Five-year collective bargaining agreement between the State and CSEA negotiated pursuant to Article 14 of the Civil Service Law ratified

On August 3, 2022 New York State Governor Kathy Hochul announced the ratification of a five-year collective bargaining agreement by the members of the Civil Service Employee Association [CSEA] applicable to more than 52,000 New York State employees serving in a wide variety of positions. The agreement, which runs until April 1, 2026, won the approval of more than 80 percent of CSEA members who cast ballots.

"This contract fairly compensates the hard-working men and women of the Civil Service Employee Association who help to deliver critical services to New Yorkers every day," Governor Hochul said. "I thank [CSEA] President Sullivan for her partnership in getting this agreement over the finish line and ensuring that it acknowledges the valuable contributions of CSEA members to our great state."

Civil Service Employee Association President Mary E. Sullivan thanked the CSEA negotiating team "for their hard work and dedication to delivering this new state contract. The agreement was overwhelmingly ratified by our membership and across all four of our executive branch bargaining units."

The ratified collective bargaining agreement [CBA] includes raises in each year of the agreement of 2% for the first two years and 3% for the remaining three years. In addition, the CBA provides for other increases in compensation such as a one-time lump sum bonus of $3,000 and changes in longevity as a result of changes in the health insurance program that will encourage in-network employee participation and help control health insurance costs. The CBA also includes funding of labor-management committees.

 

Smart ways to help control health insurance costs and root out waste and abuse

Steve Cohen's most recent article in MedPage Today observes "Everyone knows how expensive healthcare is. There are smart ways to help control costs and root out waste and abuse. But prior authorization by health insurance companies is not one of them."

Cohen's article, “Denying essential medical care doesn’t save money — or lives,” in KevinMD.com discusses why.

Read the article here.

Disciplinary action based on the employee's allegedly making false statements and, or, submitting false or misleading reports in the course of EEOC investigations

42 U.S.C. §2000e-3(a) provides that “It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter”.

Most federal courts that have addressed this issue have found that the statute protects employees from being subjected to discipline for filing discrimination claims or participating in EEOC investigations, “regardless of whether the allegations in the original charge were valid or reasonable.”

A New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge, Kevin F. Case, recommended dismissal of certain Specifications that alleged that a New York City Comptroller’s Office computer associate [Associate] obstructed an investigation by making false statements and submitting false documentation.

ALJ Casey found that Associate engaged in a protected activity when she filed an Equal Employment Opportunity [EEO] retaliation claim and suffered being served with disciplinary charges stemming her filing that claim. The ALJ opined that this could deter the Associate or others from filing discrimination claims, contrary to New York City’s Human Rights Law. 

The ALJ the held that with respect to one Specification filed against the Associate, Specification IV, the Associate was not entitled to such protection, finding that the Associate lacked a reasonable belief that Specification IV was true and thus she may be subject to disciplinary action with respect to Specification IV.

Judge Casey found that the Associate’s false or misleading statement to the Department of Investigation cited in Specification IV constituted misconduct and was not a protected activity, and recommended the imposition of a penalty of a 20-day suspension without pay. 

Click HERE to read the text of the ALJ's opinion.

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.  Click to Read a FREE excerpt (requires Adobe Reader). 

 

An administrative determination by the Public Employment Relations Board made following an administrative hearing will be sustained if it is supported by substantial evidence

In response to a threat by an individual that "I'm coming tomorrow with a gun to shoot up this ...." school, a teacher at the school and the building delegate chairperson for employee organization [Union] representing the teachers announced that there was going to be a meeting in her classroom. During that meeting or shortly thereafter, 10 teachers called "out of work for the following day" and ultimately, a total of 23 teachers employed at the school called in sick and were absent from work the next day.

The district conducted an investigation and concluded that 16 of the 23 teachers absent from work had engaged in an unlawful strike. The district then filed a notice and a charge with the Public Employment Relations Board [PERB] alleging the Union had violated Civil Service Law §210(1) by engaging in an unlawful strike against the district.

Following a hearing, a PERB Administrative Law Judge [ALJ] sustained the charge, determining that Union had engaged in an unlawful strike in violation of Civil Service Law §210(1). PERB ultimately affirmed the ALJ's decision, holding that the Union had "engaged in, caused, encouraged, instigated, and condoned an unlawful strike by unit members." The Union challenged the PERB's ruling and initiated a CPLR Article 78 proceeding, contending that PERB's determination was not supported by substantial evidence.

Noting that Civil Service Law Article 14, commonly referred to as the Taylor Law, provides that "[n]o public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike," the Appellate Division opined that "an employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his [or her] duties in his [or her] normal manner without permission, on the date or dates when a strike occurs" is presumed to have engaged in such strike on such date or dates.

The issue before the Appellate Division was whether PERB's administrative determination, which was "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law," was "supported by substantial evidence."

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the Appellate Division explained that "[T]he substantial evidence standard is a minimal standard" that is "less than a preponderance of the evidence, and demands only that a given inference is reasonable and plausible, not necessarily the most probable."

Further, said the court, "[I]t is the responsibility of the administrative agency to weigh the evidence and choose from among competing inferences therefrom and, so long as the inference drawn and the ultimate determination made are supported by substantial evidence, it is not for the court to substitute its judgment for that of the administrative agency," citing Matter of Watson v New York State Justice Ctr. for the Protection of People with Special Needs, 152 AD3d 1025.

Deferring to PERB's credibility determinations, the Appellate Division said that although there is evidence that could support an alternate conclusion, "there is substantial evidence in the record to support PERB's determination that the Union caused, encouraged, instigated, and/or condoned an unlawful strike by 16 of its unit members at the school" and thus "there is no basis upon which to disturb the determination" made by PERB.

Significantly, to the extent that PERB and, or, the ALJ suggested that a finding of an unlawful strike may be negated by a "justification defense" or excepted by a "bona fide fear of personal injury," the Appellate Division opined that it did not find such a defense or exception to have been created by the Article 14 of the Civil Service Law or relevant case law, citing Local 252, Transp. Workers Union of Am. AFL-CIO v New York State Pub. Empl. Relations Bd., 58 NY2d 354. 

Click HEREto access the text of the Appellate Division's decision.

Audits and reports issued by the New York State Comptroller during the week ending July 29, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for New York State and New York City Departments and Agencies, Municipalities and School Districts were issued during the week ending July 29, 2022:

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

School District Audits

On July 29, 2022, New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued.

Bethlehem Central School District – In-School Internet Connectivity (Albany County) The district’s internet connectivity met the Federal Communications Commission’s recommended bandwidth of 100 megabits per second (Mbps) per 1,000 students, as guided by the New York State Education Department. When tested, the average wireless internet download speed was 142 Mbps.

Greater Amsterdam School District – Capital Project (Montgomery County) The board and district officials properly planned, authorized contracts, and accounted for the ongoing project. However, auditors found that while the business administrator maintained financial reports that documented the project’s budget-to-actual expenditures, she did not provide them to the board for review and the claims auditor did not audit and approve seven claims totaling $873,056 prior to payment.

Buffalo Collegiate Charter School – Credit Cards (Erie County) Credit card charges were not always properly approved or adequately supported. Without adequate support, officials could not demonstrate that all charges were for school purposes. Auditors reviewed 170 credit card charges totaling $128,070 and found supporting documentation, such as receipts, was not available for 66 charges totaling $23,376. The need or purpose was not documented for 72 charges totaling $50,989. The treasurer did not adequately review credit card charges in a timely manner. The treasurer reviewed credit card charges an average of 108 days after the credit card statement was paid. Auditors reviewed all 18 credit charges over $2,500 in our audit period totaling $70,337 and found no evidence that the treasurer pre-approved these charges as required by the policy.

Fabius-Pompey Central School District – Claims Auditing (Onondaga County) Auditors reviewed 100 claims totaling approximately $5.3 million and found that they were adequately documented and for appropriate purposes. However, the district needs to improve the claims audit process because some claims were not subject to an independent claims audit and some were not properly approved before they were paid. Twelve claims totaling approximately $3.3 million paid to the Onondaga-Cortland-Madison Board of Cooperative Educational Services (BOCES) were inappropriately audited by a BOCES employee who functioned as the district’s claims auditor. The treasurer paid five claims totaling $11,692 without the required claims auditor’s certification and authorization.

Friendship Central School District – Fund Balance and Reserves (Allegany County) The board and district officials did not properly manage fund balance and reserves. As a result, real property taxes were higher than necessary. The board and district officials overestimated appropriations by a total of $2.3 million (8%) in the three fiscal years audited. This made it appear the district needed to use fund balance and reserves to close projected budget gaps. However, they were not used to fund operations. The board and district officials improperly restricted $246,000 in a debt reserve fund. The funds should be returned to the general fund. Officials also did not develop and adopt a comprehensive written multiyear financial plan. As a result, as of June 30, 2021, the recalculated surplus fund balance totaled $2.5 million, exceeding the statutory limit by 20 percentage points. 

 

Palmyra-Macedon Central School District – In-School Internet Connectivity (Wayne County The district’s internet connectivity met the Federal Communications Commission’s recommended bandwidth of 100 megabits per second (Mbps) per 1,000 students, as guided by the New York State Education Department. When tested, the average wireless internet download speed was 232 Mbps, and the average ethernet cable internet download speed was 564 Mbps.

Unadilla Valley Central School District – Non-Resident Special Education Student Tuition (Otsego County)  Officials did not establish nonresident tuition (NRT) rates for special education students in accordance with regulations. The district’s NRT rates exceeded the New York State Education Department’s maximum allowable rate during four of the past five school years. As a result, the district overcharged seven school districts by a total of $183,250.

Yorkshire-Pioneer Central School District – In-School Internet Connectivity (Cattaraugus County) The district’s Internet connectivity met the Federal Communications Commission’s recommended bandwidth of 100 megabits per second (Mbps) per 1,000 students, as guided by the New York State Education Department. When tested, the average wireless internet download speed was 134 Mbps and the average ethernet cable Internet download speed was 706 Mbps.

Municipal Audits

 On July 29, 2022 New York State Comptroller Thomas P. DiNapoli announced the following local government audits have been issued. 

Town of Brookhaven Local Development Corporation – Project Approval and Monitoring (Suffolk County) The board did not properly approve and monitor projects and did not incorporate job creation and retention goals into each project’s resolution. Consequently, the board cannot determine whether the projects are meeting their intended purposes. While the board president, CEO and CFO questioned whether setting goals was practical, and said it was not legally required, the board should strive to ensure that town residents realize increased prosperity and economic benefit from the projects that the corporation approves. To do so, the board must establish measurable goals for all approved projects, monitor the projects to ensure these goals are met and establish written project approval and monitoring policies or procedures.

 

Livingston County Court and Trust (2022-C&T-4) Upon receiving notification of the impending review of court and trust funds, the treasurer and county clerk reconciled their records and found that the treasurer did not receive surplus money from a referee after the sale of foreclosed property on April 1, 2017, totaling $87,849. However, auditors were able to determine all money from the sale of the foreclosed property totaling $176,000 was paid directly to the lienholder. Auditors also found that the treasurer did not report all court and trust fund transactions as required. Specifically, the treasurer did not report surplus funds received and disbursed during 2017, totaling $23,461. Auditors found the records maintained by the county clerk and surrogate’s court were up to date and complete.

 

Utica Harbor Point Development Corporation – Budgeting and Board Oversight (Oneida County) The board and officials did not establish realistic budgets. Also, the board did not review periodic financial reports to monitor the budget and finances and did not establish a comprehensive written multiyear financial plan. The board adopted budgets that did not include realistic revenue and expense estimates, which caused funding gaps. As of Dec. 9, 2021, the corporation’s projected costs exceeded revenues by about $2.3 million. While the corporation received grant funds for two projects, officials relied on lines of credit (LOCs) to provide cash flow for several years. The corporation’s ability to pay off the LOCs is contingent on the sale of three properties, which officials plan to sell in 2022. However, the board has not developed alternative plans to satisfy the debt should the properties not sell.

 

Village of Bemus Point – Clerk-Treasurer (Chautauqua County) The clerk-treasurer did not properly deposit, record, report and disburse village funds and was arrested in February 2021 and charged with grand larceny, falsifying business records, forgery, and official misconduct. In December 2021, she pleaded guilty to petit larceny and paid restitution to the village. The board did not monitor the clerk-treasurer’s work, implement compensating controls, or audit the records as required. Specifically, the clerk-treasurer did not properly deposit, record or report taxes collected, issue duplicate receipts or maintain other adequate supporting documentation. The clerk-treasurer also did not file payroll tax reports or remit payments totaling $40,837 and, as a result, the village was assessed penalties and interest of $18,100.

 

Delaware County – Court and Trust Funds (2022-C&T-2) Auditors found the treasurer established adequate procedures, maintained appropriate records, and properly reported court and trust funds as prescribed by statute. Records maintained by the county clerk were generally up to date and complete and without any material discrepancies. Although the surrogate’s court clerk maintained copies of all court orders filed in her office, she did not make entries into a surrogate’s register to record money ordered to be paid into a court. As a result, the assets ordered to be paid into court and her records could not be used to verify that all court-ordered deposits had been properly received and deposited.

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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.

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NYPPL's New York Public Personnel Law Handbooks are listed below and are available for purchase from BookLocker, Inc.

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual - This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HEREfor more information.