An employer's unilateral termination of a past practice providing employees a benefit held an improper employer practice within the meaning of the Taylor Law

Supreme Court, among other things, dismissed the CPLR Article 78 filed by Rockland County [County] to review a determination of the Public Employment Relations Board [PERB] finding that County had committed an improper employer practice.

For over a decade the certain employees of the County were allowed to obtain prescription medications at no cost or copay when prescriptions were filled at a particular pharmacy. This benefit remained in place even after County switched from being self-insured to being a participant in the New York State Health Insurance Program [NYSHIP]. When the pharmacy closed, County rescinded the prescription drug copayment benefit and the employees commenced having to make copayments for their prescription drugs.

The employee's Collective Bargaining Representatives [Unions*] filed an improper practice complaint with PERB contending that County improperly terminated the benefit of providing full prescription drug coverage for employees. An Administrative Law Judge [ALJ] found that a past practice existed with respect to the prescription drug copayment benefit but agreed with County's contract reversion defense argument** and dismissed the improper practice charges. 

Considering the Unions' administrative appeal, PERB reversed the ALJ's ruling in part, agreeing with the ALJ that a past practice existed but rejected the ALJ's acceptance of the County's contract reversion defense. Accordingly, PERB directed the employer to reinstate the prescription drug copayment benefit for all eligible  employees and the County commenced the instant CPLR Article 78 proceeding.

Addressing the County's contention that "providing employees full coverage for prescription drugs was not a past practice", the Appellate Division observed that when reviewing PERB's determination of a past practice made after a hearing a court must assess whether substantial evidence supports the determination.  In the words of the Court, "PERB found, and the record confirms, that, since 1989, the subject employees did not pay a copayment for prescription drugs and that, even though the County switched from being self-insured to utilizing an insurance plan for employee coverage, this did not change the fact that employees did not have to pay a copayment" and substantial evidence supports PERB's determination that a past practice existed.

Citing Kent v Lefkowitz, 27 NY3d 499, the Appellate Division affirmed PERB's rejection of County's contract reversion defense, explaining "Duty satisfaction occurs when a specific subject has been negotiated to fruition and may be established by contractual terms that either expressly or implicitly demonstrate that the parties had reached accord on that specific subject".***

Although the County's interpretation of the collective bargaining agreements limited its obligations only to the payment of health insurance premiums, PERB found there is nothing in the collective bargaining agreements that discusses the issue of copayments for prescription drugs and there is nothing in the collective bargaining agreements making it reasonably clear that County would not provide the prescription drug benefit. Noting that PERB had concluded the collective bargaining agreements did not explicitly refer to the plan description. and there was no language in the collective bargaining agreements referring to the plan description so as to identify that plan description beyond all reasonable doubt, the Appellate Division opined that the County's "reliance on the doctrine of incorporation is unavailing". Accordingly, the Appellate Division held that PERB is entitled to enforce its remedial order and Supreme Court correctly granted PERB's counterclaim.

* The Superior Officers Council of the Sheriff's Corrections Officers Association of Rockland County and the Rockland County Sheriff's Deputies Association.

** The Appellate Division noted that "Under contract reversion, a form of duty satisfaction, if the parties have reached an agreement on a specific subject following negotiations, a party can end an inconsistent past practice by reverting to the terms of the negotiated provisions relative to that subject."

*** Addressing contract reversion, a form of duty satisfaction, the Appellate Division said "if the parties have reached an agreement on a specific subject following negotiations, a party can end an inconsistent past practice by reverting to the terms of the negotiated provisions relative to that subject" and its was the County's burden to show that "the parties have negotiated terms in an agreement that are reasonably clear on the specific subject at issue".

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

 

State Division of Human Rights' award to a former employee for mental anguish, humiliation and lost wages, plus counsels fees and the imposition of a civil fine on the former employer sustained by the Appellate Division

The New York State Division of Human Rights [SDHR] found that Petitioners discriminated against a former employee [Employee] "based upon her familial status, gender and disability by failing to provide her reasonable accommodations and concluded that [Employee] was constructively discharged from her employment." SDHR imposed a civil fine against Petitioners and awarded Employee monetary damages for mental anguish, humiliation and lost wages. SDHR also awarded Employee counsel fees.

Petitioners thereafter commenced a number of proceedings pursuant to Executive Law §298 seeking annulment of SDHR's determination. SDHR and Employee separately cross-petitioned for, among other things, enforcement of SDHR's determination.

Here Petitioners challenge SDHR's finding that they constructively discharged Employee, arguing that Employee never alleged or proceeded with a theory of constructive discharge and, therefore, their due process rights were violated because they could not adequately defend against a claim of which they had no notice. Citing Block v. Ambach, 73 NY2d 323, the Appellate Division observed that "In the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against [it] and to allow for the preparation of an adequate defense". 

The court explained that while "the complaint may not have explicitly alleged that [employee] was discharged, it did apprise [Petitioners] that they took adverse action against her in the form of her termination of employment". The complaint also noted that Petitioner denied Employee an accommodation, and the circumstances leading to her discharge, whether active or constructive, were explored during the administrative hearing. The court the opined that Petitioners' "due process rights were not violated."

"Constructive discharge," said the Appellate Division, "occurs when the employer, rather than acting directly, deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation".*

In the words of the Appellate Division, "Under certain circumstances, the denial of an accommodation can support the finding that working conditions became so intolerable to a reasonable person so as to lead that person to involuntarily resign ... [c]ourts may not weigh the evidence or reject [SDHR's] determination where the evidence is conflicting and room for choice exists." Thus, in view of SDHR's expertise in assessing discrimination claims, "SDHR's determinations are entitled to deference."

Turning to the issue of damages, the Appellate Division, noting that SDHR awarded Employee $20,000 for mental anguish and humiliation and $45,280 in lost wages, observed that SDHR also imposed a $10,000 civil fine against Petitioners and awarded Employee counsel fees in the amount of $38,548.62, decided that as "SDHR's award for mental anguish and humiliation was reasonably related to the wrongdoing, was supported by substantial evidence and is similar to other awards, it will not be disturbed" and there is no basis exists to disturb the civil fine, the award for lost wages or counsel fees.

* See Morris v Schroder Capital Mgt. Intl., 7 NY3d 616.

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

 

Applying the appropriate law in the course of litigation

Plaintiff brought employment discrimination and retaliation claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., 42 U.S.C. §1981 (“Section 1981”), New York State Human Rights Law, N.Y. Executive Law, §290 et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (“NYCHRL”) against her employer, her supervisor, and a coworker and officemate [Defendants].

After receiving a right-to-sue letter, she filed the instant lawsuit on January 17, 2020. The District Court ultimately granted the Defendants’ motion for summary judgment on all of Plaintiff's claims. Plaintiff appealed the District Court's ruling.

One the issues addressed by the Circuit Court of Appeals, Second Circuit, concerned the controlling law in this action.

Upon noting that New York had amended the NYSHRL in October 2019, five months after Plaintiff’s retaliation claims had accrued, and citing Majewski v. Broadalbin-Perth Central School District, 91 N.Y.2d 577, the Circuit Court said it would apply the prior version of the NYSHRL, as it was in effect when Plaintiff’s claims accrued. 

The Circuit Court explained “It is a fundamental canon of statutory construction that retroactive operation is not favored by courts and statutes will not be given such construction unless the language expressly or by necessary implication requires it.”

The Circuit Court affirmed the federal district court's ruling in part, vacated that ruling in part, and remanded the matter to the federal district court "for further proceedings".

Click HERE to access the Circuit Court's decision posted on the Internet.

 

New York State Comptroller DiNapoli releases municipal and school audits

On March 8, 2024, New York State Comptroller Thomas P. DiNapoli issued the following local government and school audits were issued.

Peconic Bay Community Preservation Fund (Suffolk County)

Town officials from all five towns (East Hampton, Riverhead, Shelter Island, Southampton, and Southold) ensured disbursements were proper and supported, and debt service payments were for legitimate Peconic Bay Community Preservation Fund purposes and properly allocated. However, Town of Riverhead officials did not always record dates collections were received or deposit payments in a timely manner.

 

Canajoharie Volunteer Fire Department – Financial Activities (Montgomery County)

Department officials did not ensure that financial activities were properly recorded and supported. As a result, the ability to make financial decisions was hindered and officials lacked the information necessary to provide an annual report. The treasurer did not: accurately record 86 transactions (23%) totaling $33,280 or provide timely monthly reports to officials for eight of the 13 months in the audit period; or prepare bank reconciliations. Adequate cash collection controls were not established and 48 deposits totaling $16,655 were not made in a timely manner. Auditors found 248 disbursements totaling $81,595 were not audited and approved before payment, and 111 disbursements totaling $19,650 were made by debit card, circumventing the ability to be audited and approved before payment.

 

Bellmore Union Free School District – Payroll (Nassau County)

District officials did not always approve, support and monitor overtime. As a result, overtime expenditures exceeded budgeted overtime by $49,576 during the audit period and officials increased the risk that employees may have been paid for unnecessary overtime. Auditors reviewed 169 overtime request forms and the associated time sheets for five facilities and transportation department employees who received overtime pay totaling $78,595 and determined that 100 forms lacked the reason officials paid overtime totaling $30,291. In addition, officials paid unapproved overtime totaling $2,176.

 

Town of Cobleskill – Budgeting (Schoharie County)

The board did not develop realistic budgets. Budgeted appropriations were overestimated in the town-wide (TW) general and highway funds, and estimated revenues were underestimated in the town-outside-village (TOV) highway fund resulting in operating surpluses totaling $677,000. Actual expenditures were less than appropriations by an average of $89,000 (15%) and $196,000 (26%) in the TW general and highway funds, respectively and actual revenues exceeded estimated revenues by an average of $112,000 (90%) in the TOV highway fund. As a result, much of the $424,000 of fund balance the board planned to use to fund projected deficits was not used and unrestricted fund balances increased to levels between 100% and 179% of the 2023 appropriations. In addition, the town’s preliminary budgets for the three fiscal years examined did not include fund balance estimates with a breakdown by fund as required.

 

Chateaugay Central School District – Nonresident Homeless Student State Aid (Clinton County)

District officials did not claim state aid totaling $145,164 for nonresident homeless students during the audit period because the superintendent was not aware that the district could claim this aid. As a result, district taxpayers will not benefit from state aid totaling $62,920 because the filing deadlines have passed. The district may also lose the remaining $82,244 in state aid if officials do not properly submit claims for reimbursement by June 30, 2024. District officials did not establish policies and procedures to ensure state aid was claimed for nonresident homeless students. Officials also did not complete and maintain designation forms and submit them to the New York State Education Department.

 

Brushton-Moira Central School District – Tuition Billing (Franklin County)

District officials did not properly bill tuition for nonresident foster care students enrolled in the district. As a result, as of Sept. 30, 2023, officials had not billed or underbilled $40,803 of the $71,192 (57%) in tuition it was entitled to and billed and collected $12,452 in tuition it was not entitled to for the 2019-20 through 2021-22 school years. District officials also did not provide oversight of the officials who prepared the tuition bills or establish adequate procedures to ensure tuition bills were prepared, accurately calculated and issued to the school districts of origin for all eligible nonresident foster care students.

 

Questar III Board of Cooperative Educational Services (BOCES) – Information Technology (IT) Hardware Asset Inventory (Statewide)

As of June 30, 2023, Questar BOCES had IT assets with an original cost of $28.5 million (44,305 items) accounted for in its inventory that were either purchased for a component school district or for use at Questar BOCES. Based on the auditors’ review, Questar BOCES officials properly accounted for all 817 IT hardware assets reviewed with a purchase value of $612,386 and ensured assets declared surplus were properly disposed.

 

 

Selected links to items focusing on government operations posted on the Internet during the week ending March 8, 2024

AI, Security, Sustainability: Public Sector Innovation at Google Cloud Next '24
Dive into hands-on workshops, inspiring keynotes, and 500+ sessions covering AI, security, citizen services, and more. Get exclusive discounts and network with fellow public sector peers! READ MORE

ANNOUNCING CDG-NACo’s Digital Counties Survey 2024 The Center for Digital Government and National Association of Counties invite all U.S. counties to participate in the Digital Counties Survey. DIGITAL COUNTIES SURVEY ONLINE

Best Practices for Strengthening Mobility and Connectivity with a Public-private Approach For agencies focused on service delivery, getting the right connectivity approach in place is essential to meet current and future demands of public service. LEARN MORE

BlackRock Investment Closes RapidSOS’ $150M Funding Round The closing of the Series C round, with $75 million from BlackRock, could drive further integration of AI into RapidSOS’ products. The company is now one of the “highest-funded businesses” in public safety, an industry observer said. READ MORE

California’s Telework May End If Program Goes Unfunded Gov. Gavin Newsom’s proposed budget for 2024-2025 does not include any funding for the state’s Telework Compliance Office, which oversaw the rollout of telework during the pandemic and maintains telework data. READ MORE

Can Going Modular Fix Our Housing Shortage? Not Yet. Modular houses assembled from factory-built components are cheaper to build and the governor of Colorado is all in on them. They won’t solve the housing problem but can be part of the solution. READ MORE

Chattanooga Transit Agency Developing Improved Operations Technology
Collaborations among transit agencies, research universities and big tech companies like Google are using AI and cloud computing to harness tech for operational efficiency. Projects aim for regional benefits. READ MORE

CISA: ‘No Specific or Credible’ Threats to Primary Elections A senior official said that a widespread social media outage on Tuesday appeared to be unrelated to the elections. By the afternoon, the disruption had mostly ended. READ MORE

College in Crisis: What Is IT’s Role During an Emergency? Chief information officers and their IT teams at colleges and universities have critical roles to play during an emergency, particularly when it comes to managing communications and campus security infrastructure. READ MORE

Colorado Senate Passes Bill Allowing Private Small Group MeetingsThe legislation would allow lawmakers to meet and communicate in groups small enough that they don’t constitute a voting majority of a committee or chamber, codifying practices that were longstanding prior to being challenged last year. READ MORE

Concern Over AI Interfering With Elections Remains Strong Elections officials and law enforcement officers are hashing out how to stop the threat by investigating who is behind the source and issuing correct information to the public. READ MORE

Could Tech Have Thwarted Pennsylvania Train Derailment? It’s unclear so far whether Positive Train Control, a technology that is deployed on railroad tracks to prevent such accidents, was in play during the March 2 incident and whether it would have stopped the derailment. READ MORE

Cybersecurity Event’ Delays County Utility Bills in Washington The Chelan County Public Utility District, which serves around 50,000 customers, said the incident kept a nationwide vendor from mailing and emailing statements last week. It’s unclear whether personal information was compromised. READ MORE

Deadline Driven: State and Local Govts Should Mandate Zero Trust Federal agencies must transition to zero-trust cybersecurity postures by September of this year. Establishing a similar deadline for state and local agencies would spur action to lock down systems. READ MORE

Digitizing Trash, Snow Services in Syracuse, N.Y.The Syracuse, N.Y., Office of Analytics, Performance and Innovation and its partnership with the Department of Public Works demonstrates the cascading effects of what happens when traditional services go digital. READ MORE

Elections Signal Return of ‘Tough on Crime’ Tuesday's election results demonstrated voter antipathy toward crime. Meanwhile, the field is set in the year's most competitive race for governor and Texas has gotten redder. READ MORE

Fact Sheet: Emergency and Routine Mass Notifications Expedite critical alerts, warnings, instructions, and routine updates so that you can keep citizens informed and safe in an emergency. DOWNLOAD THE FACT SHEET

Federal Cybersecurity Grants Vital for State, Local Collaboration States are allocating money from the State and Local Cybersecurity Grant Program toward training, multifactor authentication work and encouraging a move to .gov domains. But funding is currently set to run out in 2025. READ MORE

Florida Lawmakers Reject Extreme Heat Protections for Workers Miami-Dade introduced a first-of-its-kind policy that would require employers to provide water, rest and shade to outdoor workers on hot days. The Legislature quickly sought to pre-empt such rules. READ MORE

Hedra Operator Workspace Maestro - A Secure Control Room SolutionTake control of your critical data to consolidate multiple displays for better focus, workflow, and ergonomics. LEARN MORE

How to Cyber Secure a Modernizing, Greener Energy Grid As the U.S. continues to shift toward using more renewable energy sources, officials are starting to grapple with how to keep a changing infrastructure cyber secure.READ MORE

Human Brain Chip Implants: Helpful? Safe? Ethical? Major developments regarding implanting chips in human brains have been announced in 2024. Will this procedure become widespread? Are precautions — or even regulations — needed? READ MORE

In Texas, $1B Extra for Water Is Just a StartA new $1 billion fund will help Texas communities fix crumbling water infrastructure. Advocates say much more will be needed due to population growth and climate change. READ MORE

In the Show Me State, a New K-12 Transparency Tool Missouri launched a data visualization tool last month after educators and families repeatedly requested an easier way to view and understand student achievement and growth indicators for local schools. READ MORE

Is Now the Right Time for a Ransomware Payment Ban? Experts have long debated a nationwide ban on paying cyber extortionists. But any ban must be paired with measures to help targets improve defenses, cybersecurity experts say. READ MORE

Making AI Work for Government: It All Comes Down to Trust
Experts say safe and effective use of artificial intelligence requires transparency, explainability and auditability. Users of the tech also have to trust the people who made it. READ MORE

Master Your Workspace with Hedra: Your Secure Command Center Solution Gain command over your vital data, streamline displays for enhanced concentration, productivity, and comfort. DISCOVER MORE

Missouri Considers ‘Anti-Red Flag’ Bill to Protect Gun Rights State lawmakers considered legislation that calls any federal order to confiscate firearms, gun accessories or ammunition a violation of a law-abiding citizen’s Second Amendment rights. READ MORE

Navigate, Equip, Learn, Connect: Your Public Sector Launchpad at Google Cloud Next '24 Learn from real-world leaders and get hands-on experience on AI, security & citizen services. Network, collaborate & launch your mission forward. READ MORE & REGISTER NOW

New Educational Enrichment Company to Promote STEM After School A new company that has already partnered with 1,100 schools aims to provide project-based learning and STEM activities like programming robots and developing computational skills outside of school hours. READ MORE

New Jersey Takes Stock of Cybersecurity Threats, Protections With a new threat assessment report, state CISO Michael Geraghty recently raised warnings about cyber attacks with systemic impacts, geopolitical hacktivism and more. READ MORE

New Jersey Works to Stay Nimble Amid Changing Tech Landscape CTO Chris Rein discusses the work of adjusting to a fast-evolving tech environment, as well as the progress his state has made on identity access and management, mainframe as a service and data sharing. READ MORE

New Research: How Outdated Business IT Is Holding States Back You can’t serve the public effectively with manual processes and obsolete technologies. This is especially true in government, where business applications for functions like budgeting, procurement, payments, permitting and grants management are long overdue for replacement. READ MORE

New York County Protests Using Farm Land for Solar Projects State lawmakers and local elected officials have spoken out against using farm land in Schoharie County for solar farm projects. The state aims to reduce its greenhouse gas emissions by 40 percent by 2030.  READ MORE

Opinion: Crafting a Vision and Creative Persona as a CIO Two of the most important jobs of CIOs in higher education are to have a vision and align it with the institution’s goals. Going on a listening tour is a good place to start, as it helps forge trust and relationships. READ MORE

Oregon Becomes 4th State With Right-to-Repair Law The state will now give consumers a legal right to fix their own home electronics and requires manufacturers to provide access to the tools, parts and manuals to repair them. Oregon’s law goes further with its protections than other states’ rules. READ MORE

Oregon Pursues Natural Solution to Reducing Emissions The pilot release of a first-of-its-kind mapping tool is a step toward understanding carbon storage in Oregon estuaries, supporting long-term goals to preserve them. READ MORE

Rhode Island Creates AI Task Force, Data Centers With an executive order Thursday, Rhode Island Gov. Dan McKee called for creation of an Artificial Intelligence Task Force and centers of excellence for AI and data. Goals include operational efficiencies and improved service delivery. READ MORE

Santa Fe’s 911 Center Slowly Fills Huge Staff Vacancies Two years ago, vacancy rates at the Santa Fe Regional Emergency Communications Center climbed to more than 65 percent. Since then, the number of unfilled positions has declined, though gaps remain. READ MORE

Special: Securing America's Digital Infrastructure We round up industry best practices on topics such as security, threats, and privacy. See how companies are helping state and local agencies tackle and prepare for all things cybersecurity. NEWS, CONVERSATIONS AND RESOURCES

State Gaming Board Replatforms After Cyber Incident The Nevada Gaming Control Board worked with the Nevada Office of the Chief Information Officer to move its website to a new platform, after a cyber incident in late January. An investigation found no personal information was accessed. READ MORE

States Invest to Save Rural Grocery StoresLawmakers hope grant and loan programs can help small towns keep their markets open. READ MORE

Tennessee Bill on AI in Schools: A Hint of What's to Come? Sen. Joey Hensley said his legislation allows public K-12 districts and universities to make their own choices regarding if and how artificial intelligence should be used for learning, pending state approval. READ MORE

The National Association of State Chief Information Officers released a report Wednesday examining data literacy in state government. All state employees must have a “certain minimum level of understanding of data,” it said. READ MORE

The Need to Protect Unspent Affordable Housing Money Local governments face a year-end deadline for obligating American Rescue Plan Act funds. To keep funds earmarked for housing from being plundered, they need to make some decisions now. READ MORE

Transforming Community Infrastructure for Water ConservationLocal governments can drastically improve water conservation with a comprehensive approach to water management. READ MORE

Treatments Resume After Alabama Gov Signs IVF Protection Bill Gov. Kay Ivey signed a bill that provides legal immunity to doctors and patients undergoing IVF treatment. However, the new law does not address the state Supreme Court’s recent ruling that frozen embryos are considered people. READ MORE

TroutSpotter App Uses AI to Track Coldwater Fish Populations The free app that identifies and tracks individual fish will launch in the spring through tu.org, allowing the national nonprofit to put its members to work helping researchers spot trends in coldwater fish populations. READ MORE

Using HHS Data and Best Practices to Change Lives This thought leadership paper covers three major best practices, along with corresponding real-world examples, around how to use data more effectively for health and human services programs. The paper also explains the value of cloud-based tools for data transformation. DOWNLOAD

Utah Bills Would Let Parents Sue Social Media Companies
Amendments to the Utah Social Media Regulation Act would allow lawsuits if it can be proven that “addictive social media algorithms” contributed to the worsening of a child’s mental health. Related laws have been stopped in two other states. READ MORE

Washington State Lawmakers Approve AI Task Force Bill
The legislation would create an Artificial Intelligence Task Force to convene technology experts and other stakeholders, and address areas of concern around AI. It’s expected to head to the governor’s desk this week for a signature. READ MORE

What’s New in Digital Equity: How to Build a Public Broadband Network Plus, Pennsylvania announces millions of dollars in new broadband funding, the FCC aims to expand Internet choice for residents of apartment buildings, and more. READ MORE

Where to Start with AI? Cities and States Offer Use Cases Building an AI program is a daunting proposition, but government has to start somewhere. From strengthening cybersecurity to improving 311, a handful of early adopters are finding safe and practical uses. READ MORE

Why Are Florida GOP Lawmakers Targeting Community ID Cards?Legislators are supporting a bill that would prohibit county and municipal governments from accepting IDs or documents provided to undocumented individuals by community programs. READ MORE

Will Newsom’s $16B Water Tunnel Destroy California’s Delta? The Delta Conveyance Project is a 45-mile tunnel that would run beneath the delta and move more water from Northern California to cities further south. Opponents worry about the tunnel’s impact on the delta’s fragile ecosystem. READ MORE

Wyoming Interim CIO TR Sheehan Focused on Meeting Residents’ Needs Sheehan, a long time Wyoming executive serving for a second time as interim CIO, is working to understand what citizens need from their government and providing them with technology-based solutions to do just that. READ MORE