Absent consideration of a disciplinary hearing officer's report or other factual findings, an appointing authority has no basis to make a disciplinary determination

The Plaintiff in this CPLR Article 78 proceeding was served with disciplinary charges pursuant to §75(2) of the Civil Service Law alleging he "caused himself to receive unauthorized overtime compensation and an unauthorized increase in salary for a pay period."   

Although a §75 disciplinary hearing was conducted before a duly designated hearing officer, the hearing officer failed to issue a report of findings or make a recommendation with respect the disposition of the disciplinary charges filed against Plaintiff by the appointing authority. Notwithstanding this defect in the disciplinary procedure,* the appointing authority terminated Plaintiff's employment effective December 31, 2019.

In response to Plaintiff's challenge to the appointing authority's action, Supreme Court concluded that the Board's determination was not arbitrary and transferred the matter to the Appellate Division.**

The Appellate, noting that it is undisputed that "the hearing officer did not issue a report with findings or recommendations" before the appointing authority made its determination to terminate Plaintiff 's employment, concluded that any action taken by the appointing authority was "unavoidably ... arbitrary", citing Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385.

Accordingly, the Appellate Division held that "under the circumstances, the [Petitioner] is entitled to be reinstated to his position and to back pay and benefits, even if the proceedings against him eventually lead to the termination of his employment."

The court granted the Plaintiff's Article 78 petition, annulled the determination of the appointing authority, reinstate the Plaintiff to his former position, with full back pay and benefits, and "remitted the matter to the [appointing authority] for a new hearing and a new determination with respect to the charges."

* §75.2 of the Civil Service Law, in pertinent part, provides "In case a deputy or other person is so designated, he shall, for the purpose of such hearing, be vested with all the powers of such officer or body and shall make a record of such hearing which shall, with his recommendations, be referred to such officer or body for review and decision." 

 ** See CPLR §7804(g).

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Employee terminated after failing to provide a urine sample for a drug test

The New York City Transit Authority [Respondent] terminated Plaintiff's employment as a bus operator because he failed to provide a urine sample for a drug test. The Plaintiff commenced a proceeding pursuant to CPLR Article 75 in an effort to vacate an arbitration award sustaining the Respondent's terminating Plaintiff's employment. The Supreme Court denied the petition, dismissed the proceeding and Plaintiff appealed.

The Appellate Division's decision noted:

1. The courts have limited power when reviewing an arbitration award, indicated an arbitrator "exceed[s] his [or her] power [within the meaning of the statute] where the ... award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power", citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100 AFL-CIO, 6 NY3d 332*;

2. "Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator's decision", citing Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530; and

3. "A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence."

Observing that Plaintiff failed to establish by clear and convincing evidence that the arbitration award should be vacated, the Appellate Division opined that although the Plaintiff contended on appeal that the arbitration award was irrational, the arbitration award was supported by evidence in the record, and, thus, was not irrational.

The Appellate Division's conclusion: Supreme Court properly denied and dismissed Plaintiff's CPLR Article 75 petition.

* See, also, Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85.

Click HERE to access the Appellate Division decision posted on the Internet.

 

Justia lists Employment Law blawgs

Justia's top 14 of its 225 Employment Law blogs as of May 14, 2023, sorted by popularity, are listed below.

In addition, Justia currently lists 3,558 Blawgs in 73 subcategories of practice areas. Click on the URL shown below to access its complete list of practice areas.

 https://blawgsearch.justia.com/blogs

 

Employment Law Blogs

New York Public Personnel Law  National Rank this Week: 11

Working Now and Then National Rank this Week: 19

JOTWELL - The Journal of Things We… National Rank this Week: 38

HR & Benefits Update National Rank this Week: 40

HR Watchdog National Rank this Week: 44

Impact Litigation Journal National Rank this Week: 67

Employer Law Blog National Rank this Week: 70

Whistleblower Protection Blog National Rank this Week: 71

Employment Law Business Guide National Rank this Week: 81

Wage & Hour - Development… National Rank this Week: 97

Bean Kinney & Korman Blog National Rank this Week: 103

Kaufman Dolowich & Voluck, LLP… National Rank this Week: 118

Employee Rights Blog National Rank this Week: 123

Florida Estate Planning Lawyer… National Rank this Week: 128 

 

 

 

Selected press releases and agency memoranda recently issued

New York State Sheriffs’ Institute civil school  –  Fifty-three deputy sheriffs and civilian staff from Sheriff’s offices around the state attended the New York State Sheriffs’ Institute civil school held recently in Albany, New York, including Deputy Jamie Darling and civil staff Jordan Somers, Kate Davis, and Sierra Palmer.   This was the first week in a two week-long day training program offered each year by the Sheriffs’ Institute.

All Sheriff’s offices in New York have civil law enforcement functions, including the service of process, enforcement of judgments and other court orders and mandates. The school provides participants with training in the latest advances in civil law enforcement and a forum to discuss current civil law enforcement issues and share best practices. Oswego County’s Civil Division is staffed by a sergeant, 3 deputies and 6 civilians with roles such as account clerk and senior account clerk.

The Sheriffs’ Institute is a not-for-profit corporation formed in 1979 to advance criminal justice education, prevent juvenile delinquency, and support victims of crime and their families.

NYC civil service exam: Applications open in May, 2023. Published: May. 07, 2023, 9:00 a.m. by Annalise Knudson | aknudson@siadvance.com STATEN ISLAND, N.Y. — The New York City Department of Citywide Administrative Services (DCAS) has released its May application schedule for civil service exams. Open, competitive, computer-based tests are administered throughout each month for various positions. If you meet the basic requirements of the job, you can apply for your exam online at Online Application System (OASys) or at one of the Computer-Based Testing and Application Centers (CTAC).

Niagara County hiring more corrections officers by Robert Creenan | robert.creenan@lockportjournal.com, May 6, 2023 Niagara County is partaking in another round of hiring corrections officers without the need for candidates to take a Civil Service exam. Interested candidates have until May 19 to complete an application, which can be found on the Niagara County website. They then have until June 30 to fill out an online questionnaire covering their training, experience and any other skills.

Press Releases, Memoranda, News items and Bulletins 

Policy Bulletin No. 2023-01 pdf February 2023, Paid Parental Leave. 

Advisory Memoranda No. 2023-02 pdf March 2023, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2023.

Advisory Memoranda No. 2023-01 pdf February 2023, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU).

State Contract and Payment Actions in March | Office of the New York State Comptroller

Union Pressure Aims to Hit Home - Empire Center for Public Policy Empire Center for Public Policy The bill (S6477) was filed last month by Senate Civil Service and Pensions committee chair Robert ... What's behind NY's union membership slide?

New York Enacts New Requirement for Prior Notice of Certain Healthcare Transactions Sidley Austin LLP The law considers management services organizations (MSOs) to be health care ... or plan providing health care services in” the state of New York.

New York State Budget Brings Sweeping Changes to the Home Health Care Industry Littler Mendelson P.C. New York Budget for FY 2023-2024 includes legislation affecting the home ... Temporary Health Care Services Agencies (THCSAs) register with the NY.

New York Enacts New Requirement for Prior Notice of Certain Healthcare Transactions Sidley Austin LLP The law considers management services organizations (MSOs) to be health care ... or plan providing health care services in” the state of New York.

New York Enacts Long Negotiated Budget Bill with Sweeping Implications for Health Care JD Supra On May 2, 2023, legislators approved the $229 billion New York State FY ... The Budget extends and expands various provisions of existing law ...

Genesee County participating in new Pilot Program for upcoming Correction Officer Civil ... Video News Service A new pilot program is being tested by New York State's Civil Service Department. “Now is the time to begin a rewarding career in law enforcement.

State Contract and Payment Actions in March | Office of the New York State Comptroller New York State Comptroller Department of Civil Service. $331.6 million to CaremarkPCS Health LLC to provide pharmacy benefit services for the Empire, Excelsior and Student ...

New York Enacts New Requirement for Prior Notice of Certain Healthcare Transactions Sidley Austin LLP The law considers management services organizations (MSOs) to be health care ... or plan providing health care services in” the state of New York.

New York State Budget Brings Sweeping Changes to the Home Health Care Industry Littler Mendelson P.C. New York Budget for FY 2023-2024 includes legislation affecting the home ... Temporary Health Care Services Agencies (THCSAs) register with the NY ...

Union Pressure Aims to Hit Home - Empire Center for Public Policy Empire Center for Public Policy The bill (S6477) was filed last month by Senate Civil Service and Pensions committee chair Robert ... What's behind NY's union membership slide?

What's News, Breaking: Friday, May 12, 2023 - Brooklyn Eagle BROOKLYN BRIDGE PARK — The New York Road Runners Club is kicking off its ... can be found on the Department of Civil Service's official website, ...

What's News, Breaking: Thursday, May 11, 2023 - Brooklyn Eagle BROWNSVILLE — The Child Center of NY on Thursday, May 11, ... on HELP can be found on the Department of Civil Service's official website, ... 

NYS – Rally For Access to Representation Act Law - NY Carib News A $120 million investment in legal and immigration services ... urging the passage of this legislation, which is a pressing civil rights ...

Civil Service and Pensions Meeting | NY State Senate The New York State Senate S3513. Authorizes Douglas Brenning of the village of New York Mills to take the competitive civil service examination for the position of p..

County considering waiving residency requirement for certain employees - Yahoo News Yahoo News Rob Creenan, Niagara Gazette, Niagara Falls, N.Y. ... New York counties that waived civil service exams this past year for corrections officers, ...

New York Joins Other States with Health Care Transaction Review Laws | Mintz - JDSupra On May 3, 2023, New York joined Connecticut, Delaware, Massachusetts, Nevada, New Jersey, Oregon, Rhode Island, Washington, and California in 

Civil Service and Pensions Meeting | NY State Senate S3513. Authorizes Douglas Brenning of the village of New York Mills to take the competitive civil service examination for the position of p..

 

New York State Comptroller DiNapoli releases municipal audits

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued were issued on May 11, 2023.

Links to material posted on the Internet highlighted in COLOR.

 

City of Amsterdam – Budget Review (Montgomery County) The significant revenue and expenditure projections in the city’s 2023-24 proposed budget are reasonable. However, certain revenue and expenditure projections and other matters should be reviewed by the mayor and council. In addition, city officials did not implement all of the recommendations in the previous review letter when preparing the 2023-24 proposed budget. Auditors found that the mayor submitted the 2023-24 proposed budget to the council on April 19, 2023, or 18 days after the charter-established deadline and the proposed budgets for the general and recreation funds are not structurally balanced because they include subsidies from other funds to finance their operations. Also, the proposed budget, as in the three previous years, allocates appropriations for personal services, contractual expenditures and employee benefits between the operating funds using unsupported allocation methods.

 

Town of Chemung – Intermunicipal Consolidation Agreement (Chemung County) Town of Chemung (Chemung) officials did not adequately monitor the Chemung and Town of Ashland (Ashland) Intermunicipal Consolidation Agreement’s highway service labor costs. Officials did not establish procedures to evaluate labor costs by town. For example, timecard information was not used to monitor labor costs for services provided to Ashland and highway employees’ timecards did not always identify their work location needed to allocate costs. As a result, labor costs were not equitable, and Chemung could have incurred approximately $23,000 in additional costs to provide services to Ashland.

 

City of Long Beach – Budget Review (Nassau County) The significant revenue and expenditure projections in the 2023-24 proposed budget are reasonable. However, City officials only partially implemented the recommendations provided in the prior year’s budget review letter.  In addition, the city’s proposed budget includes a tax levy of $59.9 million, which is $5.5 million above the legal limit and the city council has adopted a local law authorizing an override of the tax levy limit.

 

North Amityville Fire Company, Inc. – Cash Disbursements (Suffolk County) The board did not ensure that all cash disbursements were for appropriate company purposes or supported. Of the $3.6 million in disbursements made during the two-year audit period, auditors found disbursements totaling $585,792 were for inappropriate purchases. Examples included: $106,542 in unsupported cash disbursements made to six board members and the chief; $44,820 for domestic flights and lodging in, among other places, Dallas, Indianapolis, Las Vegas, and Nashville; $32,093 for service and maintenance to vehicles the company did not own or could not provide support for; $11,258 for Christmas gifts that included, but were not limited to, gift cards, clothing, drones and video games. The disbursements also included $10,853 for one board member’s Alaskan cruise vacation and the chief’s vacation to a clothing-optional resort in Jamaica with his spouse. Other items included: $7,239 for alcohol; $5,121 for 14-karat gold and diamond rings for the chief and his spouse; $2,728 for optical services; and $1,998 for professional basketball tickets.

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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.