dx.doi.org/10.1126/science.aao3967, 25 August 2017;

 Michaels, RA. Lessons learned from legacy contaminants of emerging concern: perfluoroalkyl compounds (PFCs) in the Village of Hoosick Falls, Rensselaer County, New York. Environmental Claims Journal, 29(1): doi 10.1080/10406026.2016.1270666, url link: http://dx.doi.org/10.1080/10406026.2016.1270666, February 2017;

Michaels, RA. Perfluoroalkyl compounds (PFCs) in the Village of Hoosick Falls, Rensselaer County, New York: health risks and successive approximation toward enforceable national regulation. Albany, New York State Bar Association, NYSBA, New York Environmental Lawyer, 36(2):88-111, Fall 2016;

Michaels, RA. Testimony before a joint New York State Assembly and Senate hearing on drinking water quality and contamination, Standing Committees on Health and Standing Committees on Environmental Conservation; Albany, New York State Assembly and New York State Senate, 10.13140/RG.2.2.15054.46407, 6 pages, 7 September 2016;

Michaels, RA. Testimony on drinking water contamination with perfluorooctanoic acid (PFOA) before the New York State Senate Standing Committee on Health and Standing Committee on Environmental Conservation; Albany, New York State Senate, doi: 10.13140/RG.2.2.31831.68006, 5 pages, 30 August 2016.

CONTACT INFORMATION

Dr. Robert A. Michaels; PhD, CEP

President, RAM TRAC Corporation Schenectady, New York

(518) 785-0976

www.ramtrac.com

bam@ramtrac.com

 

Audits and reports issued by the New York State Comptroller during the week ending March 11, 2022.

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending March 11, 2022:

Click on the text highlighted in colorto access the complete audit report. 

STATE DEPARTMENTS AND AGENCIES

Office of Parks, Recreation and Historic Preservation: Compliance with Executive Order 95 (Open Data) (Follow-Up) (2021-F-29)

An audit report issued in September 2020 found the office had taken steps to meet the requirements of EO 95 for the collection and public dissemination of state data. However, it did not identify the total population of publishable data that it maintains. In a follow-up, auditors found the office made significant progress addressing the issues identified during the initial audit. 

 

State Education Department (SED) (Preschool Special Education Audit Initiative): Canarsie Childhood Center Inc. (CCC) – Compliance With the Reimbursable Cost Manual (2021-S-2)

CCC is a New York City-based organization authorized by SED to provide preschool special education services to children with disabilities who are 3 and 4 years old. The New York City Department of Education refers students to CCC and pays for its services using rates established by SED. For the three fiscal years ended June 30, 2018, auditors identified $193,420 in costs that did not comply with reimbursement requirements. 

 

State Education Department (Preschool Special Education Audit Initiative): Franziska Racker Centers Inc. – Compliance With the Reimbursable Cost Manual (2021-S-5)

Racker is a non-profit special education provider located in Tompkins County that provides preschool special education services to children with disabilities who are 3 to 5 years of age and is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2018, auditors identified $199,372 in ineligible costs reported for reimbursement.

 

State Education Department (Preschool Special Education Audit Initiative): Kids First Evaluation & Advocacy Center – Compliance with the Reimbursable Cost Manual (2021-S-12)

Kids First is a for-profit special education provider located in Westbury that provides preschool special education services to children with disabilities who are between 3 and 4 years of age and t is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2015, auditors identified $22,713 in costs that Kids First reported on its CFR that did not comply with SED’s requirements for reimbursement.

 

State Education Department (Preschool Special Education Audit Initiative): Kids in Action of Long Island Inc. – Compliance With the Reimbursable Cost Manual (2021-S-13)

Kids in Action is a for-profit organization located in Suffolk County that provides preschool Special Education Itinerant Teacher (SEIT) services to children with disabilities who are between 3 and 4 years of age and is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2015, auditors identified $41,897 in ineligible costs reported by Kids in Action for reimbursement.

 

Office of Temporary and Disability Assistance (OTDA): Reimbursement of Homeless Shelter Providers – Westhab Inc.’s Coachman Family Center (2020-S-56)

Since 1996, the Westchester County Department of Social Services has contracted with Westhab Inc. to operate Coachman Family Center as a certified shelter for families with children. Auditors found OTDA is not adequately monitoring and properly approving reimbursements for Westhab’s homeless shelter program. Of the $3,784,968 it expended in 2019, auditors identified $1,304,695 in reported costs for Coachman that did not comply with cost requirements.

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

A Taylor Law contract must be enforced according to the plain meaning of its terms

A collective bargaining agreement [CBA] entered into pursuant to Article 14 of the Civil Service Law, the so-called Taylor Law, is a contract and must be enforced according to the plain meaning of its terms (Matter of Lin v New York City Dept. of Educ., 191 AD3d 431, leave to appeal denied, 37 NY3d 913).

The Appellate Division held that the New York City Department of Education (DOE) did not establish that the Petitioners in the CPLR Article 78 out-of-title work action, District Council 37, failed to comply with the filing procedures mandated by the relevant CBA, as that CBA did not provide that Petitioners were required to submit their complaint to the Office of Labor Relations [OLR] first. Accordingly, the Appellate Division ruled that "on this record," DOE's failure to issue a determination based on Petitioners' alleged initial failure to submit the complaint to OLR, was arbitrary and capricious.

Click HERE to access the Appellate Division's decision.

The vesting of retiree health insurance rights

In Danny Donohue, et al., Appellants, v Andrew M. Cuomo, et al., Respondents, et al., Defendants, New York State's Court of Appeals said that "In Kolbe v Tibbetts, [it] left open whether a New York court should infer vesting of retiree health insurance rights when construing a collective bargaining agreement (CBA) (see 22 NY3d 344, 354 [2013] *). The Supreme Court [of the United States] subsequently rejected such inferences as incompatible with ordinary contract principles under federal law in M and G Polymers USA, LLC v Tackett (574 US 427 [2015]) and CNH Industrial N.V. v Reese (583 US 138 S Ct 761 [2018]), repudiating International Union, United Auto., Aerospace, and Agric. Implement Workers of Am. (UAW) v Yard-Man, Inc. (716 F2d 1476 [6th Cir 1983], cert denied 465 US 1007 [1984]) and its progeny. In response to questions certified to [it] by the United States Court of Appeals for the Second Circuit, [the New York State Court of Appeals concluded] that Yard-Man-type inferences favoring such vesting are likewise inconsistent with New York's established contract interpretation principles."

* Subdivision 6 of Civil Service Law §209-a provides as follows: "In applying [209-a, Improper employer practices; improper employee organization practices], fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent.

The Donohue decision is posted on the Internet at https://www.nycourts.gov/reporter/3dseries/2022/2022_00910.htm.