Amendments to Section 75 of the Civil Service Law

 Reminder

§75.1(b) of the Civil Service Law has been amended effective April 1, 2023 and §75.2a of the Civil Service Law has been amended effective March 1, 2023.

Audits of public entities issued by the New York State Comptroller on February 15, 2023

On February 15, 2023, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued.

Click on the text highlighted in color to access the complete test of the audit.

 

Metropolitan Transportation Authority – MTA Bus Company and New York City Transit – Management and Maintenance of Non-Revenue Service Vehicles (2020-S-31) New York City Transit (Transit) and the MTA Bus Company (MTA Bus) maintain a fleet of 1,950 non-revenue service vehicles used to support transit operations. Despite an estimated value of $150 million and a replacement cost of $216.7 million, the audit determined the fleet and related costs were not being adequately managed. Routine and annual preventive maintenance inspections were not being performed as required, increasing the risk of a shortened useful life or the need for more repairs. Also, there was no inventory system to track parts purchased for vehicle maintenance, resulting in parts that were missing or untraceable to a vehicle. Notably, for the audit period, maintenance costs totaled more than $50 million, nearly $9 million over budget.

 

State Education Department (Preschool Special Education Audit Initiative) – Cantalician Center for Learning – Compliance With the Reimbursable Cost Manual (2022-S-7) Cantalician, a not-for-profit special education provider serving students from Erie, Genesee and Niagara counties, is authorized by the State Education Department to provide Preschool Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (over 2.5 hours per day) to children with disabilities who are between the ages of 3 and 5 years. For the fiscal year ended June 30, 2017, Cantalician reported approximately $2.23 million in reimbursable costs for these programs. The audit identified $358,254 in costs that did not comply with SED’s requirements for reimbursement.

 

State Education Department (Preschool Special Education Audit Initiative) – Abilities First, Inc. – Compliance With the Reimbursable Cost Manual (2022-S-23) Abilities First, Inc. (AFI) is a not-for-profit special education provider located in Wappingers Falls that serves students from three counties in the Mid-Hudson region. AFI is authorized by the State Education Department to provide Preschool Special Class (over 2.5 hours per day), Preschool Integrated Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (2.5 hours per day) to children with disabilities who are between the ages of 3 and 5 years. For the fiscal year ended June 30, 2019, AFI reported more than $4.41 million in reimbursable costs for these programs. The audit identified $236,209 in costs that did not comply with SED’s requirements for reimbursement.

 

Department of Health – Improper Medicaid Payments for Individuals Receiving Hospice Services Covered by Medicare (Follow-Up) (2022-F-31) A prior audit report, issued in December 2020, identified about $50 million in actual and potential Medicaid overpayments, cost-savings opportunities, and questionable payments for services provided to recipients enrolled in Medicare-covered hospice care. The follow-up found that the Department of Health made some progress in addressing the problems identified, but more actions were needed. Namely, the Office of the Medicaid Inspector General had yet to materially recover the overpayments.

 

Homes and Community Renewal – Housing Trust Fund Corporation – Oversight of the Residential  Emergency Services to Offer Home Repairs to the Elderly (RESTORE) Program (Follow-Up) (2022-F-18) From 2017 to 2019, Homes and Community Renewal (HCR) awarded $6.13 million in RESTORE funds, which benefited about 785 senior citizen housing repair projects. A July 2021 audit found that HCR needed to exercise greater oversight of the program to ensure that funds are awarded appropriately and that program goals are being achieved. For example, flaws in the selection process resulted in some local program administrators (LPAs) being inappropriately awarded funds and others being denied. The audit also found that LPAs were not properly administering the RESTORE program and were not using awarded funds within required time frames to ensure emergency repairs were addressed promptly. Further, the awards served just 36 of the State’s 62 counties. More targeted outreach regarding the RESTORE program could increase statewide participation and result in better distribution of funds. The follow-up determined that HCR made progress in addressing these issues, implementing four of the six audit recommendations and partially implementing two.

Determining terms and conditions of employment for the purposes of collective bargaining within the meaning of the Taylor Law

§50.5 of the Civil Service Law, Application Fees, in pertinent part, provides "(a) Every applicant for examination for a position in the competitive or non-competitive class, or in the labor class when examination for appointment is required, shall pay a fee to the civil service department or appropriate municipal commission at a time determined by it."

The State commenced this CPLR Article 78 proceeding seeking to annul Public Employment Relations Board [PERB] determinations that [1] not charging examination application fees created an enforceable past practice; and [2] PERB's subsequently affirming a second Administrative Law Judge's decision ordering the State to stop requiring employees represented by the respondent employee organization for the purposes of collective bargaining to pay fees for promotional and transitional examinations and to reimburse those employees any money that they paid as a result of the State's unilateral imposition of such examination fees.

PERB had concluded that waiving fees for promotional and transitional examinations  was a term and condition of employment because there was an "economic benefit" to the employees and rejected the State's contention that the issue of its imposition of the fees was a prohibited or permissive subject of collective bargaining. PERB, in contrast, determined that the subject was mandatorily negotiable and that the State had earlier established an enforceable past practice of not charging such fees.

Supreme Court and the Appellate Division, among other things, (1) confirmed PERB's determinations and (2) dismissed the State's petition (see 183 AD3d 1061, at 1064), explaining "the application fee" was a term and condition of employment because "the employees at issue received an economic benefit by not having to pay" that fee. Further, the Appellate Division agreed with PERB that the imposition of the fees was a mandatory subject for the purposes of collective bargaining and that an enforceable past practice to waive such fees existed.

The Court of Appeals reverse these lower court's rulings, holding charging application fees for promotional and transitional civil service examinations [1] was not a term and condition of employment as defined in Civil Service Law §201.4 and [2] the State had no obligation to negotiate those fees pursuant to Article 14 of the Civil Service Law, typically referred to as "The Taylor Law, Civil Service Law, CSL §200 et seq."

Noting:

    [1] The Taylor Law "requires all public employers and employee organizations to negotiate in good faith to determine represented employees' terms and conditions of employment";

    [2] New York's "strong and sweeping public policy in favor of collective bargaining"; and

    [3] "The presumption is that all terms and conditions of employment are subject to mandatory bargaining";

the Court of Appeals determined that a public employer's bargaining obligations extend  only to terms and conditions of employment, a phrase defined by statute as "salaries, wages, hours and other terms and conditions of employment."

Here, said the court, PERB, relying on Matter of Local 237, International Brotherhood of Teamsters [Town of Islip], 44 PERB 3014, has interpreted the statute "to mean — and maintains here — that any 'economic benefit' afforded to employees is a term and condition of employment."

The Court of Appeals said PERB misapprehends its holding" In Matter of Town of Islip. In Islip "we merely acknowledged that PERB had determined that 'employee use of an employer-owned vehicle for transportation to and from work is an economic benefit and a mandatorily negotiable term and condition of employment' (see 23 NY3d at 491)." In the words of the Court of Appeals "PERB erroneously reads this language as adopting a per se rule that any economic benefit is a term and condition of employment."

The court held that PERB's determination in this case "conflicts with Civil Service Law §201(4) and ... precedent". Although certain forms of compensation, including employees' health benefits, qualify under the statute as a term and condition of employment, "to be a term and condition of employment under section 201(4), an economic benefit must have some nexus to the employment".

As an example, the Court of Appeals cited the employees' use of vehicles to commute to their jobs as a term and condition of employment because the employer provided an economic benefit that was plainly related to the employment. With respect to the instant litigation, the Court of Appeals held that "PERB's determination here improperly eliminated the nexus requirement".

The Court of Appeals' decision points out that Civil Service Law §50(5) vests the Department of Civil Service with the power to impose fees to recoup the administrative costs of conducting civil service examinations, not with authority to alter the employer-employee relationship through the imposition of the fees. In the words of the Court of Appeals, "The fees for promotional and transitional exams at issue here are akin to fees imposed by an agency with plenary authority to set fees for licenses that an employer may demand as a job requirement, such as a driver's license or professional license".

Concluding the imposition of the subject fees was not encompassed within the definition of terms and conditions of employment within the meaning of Civil Service Law §201(4), nor did earlier waiver of the fees for State employees render them terms or conditions of employment, the Court of Appeals ruled that "the State had no obligation to negotiate with respect to their implementation." 

Holding that PERB's conclusion to the contrary was error, the Court of Appeals determined that the order of the Appellate Division should be reversed, with costs, and that the State's petition to annul PERB's determinations in this matter should be granted.

Click HERE to access the text of the Court of Appeals decision posted on the Internet.

 

Recent personnel disciplinary decisions issued by the New York City Office of Administrative Trials and Hearings

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Violating the employer's attendance and leave policy

Administrative Law Judge Christine Stecura recommended a 79-day suspension for a sanitation worker charged with 51 complaints of violating his employer’s time and leave policy during a 14-month period, including failing to document emergency leave, providing inadequate documentation, and failing to remain accessible while on sick leave. 

Judge Stecura sustained the charges and recommended suspension in lieu of termination due to substantial mitigating circumstances as most of the sanitation worker’s absences involved caring for his child, who had a serious medical condition, and the worker subsequently obtained approved leave for this purpose.

Dep’t of Sanitation v. D.L., OATH Index No. 2434/22