New York City's Office of Administrative Trials and Hearings Administrative Law Judge recommends agency dismissed disciplinary charges filed against one of its employees

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ], Kara J. Miller, recommended the dismissal of disciplinary charges against filed against a child protective specialist supervisor [Employee] employed by the Administration for Children’s Services [Employer] after disciplinary hearing. Judge Miller found that the Employer had not proven that the Employee had engaged in misconduct. 

The Employer had alleged that the Employee had used disrespectful language and had acted in a threatening manner towards the Employee's supervisors and was insubordinate when she refused to complete an assignment, among other charges. 

The Employer sought to offer two internal religious discrimination complaints the Employee had filed with the Employer’s Office of Equal Employment Opportunity to impeach the Employee’s witnesses for hostility and bias. 

The ALJ accepted the documents because evidence that a witness bears some bias may be adduced to show that the Employer’s factual allegations are untrue but rejected the offering of any exhibits that went beyond the limited scope of impeachment. 

Although Judge Miller found that the Employee was impolite, the Employer’s witness testimony was insufficient to prove misconduct as "the testimony was exaggerated, embellished, and exhibited bias against the Employee]" 

Further, the ALJ found that the Employee was given ambiguous directions with respect to the assignment she allegedly refused to complete and therefore was not insubordinate for lack of requisite intent. 

Accordingly, the ALJ recommended the Employer dismiss the disciplinary charges it filed against the Employee.

Click HERE to access Judge Miller's decision posted on the Internet.

.

Retirees failed to prove a School District agreed to charge a specific percentage as a retiree contribution for health insurance upon their retirement

Petitioners in this appeal to the Commissioner of Education served with a School District for more than 20 years ago in positions designated confidential. This designation for the purposed of the Taylor Law made them ineligible to join any of the collective bargaining units recognized by the School District. Documents entitled “Terms of Employment for Civil Service Positions Non-Contract Confidential Employees" indicated that all “terms of employment and other benefits” were deemed “equal to those” negotiated by the Support Staff Association [SSA] bargaining unit, with limited exceptions.

One exception specified that Petitioners would contribute to health insurance premiums at the rate of six percent but did not indicate the health insurance contribution rates that such employees would pay upon their retirement.

Subsequent to their retirement the School District's Board [Board] advised Petitioners that it had agreed to a new collective bargaining agreement [CBA] and that Petitioners’ contribution rate for health insurance premiums would be increased to reflect this change. Petitioners attended Board meetings to contest this change but were ultimately were advised that the Board's determination concerning  the health insurance premiums to be paid by Petitioners was final. 

Petitioners appealed the Board's decision to the Commissioner.

The Commissioner, observing that in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, concluded that Petitioners had not proven that the Board agreed to maintain the six percent contribution rate for the Petitioners' upon their retirement.  

Although Board's Policy 9510 indicated that “health insurance will continue to be provided for retired employees … at the same level of district/employee contribution as the corresponding bargaining unit", the Commissioner found that Policy 9510 was "inapplicable to [Petitioners]" as they were not members in any collective bargaining unit and "neither the [CBAs] nor policy 9510" guaranteed Petitioners a specific percentage of the contribution for health insurance to be paid by the retirees upon their retirement.

The Commissioner, concluding that Plaintiffs' appeal must be dismissed, then said  she "encourage [the Board] to develop a consistent policy regarding retirement benefits for confidential employees". 

The Commissioner's decision is set out below.

Appeal of MICHAEL CAMBARERI and LORI KREBS from action of the Board of Education of the Sandy Creek Central School District regarding retirement benefits.

Decision No. 18,568

(June 9, 2025)

Office of Inter-Municipal Legal Services, Jefferson Lewis Board of Cooperative Educational Services, attorneys for respondent, George R. Shaffer III, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge the determination of the Board of Education of the Sandy Creek Central School District (“respondent” or “board”) to modify their health insurance premiums in retirement.  The appeal must be dismissed. 

Petitioners began their employment with respondent over 20 years ago.  Both of their positions were designated “confidential,” which made them ineligible to join any of the bargaining units recognized by respondent.  Petitioners’ employment conditions were identified in documents entitled “Terms of Employment for Civil Service Positions Non-Contract Confidential Employees” (the “agreements”).[1]  The agreements indicated that all “terms of employment and other benefits” were deemed “equal to those” negotiated by the Support Staff Association (“SSA”) bargaining unit, with limited exceptions.  One exception specified that petitioners would contribute to health insurance premiums at the rate of six percent.  The agreements did not address health insurance contribution rates in retirement.[2]  Petitioners Krebs and Cambareri retired from their employment with respondent in 2021 and 2024, respectively. 

By letter dated August 19, 2024, respondent informed petitioners that it had agreed to a new collective bargaining agreement (“CBA”) with the SSA that would increase petitioners’ contribution rate for health insurance premiums.[3]  Petitioners attended a September 12, 2024 board meeting to contest this change.  By letters dated September 17, 2024, respondent informed petitioners that its determination to change the health insurance premiums was final.  This appeal ensued.

Petitioners contend that respondent is estopped from modifying the terms of their employment, which they characterize as binding contracts.  Petitioners submit statements from two other confidential employees who indicate that their health insurance contribution rate will remain the same in retirement (the “confidential retirees”).  Petitioners seek an order maintaining their contributions to the health insurance plan at six percent.

Respondent contends, among other arguments, that it exercised its right to unilaterally modify the provision of the terms of employment regarding health insurance contributions.  Alternatively, respondent argues that petitioners lack standing to challenging respondent’s past practice of providing health insurance benefits to confidential retirees.  Respondent further submits that the two confidential employees are dissimilar to petitioners as these employees negotiated specific provisions regarding health insurance in retirement.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners have not proven that respondent agreed to maintain the six percent contribution rate throughout their retirement.  As indicated above, petitioners’ agreements do not address retirement benefits.  Board policy 9510 indicates that “health insurance will continue to be provided for retired employees … at the same level of district/employee contribution as the corresponding bargaining unit….”  This provision is inapplicable to petitioners as they did not belong to any bargaining unit.  Therefore, neither the agreements nor policy 9510 guaranteed petitioners a specific contribution rate in retirement.  While respondent has a past practice equating such rates with those negotiated by the SSA, petitioners were not aggrieved by this benefit (Matter of Aenas McDonald Police Benevolent Assn v City of Geneva, 92 NY2d 326, 330-331 [1998]).[4]

The language of the agreements between respondent and the two confidential retirees are not to the contrary.  These retirees, unlike petitioners, separately negotiated provisions regarding health insurance in retirement.  These provisions were then memorialized in the confidential retirees’ agreements under headings such as “health insurance in retirement” and “medical benefits/insurance post employment.”  Petitioners’ agreements do not contain comparable provisions.[5]  Thus, I find that petitioners have failed to demonstrate a clear legal right to a six percent contribution rate through retirement.

While the appeal must be dismissed, I encourage respondent to develop a consistent policy regarding retirement benefits for confidential employees.  If such benefits (including health insurance) are commensurate with those afforded to SSA members, respondent’s policy or agreements should so state.

In light of this disposition, I need not address the parties’ remaining contentions, including respondent’s procedural contentions.

THE APPEAL IS DISMISSED.

---

[1] Respondent issued separate agreements to each petitioner.  The material provisions of these agreements are identical.

[2] Retirement benefits for employees are generally addressed in board policy 9510, discussed below.

[3] Consistent with its past practice described below, respondent determined that these changes applied to petitioners.

[4] In this decision, the Court of Appeals also held “that there is no legal impediment to [a] municipality’s unilateral alteration of [a] past practice” and that “a public employer’s statutory duty to bargain does not extend to retirees.” Id. at 330-31, 332.

[5] Petitioners also submit statements from two current confidential employees, who indicate that when their supervisor “presented [them] with … Terms of Conditions that included a 6% insurance premium,” she represented “that it would carry through into … retirement.”  While petitioners argue that this reflects the binding nature of the six percent rate, it is equally plausible that the supervisor’s statement referred to the past practice described above.

Attendance and Leave Manual updates for employees of the State of New York as the employer have been posted by the New York State Department of Civil Service

On June 24, 2025, the New York State Department of Civil Service posted the following Attendance and Leave notices on the Internet applicable to employees of the State of New York as the employer:

1. Advisory Memorandum 2025-03, Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday for Collective Bargaining Contract Year 2025–2026; and

2. Transmittal Memorandum No. 51 - The 2026 Calendar of Legal Holidays and Days of Religious Significance.

The text of Advisory Memorandum 2025-03 is posted on the Internet  at URL Advisory Memorandum 2025-03 while the advisory memorandum in PDF format is posted on the Internet at URL Advisory Memorandum 2025-03 PDF.

The text of Transmittal Memorandum No. 51 is posted on the Internet at URL Transmittal Memorandum No. 51 while the transmittal memorandum in PDF format is posted on the Internet at URL Transmittal Memorandum No. 51 PDF.

Use the URL set out below to view earlier Attendance and Leave bulletins issued by the New York State Department of Civil Service:

 https://www.cs.ny.gov/attendance_leave/index.cfm.

Evaluating evidence a Plaintiff has submitted in its defense of charges of its having violated a provision set out in the Administrative Code of the City of New York

Plaintiff, an armored transportation company that carries and delivers cash and currencies, appealed the New York City Office of Administrative Trials & Hearings [OATH] decision finding it guilty of allowing its employees to keep "the engine of a motor vehicle ... idle ... 'loading or unloading' in violation of a rule"* and had imposed a $350 file. 

The Appellate Division opined that the question here is whether an armored truck while making a delivery is considered a "processing device." Noting that when making a delivery "the crew members must keep the vehicle's engine running to keep its security system operative, to allow the vehicle to be moved instantly in the event of a robbery, and to ventilate the vehicle since its windows are sealed for security reasons".

The Appellate Division also noted that Plaintiff had submitted evidence in the form of a screenshot from the New York City's Department of Environmental Protection' [DEP] website indicated that "armored trucks" are "an activity classified as process" and thus not subject to the prohibition set out in the rule in question. 

In addition, Plaintiff submitted evidence that DEP had advised the Plaintiff that "there is no need to file [for] a variance, as [DEP had a] protocol in place to instruct the inspectors that if the work being performed is directly related to the reason the vehicle is idling, the inspector is not to issue the violation." 

Finding OATH's determination to be arbitrary and capricious, the Appellate Division granted Plaintiff's Article 78 petition and unanimously reversed OATH's decision, on the law, without costs, and annulled its determination. 

* Administrative Code of City of NY §24-163, which provides that the term "'processing device" did not to include "a heater or air conditioner operated for [vehicle] cabin comfort".

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

Ethics, AI and Lawyers

Rochester, New York Attorney Nicole Black recently reference two items on the Internet posted by Bar Associations addressing ethical issues and Artificial Intelligence [AI]  in the practice of law.

1. Florida Bar on the Ethics of Sharing Case Hypotheticals in the age of generative AI and rapid technological advancements, ... Read the whole entry;

and 

2. New Hampshire Ethics Committee On Drafting Legal Documents with AI

Click on the text highlighted in BLUE to access Ms. Black's items posted on the Internet.