Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending July 6, 2013 [Click on text highlighted in bold to access the full report] 


DiNapoli: ESDC Needs to Better Monitor Foreign Offices

The Empire State Development Corp. needs to set clear performance standards to determine if its remaining four foreign offices are fulfilling their missions and bolstering New York’s economy through overseas business and investment, according to an audit released July 1, 2013 by State Comptroller Thomas P. DiNapoli.

DiNapoli: Westchester Special Education Provider Overcharged Taxpayers $800,000

The Westchester School for Special Children overcharged taxpayers by more than $800,000 over a four–year period, and engaged in questionable business transactions with companies connected to board members and executives, according to an audit released Wednesday by New York State Comptroller Thomas P. DiNapoli. The findings of the audit are under review by the Office of the Attorney General. Legislation that would improve oversight of preschool special education by mandating audits of every provider was recently passed by the legislature.

DiNapoli Returns Record $347 Million in Unclaimed Funds to Rightful Owners

A record amount of unclaimed funds, totaling $347 million, were paid out to individuals and organizations in the state’s last fiscal year, according to State Comptroller Thomas P. DiNapoli. This new record surpasses the previous year by $33 million. Currently, there is $12.5 billion in lost or forgotten money that is still waiting to be claimed.

DiNapoli Releases Bond Calendar for Third Quarter

New York State Comptroller Thomas P. DiNapoli on July 2, 2013 announced a tentative schedule for the planned public sale of obligations for the state, New York City, and their major public authorities during the third quarter of 2013.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Tuesday, July 2, 2013, that his office completed audits of:

the Village of Albion;

the Bloomingburg Fire Company #1;

Cattaraugus County;

the Town of Dunkirk;

the Town of Hamden;

the City of Hudson;

the Killawog Fire District;

the City of Rochester;

the Town of Seneca Falls; and,

the Town of Wappinger.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced Monday, July 1, 2013, the following audits have been issued:

the Department of Corrections and Community Supervision;

the Department of Environmental Conservation;

the New York State Health Insurance Program; and,

Statewide Travel Audits of the Department of Labor;

the Office of Mental Health; and,

the Department of Corrections and Community Supervision.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced that his office completed audits of:

the South Country Central School District; and,

the Watervliet City School District.

A $12,500 fine imposed as the disciplinary penalty held shocking to one's sense of fairness and reduced to $1,250

A $12,500 fine imposed as the disciplinary penalty held shocking to one's sense of fairness and reduced to $1,250

2013 NY Slip Op 04278, Appellate Division, First Department

An arbitrator found a New York City Department of Education teacher guilty certain charges filed against her pursuant to Education Law §3020-a and imposed a fine of $12,500.

Supreme Court denied the teacher’s CPLR Article 75 petition* seeking to vacate the award and confirmed the arbitrator’s decision and penalty imposed. The teacher appealed.

The Appellate Division modified the Supreme Court’s ruling “on the law” only as to the fine imposed, reducing the fine to $1,250. 

The court said that the arbitrator found that the teacher was negligent in dealing with a stray kitten in her backyard rather than guilty of “intentional misconduct” as charged by the Department. Further, the arbitrator found that the teacher had “a 15 year unblemished record” and the conduct for which she was charged was completely unrelated to her professional work.

The Appellate Division found that the fine imposed, $12,500, was so “disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness” and reduce it accordingly.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04278.htm

Federal regulation did not preempt employer’s obligation to collectively bargain a new employer policy in this instance

Federal regulation did not preempt employer’s obligation to collectively bargain a new employer policy in this instance

City of New York v Board of Collective Bargaining of the City of N.Y., 2013 NY Slip Op 04887, Appellate Division, First Department

The City of New York filed a petition pursuant to CPLR Article 78 in an effort to annul a decision by the Board of Collective Bargaining of the City of New York granting the union’s improper practice petition.

Supreme Court denied the City’s petition and granted the Board’s motion to dismiss the action. The Appellate Division affirmed the lower court’s rulings.

The City had claimed that “federal regulations” permitted its Department of Transportation [DOT] to unilaterally require an employee to submit a doctor's "fit for duty" statement following his or her absence from work for three or more days. The Appellate Division concluded that the City’s reliance on federal regulation in this instance was misplaced and did not preempt its obligation to collectively bargain requiring those employees absent from work for three or more days to produce a physician’s statement of “fitness.”

The court also rejected the City’s argument that it was “absolved from bargaining on ‘public policy’ grounds based on DOT’s mission of providing safety in the ferry system.”

The Appellate Division explained that there was nothing in the record to establish that the rule unilaterally imposed by DOT would substantially further its core mission of “safety in the ferry system.” In addition, said the court, there was nothing in the record that demonstrated any need for the new requirement unilaterally imposed by DOT sufficient to outweigh its adverse impact on the collectively-bargained rights of the employees to whom it would apply.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04887.htm

The top ten “employment law” LawBlogs for the month of June 2013 as reported by Justia

The top ten “employment law” LawBlogs for the month of June 2013 as reported by Justia

Justia surveys 5,326 LawBlogs in 74 subcategories*.

Defero Law [Feed]

Community of UK legal bloggers.

Last Updated: July 2, 2013 

http://www.deferolaw.com/profiles/blog/list?promoted=1

Adjunct Law Prof Blog [Feed]

Focuses on issues of interest to adjunct law professors, including labor law, employment law, employee benefits law and education law issues. By Adjunct Law Professor Mitchell H. Rubinstein.

Last Updated: June 30, 2013 

http://lawprofessors.typepad.com/adjunctprofs/

New York Public Personnel Law [Feed]

Provides summary and commentary on selected court and administrative decisions and related matters affecting public employers and employees in New York State. By Harvey Randall Esq.

Last Updated: July 2, 2013 

http://publicpersonnellaw.blogspot.com/ 

Workplace Prof Blog [Feed]

Covers arbitration, disability, employment discrimination, labor law, public employment law and workplace safety. By Professors Richard Bales, Jeffrey M. Hirsch and Marcia L. McCormick.

Last Updated: July 1, 2013 

http://lawprofessors.typepad.com/laborprof_blog/

JOTWELL - The Journal of Things We Like (Lots) [Feed]

Edited by University of Miami School of Law Professor Michael Froomkin, The Journal of Things We Like (Lots)–JOTWELL–invites law professors to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship.

Last Updated: July 1, 2013 

http://jotwell.com/

The Kielich Law Firm Blog [Feed]

Covers employment law, personal injury and family law issues related to Texas and federal law.

Last Updated: July 2, 2013 -

http://kielichlawfirm.com/blog

Restaurant Worker News Blog [Feed]

Covers employment law issues in the restaurant industry. By Berke-Weiss & Pechman LLP.

Last Updated: June 27, 2013 

http://waiterpay.com/blog/

ERISA Lawyer Blog [Feed]

Covers employeee benefits, ERISA, and employment law. By Stanley D. Baum.

Last Updated: July 2, 2013 

http://www.erisalawyerblog.com/

Impact Litigation Journal [Feed]

Provides commentary and analysis about legal issues relating to class actions and other representative litigation in the areas of consumer and employment law. By Initiative Legal Group APC.

Last Updated: July 1, 2013 

http://impactlitigation.com/

Employment & Labor Insider [Feed]

Discusses timely issues in labor and employment law and human resources from management's perspective, with subjects ranging from discrimination to employee handbooks and religious accommodations. By Constangy, Brooks & Smith, LLP.

Last Updated: June 28, 2013 

http://www.employmentandlaborinsider.com/


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The Doctrine of Legislative Equivalency controls when abolishing positions in a layoff situation

The Doctrine of Legislative Equivalency controls when abolishing positions in a layoff situation

Civil Serv. Empls. Assn., Inc. v County of Orange, 2013 NY Slip Op 04798, Appellate Division, Second Department

In this action a number of employees challenged their termination from their respective positions with the County of Orange.

The Appellate Division, reversed a Supreme Court ruling dismissing the Article 78 petition filed by these individuals “on the law” and the County’s decision to terminate the employees was remitted to the Supreme Court, Orange County, for a determination of all the benefits those individuals “would have been entitled to had they remained employed for the period from October 29, 2010, to December 31, 2010, and for a calculation of the principal sum of back pay to be awarded to those [these individuals] in accordance herewith and thereafter for the entry of an appropriate amended judgment.”

The genesis of this case was a direction of the County Executive of Orange County to send letters “to 39 civil service employees notifying them that they were being laid off effective October 29, 2010, for economic reasons” and, indeed, on December 2, 2010, the Orange County Legislature passed a budget for the 2011 fiscal year*that did not provide funding for the positions held by these 39 “laid off” employees.

The employees were advised that their names would be placed on a preferred eligible list pursuant to a provision in their collective bargaining agreement, which pertained to "abolished" positions. Subsequently the employees were advised that their names had been placed on the preferred eligible list "[i]n accordance with §81 of Civil Service Law."

Citing Torre v County of Nassau, 86 NY2d 421, the Appellate Division explained that the doctrine of "[l]egislative equivalency requires that a position created by a legislative act can only be abolished by correlative legislative act."**

The court explained, the Orange County Charter and Orange County Administrative Code vests in the Orange County Legislature sole authority to "establish or abolish positions of employment and titles thereof." However, the County Legislature had not taken any action to abolish the relevant positions at the time the County Executive terminated the subject employees' employment.

Although the Orange County Charter and Orange County Administrative Code give the County Executive the authority to "supervise, direct and control and administer all departments," they do not give the County Executive the authority to terminate the employment of civil service employees without a proper abolition of the positions by the County Legislature in accordance with the doctrine of legislative equivalency.

Further, said the court, the County Charter does not authorize the County Executive to undertake any "remedial action" constituting unilateral modification to the budget and, or, abolition of legislatively created positions.

The bottom line: The County Executive did not have the authority to terminate the subject employees' employment for economic reasons, effective October 29, 2010. Thus, the court concluded, those individuals that were “laid off” effective October 29, 2010, are entitled to back pay, and presumably benefits, to which they would have been entitled had they remained County employees for the period from October 29, 2010, to December 31, 2010.

* Presumably the budget was to take effect January 1, 2011 and by not providing for the funding of the relevant positions, the Legislature was deemed to have “abolished them.”

** The Attorney General has opined that there must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 and 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04798.htm

_____________________________

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. For more information click on  http://nylayoff.blogspot.com/

_____________________________

National Labor Relations Board to determine if the National Labor Relations Act preempts the Taylor Law in certain situations involving employees of charter schools

National Labor Relations Board to determine if the National Labor Relations Act preempts the Taylor Law in certain situations involving employees of charter schools
Buffalo United Charter Sch. v New York State Pub. Empl. Relations Bd., Council of Sch. Supervisors & Adm'rs, Local 1, AFSA, 2013 NY Slip Op 04163, Appellate Division, Fourth Department

The issue presented in this appeal: Did PERB properly exercised jurisdiction over two collective bargaining matters at issue involving “charter schools?”

Supreme Court had determined that PERB properly exercised jurisdiction over the two collective bargaining matters. The Appellate Division, however, disagreed with the lower court’s ruling.

The Appellate Division decided that as the two collective bargaining matters at issue "arguably" fall within the scope of the National Labor Relations Act (NLRA). Accordingly, the National Labor Relations Board (NLRB) has primary jurisdiction "to determine in the first instance" whether its jurisdiction preempts PERB's jurisdiction.

Thus, “under the circumstances of this case, and in the interest of judicial economy,” the Appellate Division decided to defer consideration of the case pending a determination by the NLRB as to whether the NLRA applies to the collective bargaining matters herein at issue and thus preempts PERB's jurisdiction.

N.B. Subdivision 3 of §2854 of the State Education Law, in pertinent part, addresses the impact of Article 14 of the Civil Service Law [the Taylor Law] with respect to employees of charter schools.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04163.htm

Bipartisan Moreland Act Commission formed by Governor Cuomo to investigate public corruption

Bipartisan Moreland Act Commission formed by Governor Cuomo to investigate public corruption

Source: Office of the Governor

On July 2, 2013, Governor Andrew M. Cuomo announced the formation of the “Commission to Investigate Public Corruption” pursuant to the Moreland Act [Executive Law §6*] and Executive Law §63(8)** to probe systemic public corruption and the appearance of such corruption in state government, political campaigns and elections in New York State.

Attorney General Eric Schneiderman announced he will appoint the members of the Commission as Deputy Attorneys General,*** giving the Commission broad-based authority to investigate all matters that “involve public peace, public safety, and public justice.”

Under the Executive Order, the Commission will also have the power to subpoena and examine witnesses under oath as well as subpoena any necessary records. The Governor’s action follows several recent proven and alleged incidents of corruption and misconduct by public officials that have shown that current laws are inadequate and reforms are necessary to guard against abuses, ensure accountability in government, address the need for reform in our campaign finance laws, and restore the public’s confidence and trust in state government and state elections.

The Commission to Investigate Public Corruption will be tasked with thoroughly reviewing the adequacy of existing state laws, regulations and procedures involving unethical and unlawful misconduct by public officials, and the electoral process and campaign finance laws. The Commission will also examine whether existing laws have been fairly and vigorously enforced, and what changes must be made to such enforcement. During the Commission’s investigation, it will also review recent instances of reported misconduct by officials to determine causes and adequacy of laws and enforcement tools to more effectively prevent and punish this kind of misconduct in the future. The Commission is directed to make recommendations to toughen and improve existing laws and procedures.

Areas where the Commission will focus its investigation include but are not limited to:

*  Criminal statutes for corruption and misconduct by public officials, such as bribery laws

*  Campaign financing including but not limited to contribution limits and other restrictions; disclosure of third-party contributions and expenditures; and the effectiveness of existing campaign finance laws.

* Compliance of outside organizations and persons with existing lobbying laws, including but not limited to organizations engaged in lobbying and other efforts to influence public policies and elections, and the effectiveness of such laws.

* Adequacy and enforcement of the State’s election laws and electoral process including: the structure and composition of the State and County Boards of Elections, the Board of Elections’ enforcement, and the effectiveness of and compliance with existing election laws.

During its investigation, the Commission is mandated to promptly communicate any evidence of violations of existing law to the appropriate law enforcement agencies, including the Attorney General. In such cases, the State Police will make jurisdictional referrals to the Attorney General where appropriate.

The Commission will issue a preliminary report on its initial findings and recommendations by December 1, 2013.

The Commission’s Co-Chairs are Kathleen Rice, William J. Fitzpatrick, and Milton L. Williams, Jr.,

Ms. Rice became the Nassau County District Attorney in 2006. Rice served as an Assistant United States Attorney in Philadelphia. Rice began her career as a prosecutor in the Brooklyn District Attorney’s Office, where she prosecuted cases of domestic violence, sexual assault and armed robbery, and later, murder cases. D.A. Rice is a graduate of the Catholic University of America and Touro Law School.

Mr. Fitzpatrick has served as Onondaga County's District Attorney [D.A.] for the past 28 years. Prior to serving as D.A., he was a defense attorney. In 2007 D.A. Fitzpatrick was appointed as the New York State representative to the National District Attorney's Association, and he was elected Secretary in 2011. In 2010, New York State Chief Judge Jonathan Lippman appointed D.A. Fitzpatrick to the New York State Permanent Sentencing Commission. He is a graduate of Syracuse University and Syracuse University Law School.

Mr. Williams, Jr. is a partner in the law firm Vladeck, Waldman, Elias & Engelhard as a partner in January 2009. Prior to joining the firm, Mr. Williams was a Deputy General Counsel and the Chief Compliance Officer at Time Inc. Before working at Time, Mr. Williams was in private practice, and served as an Assistant United States Attorney in the Southern District of New York. Prior to becoming a federal prosecutor, Mr. Williams was an Assistant District Attorney in the New York County District Attorney’s Office. He is a graduate of Amherst College and the University of Michigan Law School in Ann Arbor.

The members of the Commission are J. Patrick Barrett, Richard Briffault, Daniel J. Castleman, Derek P. Champagne, Eric Corngold, Kathleen B. Hogan, Nancy Hoppock, Seymour W. James, Jr., David Javdan, Robert Johnson, David R. Jones, Lance Liebman, Joanne M. Mahoney, Gerald F. Mollen, Makau W. Mutua, Benito Romano, Frank A. Sedita III, P. David Soares, Kristy Sprague, Betty Weinberg Ellerin, Peter L. Zimroth,  and Thomas P. Zugibe.

The Commission’s staff includes Regina Calcaterra, Executive Director; Danya Perry, Chief of Investigations; Kelly Donovan, Chief Counsel; and John Amodeo, Legislative Director

Special advisors to the Commission include Joseph A. D'Amico, Superintendent of the New York State Police; Raymond W. Kelly, Police Commissioner of the City of New York; and Barbara Bartoletti, Legislative Director for the League of Women Voters of New York.

Robert M. Morgenthau, District Attorney for New York County from 1975 to 2009, will serve as Special Counsel to the Commission.

* §6 of the Executive Law provides that “The governor is authorized at any time, either in person or by one or more persons appointed by him for the purpose, to examine and investigate the management and affairs of any department, board, bureau or commission of the state. The governor and the persons so appointed by him are empowered to subpoena and enforce the attendance of witnesses, to administer oaths and examine witnesses under oath and to require the production of any books or papers deemed relevant or material. Whenever any person so appointed shall not be regularly in the service of the state his compensation for such services shall be fixed by the governor, and said compensation and all necessary expenses of such examinations and investigations shall be paid from the treasury out of any appropriations made for the purpose upon the order of the governor and the audit and warrant of the comptroller.

 “Notwithstanding any inconsistent provision of any general, special or local law, charter, administrative code or other statute, service rendered by a person appointed by the governor pursuant to this section shall not constitute or be deemed state service or re-entry into state service under the civil service law, the retirement and social security law or under any charter, administrative code, or other general, special or local law relating to a state or municipal retirement or pension system so as to suspend, impair or otherwise affect or interfere with the pension or retirement status, rights, privileges and benefits of such person under any such system or to interfere with the right of such person or his beneficiary to receive any pension or annuity benefits or death benefits by reason of the selection of any option under any such system.”

** §63 of the Executive Law sets out the general duties of the “attorney-general.”

*** All members of the Commission are attorneys licensed to practice in New York State as are a number of the members of the Special Advisers to the Commission and a numbers of those serving on the Commission's staff
.

Employee eligible for Workers’ Compensation benefits after suffering a psychic injury that was found to be employment related and not in the nature of discipline

Employee eligible for Workers’ Compensation benefits after suffering a psychic injury that was found to be employment related and not in the nature of discipline
2013 NY Slip Op 04861, Appellate Division, Third Department

The Employer appealed a decision of the Workers' Compensation Board that ruled that employee had sustained a compensable injury in the course of her employment.

The basic facts:

1. The employer required employee to frequently travel between her office and New York City and the employer paid her travel and lodging expenses.

2. The Inspector General investigated an anonymous complaint regarding the employee’s travel and determined that she had committed no wrongdoing, but referred the matter to the Comptroller to assess the tax implications of the employer's travel reimbursement practices.

3. The Comptroller determined that to correct the employer'sreimbursement practices that violated Internal Revenue Service rules the employee should be deemed to have earned over $100,000 in additional income as a result of those practices and that the employee was responsible for paying back taxes and penalties on that amount.

4. Upon learning of the Comptroller's findings the employee “incurred a psychic injury” and applied for workers' compensation benefits.

5. The Workers' Compensation Board rejected the argument advanced by the employer and its workers' compensation carrier that her claim was barred by Workers' Compensation Law §2 (7).

6. Workers' Compensation Law §2 (7) provides that the term "injury" and "personal injury" for the purposes of the Workers' Compensation Law "mean only accidental injuries arising out of and in the course of employment and such disease or infection as may naturally and unavoidably result therefrom. The terms "injury" and "personal injury" shall not include an injury which is solely mental and is based on workrelated stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer."

The Appellate Division affirmed the Board’s determination, explaining that in contrast to the employee suffering psychic injury stemming from work-related stress that was "a direct consequence of a lawful personnel decision [by the appointing authority] involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer," the review of the employer’s travel “reimbursement practices,” was not "aimed at" her and thus substantial evidence supports the Board's determination that the employee’s resulting mental injury was not the direct consequence of a disciplinary action or work evaluation.*

In addition, the court said it would not disturb the Board's determination that the stress that the employee experienced was greater than that generally experienced by similarly situated workers in a normal work environment as that factual finding was also supported by substantial evidence. Here, said the Appellate Division, the stress from being advised that “she was responsible for taxes and penalties on over $100,000 of imputed income due to her employer's mistaken reimbursement practices, with no wrongdoing on her own part, along with her knowledge that she was not financially in a position to handle that substantial liability, was not a normal occurrence in the workplace and exceeded the typical stress associated with claimant's position.”**

* Judge Egan dissented from the majority opinion, noting that in his view, and notwithstanding the fact that such investigation ultimately did not culminate in disciplinary charges being lodged against employee, the employee’s workers' compensation claim has its genesis in — and is the "direct consequence [of] a lawful personnel decision involving a disciplinary action … taken in good faith by the employer."

** In a press release dated July 1, 2013, the State Comptroller reported that auditors examined the travel costs of another Albany-based Department employee whose long-term assignment to a New York City work location resulted in travel costs exceeding $100,000. Auditors examined $156,124 in travel costs associated with this employee's assignment, finding there was a lack of documentation to establish whether the official station of the selected employee was in the best interest of the state. The release also stated that the Department “may also have incorrectly failed to report taxable travel expenses to federal and state taxing authorities for 2010 and 2011.”  The matter is still being examined by the Comptroller's office to determine if further corrective action is needed. The Comptrollers report has been posted on the Internet at: http://osc.state.ny.us/audits/allaudits/093013/12s75.pdf 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04861.htm

Taxpayer’s challenge to the Village’s establishment of a service awards program for volunteer firefighters dismissed “for lack of standing”

Taxpayer’s challenge to the Village’s establishment of a service awards program for volunteer firefighters dismissed “for lack of standing”
Davidson v Village of Penn Yan, 2013 NY Slip Op 04151, Appellate Division, Fourth Department

Wayne Davidson challenged the Village Board of Trustees of Village of Penn Yan (the Board) establishment of a service awards program for volunteer firefighters pursuant to General Municipal Law Article 11-A.

§216 of GML Article 11-a provides, in pertinent part, for the establishment of “service award programs for volunteer firefighters of political subdivisions of the state and for volunteer firefighters other than of political subdivisions of the state. Such service award program may be adopted only by resolution of the governing board of a political subdivision, “receiving the affirmative vote of at least sixty percent of the governing board of the political subdivision having control of the fire departments and fire companies, and the approval of a mandatory referendum authorizing the adopting of the program by the eligible voters within such political subdivision.”*

Supreme Court granted the Board’s motions and dismissed Davidson’s petitions. The Appellate Division affirmed the lower court’s ruling, explaining that Davidson failed to demonstrate that he is personally aggrieved by the Board's actions inasmuch as he did not establish that he "sustained special damage, different in kind and degree from the community generally."

While the court stated that “the doctrine of common-law taxpayer standing . . . would excuse such lack of personal aggrievement,” the doctrine requires a petitioner to establish that the failure to accord such standing “would be in effect to erect an impenetrable barrier to any judicial scrutiny of [the Board's] action." Anderson, said the Appellate Division, had not made such a showing.

* The full text of §216 is posted on the Internet at: http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$GMU216$$@TXGMU0216+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=00241127+&TARGET=VIEW

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_04151.htm

Although individual acts of misconduct might not warrant termination of the individual, when considered in total dismissal could be the appropriate penalty to be impose

Although individual acts of misconduct might not warrant termination of the individual, when considered in total dismissal could be the appropriate penalty to be impose

2013 NY Slip Op 04414, Appellate Division, Third Department

The Fire District’s Board of Fire Commissioners served one of members of the Fire Department with disciplinary charges pursuant to General Municipal Law §209-l which in pertinent part, provides for Removal of volunteer officers and volunteer members of fire departments for incompetence or misconduct.

Subdivision 5 of §209-l states that a member of the fire department [1] suspend a volunteer firefighter after charges are filed and pending disposition of the charges and [2] after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year if he or she is found guilty of one or more of the charges served upon him or her.

.

§209-l further provides that “The provisions of this section shall not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company.”

The Board of Fire Commissioner filed charges against one of the volunteer firefighters alleging that the volunteer [1] had engaged in misconduct, including violations of the Fire Department's bylaws and code of conduct. A hearing was conducted and the Hearing Officer found the volunteer guilty of the charges and recommended that he [1] be expelled from membership in the Fire Department and [2] removed from his position as an officer of the Fire Company.

The Board of Fire Commissioners adopted the Hearing Officer's findings of fact and conclusions of law and expelled the volunteer from the Fire Department and removed him from the office he had held.

In response to the individual’s challenge to the Board’s action the Appellate Division said that its determination that the individual was guilty of misconduct was supported by substantial evidence, noting that the Hearing Officer described volunteer's conduct as "persistently, repeatedly, intentionally, willfully, and incorrigibly insubordinate" based on the testimony of witnesses and the volunteer’s personnel records with the Fire Department.

Citing Matter of Kelly v Safir, 96 NY2d 32, the Appellate Division, noting that the volunteer’s acts of misconduct might not, individually, warrant expulsion from the Fire Department, said that “considering his conduct as a whole, we do not find the penalty of expulsion to be so disproportionate to the disciplinary charges as to be shocking to our sense of fairness.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04414.htm

Removal from public office by operation of law

Removal from public office by operation of law
2013 NY Slip Op 04884, Appellate Division, First Department

A New York City police officer was summarily dismissed from his position upon his entering a plea of “guilty” of “offering a false instrument for filing.”*

The officer’s CPLR Article 78 petition challenging his termination was dismissed by Supreme Court, New York County and he appealed.

Sustaining the lower court’s ruling, the Appellate Division noted that his offering a false instrument for filing constituted a violation of the oath of office, since the offense involves willful deceit.

Accordingly, said the court, his office was vacated automatically upon conviction,** pursuant to Public Officers Law §30(1)(e). §30(1) of the Public Officers Law provides that a public office shall become vacant by operation of law under certain circumstances, including the officer’s conviction of a felony, or a crime involving a violation of his or her oath of office. A police officer is a public officer and thus subject to the provisions of §30(1)(e).

In any event, a pre-termination hearing that might be otherwise required as a condition precedent to removing a public officer having tenure in the position or prior to the expiration of his or her term of office is not required in the event his or her termination is within the ambit of §30(1).

Significantly, §30(1)(e) provides that that a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. As the police officer had entered a plea of guilty, it appears unlikely that his conviction would be “reversed” or “vacated,” thus triggering any opportunity to seek a hearing seeking reinstatement to his former position.

* See Penal Law §175.30.

** A plea of guilty is deemed a conviction.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04884.htm

Using a Global Positioning System device to gather evidence of employee misconduct

Using a Global Positioning System device to gather evidence of employee misconduct
2013 NY Slip Op 04838, Court of Appeals

The Department, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee's personal automobile. Citing People v Weaver (12 NY3d 433) and United States v Jones(132 S Ct 945, the Court of Appeals ruled that the State's action was a search within the meaning of the State and Federal Constitutions but that under the relevant facts in this case “did not require a warrant.”

The court, however, then proclaimed that “on the facts of this case such surveillance was  unreasonable”

Addressing the lawful used of a GPS, the court noted that the employee’s Department initiated an investigation concerning the individual’s alleged unauthorized absences from duty and the falsification of records to conceal those absences. As a result the employee was served with certain disciplinary charges, found guilty and was suspended without pay for two months.

However, a second investigation was initiated when the Department referred the employee’s efforts to avoid surveillance to the Office of the State Inspector General. The Inspector General's investigation resulted in a second disciplinary proceeding, which resulted in this litigation.

According to the decision, the Inspector General's investigator attach a GPS device to the employee's car without his knowledge while the car was parked in a lot near the Department’s offices. Ultimately GPS devices recorded all of the car's movements for a month, including evenings, weekends and several days when the employee was on vacation. Subsequently the Inspector General’s investigators initiated surveillance of an apartment building the employee was suspected of visiting during working hours, subpoenaed E-Z Pass records and interviewed the employee and his secretary.

The resulted in the Department filing new charges against employee. The hearing officer found the employee guilty of 11 of the charges, eight of which were supported by evidence obtained through the use of a GPS device in whole or in part. The appointing authority adopted the hearing officer’s findings and recommendation and terminated the employee.

In explaining its ruling, the Court of Appeals said:

1. The attachment by law enforcement officers of a GPS device to the automobile of a criminal suspect, and the use of that device to track the suspect's movements, was a search subject to constitutional limitations.

2. The search in this case was a search within the meaning of Article I, §12 of the New York Constitution and the Fourth Amendment

3. The search in this case was within the "workplace" exception to the warrant requirement recognized in O'Connor v Ortega (480 US 709) and Matter of Caruso v Ward (72 NY2d 432).

The court noted that O'Connor involved the warrantless search by a public employer of the office of an employee suspected of misconduct. The United States Supreme Court upheld the search.

Subsequently the Court of Appeals had made it clear that it would follow O'Connor in deciding the constitutionality of searches conducted by public employers, whether for "noninvestigatory, work-related purposes" or for "investigations of work-related misconduct," under the New York as well as the Federal Constitution in its decision in Caruso.

Significantly, the employee did not challenge the existence of a workplace exception to the warrant requirement, but argued that it is inapplicable because the object of the search in this case was the employee's personal car. Accordingly, the employee contended that the court should “confine the exception to ‘the workplace itself, or . . . workplace-issued property that can be seen as an extension of the workplace.’" 

The Court of Appeals rejected this contention “at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.”

The bottom line: the Court of Appeals conclude that “when an employee chooses to use his car during the business day, GPS tracking of the car may be considered a workplace search [and the] Inspector General did not violate the State or Federal Constitution by failing to seek a warrant before attaching a GPS device to [the employee's] car.”

That said, the court then explained that “While the search did not require a warrant, it did not comply with either the State or Federal Constitution unless it was a reasonable search.” According, the court ruled that the State has failed to demonstrate that this search was reasonable.

Use of GPS device, said the court, was conditioned on the employer first making a reasonable effort to avoid tracking the employee using a GPS device outside of business hours. Its failure to do so will result in the search, as a whole, being considered unreasonable.

Accordingly the court said that what is required in this instance is the suppression of the GPS evidence. 

However, the suppression of evidence obtained using a GPS device in this case did not to preclude the employer from disciplining the employee since only four of the 11 charges for which the employee was found guilty depended on GPS evidence. Accordingly only dismissal of those four charges was required.

The court then said that as to the others, the GPS evidence was either substantially duplicated by other records in evidence or was wholly irrelevant. Thus, whether the seven surviving charges warrant the same or a lesser penalty is a matter to be decided, in the first instance, by the Commissioner of Labor.

Accordingly, the Court of Appeals reversed the Appellate Division’s ruling and said that “charges one, two, three and six against [the employee are] dismissed, and matter remitted to the Appellate Division with directions to remand to the Commissioner of Labor for redetermination of the penalty.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04838.htm

Good faith test for job abolishment

Good faith test for job abolishment

Christian v Casey, 76 AD 835

Former employees of the City of Yonkers lost their jobs when the City planned to close it jail under its fiscal program.

The jail was never actually closed, however. It continued in operation with a reduced staff, with police officers performing some of the duties of the former employees that served in the titles of jailer or matron. When the employees sued, the Court held that municipal corporation may in good faith abolish civil service positions for reasons of economy.

The assignment of police officers to the jail was held to be a good faith effort to consolidate the arrest procedures and not an attempt to replace the former employees with newly hired personnel.

The fact that some of the duties of the former employees were being performed by police officers serving in the jail was not viewed as bad faith by the Court as “the utilization of existing personnel to carry out those duties which remained after the abolishment of the positions in the wake of a financial emergency cannot amount to a lack of good faith.”

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA
2013 NY Slip Op 04411, Appellate Division, Third Department

A member of the college's faculty [MF] contended that various members of the faculty and the administration failed to follow the procedures set forth in the collective bargaining agreement [CBA] in considering him for promotion to his professional and economic detriment.

The Faculty Association filed a grievance on MF’s behalf but shortly thereafter decided withdraw its grievance. MR sued, alleging a breach of the CBA. Ultimately Supreme Court dismissed his petition, finding that MF “lacked standing” to bring the action and MF appealed that ruling to the Appellate Division.

MF argued that although he does not contend that the Faculty Association breached its duty of fair representation, he should have standing to pursue a common-law breach of contract action against his employer regarding the alleged violations of the promotion procedures.

The Appellate Division disagreed, holding that "As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract."

Although the court noted “Exceptions [to the general proposition] [1] include where the collective bargaining agreement grants an employee a right to sue directly or [2] where the union fails in its duty of fair representation,” it pointed out that MF acknowledged that he is not alleging that Faculty Association breached its duty of representation but that argued that under the CBA decisions related to promotions are excepted from the grievance procedure and, thus, he contends that he can pursue an action directly against college defendants.

Rejecting MF’s theory, the Appellate Division said that the ultimate decision granting a promotion is not subject to a grievance under the CBA in contrast to the “lengthy procedures” faculty members must follow over several years to become eligible for consideration of a promotion. Such procedures, said the court, “are set forth in the CBA and are not explicitly excepted from the grievance process.”

It is the purported failure to follow these promotion procedures that MF challenged and the CBA, said the court, “does not carve out a separate right regarding these procedures that can be enforced by an employee directly against defendants.”

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04411.htm

Disqualifying an individual for employment in the public service

Disqualifying an individual for employment in the public service

Ferrine v Bahou, 75 AD2d 669

§50.4 of the Civil Service Law requires notice of the reasons for the disqualification of a person for employment in the public service by the New York State Department of Civil Service, or the municipal commission or personnel officer having jurisdiction, be given to the individual, together with an opportunity to submit an explanation challenging such disqualification.

As the employee in this case, Ferrine, was not provided with an opportunity to submit facts in opposition to his disqualification, the Appellate Division sustained the Supreme Court’s ruling holding that his dismissal was unlawful and the appointing authority was required to reinstate the employee to the position with back salary.

Judge Casey, however, dissented, noting that the basis for Ferrine’s disqualification was that he was unable to meet the age requirements for appointment to the position and thus “The [municipal]  commission had not only a right but a duty to remove him.”

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member

Price v New York State & Local Employees' Retirement Sys., 2013 NY Slip Op 04405, Appellate Division, Third Department

An individual [Member] was employed in various positions by New York State public employers in 1968 until 1975 when he left public service. At no time during such period did Member join the New York State and Local Employees’ Retirement System [ERS] nor, according to the decision, was he advised that he was a “mandatory Tier 1 member” of ERS.

Member reentered New York State public employment in 1980 and joined ERS as a contributory Tier 3 member. In 1997, without notice to Member, ERS administratively granted him Tier 1 membership with service credit for the initial years he had worked (1968-1975). However, upon further review, ERS deemed that Member’s Tier 1 membership automatically terminated in 1975 for inactivity in accordance with the provisions of the Retirement and Social Security Law then in effect, thereby continuing him as a Tier III member of ERS.

Member subsequently applied for, and was approved for, reinstatement to Tier 1 pursuant to Retirement and Social Security Law §645.* He then requested a refund of the contributions he had made since 1980 as a Tier 3 member.

ERS denied his request indicating that “[Member] did not qualify for a refund under the … statute pursuant to which he was reinstated,” (see Retirement and Social Security Law §645[2]). Member then commenced an Article 78 proceeding challenging the Retirement System’s determination denying his request for a refund of the contributions he had made as a Tier 3 member prior to his reinstatement to Tier 1, a noncontributory tier, pursuant to Retirement and Social Security Law §645.

The Appellate Division sustained ERS’s determination, explaining that  “Under the unambiguous terms of [Retirement and Social Security Law §645(2)], ‘[a]ny contribution made to [ERS] pursuant to Article [14] or [15] of this Chapter by a member who rejoined his or her current system on or after [July 27, 1976] shall not be refunded.”" [Emphasis supplied by the Appellate Division.]

Where, as here, said the court, "the Comptroller's application and interpretation of the relevant statutes are not 'irrational, unreasonable or contrary to the statutory language,' the determination will be upheld.”

As to “procedural difficulties” experienced by Member, the court said that “erroneous advice by [Member’s] employer, misplacement [of him] by [ERS] in a contributory tier or [his] delayed reinstatement to a noncontributory tier ‘cannot estop the Comptroller from performing his duties and denying any reinstatement [or refund of contributions] that is contrary to the statutes.’"

The Appellate Division also addressed the various provisions set out in the Retirement and Social Security Law addressing “vesting” of a member's ERS benefits under certain conditions, none of which “conditions,” said the court, were applicable in Member’s situation.

* Retirement and Social Security Law §645, which was adopted in 1998, allows current members of ERS who had reentered public service to apply for reinstatement to their original Tier membership status under certain circumstances.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04405.htm

Correction officers locked up for compulsory overtime

Correction officers locked up for compulsory overtime

Cacace v Seniuk, 104 Misc.2d 560

While a somewhat novel way to have overtime work performed, Supreme Court, Nassau County, held that correction officers compelled to work overtime were not denied their constitutional rights.

Although locked up in the jail, as they were during normal working hours, and denied the ability to leave without permission, Supreme Court ruled that such action was within the power of management.

The fact that the employees had received overtime pay or compensatory time off, together with a view that such a procedure was a reasonable and necessary limitation on the correction officers, was enough to support for the Court to hold that correction officers were not entitled to injunctive or declaratory relief.

Indeed, said the court, “In the last analysis, it is doubtful whether it is within the competence of the judiciary to grant the injunctive relief requested in any event. The question of manpower and its deployment is essentially one of management prerogative solely within the discretion of the public employer.”

The Court also found that §161 of the Labor Law was not applicable to correction officers, explaining that a corrections officer is a “peace officer” and “clearly not an employee within the statutory definition, i.e., a “mechanic, workingman or laborer working for another for hire,” set out in §161.

A change in the professional obligation of employees in a collective bargaining unit negotiable

A change in the professional obligation of employees in a collective bargaining unit negotiable

PERB (Case U-4144)

The unilateral reduction of the school district’s administrators’ work year [professional obligation] from 11 to 10 months -- but requiring the performance of essentially the same service -- was held to be a violation of the school district’s duty to negotiate the change with the employee organization representing the administrators’ “negotiating unit”.

The school district was directed to reinstate the administrators’ 11-month professional obligation and pay any back salary due them.

In contrast, a PERB hearing officer held that the unilateral change in a district’s work day for teachers from 8 am to 3 pm to 8:30 am to 3:30 pm following good faith bargaining to impasse on the issue was not a violation of the Taylor Law even though the impasse had not been resolved at the time of the change by the district. (Case U-4294).

Jurisdiction of village school crossing guards

Jurisdiction of village school crossing guards

Informal Opinion of the Attorney General 2013-3

The Attorney General’s Assistant Solicitor General in Charge of Opinions, Kathryn Sheingold, advised the Village of Alden’s village attorney, Chris G. Trapp, Esq., that, consistent with General Municipal Law §208-a, a village school crossing guard may control traffic at an intersection within the village that does not abut school property if his or her exercise of such traffic control is to aid in protecting school children going to and from school.

The opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-3_pw.pdf