Special Military Benefits and Post-Discharge Benefits available to employees of New York State as the employer through December 31, 2021

The Governor's Office of Employee Relations has signed Memoranda of Understanding with the Civil Service Employees Association, Council 82, District Council 37, NYS Correctional Officers and Police Benevolent Association, Police Benevolent Association of New York State, Graduate Students Employee Union, Public Employees Federation, and United University Professions, extending current special military benefits for service in connection with the war on terror, and certain benefits in connection with return from military duty for duty related to the war on terror that exceeds 180 days' duration through December 31, 2021. 

The same benefits provided in these MOUs are extended to State personnel designated Managerial or Confidential employees for the purposes of Article 14 of the Civil Service Law [the Taylor Law].

Provisions of the MOUs are not grievable.

The existing special military benefits extended under these MOUs are administered in accordance with previously issued memoranda.

New York State Departments and Agencies should consult the following memoranda to ensure proper administration of these benefits:

GIB 2001-04	Special Military Benefits for State Employees Activated in Connection with the Events of September 11, 2001
AM 2001-06	Special Military Leave for Employees Activated in Connection with the Events of September 11, 2001
AM 2002-01	Frequently Asked Questions about Special Military Leave in Connection with the Events of September 11th
AM 2002-03	Training Leave at Reduced Pay for Military Duty Not Related to the Events of September 11th and Extension of Special Military Leave in Connection With the Events of September 11th
AM 2004-01	Clarification of Special Military Leave Benefits
AM 2007-01	Memoranda of Understanding on Extension of Special Military Benefits and New Post-Discharge Benefits

Questions concerning these benefits should be directed to the Attendance and Leave Unit of the New York State Department of Civil Service [(518) 457-2295].

 

Taxable Fringe Benefit Essentials - A Webinar for Government and Tax Exmpt Employers

The Tax Exempt and Government Entities Division of the Internal Revenue Service [IRS] is hosting a free Webinar titled Taxable Fringe Benefit Essentials for Employerson April 14, 2021 at 1:00 p.m. (ET).  

This Webinar will cover the most common fringe benefits and explain if those fringe benefits are taxable.

Officers and employee of government and tax exempt entities and other interested parties may enroll to watch this free Webinar that is designed to explain what a fringe benefit is and how to value a fringe benefit by clicking here to register .

Additional information is available at Webinars for Tax Exempt & Government Entities. 

 

 

 

Providing electronic records in response to Freedom of Information Law requests

In this proceeding pursuant to CPLR Article 78 to compel the production of certain documents pursuant to the Freedom of Information Law [FOIL]* sought by the Petitioner [Plaintiff], the Appellate Division explained:

1. As a general rule, a governmental entity [Agency] responding to a FOIL request is not required to create any new record or data that is not already possessed and maintained by it as such.

2. Pursuant to Public Officers Law §89[3][a], some information maintained in an electronic format may be retrieved, compiled, and disclosed if doing so requires only a "reasonable effort".

Here, said the court, the Records Access Officer [Custodian] of the records in question stated that he lacked the technical sophistication to manually transfer the email addresses onto an Excel spreadsheet in order to provide an electronically formatted response to the Plaintiff's FOIL request.

However, the Appellate Division said Custodian did not address whether any other employee of the Agency could, with a reasonable degree of time and effort, create "an Excel spreadsheet" that would comply with the terms of Plaintiff's FOIL request. Citing Data Tree, LLC v Romaine, 9 NY3d at 466, the court opined that "[i]t cannot be said, therefore, that the [Plaintiff's] amended petition fails to state a cause of action, as it presents a question of fact as to whether reasonable efforts by [the Agency's] employees could be undertaken to provide an electronically formatted response."

The Appellate Division also noted that Supreme Court should not have granted that portion of the Agency's motion to dismiss that part of the Plaintiff's amended petition alleging FOIL violations pertaining to the Petitioner's request for a copy of the Custodian's email and its recipient list. The amended petition, said the court,  described a portion of the email as being defamatory toward Plaintiff.

Addressing the alleged "defamation," the court indicated that in an electronic response by the Agency's attorney [Counsel], the Petitioner was told that the Custodian was not required to respond to "factual characterizations and legal conclusions," which might be a cryptic reference to any potential allegation that the Custodian's email at issue was defamatory. However, said the court, Counsel stopped short of addressing whether the email and its recipient list would or would not be provided by the Agency and the Agency gave no further response related to this request.

Finally, as the Agency did not advise Petitioner of the availability of an administrative appeal as required by 21 NYCRR 1401.7(b), the Appellate Division said that the Supreme Court erred in concluding that the Petitioner's administrative appeal was time barred. Accordingly, the Appellate Division concluded that Supreme Court should not have granted that branch of the Agency's motion which was to dismiss so much of the amended petition as related to that FOIL request and remitted the matter  to Supreme Court "for a determination on the merits after the Agency serve and file their answer and, if necessary, complete the administrative record."

* Public Officers Law Article 6.

Click HERE to access the text of the Appellate Division's decision.

 

Distinguishing between prohibited, mandatory, and non-mandatory subjects of collective bargaining within the meaning of the Taylor Law

The Union of Automotive Technicians, Local 563, [Union] filed an improper practice charge with the Port Authority Relations Panel [Panel] alleging that  the Authority had revised its Security Identification Display Area [SIDA] clearance application form without negotiating changes in the form with the Union.

The earlier form required disclosure of "disqualifying offenses enumerated in 49 CFR 1542.209(d)". The new application form, however, required applicants to disclose "all offenses, other than certain traffic offenses, of which they had ever been convicted, or found not guilty by reason of insanity."

The Panel dismissed the Union's charge, holding that the requirements to disclose additional convictions were not terms and conditions of employment and thus not mandatory subject of collective bargaining within the meaning of Article 14 of the Civil Service Law, the so-called Taylor Law. The Union then filed a CPLR Article 78 petition in Supreme Court appealing the Panel's ruling. Supreme Court transferred the matter to the Appellate Division.*

Sustaining the Panel's determination, the Appellate Division indicated that it viewed the revised application form as:

1. An exercise of Port Authority's managerial prerogative to determine job qualifications, and amounted to "policy decisions relating to the primary mission of the public employer;" and

2. Section III(D) of Port Authority's Labor Relations Instruction excludes "the mission and management responsibilities of the Authority, including its ... staffing [and] operating ...  policies" from mandatory negotiation.

Other court decisions addressing areas excluded from mandatory negotiations within the meaning of the Taylor Law include City of Plattsburgh v Local 788, 108 AD2d 1045 and Szumigala v Hicksville Union Free School District, 148 AD2d 621.

Plattsburg involved the diminishing or impairing employee seniority for the purposes of layoff upon the abolishment of positions. The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff; the "date of hire" was to be used to determine an employee's seniority. The City laid off Employee A rather than another worker, Employee B. While A, had been employed by the City for a longer period than B, B had received his permanent appointment before A was permanently appointed. Plattsburgh won an order prohibiting arbitration of the issue. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" granted employees that the City was powerless to bargain away.

In Szumigala, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

In Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 NY3d 660, the court addressed a prohibited negotiating demand. Here the high court ruled that "[p]ublic policy requires that police departments retain the authority given them by Civil Service Law §61(1) to select one of three candidates for such promotions, thus barring an appointing authority from agreeing, in the course of collective bargaining, to limit its discretion in selecting a candidate for promotion by requiring the appointing authority to follow the so-called "rule of the list."

In contrast, Matter of Professional, Clerical, Tech. Empls. Assn. (Buffalo Bd. of Educ.), 90 NY2d 364, is an example of a non-mandatory negotiating demand with respect to negotiating the rule of the list. Here the Court of Appeals held that a public employer could, without violating public policy, agree to forgo its statutory authority to choose from among any of three candidates for promotion to clerical and secretarial positions. Here the use of the "rule of the list" was held not to offend pubic policy insofar as appointments of candidates to clerical or secretarial positions were concerned.

* Addressing a procedural issue, the Appellate Division said the Article 78 proceeding should not have been transferred to it as the petition did not raise an issue of substantial evidence but, "as a matter of judicial economy," it elected to retain jurisdiction "to dispose of all issues raised" in the Union's Article 78 petition.

Click HERE to access the text of the Port Authority decision.

 

Applicant denied accidental disability retirement benefits after failing to show that his disability was causally related to his accident

The Appellate Division introduced its consideration of this appeal by observing that the decision being appealed "was not made pursuant to an administrative hearing, and therefore the proceeding was improperly transferred to this Court" by the Supreme Court. The Appellate Division then decided to address the merits of the appeal "in the interest of judicial economy", citing Matter of DeMonico v Kelly, 49 AD3d 265.

An application for accidental disability retirement [ADR] benefits filed by a New York City firefighter [Applicant] was denied by the Board of Trustees of the New York City Fire Pension Fund [Trustees]. Applicant filed a CPLR Article 78 petition seeking court order vacating the Trustees' decision. The matter was, as noted earlier" improperly transferred to the Appellate Division. After considering the merits of Applicant's appeal the court opined that the Trustees' decision was supported by credible evidence, and was not arbitrary and capricious, citing Meyer v Board of Trustees of N.Y. City Fire Dept., Art.1-B Pension Fund, 90 NY2d 139.

The court said that the finding that Applicant's "disabling hip condition is causally related to a preexisting degenerative condition, rather than his fall while in the performance of his duties, is based upon credible medical evidence ... indicative of a chronic degenerative disease, not an acute injury." Thus the Appellate Division found that the Trustees "properly relied upon the [New York City Fire Pension Fund's] Medical Board's unanimous opinion as to causation, commenting that "in the event there is a conflict in the medical evidence regarding the cause of the disability [that determination] is within the sole province of the Medical Board to resolve."

In contrast, the court observed that Applicant failed to establish, as a matter of law,  that his disability was causally related to his accident, and in particular, that his asymptomatic preexisting degenerative disease was exacerbated by the accident as he claimed. Further, in the words of the Appellate Division, the Medical Board found there was no objective evidence to support that theory of causation alleged solely upon Applicant's subjective claims.

Unanimously confirming the decision of the Trustees', the Appellate Division dismissed Applicant's appeal.

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