Student Intern Program announced by the NYS Department of Civil Service

Student Intern Program announced by the NYS Department of Civil Service

Acting NYS Civil Service Commission President Patricia A. Hite has distributed the following "General Information Bulletin #12-01" to State Departments and Agencies describing a new Student Intern Program that is to be made available to qualified college and graduate school students interested in a career in public service and inviting their respective Department and Agency participation.

GENERAL INFORMATION BULLETIN No. 12-01

TO: Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers
FROM: Patricia A. Hite
SUBJECT: New New York Leaders: Student Intern Program
DATE: May 10, 2012

On February 15, Governor Cuomo launched the New New York Leaders: Student Intern Program, the first ever centralized Student Intern Program for state government. The Program will provide talented undergraduate or graduate students who are New York State residents or who attend a New York State college, university or graduate program and are interested in exploring a career in public service with a single location to apply and be considered for internship opportunities. Students will be exposed to the work of governing and the increasingly complex policy challenges facing New York State. This group of diverse and talented students is the future of state government.

A memorandum from Howard Glaser dated May 9, 2012, advised agency heads of this important initiative, the success of which depends upon agency participation. The Department of Civil Service is hosting the portal for the Student Intern Program which will function as the primary location where agency internship opportunities will be posted and applications will be accepted. Based on the preferred candidate profile submitted by the agency for each internship opportunity, the Department will provide agencies with a list of qualified candidates. It is expected that by fall 2012, all New York State internship opportunities will be included on the New New York Leaders: Student Intern Program portal.

This Program is not intended to replace established agency relationships with colleges and universities; rather, the portal is to serve as a comprehensive recruitment tool for agencies and a single resource to which schools may direct students. The Department will notify New York State colleges and universities of the Program and develop a recruitment plan to actively recruit students from schools with diverse populations. Agencies are encouraged to continue their recruitment efforts. Communication with college and university internship coordinators should continue to ensure the inclusion of candidates with agencies' preferred qualifications; however, students should be directed to the portal to apply for and select specific agency opportunities. Appointments must be made through the centralized process.

We are making every effort to meet agencies' needs while providing schools and students a centralized portal for the Student Intern Program. This fall we will ask for your feedback on the portal and, based upon that input, will seek to expand the visibility of the Program and increase efficiency and transparency in the process of hiring interns.

Student Intern Program Overview

The internship opportunities offered by the New New York Leaders: Student Intern Program may be paid or unpaid, and for graduate or undergraduate students. Applications will be accepted three times a year for internships to be filled in the fall, spring and summer. The internship portal will allow candidates to submit applications, upload resumes and review and identify preferences for internships. Agencies will use the internship portal to post internship opportunities, set hiring criteria, and receive a list of qualified candidates.

Between June 1 and June 27, 2012, agencies will post their Fall 2012 internship opportunities on the internship portal. An agency guide and further directions will be made available to assist you with this process. Agencies will also have the opportunity to attend a Student Intern Program briefing on May 30, 2012 in Room 354 in the Alfred E. Smith Office Building in Albany. Agency staff in locations outside of Albany will have the ability connect to the briefing via webinar. During the briefing, Student Intern Program staff will provide programmatic details of the Program, a demonstration of the internship portal, and guidelines for submitting internships.

Student Intern Program Liaisons

We request that all agencies designate an agency liaison to serve as a point of contact for future communication related to the Student Intern Program. The Student Intern Program Liaison will be responsible for:

• communicating all relevant Student Intern Program information and deadlines to agency staff; and,

• coordinating your agency's input and maintenance of internship posting information in the internship portal.

• May 15, 2012
 - Agencies designate Student Intern Program Liaison

• May 23, 2012
 - DCS provides agencies a guide and template for posting internships

• May 30, 2012
 - Student Internship Program Briefing for Liaisons

• June 1, 2012
 - Access to Internship Portal for Agencies

• June 27, 2012
 - Deadline for Posting Internships

• July 23, 2012
 - Deadline for Students to Apply and Identify Internship Preferences

• July 24 - 31, 2012
 - Agencies Establish Criteria and Receive List of Qualified Candidates

• July 24, 2012 - August 31, 2012
 - Agencies Contact Candidates for Interviews

• September 2012
 - Internships Begin

The Student Intern Program Liaison should be, whenever possible, a professional member of your human resource team. All human resource or personnel staff with access to NYSTEP will have permissions to access the Internship Portal using their Department of Civil Service Web Applications Log In information. Please contact Lynne Harting via email atnysinternships@cs.state.ny.us by Tuesday, May 15, 2012, with the name and contact information for your agency liaison. Please also indicate if the Student Intern Program Liaison will be attending the Student Internship Program briefing in person or connecting via the webinar.

Timeline

To assist you in your planning efforts, the timeline for the New New York Leaders: Student Intern Program for Fall 2012 internships is as follows:

We look forward to your participation in the New New York Leaders: Student Intern Program. For more information on the program, visit our website http://www.nysinternships.com beginning the week of May 14. If you have any questions, please contact Lynne Harting at (518) 473-9721 or contact us at nysinternships@cs.state.ny.us.

The school board rather than the Commissioner of Education in the party that may initiate disciplinary action against a school officer

The school board rather than the Commissioner of Education in the party that may initiate disciplinary action against a school officer

Decisions of the Commissioner of Education, Decision No. 16,350

An individual challenged the actions of the school board and various officers of the school district by filing an appeal with the Commissioner of Education in which he include a request that the Commissioner remove certain school officials from their respective positions.

The Commissioner dismissed the appeal and denied the removal application.

Addressing the denial of the individual’s “removal application” with respect to the superintendent and the assistant superintendent, the Commissioner explained that the individual must seek disciplinary action from the [superintendent’s and the assistant superintendent’s] employer, the board of education, in the first instance. 

Disciplinary action against a superintendent or assistant superintendent, said the Commissioner, is within “the discretion of the employing board of education.”

Accordingly, the individual should have brought his complaint to the board of education, whose decision may then be reviewed in an appeal to the Commissioner of Education.

The decision of the Commissioner is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16350.html

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

Individual must prove four elements to prevail in a claim that he or she was subjected to retaliation for having filed a complaint alleging unlawful discrimination

A correction officer employed by the New York State Department of Corrections and Community Supervision filed an action in the Court of Claims alleging that he had been subjected to retaliation and a hostile work environment in violation of Executive Law §296.

The officer had claimed that he was disciplined after engaging in an on-duty physical confrontation with another correction officer, contending that the other correction officer involved in the confrontation was not disciplined at all and that a different correction officer involved in a similar but unrelated incident received a lesser punishment. He contended that the disciplinary action taken against him was in retaliation of his having previously filed complaints against his supervisors alleging racism.

The Appellate Division affirmed the Court of Claims’ ruling that the correction officer had failed to establish either claim.

Citing Forrest v Jewish Guild for the Blind, 3 NY3d 295, the court explained that to establish a claim for retaliation, a claimant was required to prove the following four elements:

[1] he or she had engaged in protected activity;

[2] his or her employer was aware that he or she had engaged in such activity;

[3] he or she suffered an adverse employment action based upon his or her activity;

[4] there is a causal connection between the protected activity and the adverse action.

The Appellate Division noted although the first three elements of a retaliation claim were not disputed here, the Court of Claims concluded that there was no evidence of a causal connection between the protected activity and the discipline imposed on claimant.

The Court of Claims had [1] credited the version of events reported by the witnesses to the confrontation and determined that claimant was the aggressor and [2] the confrontation in which the officer had been involved “was more serious than the unrelated incident.”

As to the officer’s “retaliatory hostile work environment claim,” the Appellate Division said that the actions giving rise to such a claim “must be sufficiently severe or pervasive to constitute actionable harassment and stem from a retaliatory animus.”

The Appellate Division held that in determining if such a hostile work environment existed “All of the circumstances must be considered, including ‘the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"  Further, said the court, "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the [claimant], and have created an objectively hostile or abusive environment — one that a reasonable person would find to be so."

Noting that the record supported the conclusion of the Court of Claims that the supervisor's conduct did not pervade claimant's work environment or rise to an actionable level, the court dismissed the correction officer’s appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03487.htm

Comptroller’s audit alleges that a former Village of Wolcott clerk-treasurer made unauthorized payments to herself

Comptroller’s audit alleges that a former Village of Wolcott clerk-treasurer made unauthorized payments to herself

An audit report issued by the State Comptroller's Division of Local Government and School Accountability  alleges that a former Village of Wolcott clerk-treasurer misappropriated more than $68,000 of the village's funds over a four-year period.

The village had contacted the Comptroller's office. After reviewing the village's financial records the auditors reported that the village’s accounting records indicated that unauthorized disbursements in the form of extra payroll payments, unauthorized overtime payments, excessive health insurance buyouts, unearned leave payouts, overpayment of vital statistics fees, and payments inappropriately charged to the village’s records management grant had been made.

The audit report recommended the village:

1. Ensure the village's clerk-treasurer maintains adequate, accurate and timely records and reports on an ongoing basis;

2.Require and review detailed monthly financial reports, which should include cash balances, cash receipts and disbursements made during the month, a comparison of actual revenue and expenditures to budget amounts, and bank reconciliations with copies of the bank statements.

3. Adopt and distribute a Code of Ethics, as required by law; and

4. Monitor cash disbursement records to ensure accuracy.

The Division's audit report is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/villages/2012/wolcott.pdf

An internal investigation of a sexual harassment complaint prior to the filing of a complaint with EEOC not a protected activity within the meaning of Title VII

An internal investigation of a sexual harassment complaint prior to the filing of a complaint with the EEOC not a protected activity within the meaning of Title VII

In a case characterized by the U.S. Court of Appeals, Second Circuit, as one of “first impression,” the court ruled that internal investigations by conducted by an employee of alleged acts of unlawful discrimination in accordance with the employer's policy but initiated prior to the filing of a Title VII complaint does not qualify as a “protected activity.”

The genesis of the case was a complaint made to the employer’s Human Resources Director [HRD] by an employee alleging she had been sexually harassed by a corporate executive.

The HRD began to conduct an internal investigation of the allegations. However, before completing the investigation, the HRD was terminated by employer. Contending that her termination was in retaliation for her participation in the internal investigation, the HRD brought an action againt the employer claiming her investigation activities constituted a protected activity within the meaning of Title VII’s anti-retaliation provision.*

The federal district court granted the employer’s petition for summary judgment, holding that the  HRD’s participation in an internal employer investigation into the employee’s sexual harassment allegations, “an investigation that was not connected to any formal charge with the EEOC,” did not qualify as protected activity under the participation clause of Title VII’s anti-retaliation provision.

Citing Correa v. Mana Prods, Inc., 550 F. Supp. 2d 319, the district court said that “[i]n order to gain protection under the participation clause, the participation must be in an investigation or proceeding covered by Title VII, and thus not in an internal employer investigation.”  In this instance the court found that the HRD’s investigation was conducted pursuant to the employer’s internal procedures and were not  associated with any Title VII proceeding. 

The Court of Appeals agreed with the district court’s ruling.**

Noting that EEOC had submitted an amicus brief urging the court to adopt a  “contrary interpretation of the participation clause, one that embraces internal employer investigations,” the Circuit Court said that although EEOC’s views are entitled to deference to the extent they have the power to persuade, “it did not find the EEOC’s interpretation persuasive in this case and affirmed the district court’s granting of summary judgment dismissing the HRD’s Title VII retaliation claim. 

* Title VII's anti-retaliation provision extends protection both to employees who have "opposed any practice made an unlawful employment practice" under Title VII (the "opposition clause") and to employees who have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII (the "participation clause)." On January 24, 2011 the United States Supreme Court unanimously supported a broad reading of Title VII’s anti-retaliation provision. The high court said that the alleged victim of retaliation has standing to sue even if he or she was not the person who engaged in protected activity [Thompson v. North American Stainless LP, 131 S.Ct. 863, 2011 U.S. LEXIS 913]. In Thompson the court ruled that, under certain circumstances, a third-party termination may constitute an unlawful reprisal under Title VII’s anti-retaliation provision and that “a person claiming to be aggrieved … by an alleged employment practice” and who 'falls within the zone of interests protected by Title VII' has standing to sue his employer." Second Circuit Judge Raymond Lohier, in a concurring opinion, cited Thompson and said that Congress should clarify whether the kind of investigation the HR conducted falls within the protective sweep of the participation clause.

** The court said that it expressed no opinion as to whether participation in an internal investigation that is begun after a formal charge is filed with the EEOC falls within the scope of the participation clause, noting that some courts “have answered this question in the affirmative noting that in Abbott v. Crown Motor Co., 348 F.3d 537, the USCA, 6th Circuit, held that “Title VII protects an employee’s participation in an employer’s internal investigation into allegations of unlawful discrimination where that investigation occurs pursuant to a pending EEOC charge.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/855b7c0d-e303-49c2-a5f6-399603d29346/1/doc/09-0197_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/855b7c0d-e303-49c2-a5f6-399603d29346/1/hilite/

Average weekly wage based on concurrent employments may be used to determine Workers’ Compensation Law benefit

Average weekly wage based on concurrent employments may be used to determine Workers’ Compensation Law benefit

A “year-round” lifeguard employed by the Staten Island Developmental Disabilities Services Office was involved in an automobile accident in the course of his employment and applied for Workers’ Compensation Law benefits.

In determining the individual’s workers’ compensation benefits, the Workers’ Compensation Board’s administrative law judge included the employee's earnings “from concurrent seasonal employment as a lifeguard for the City of New York.” Staten Island appealed but the Workers’ Compensation Board ultimately sustained the administrative law judge’s determination.

The Appellate Division affirmed the Board’s ruling, noting that “The record demonstrates that the claimant was employed on weekends by Staten Island year round for 12 years and had been seasonally employed for the City of New York between the months of May and September since 1978.”

As the lifeguard had worked for both employers concurrently during the previous 12 summers, participated in training and received a promotion with respect to his seasonal employment during the off season and returned to his seasonal lifeguard position following the injury, the Appellate Division concluded that “substantial evidence supports the Board's finding that claimant was concurrently employed.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03490.htm

Police officer found to have testified in his “official capacity” when he referred to his job as a police sergeant

Police officer found to have testified in his “official capacity” when he referred to his job as a police sergeant

The New York City Police Department's Patrol Guide Procedure No. 211-09 requires a police officers to give notice of his or her intention to testify at a criminal trial to the Police Commissioner or to the Department's Legal Bureau.

When a police officer testified at his cousin's criminal trial without complying with Procedure 211-09, he served with disciplinary charges and found was guilty of failing to notify the Police Commissioner and, or, the Legal Bureau that he intended to provide character testimony at a criminal trial and that he did in fact provide testimony, at a trial. The penalty imposed: a forfeiture of 15 days of vacation accruals.

The Appellate Division sustained the disciplinary determination, holding that it was rational and supported by substantial evidence.

The court said that the Assistant Deputy Commissioner of Trials had a rational basis for finding that the police officer had testified in his "official" capacity at the criminal trial given that he referred to his job as a Police Department Sergeant and the judge in the case referred to him as "Sergeant."

Further, said the Appellate Division, the Assistant Deputy Commissioner also had a rational basis for finding that, even if the police officer had not testified in his "official capacity," Patrol Guide Procedure No. 211-09 still applied because the police officer conceded that it was his understanding that he was going to provide character testimony, among other things.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03561.htm

The physician-patient privilege and HIPPA both held to yield to a subpoena duces tecum issued by an administrative agency pursuant to its statutorily assigned functions

The physician-patient privilege and HIPPA both held to yield to a subpoena duces tecum issued by an administrative agency pursuant to its statutorily assigned functions
New York City Health & Hosps. Corp. v New York State Commn. of Correction,2012 NY Slip Op 03571, Court of Appeals

The New York State Commission of Corrections, on behalf of its Medical Review Board, served a subpoena duces tecum on Elmhurst Hospital, a health care facility operated by the New York City Health and Hospitals Corporation (HHC), seeking its records concerning its care and treatment of a deceased correctional inmate in the custody of the City of New York.

Initially the subpoena was quashed upon the ground that it sought material shielded from disclosure by the physician-patient privilege.* The Court of Appeals, however, ruled that the records sought were not properly withheld from the Commission by reason of the alleged physician-patient privilege and that the subpoena should be honored.

The court noted the Board has statutorily assigned functions, powers and duties in the "[i]nvestigat[ion] and review [of] the cause and circumstances surrounding the death of any inmate of a correctional facility."

However, HHC refused to turn over the sought records, contending that the inmate had been treated at Elmhurst in a non-prison unit, and, in view of that circumstance, HHC argued that the Commission had no special entitlement to the deceased inmate's medical records.

The Court of Appeals disagreed, holding that the Legislature intended for the Board to have plenary authority to "investigate and review the cause and circumstances surrounding the death of any inmate ofa correctional facility" and the “Legislature cannot be supposed to have allowed that the thoroughness of the Board's inquiry would vary with the site of an inmate's pre-mortem medical care — that the inquiry respecting the death of an inmate who in the period preceding his or her death was treated in a prison or a prison unit in a hospital would be conducted with the benefit of a full medical record, whereas one respecting an inmate who had received pre-mortem treatment in a non-prison unit would have to be performed without such a record in the event that a waiver of the physician-patient privilege could not be obtained.”

The Court of Appeals then considered an alternative argument advanced by HHC -- the HIPPA Privacy Rule. The court said that the Privacy Rule does not prohibit disclosure of the records sought by the Commission as HIPPA specifically allows for disclosures "required by law," citing 45 CFR 164.512 [a]. This, said the court, includes disclosures pursuant to "subpoenas . . . issued by . . . an administrative body authorized to require the production of information."

The subpoena HHC sought to be suppressed, which the court ruled was enforceable despite CCH’s claim of physician-patient privilege, was held to fall “comfortably within” 45 CFR 164.512 [a].

* On the issue of physician-patient privilege, CPLR 4504 (a) provides, in pertinent part: "[u]nless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing [or] licensed practical nursing . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity. The relationship of a physician and patient shall exist between a medical corporation . . . and the patients to whom [it] . . . render[s] professional medical services."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03571.htm

Emergency/proposed rule making relating to hearings on disciplinary charges filed against tenured school employees in the unclassified service

Emergency/proposed rule making relating to hearings on disciplinary charges filed against tenured school employees in the unclassified service

I.D. No. EDU-19-12-00004-EP; Filing No. 400; Filing Date: 2012-04-24; Effective Date: 2012-04-24

The State Department of Education has promulgated proposed rules to implement Education Law §3020-a, as amended by Part B of Chapter 57 of the Laws of 2012, relating to hearings on disciplinary charges filed against tenured school employees.

The full text of rule and any required statements and analyses may be obtained from: Mary Gammon, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 138, Albany, NY 12234, (518) 473-2183, email: mgammon@mail.nysed.gov

The basic elements underlying this proposed amendment are summarized below:

Amendment of Subpart 82-1 of Title 8 NYCRR. -- Statutory authority: Education Law,  §§207 (not subdivided), 305(1) and (2) and 3020-a, as amended by L. 2012, ch. 57, part B

Specific reasons underlying the finding of necessity: The proposed rule is necessary to implement Education Law §3020-a, as amended by Part B of Chapter 57 of the Laws of 2012, relating to hearings on charges against tenured school employees.

As part of its 2011 legislative agenda, the Board of Regents sought a number of modifications to the tenured teacher hearing process set forth in Education Law §3020-a to address spiraling costs and the extraordinary length of time arbitrators utilized to conduct hearings.

This legislation was introduced in the Assembly and Senate. The Governor's proposed 2012-13 State Budget incorporated some of these reforms, and the State Budget as adopted by the Legislature incorporated a number of important programmatic and fiscal reforms.

The changes take place immediately, and apply to all charges against tenured educators filed with the clerk or secretary of the school district or employing board on or after April 1, 2012.

The new amendments modify the manner in which an arbitrator is selected if the parties fail to agree on an arbitrator selection within 15 days of receipt of the list. Education Law §3020-a(3)(b)(iii) states that ‘‘[i]f the employing board and the employee fail to agree on an arbitrator to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection within such fifteen day time period, the commissioner shall appoint a hearing officer from the list.’’

This provision authorizes the Commissioner to select the arbitrator if the parties fail to agree within 15 days of receipt of the list. It does not apply to NYC where there is an alternative procedure.

The proposed amendment requires the Commissioner to establish a schedule for  “maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed” (emphasis added). The purpose of this amendment is to give the Commissioner the authority to control costs. Pursuant to Education Law §3020-a(3)(c)(i)(B), the proposed amendment authorizes the Department to monitor and investigate a hearing officer's compliance with the timelines set forth in the statute.

The Commissioner may exclude any hearing officer who has a record of continued failure to commence and conclude hearings within the timelines prescribed in the statute.

The proposed amendment continues the requirement that an accurate ‘‘record’’ of the proceedings be kept at the expense of the Department and furnished upon request to the employee and the board of education. However, in accordance with the new law, the proposed amendment permits the Department to take advantage of any new technology to transcribe or record the hearings in an accurate, reliable, efficient and cost effective manner.

In conformity with the new law, the amendment also imposes a one year limitation for the submission of claims for reimbursement for services rendered. The purpose of this amendment is to encourage timely submission of claims so that accurate budget assumptions can be made and claims can be paid for in a reasonable time.

The rule is being adopted as an emergency measure upon a finding by the Board of Regents that such action is necessary for the preservation of the general welfare in order to immediately revise Subpart 82-1 of the Commissioner's regulation to conform to and implement the provisions of  §3020-a of the Education Law, as amended by Chapter 57 of the Laws of 2012. Emergency action is also necessary to give employees and employing boards sufficient notice of the new requirements to timely implement them in accordance with the statute.

It is anticipated that the proposed rule will be presented for adoption as a Proposed Rule Making in the State Register and expiration of the 45-day public comment period prescribed in State Administrative Procedure Act §202(4-a).

This notice is intended: to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire July 22, 2012.

Data, views or arguments may be submitted to: Peg Rivers, New York State Education Department, 89 Washington Avenue, Albany, New York 12234, (518) 408-1189, email: privers@mail.nysed.govPublic comment will be received until: 45 days after publication of this notice.

[N.B. This notice was published in the NYS Register dated May 9, 2012]

An individual’s failure to comply with drug test procedures implementing federal regulations cannot be deemed to have violated state or local discrimination laws

An individual’s failure to comply with drug test procedures implementing federal regulations cannot be deemed to have violated state or local discrimination laws

The individual was unable to provide the required urine sample to qualify eligibility for employment as an Assistant City Highway Repairer.

Although Supreme Court summarily granted the individual’s on the issue of liability, the Appellate Division unanimously reversed the lower courts ruling “on the law” and directed that the individual’s complaint be dismissed.

The court said that there was no competent evidence that the individual suffered from a disabling medical condition that prevented him from being able to produce a urine sample nor, assuming that issues of fact exist whether he suffered a medical impairment, the Appellate Division said that the had failed to make any showing that this impairment caused him to be unable to provide a 45-milliliter urine specimen within the required three-hour time period.

Noting that the employer, in determining that the individual failed to comply with its drug test procedures "implementing federal regulations" governing his eligibility for the position as set out in 49 CFR Part 40, the court said that the employer “cannot have violated state or local discrimination laws by [doing so]," citing Kinneary v City of New York, 601 F3d 151.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03527.htm

Local government management guide on information technology governance available from the Office of the State Comptroller

Local government management guide on information technology governance available from the Office of the State Comptroller

Source: Office of the State Comptroller

The Office of the State Comptroller, Division of Local Government and School Accountability has released its latest edition of its Local Government Management Guide on Information Technology Governance.

The Guide is intended to make the oversight of information technology less daunting by providing a template for understanding and strengthening controls over IT. It includes a Security Self–Assessment structured around twelve key areas of IT security that is intended to help local governments exercise effective oversight of IT operations and serve as a starting point for discussions with personnel who are responsible for the day–to–day management of the entity’s computer operations. 

Readers are invited to e-mail the Division -- localgov@osc.state.ny.us --with questions concerning IT governance or for assistance interpreting the self–assessment results.

The Guide is posted on the Internet at:

http://www.osc.state.ny.us/localgov/pubs/lgmg/itgovernance.pdf?utm_source=weeklynews20120505&utm_medium=email&utm_campaign=lgmgitg_pdf

An appointing authority has broad discretion in determining if an omission in the probationer’s application form is material to his or her qualifications for the position

An appointing authority has broad discretion in determining if an omission in the probationer’s application form is material to his or her qualifications for the position

The Appellate Division unanimously affirmed a Supreme Court ruling that dismissed a probationary police officer’s challenge to his termination during his probationary period.

The court said that the appointing authority was “entitled to discharge a probationary police officer ‘for almost any reason, or for no reason at all' as long as it is not in bad faith or for an improper or impermissible reason," citing Duncan v Kelly, 9 NY3d 1024.

The probationer alleged that he was terminated because of his “inadvertent” failure to disclose the psychological treatment he underwent at the age of six. The Appellate Division held that even if the probationer was "ignorant or unaware of or oblivious to his personal history,” the appointing authority was entitled, given the broad discretion vested in it, to deem "such omissions a[s] material to his qualifications."

Citing Talamo v Murphy, 38 NY2d 637, the decision notes that even assuming the truth of the probationer's allegations, his petition failed to allege any facts that would, if proven to be true, constituted a violation of "statute or policies established by decisional law."

As the probationer failed to allege facts supporting a conclusion that his termination was in bad faith, the Appellate Division ruled that “Given this failure, a hearing to resolve the truth of the facts alleged is unnecessary.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03516.htm

Reasons set out in the administrative determination held to trump alternative reasons advanced in the course of litigation

Reasons set out in the administrative determination held to trump alternative reasons advanced in the course of litigation

A candidate for appointment as a firefighter with the City of Buffalo challenged his disqualification for the appointment on the basis of his failing to meet the residence requirement set out in Rule 10 of the City's Classified Civil Service Rules.

Rule 10 requires the applicant to maintain residence for 90 days prior to the date of application or the date of appointment, as the case may be.*

In contrast, the examination announcement stated that applicants for the firefighter position must maintain continuous residence within the City from the date of application to the date of appointment,

Following oral argument, Supreme Court ruled that the City's determination that the candidate failed to comply with Rule 10 was arbitrary and capricious.

The Appellate Division sustained the lower courts ruling.

Noting that the City relied exclusively on Rule 10 of its Classified Civil Service Rules to disqualify the candidate for the firefighter appointment, the court explained that “Although counsel for the City referred during oral argument in Supreme Court to the more onerous residency requirement set forth in the examination announcement, the written notice of disqualification sent to petitioner cited only Rule 10, and the court's decision was based solely on the applicability of Rule 10.”

Further, said the Appellate Division, in its brief on appeal the City referred to Rule 10 and not the residency requirements of the examination announcement. Thus, as Supreme Court determined, the issue presented is whether the City's determination that the candidate failed to comply with Rule 10 was arbitrary and capricious.

Although the examination announcement stated that applicants must maintain continuous residence within the City from the date of application to the date of appointment, as noted the City did not rely on the notice set forth in the examination announcement to disqualify candidate. Thus the Appellate Division concluded that the City's determination to disqualify the applicant based on his purported failure to comply with Rule 10 was arbitrary and capricious.

* There was no dispute that the candidate was a City resident when he applied for the firefighter position and that he had been a City resident for at least 90 days without interruption prior to the date of his application.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03346.htm

“New New York Education Reform Commission” established by Governor Cuomo

“New New York Education Reform Commission” established by Governor Cuomo

Governor Andrew M. Cuomo has established the New New York Education Reform Commission, bringing together nationally recognized education, community, and business leaders to recommend reforms to the state's education system in order to improve performance in the classroom so that all of New York's students are fully prepared for their futures. Richard (Dick) Parsons, Retired Chairman, Citigroup will serve as the Chair of the New NY Education Reform Commission

The Executive Order creating the Commission includes the following tasks:

1. Find ways to improve teacher recruitment and performance, including the teacher evaluation system;

2. Examine factors contributing to teacher recruitment and performance including: incentives to hire and retain high-quality teachers; improvements in the teacher evaluation system to ensure New York is implementing one of the strongest evaluation systems in the country;

3. Use teacher evaluations for decisions regarding promotion, hiring and termination as required in the teacher evaluation law; and teacher preparation, certification and education programs to ensure that teachers are properly trained to best educate our Students;

4. Improve student achievement;

5. Examine education funding, distribution and costs;

6. Increase parent and family engagement in education;

7. Examine state and local policies to increase parent and family engagement;

8. Examine the problem of high-need and low-wealth school communities;

9. Find the best use of technology in the classroom;

10. Identify the strategies for making the best use of technology in the classroom;

11. Examine New York's education system to ensure it meets the needs of students while respecting the taxpayer;

12. Examine potential strategies to reorganize the state's education system including district

consolidation and/or shared services; and comparing models from other states to achieve efficiencies and improved education outcomes.

Membership of the Commission includes:

Richard (Dick) Parsons, Retired Chairman, Citigroup, Chair of the New NY Education Reform Commission

Randi Weingarten, President, American Federation of Teachers, AFL-CIO

Geoffrey Canada, Founder & CEO, Harlem Children's Zone

Irma Zardoya, President & CEO, NYC Leadership Academy

Elizabeth Dickey, President, Bank Street College of Education

Mary Anne Schmitt-Carey, President, Say Yes to Education

Lisa Belzberg, Founder & Chair Emeritus, PENCIL

Michael Rebell, Co-Founder & Executive Director, Campaign for Educational Equity

Karen Hawley Miles, President & Executive Director, Education Resource Strategies

José Luis Rodríguez, Founder & CEO, Hispanic Information and Telecommunications Network, Inc.

Sara Mead, Associate Partner, Bellwether Education Partners

Eduardo Martí, Vice Chancellor of Community Colleges, CUNY

Thomas Kane, Professor of Education & Economics, Harvard Graduate School of Education

Jean Desravines,CEO, New Leaders

Michael Horn, Executive Director & Co-Founder, InnoSight Institute

Chancellor Nancy Zimpher, Chancellor, SUNY

Chancellor Matthew Goldstein, Chancellor, CUNY

John B. King, Jr., Commissioner, New York State Education Department

Senator John Flanagan, Chair, Senate Education Committee

Assembly Member Cathy Nolan, Chair, Assembly Education Committee

The Commission expected to submit preliminary recommendations to the Governor by December 1, 2012.

The Deputy Secretary for Education, the Assistant Deputy Secretary for Education, and the Assistant Deputy Secretary for Higher Education to the Governor.will serve as staff to the Commission.

The text of the Governor’s announcement is posted on the Internet at:

http://d2srrmjar534jf.cloudfront.net/6/c0/9/3828/press_rls.pdf

Filing an administrative appeal does not extend or toll the statute of limitations for filing a timely Article 78 petition

Filing an administrative appeal does not extend or toll the statute of limitations for filing a timely Article 78 petition

A former teacher asked Supreme Court to annul the determination of the New York City Department of Education (DOE) that terminated her employment.

The teacher had earlier allowed her teaching license to lapse and she was removed from payroll. She was subsequently advised to “secure another teaching position” and was to serve as a probationary employee.

Appointed as a probationary employee, she was found guilty of misconduct by the Special Commissioner of Investigation for the New York City School District and notified that her services as a probationary employee would be terminated and placed on the “Ineligible/lnquiry list due to inappropriate conduct.”

In response to her administrative appeal the teacher was ultimately advised of the decision to reaffirm the underlying decision to terminate her employment and the termination of her DOE license.

Supreme Court dismissed the teacher’s petition because she failed to file a timely notice of claim in accordance with Education Law §3813(1).

Although the teacher conceded that she had not filed the Notice of Claim within three

months of the termination of her probationary employment, she contented that it was unnecessary for her to do so. Justice Mills disagreed, holding that she was required to file the notice of claim within three months of her termination.

Turning to another procedural matter, Supreme Court held that the teacher’s Article 78 challenge to the termination of her probationary employment is also time-barred, having been filed some 18 months after she was terminated from her probationary appointment.

Pointing out that an Article 78 proceeding must be commenced “within four months after the determination to be reviewed becomes final and binding on the petitioner,” the court said that “An agency determination becomes final and binding when the aggrieved party received actual notice of  the determination” and is neither extended nor tolled by the individual’s seeking administrative relief.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2012/2012_31102.pdf

Individuals employed by a private entity under contract to operate a charter school are “public employees” for the purposes of the Taylor Law

Individuals employed by a private entity under contract to operate a charter school are “public employees” for the purposes of the Taylor Law

Buffalo United Charter School ("BUCS") and Brooklyn Excelsior Charter School ("BECS") were formed under Education Law Article 56, (the "Charter Schools Act", together with National Heritage Academies, Inc. (NHA) challenged PERB’s rulings regarding its jurisdiction over the employees providing services to these charter schools.

The Council of School of Supervisors and Administrators, Local 1, AFSA ("CSA") had petitioned PERB for certification as the collective bargaining representative for a unit of unrepresented assistant principals at BECS, while NYSUT/AFT, AFL-CIO (NYSUT) had petitioned PERB for certification as the collective bargaining representative of a unit of unrepresented instruction employees at BUCS.

In response to CSA’s a petition seeking to be certified as the collective bargaining representative of all assistant principals working for BECS, BECS and NHA filed an application with PERB seeking to have the assistant principals designated as "managerial" or "confidential" employees as those terms are defined in Civil Service Law §201(7)(a).

BUCS and BECS then advanced the theory that that PERB was prevented by its own joint public-private employment doctrine* from asserting jurisdiction over the cases and the employees at issue in view of the fact that both entities had contracts with NHA, a private, for-profit corporation, to operate the schools formed by BUCS and BECS.

These agreements, they claimed, provided that NHA was responsible for employing the staffs at BUCS and BECS. In addition, both also claim that PERB lacks jurisdiction because with respect to the employees of NHA the NLRA preempted the Taylor Law.**

PERB, on the other hand, argued that it had properly concluded that the Charter Schools Act "explicitly and implicitly makes (the Taylor Law) applicable to every New York charter school" and that PERB's "joint public-private employer relationship [doctrine] … has been superceded" by the Charter Schools Act.

According to PERB, its joint public-private employment doctrine was inconsistent with the Charter Schools Act and therefore explicitly superceded by §2854(1)(a) of the Education Law. Further, PERB contended that Education Law §2854(3)(a) provides that charter schools are public schools for purposes of the Act and that because the Legislature made no provision for an exception to this mandate, there is no authority permitting application of the joint public-private employment doctrine in this instance.

PERB also asserted that its conclusion that the Charter Schools Act does not authorize the designation of "managerial" and "confidential" employees is a proper legal conclusion and urged the Court to apply a deferential standard of review to PERB's conclusion in this regard.***

Finally, PERB argued that there is no unconstitutional impairment of the Management Agreements between NHA and its charter schools because even with PERB exercising jurisdiction over the charter school employees, NHA's role under the agreements was not materially diminished or impaired.

Justice Curran said that “The critical issue in this proceeding is whether the Charter Schools Act precludes PERB from following its own jurisprudence in applying the joint public-private employment doctrine.”

Concluding that “it is impossible to construe the joint public-private employment doctrine together with application of the Taylor Law via the provisions of the Charter Schools Act,” Justice Curran ruled that “the joint public-private employment doctrine is inconsistent with and contrary to the Charter Schools Act and therefore inapplicable to the petitioners in this action.

As to the question of “preemption” by NLRB, the court ruled that “given the unsettled federal law on this issue and the well researched analysis by PERB” it could not conclude as a matter of law that PERB's decision was arbitrary or clearly contrary to the law. Accordingly, Justice Curran determined that PERB's decision on the NLRB jurisdictional issue should not be annulled.

Turning to PERB’s decision that the specific provision of the Taylor Law authorizing a public employer to designate "managerial" or "confidential" employees the court concluded that “In applying the Taylor Law to charter schools, the Legislature did not employ any language precluding the designation of ‘managerial’ or ‘confidential’ employees.”

Accordingly, Justice Curran ruled that PERB's interpretation of Education Law §2854(3)(a) to mean that all charter schools' employees are public employees and therefore not "managerial" or "confidential," except for its chief executive officer, was overbroad and not supported by the language and structure of the Charter Schools Act.

The court then dismissed the petition filed by BECS. BECS and NHA except that with respect to PERB's ruling holding that assistant principals at BECS are neither "managerial" nor "confidential" employees. As to this determination by PERB the court annulled PERB’s decision and reinstated PERB’s Administrative Law Judge’s ruling on this point.

* PERB's joint public-private employment doctrine derives from New York Public Library v PERB (37 NY2d 752 [1975] where the Court of Appeals held: "[t]he Taylor Law applies only to employment which is unequivocally or substantially public.” In situations where the employment relationship involves joint public and private employers, PERB has declined jurisdiction on the premise that it has no jurisdiction unless each of the joint employers is itself a public employer.

** BUCS and BECS also argued that PERB erroneously found that the Charter Schools Act prevents the designation of the assistant principals at issue as "managerial" or "confidential." The assistant principals, according to petitioners, are members of the executive team at these charter schools and therefore PERB wrongly denied their "managerial" or "confidential" status.

*** PERB had earlier reversed its ALJ’s designating such individuals “managerial” or “confidential.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22113.htm

Disciplinary action for off-duty misconduct vacated as unrelated to the employee’s ability to satisfactorily perform the duties of the position

Disciplinary action for off-duty misconduct vacated as unrelated to the employee’s ability to satisfactorily perform the duties of the position

A town building inspector cited a building owned by a Town of Huntington employee for “numerous violations” of the Town of Huntington’s Town Code. As a result the employee was served with a notice of discipline and later "suspended from his position."

The employee's union filed a grievance protesting the suspension on the employee’s behalf and ultimately the matter was submitted to arbitration. 

The arbitrator made an award finding that the Town had just cause for suspending the employee. Supreme Court, however, vacated the award after holding that it was irrational and, therefore, the arbitrator exceeded her authority.

The town appealed but the Appellate Division affirmed the lower court’s ruling. Noting that a court may vacate an arbitrator's award only on the grounds stated in CPLR §7511(b), the Appellate Division said that the only ground asserted by the union was that the arbitrator "exceeded [her] power."

Such an excess of power occurs only where the arbitrator's award (1) violates a strong public policy, (2) is irrational, or (3) clearly exceeds a specifically enumerated limitation on the arbitrator's power. In this instance the union argued that the award was irrational because the individual’s employment by the Town was “completely unrelated to the off-duty misconduct of which he [was] accused.”

Observing that if an arbitrator's award is completely irrational, "it may be said that [s]he exceeded [her] power," this basis for the objection requires a showing that there was "no proof whatever to justify the award."

The Appellate Division held that although the charges against the employee flowing from his ownership of a building situated in the town, if proven, “are substantial and directly affect the safety of the public,” they did not relate to his character, neglect of duty, or fitness to properly discharge the duties of his position. As there was no proof in the record to justify the town suspending the employee, it ruled that Supreme Court had properly vacated the arbitration award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_05702.htm

Lack of veracity warrants employee’s termination

Lack of veracity warrants employee’s termination

The Appellate Division affirmed Supreme Court’s denial of a petition seeking to vacate a post-hearing arbitration award.

The disciplinary hearing officer found that the employee was guilty of all of the specified charges and that the employer “had just cause for terminating her from her position as a parole officer.”

The Appellate Division, noting that the former employee had failed to establish that the arbitration award violated public policy, was irrational, or was in violation of any of the grounds enumerated in CPLR 7511(b)(1), said that the hearing record “amply supports the arbitrator's finding that [the individual] had violated the DOP's Code of Conduct by making false accusations of stalking, which resulted in her arrest.”

Finding that there was no basis for disturbing the arbitrator's rejection of former employee’s account of events in view of the testimony of an investigating detective that at the time of the alleged incident, the purported stalker was not even in the former employee’s vicinity, the Appellate Division concluded that “in light of petitioner's responsibilities as a parole officer, which depend in large part upon her veracity, her misconduct warranted the penalty of termination.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03281.htm

Legislation proposed to provide for a new procedure for determining suspensions and demotions of members of certain police agencies upon abolition or reduction of positions

Legislation proposed to provide for a new procedure for determining suspensions and demotions of members of certain police agencies upon abolition or reduction of positions


In the Assembly April 20, 2012 [A9887-2011]; In the Senate April 27, 2012  S7075-2011

This bill seeks to amend §80 of the New York State Civil Service Law as it applies to members of any police agency in the State other than those police agencies already subject to the provisions of subdivisions 1-a through 1-d of §80.

The proposed amendment, if signed into law would use seniority for the purposed of demotions and,or,  reductions in force on the basis of time in grade or title in contrast seniority based on service in the classified service.

The bills sponsor state that “This amendment would address a longstanding problem in the police community, as witnessed by the fact that 4 police agencies (the City of Buffalo Police and Fire Departments, employees of secure detention facilities in the State of New York, sworn employees of the Monroe County Sheriff's Department, and the Nassau County Police Department) have already obtained passage of existing subdivisions 1-a through 1-d changing the measure [seniority for the purposes of layoff] from time in the classified service to time in grade or title.”

The sponsors offer the following justification for this amendment to the Civil Service Law:

“Under the current law, suspensions or demotions in the Civil Service upon the abolition or reduction of positions must be made based upon seniority, with demotions or reductions in force to be made in "inverse order of original appointment on a permanent basis in the classified service" (CSL, §80.1). The spirit of the law is to safeguard the employment of those employees with the most time in the system, with the general principle being "last in - first out". In the uniformed services, this law can have a reverse effect essentially retaining employees with shorter tenures in the civil service rank while demoting those with longer tenures in rank. For example, a police officer with ten years in rank as a Sergeant would have to be demoted before a police officer with 1 year in rank as a Sergeant if the latter had more time in the classified service.* As mentioned above, several uniformed services operations have recognized this inequity and obtained individual legislative amendments to §80 of the New York Civil Service Law requiring said demotions and reductions to be made by "inverse order of original appointment on a permanent basis in the grade or title". We believe that this is the preferred and equitable method to handle these issues within the context of the police community and that it should be adopted state-wide, which this bill would do.”**

The text of Assembly 9887, Senate 7075 is set out below:

AN ACT to amend the civil service law, in relation to the calculation of seniority for purposes of layoffs or demotions

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

[Matter in ITALICS underscored is new; matter in brackets [ ] is old law to be omitted].

Section  1. Section 80 of the civil service law is amended by adding a new subdivision 1-e to read as follows:

 1-e. Notwithstanding the provisions of subdivision one of this section, the sworn members of any police agency as defined in section eight hundred thirty-five of the executive law, other than police agencies referred to in subdivisions one-a through one-d of this section shall be subject to the following procedure. Where, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the grade or title in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made. Notwithstanding the provisions of this subdivision, however, upon the abolition or reduction of positions in the competitive class, incumbents holding the same or similar positions who have not completed their probationary services shall be suspended or demoted, as the case may be, before any permanent incumbents, and among such probationary employees the order of suspension or demotion shall be determined as if such employees were permanent incumbents.

S 2. This act shall take effect immediately.

*This rationale could be applied to all positions in the classified service.

** Presumably the seniority provisions of Section 80.2 defining "continuous service" applies with respect to such an individual's rights with respect to "bumping," "displacement" and placement on a Section 81 preferred list for reinstatement.

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The Layoff, Preferred List and Reinstatement Manual - a 645-page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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From the Office of New York State Comptroller Thomas P. DiNapoli -Selected audits and reports issued during the period April 23-29, 2012

From the Office of New York State Comptroller Thomas P. DiNapoli -Selected audits and reports issued during the period April 23-29, 2012

Please click on the caption to access report posted on the Internet.

DiNapoli Announces Audits of Troubled Central New York Developmental Disabilities Services Office

New York State Comptroller Thomas P. DiNapoli announced Thursday that his office will examine whether the Office of People With Developmental Disabilities’ (OPWDD) Central New York Developmental Disabilities Services Office has taken action to end the numerous criminal and ethical violations exposed in previous Comptroller’s audits. Auditors will undertake three audits to determine if OPWDD has acted on the recommendations of prior reports.


DiNapoli: School District Tax Levy Growth Averages 3 Percent Statewide Under New Limits

School district tax levies in the 2012-13 school year are limited to average increases of 3 percent under a new property tax cap law, in addition to any further increases approved by voter overrides of the cap, according to a preliminary analysisof data released Monday by State Comptroller Thomas P. DiNapoli’s office.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:
the Town of Duanesburg;

the Village of Endicott;

the Village of Herkimer;

the Village of North Collins;

the Village of South Blooming Grove; and

the Spencerport Fire District.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:

the BOCES’ Non–Instructional Services; and

the Monroe–Woodbury Central School District.

Court’s review of an administrative disciplinary action is limited to determining if the decision is supported by substantial evidence

Court’s review of an administrative disciplinary action is limited to determining if the decision is supported by substantial evidence
 

The Commissioner of the Dutchess County Department of Social Services adopted the finding and recommendation of a hearing officer as to the employee’s being guilty of a certain charge of misconduct after a §75 disciplinary hearing and terminated the individual's employment.

The Appellate Division confirmed the Commissioner’s determination, denying the former employee’s petition “on the merits, with costs.”

The court explained that a court's review of administrative determinations in employee disciplinary cases made after a hearing under Civil Service Law §75 is limited to a consideration of whether the determination was supported by substantial evidence in the record of the hearing. In this instance, said the court, there was substantial evidence in the record to support the determination that the employee was guilty of misconduct

Further, the court found that the penalty of termination “was not so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02882.htm

A reviewing body may not ignore evidence in the record in making its determination

A reviewing body may not ignore evidence in the record in making its determination

The Appellate Division granted the disability retirement applicant’s petition to annul the decision denying his request to amend his application for accidental disability retirement (ADR) benefits and remanded the matter with the direction that individual be permitted to amend his application to include a heart-related disability.

The court said the Retirement Board's determination was arbitrary and capricious and an abuse of discretion as at the time it denied application for ADR benefits based on an orthopedic condition, a member of the Board was aware that the applicant had suffered a heart attack, was incapacitated, and might wish to amend his application to include a claim under the Heart Bill [see Retirement and Social Security Law §363-a.].

The Appellate Division also noted that the record showed that the applicant’s heart condition predated his retirement, but was not diagnosed until after he retired.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02945.htm

A party’s failure to have an arbitration award confirmed is not a ground for vacating the award

A party’s failure to have an arbitration award confirmed is not a ground for vacating the award 

The Appellate Division succinctly ruled that the application to vacate the arbitration award filed pursuant to Article 75 of the Civil Practice Law and Rules was made more than 90 days after the award was delivered to the individual and is therefore untimely.

The court also noted that although CPLR Article 75 provides a mechanism by which a party may obtain judicial confirmation of an arbitration award, the failure to have an award confirmed is not a ground for vacating the award, citing CPLR §§7510 and 7511[b][1].

Addressing another claim by the individual – that the arbitration award should be vacated under CPLR §751l(b)(1)(iv), “failure to follow the procedure,” the Appellate Division explained that subdivision (iv) address vacating the award because of a "failure to follow the procedure” set out in Article 75. 

However, said the court, if a party applying to vacate the award pursuant to subdivision (iv) continued with the arbitration with notice of the defect and without objection, the award may not be vacated for that reason.

In this instance, said the court, the party seeking to vacate the award under color of §751l(b)(1)(iv) participated in the arbitration without objection as to the procedure employed and thus the award could not be vacated as otherwise permitted by subdivision (iv).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02949.htm

State of Maryland bill prohibiting employers from requiring job applicants to reveal Internet passwords pending approval by the Governor

State of Maryland bill prohibiting employers from requiring job applicants to reveal Internet passwords pending approval by the Governor

The Maryland legislature's has passed a bill [Senate 433; House 964] prohibiting, among other things, employers from 1) requesting or requiring a job applicant to disclose user names or passwords for a personal electronic service; 2) refusing to hire an applicant for not providing access to such information; and 3) terminating or disciplining an employee for refusing to provide this information.

The provision is pending action by the Governor and if signed into law would take effect October 1, 2012.

The text of the bill is posted on the Internet at:

http://mlis.state.md.us/2012rs/bills/sb/sb0433t.pdf

The employee’s refusal to participate in a disciplinary hearing does not mean that the employee was denied administrative due process

The employee’s refusal to participate in a disciplinary hearing does not mean that the employee was denied administrative due process  

The Appellate Division rejected the employee's arguments seeking to vacate or modify a disciplinary action determination on grounds that included allegations that the hearing officer was biased and exceeded her authority in reaching a determination without affording the employee administrative due process.

The court said that the employee’s allegations were refuted by the record holding that the individual “was afforded every opportunity to present a defense and she acknowledges intentionally attempting to stonewall the proceedings by not appearing for and/or not participating on many of the hearing dates.”

Holding that the award was made in accord with due process, was supported by adequate evidence, and was rational and was not arbitrary and capricious, the Appellate Division noted that the employee failed to meet her burden of showing, by clear and convincing evidence, that the hearing officer was partial in her consideration of the evidence and ultimate determination.

Concluding that the penalty imposed, six months suspension without pay, was neither shocking to the court’s sense of fairness nor disproportionate to the multiple offenses for which she was found guilty, the court dismissed the employee’s petition.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02948.htm

 

Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

Employee’s loss of employment as a result of his or her “off-duty” misconduct disqualifies the individual for unemployment insurance benefits

The Appellate Division affirmed the Unemployment Insurance Appeal Board’s decision that disqualified an applicant for unemployment insurance benefits based on its finding that, among other things, the applicant for such benefits had left his employment following misconduct unrelated to his work.

The applicant had resigned form his position "in lieu of termination" following his arrest on multiple counts of aggravated harassment* in connection with his allegedly having made harassing phone calls to various women in the course of activities “unrelated to his employment."

The Appeal Board had rejected the applicant’s claim that he was entitled to benefits because his termination “stemmed from activity unrelated to his employment.”

The Appellate Division ruled that "[m]isconduct committed during nonworking hours, which raises serious questions as to a worker['s] integrity, bears a relationship to his [or her] work within the meaning of . . . the Labor Law."

* The applicant ultimately entered a plead guilty to two of the charges filed against him, which were later reduced to harassment in the second degree.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02934.htm

OSHA releases information addressing “Employer Safety Incentive and Disincentive Policies and Practices”

OSHA releases information addressing “Employer Safety Incentive and Disincentive Policies and Practices”

OSHA has posted a new enforcement memo online focusing on "Employer Safety Incentive and Disincentive Policies and Practices".

According to the HRTraniningCenter.com, OSHA views as suspect any incentive or disciplinary programs linked to worker accidents resulting in injury or illness. In addition, OSHA may prosecute employers whose programs violate worker whistleblower rights under Section 11(c) of the Occupational Safety & Health Act of 1970.

A 90-minute training session via on the new rules via Audio Conferencing is being offered by HRTrainingCenter.com on April 24, 2012 from 1:00 to 2:30 p.m., Eastern Standard Time.

Additional information concerning this training session is available on the Internet at: http://hrtrainingcenter.com/showWCDetails.asp?TCID=1010681&RID=1010687

Disclosure of public information or records to one is disclosure to all

Disclosure of public information or records to one is disclosure to all

The basic rule when considering a Freedom of Information Law [FOIL] request is that the theory underlying FOIL is that all public documents are subject to disclosure.

The release of some public records, however, may be limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.

However, the custodian of the records may elect to deny access to documents otherwise subject FOIL absent a FOIL request or if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in the law.

Significantly, there is no bar to providing information pursuant to a FOIL request, or otherwise, even if it falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Indeed, a FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization world be required to file a FOIL request to obtain the information or record.

Further, it appears that once the information or record sought is provided to one party, it may not be denied to another party.

On this point the State’s Committee On Open Government advised a Town’s attorney that there was no legal basis to withhold the information requested pursuant to a newspaper’s FOIL request after it was disclosed to another newspaper.

In this instance Robert Freeman, the Committee’s Executive Director, stated that, in his view, “If a record is disclosed to one news media organization [by the custodian of the record]…it should be disclosed to any news media or for that matter any person requesting it.” Notwithstanding this advisory opinion, the Town’s attorney refused to supply the document demanded in the FOIL request submitted to the Town’s clerk.

Once possible exception: if the document demanded was provided pursuant to a court order or a subpoena, this may not constitute “disclosure” within Mr. Freeman’s meaning.

From the Office of New York State Comptroller Thomas P. DiNapoli - Selected audits and reports issued during the period April 16 - 22, 2012

From the Office of New York State Comptroller Thomas P. DiNapoli - Selected audits and reports issued during the period April 16 - 22, 2012

Please click on the caption to access report posted on the Internet.

DiNapoli: Syracuse Woman Sentenced for Stealing from the New York State Retirement System

Syracuse resident Kathleen Prince was sentenced last week in Onondaga County Court for stealing more than $29,000 from the New York State and Local Retirement System, marking the end of a joint investigation by State Comptroller Thomas P. DiNapoli and Onondaga County District Attorney William J. Fitzpatrick.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits:

The Town of Batavia;

The Town of German Flatts;

The Village of Hammondsport;

The Village of Hempstead;

The Village of Ilion;

The Town of Lewisboro;

The Town of Orangeville;

The Round Lake Hose Company No. 1, Inc.; and,

The Town of Waverly.

The five most visited NYPPL posts during the week of April 13 through April 20, 2012 Click on title to access item.

The five most visited NYPPL posts during the week of April 13 through April 20, 2012

Click on the web site indicated to access item.


1. Individuals employed by a government agency for a particular assignment may be eligible for the same qualified immunity enjoyed by individuals on the staff of the agency 

http://publicpersonnellaw.blogspot.com/2012/04/individuals-employed-by-governmental.html

2. A member of a board testifying at a Civil Service Law §75 disciplinary hearing should recuse himself or herself from considering and acting on the findings and recommendations of the hearing officer

http://publicpersonnellaw.blogspot.com/2012/03/member-of-board-testifying-at-civil.html

3. If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

http://publicpersonnellaw.blogspot.com/2012/04/individuals-employed-by-governmental.html

4. Some procedural defects that bar the vacating of the arbitrator’s award

http://publicpersonnellaw.blogspot.com/2012/04/some-procedural-defects-that-bar.html

5. Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

http://publicpersonnellaw.blogspot.com/2012/04/former-employees-law-suit-alleging.html