Six Agency and Authority Audits Find Overlapping Work Time, Potential Safety Issues Regarding Consecutive Hours Worked

Six Agency and Authority Audits Find Overlapping Work Time, Potential Safety Issues Regarding Consecutive Hours Worked

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

The State Comptroller reports that a review of six state agencies and authorities found a pattern of abuse and poor oversight of employees that hold two or more public jobs, including fraudulently claiming to be working at two places at the same time, New York State Comptroller Thomas P. DiNapoli announced on Friday, December 20, 2013.

Earnings by all workers with two or more state jobs exceed $500 million annually. If even only a small percentage of these payments are not earned, the cumulative cost to taxpayers could easily be several million dollars annually.

Of 345 employees examined, auditors found 75 employees that regularly violated time and attendance policies, costing taxpayers $413,277 for 4,803 hours not worked. This amount represented almost 4.5 percent of the employees’ salaries. Auditors also found employees falsified timesheets, abused sick leave and misrepresented travel time from one job to another.

The Comptroller said: “Dozens of public employees working for more than one public employer have managed to take advantage of lax oversight and take credit for hours they didn’t work,” DiNapoli said. “Our audits found supervisors were lax and often complicit in allowing employees to game the system. This is costing taxpayers too much and could jeopardize public safety. It has got to stop. While the Executive should address this issue with all state agencies, I commend the agencies we audited for taking swift action, and recognizing that changes are needed.”

DiNapoli’s auditors examined the issue of dual employment after identifying red flags in previous audits.  The Metropolitan Transportation Authority (MTA), the Office for People with Developmental Disabilities (OPWDD), the Department of Corrections and Community Supervision (DOCCS), the Office of Mental Health (OMH), the Unified Court System (UCS) and the Office of Children and Family Services (OCFS) were selected for audit.  

Dual employment is most prevalent at colleges, prisons, health facilities and the courts. The most common secondary positions are as adjuncts, correction officers, and school hourly staff.

In additional findings, DiNapoli’s auditors found 69 employees who claimed to have worked 3,536 hours at two jobs at the same time (overlapping hours). Another 22 employees did not accurately reflect travel time from one job to another, and 16 improperly charged 511 hours of sick leave at one job, even though they were working at a second job.

Specific examples include:

·        An MTA track equipment maintainer who also worked for the New York City Department of Environmental Protection (NYCDEP) had work schedules that overlapped four hours each week. He told auditors that a supervisor had approved an alternate schedule seven years ago, which allowed him to report earlier to work at 6 a.m. instead of 8 a.m. in order to get to the NYCDEP on-time, even though his timesheets did not reflect this alternate schedule. During a site visit, auditors found that he arrived shortly before 8 a.m. instead of his earlier start time. This employee reported 193.5 overlapping hours at a cost of $8,232 over the course of a year;

·        A UCS employee who also taught at two CUNY schools was teaching classes during the hours that he was supposed to be at UCS. He was paid by UCS for 344 hours that he spent either traveling to or teaching CUNY classes;

·        A psychiatric nurse employed by OMH, who also worked as a public health nurse at P.S. 205 in the Bronx, submitted time records reporting the same end and start time for both jobs. She was paid for 205 hours not worked over twenty-two months at a cost of at least $1,607;

·        An OPWDD developmental aide charged 64 hours of unscheduled sick leave even though he was actually attending out-of-state basketball games associated with his SUNY employment. He was paid for 64 hours of sick leave at $1,187.20 and was paid as much as $689.43 for time not worked; and

·        There were 16 MTA employees who, because of their dual employment, were violating time limits for consecutive hours worked within a 24-hour period and were potentially putting public transportation users at risk.

Each of the six entities is performing its own internal investigation of employees identified in the audits.  At OCFS, two employees were fired, while a third resigned. The Comptroller’s office has also instructed the agencies to adjust calculations for any unearned pension credits given to the cited employees.

DiNapoli’s auditors recommended that agencies develop more comprehensive regulations to protect public health and safety, when permitted by labor contracts. Agencies should also consult with the Department of Civil Service and public employee unions to articulate more realistic time and attendance policies that reflect legally permissible practices, maximize productivity, and ensure adequate staff coverage.

The agencies and authorities generally agreed with the audit findings and to provide training on time and attendance policies, and recover overpayments for time not worked. The Comptroller’s office will also start providing agencies with data to allow payroll offices to better monitor employees with two or more jobs.

For a copy of the dual employment roll-up report visit: http://osc.state.ny.us/reports/dual_employment_roll_up.pdf

The individual audit for MTA can be found here: http://www.osc.state.ny.us/audits/allaudits/093014/11s46.pdf

The individual audit for OPWDD can be found here: http://www.osc.state.ny.us/audits/allaudits/093014/11s22.pdf

The individual audit for DOCCS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/12s129.pdf

The individual audit for OMH can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/11s47.pdf

The individual audit for OCFS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/11s48.pdf

The individual audit for UCS can be found at: http://www.osc.state.ny.us/audits/allaudits/093014/12s79.pdf

Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location

Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location

OATH Index No.1571/13

A sanitation worker was charged and found guilty of accepting a $40 gratuity from undercover investigators in exchange for disposing of approximately 12 black garbage bags containing trade waste.

While OATH Administrative Law Judge Faye Lewis found that the Department did not prove that the worker knew the bags contained construction debris, she held that he knew or should have known the bags did not likely contain household garbage. Thus, the worker violated the agency's trade waste directive by disposing of more than six bags of construction debris without supervisory approval.

Although “Termination has often been the penalty for trade waste violations, particularly when there is proof that a worker has accepted a gratuity” in so doing, Judge Lewis noted that in recent cases involving similar facts the appointing authority imposed a lesser penalty on employees found guilty of “trade waste violations.” Citing OATH Index No. 469/11, Judge Lewis said that although the OATH ALJ considering the matter recommended the termination of the employment of a long-term sanitation worker found to have accepted a gratuity in return for picking up yard debris in violation of the trade waste order, the appointing authority rejected the penalty recommended and instead decided that a 30-day suspension without pay, the loss of 80 vacation hours and a reassignment* to another word location as the penalty should be imposed.

Finding that in this instance the employee’s partner played the dominant role in the transaction and the employee played only a secondary role, Judge Lewis recommended imposing a penalty of a 30-day suspension without pay.

The Commissioner adopted Judge Lewis’ recommendation of a 30-day suspension without pay but modified it imposing an additional penalty -- reassigning the employee from his current  work location to another location for 5 years.

* Although judicial and quasi-judicial decisions occasionally uses the term "transfers" to describe the type of personnel change involved here, a "change of work station," the employee’s “change of location” was, in fact, a "reassignment." Transfers typically involve moving an individual under the jurisdiction of one appointing authority to the jurisdiction of a different appointing authority and usually requires the approval of the individual involved. In contrast, a reassignment is the placement of an individual under the jurisdiction of one appointing authority to another position under the jurisdiction of the same appointing authority -- and the approval of the individual is not required unless a collective bargaining agreement provides otherwise. See, for example, 4 NYCRR 1.2(b), which applies to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/10_Cases/13-1571.pdf

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Payments for accumulated leave credits to retiring employees

Payments for accumulated leave credits to retiring employees

Source: January 2014 edition of the FSLG Newsletter [Issue Number: 01-2014]

In its January 2014 edition of the FSLG Newsletter, the Internal Revenue Service states:

“Employees of local governments often have substantial accumulations of sick and vacation pay at the time they retire. In many cases, contractual agreements between the employer and employee call for a lump - sum payment of all accumulated sick and vacation pay, as of the date of retirement. Th e payments often leave local governments and employees with large, unexpected tax liabilities.

“Many times, local governments and employees negotiate a payment plan to lessen the tax burden for both parties.

“Generally, the agreements are executed to defer the tax liability into other years. However, under the constructive receipt rules, the full amount is generally taxable when the employee has the option to receive the full amount. An employee cannot decide when the tax will be paid.

“As we discussed in an article in our previous newsletter , the constructive receipt rules under Internal Revenue Code section 451 require that individuals recognize income as soon as they have effective  control over it; that is, when the funds are made available without substantial limitations. When an employee has an option to receive the income without restriction, it is recognized as income, regardless of whether the employee actually receives it at t hat time.

“Example:

“City Government A owes Employee Z $150,000 in accumulated sick and vacation pay as of the day of retirement. A month before Employee Z’s retirement date, City A reaches an agreement to pay Employee Z $50,000 a year. For  3 years. City A intends to treat each of the 3 payments as wages and subject the payment to Federal Income tax withholding, social security, and Medicare taxes in each year. This arrangement does not defer the tax due. City A may choose to make the payments over the 3 years, but because the entire $150,000 is available at retirement, it will be included in income, subject to income tax withholding and social security and Medicare taxes ,  as of the date the employee is entitled to the funds.

 

“There are two key considerations to remember when consider ing payments of accumulated sick and vacation pay. First, does the worker have a right to receive the money? The worker does not have to exercise that right; the simple existence of the right to receive the money is sufficient t o establish that a taxable event has occurred.

“Second, has the employee been given an option as to when to receive the funds? If the employee has an option, the n the  employee has constructively received the money. The right to receive the money or the opt ion to receive the money determines whether  the money has been constructively received. Once the money is deemed to have been constructively received, it is taxable at that point.”

For additional information and assistance, please discuss the liquidation of accrued leave credits with your attorney or tax advisor.

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Off-duty peace officer’s display of his weapon in the course of an altercation excused based on hearing officer’s finding that he feared for his safety

Off-duty peace officer’s display of his weapon in the course of an altercation excused based on hearing officer’s finding that he feared for his safety

OATH Index No. 825/13

An off-duty Bridge and Tunnel Officer was charged with misconduct for his role in a fight at a car wash, in course of which he displayed his firearm.

OATH Administrative Law Judge Kara J. Miller found that, given the individual’s peace officer status, he could be disciplined for initiating a physical altercation, even though he was off-duty.

However, Judge Miller recommended dismissal of a charge that the officer improperly displayed his weapon, finding that he objectively feared for his safety when the workers advanced on him. She credited the officer’s testimony that he did not place his finger on the trigger and that he re-holstered his weapon when the employees retreated.

The ALJ recommended that the Officer be suspended without pay for 30-day suspension.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/98_Cases/13-825.pdf

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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

Click on text highlighted in color to access the full report

DiNapoli Probe Prompts $15,000 Restitution

State Comptroller Thomas P. DiNapoli Wednesday announced that former Bombay Fire Company President Bridget Martin was sentenced to pay $15,000 in restitution after an auditand investigation by his office uncovered secret bank accounts and other misdeeds.


DiNapoli: DOT Needs To Improve Railroad Bridge Monitoring Program

The Department of Transportation does not adequately monitor whether railroads in New York state comply with bridge inspection and reporting requirements or fully carry out its own bridge inspection responsibilities, possibly putting the public at risk, according to an auditreleased December 10, 2013 by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases School Audits

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

the Cleveland Hill Union Free School District,

the West Buffalo Charter School, and

the West Valley Central School District.

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New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting

New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting

2013 NY Slip Op 08368, Appellate Division, First Department

New York City's Special Commissioner of Investigation for the New York City School District (SCI) is an arm of the City Department of Investigation. It has investigatory and subpoena power and reports the results of its investigations to the Department of Education (DOE), which has the power to initiate disciplinary actions against employees.

A mother complained to the police about alleged sexual harassment of her child, who attended a New York City school, by other students. This ultimately led to a report to, and an investigation by, the SCI as to whether certain DOE employees failed to act on the mother’s complaint.

The Special Commissioner subpoenaed a tenured assistant principal in the school to testify in the course of the investigation. The assistant principal appeared in compliance with the subpoena and “gave pedigree information,” but invoked her rights under Education Law §§3020(1) and 3020-a(3)(c)(i) not to testify further.

Supreme Court, New York County denied SCI’s petition to compel the assistant principal to comply with its subpoena ad testificandumand dismissed the proceeding. The Appellate Division affirmed the lower court’s determination.

The Appellate Division explained that forcing a tenured teacher or school administrator to testify in an SCI proceeding is tantamount to forcing that employee to testify in a New York City Department of Education disciplinary proceeding. To permit SCI to do so, said the court, would directly conflict with state law and “would eviscerate” relevant provisions set out in the Education Law §§3020(1) and 3020-a.

§§3020(1) and 3020-a govern disciplinary action taken against such tenured employees and establish procedures specifically designed to protect them at disciplinary proceedings. Indeed, noted the Appellate Division, Education Law §3020-a(3)(c)(i)(c) specifically provides that the tenured employee shall not be required to testify at any disciplinary hearing.

Citing Board of Education of City School District of City of New. York v Mills, 250 AD2d 122, leave to appeal denied 93 NY2d 803, the Appellate Division noted that “no local legislative body is empowered to enact laws or regulations which supersede State statutes, particularly with regard to the maintenance, support or administration of the educational system."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08368.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 14, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 14, 2013

Click on text highlighted in color  to access the full report

Audit reveals state contractor spent $20,000 legislative member item on herself and family

A Brooklyn contractor helped herself to state-funded equipment, including an iPad used by her granddaughter and a laptop her husband used for personal purposes, according to an audit released on December 13, 2013 by State Comptroller Thomas P. DiNapoli. The contractor, Homeowners Association, Inc., was paid by the state Office of Children and Family Services (OCFS) to train Brooklyn residents on ways to improve their financial situation.

The Comptroller sent his findings to the state Attorney General’s Civil Recoveries Bureau. He recommended that OCFS work with the Attorney General to make a full recovery of the $20,000.

"This vendor was supposed to help individuals achieve the American dream of homeownership. Instead, she fulfilled her own dreams and allowed her family to use state-funded equipment for homework assignments, iTunes downloads and other personal business,” DiNapoli said.  “OCFS needs to ensure that the public’s money is used appropriately. State agencies which administer grants must be held accountable for taxpayer money.”

Homeowners’ president, Carolyn Faulkner, received the grant through a state legislative member item to purchase equipment for workshops, seminars, meetings and newsletters on homeownership, credit worthiness and foreclosure preventions for residents of East New York, Brownsville and Canarsie in Brooklyn. Instead, DiNapoli’s auditors found, from 2010 to 2011, Faulkner spent all of the $20,000 on equipment that was used primarily for her family’s personal activities.

 

For a copy of the report visit: http://www.osc.state.ny.us/audits/allaudits/bseaudits/bse20131012.htm

Anyone with additional information on any matter involving public corruption or fraud is encouraged to contact the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; filing a complaint online at investigations@osc.state.ny.us; or mailing a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

On Thursday, December 12, 2013 New York State Comptroller Thomas P. DiNapoli announced the following audits had been issued:

Battery Park City Authority, Selected Aspects of Discretionary Spending (2012-S-158)
Auditors sampled 69 discretionary expenditures totaling $112,132 and questioned 53 totaling $100,700 because these transactions did not appear necessary, were not clearly related to the purpose of the authority, were not properly approved or were not adequately supported with documentation. Included in the questioned expenditures were payments totaling $61,800 for charitable contributions to various not-for-profit organizations. In these instances, the authority lacked documentation to show how it determined which organizations to select for donations, how contributing to such organization was related to or supported the authority's mission and why the donated amounts were appropriate. Our follow up showed that the authority made payments totaling $1.05 million for the audit period for charitable donations.

Office of General Services, State Agency Small-Dollar Purchases (Follow-Up) (2013-F-25)
In an initial report, issued in September 2010, auditors looked at the extent to which state agencies process small-dollar transactions using paper-based voucher processes instead of the State procurement card, and to identify potential cost savings and revenue enhancements achievable through better use of procurement cards. In a follow-up, auditors found OGS officials have made significant progress in addressing the issues identified in the initial audit. All three prior audit recommendations have been implemented.

Office for People With Developmental Disabilities, Fire Prevention, Safety and Control (2013-S-20)
Auditors found OPWDD is in compliance with applicable fire prevention, safety and control requirements that help ensure the safety of the vulnerable populations it serves and has significantly improved its fire safety procedures and practices since a 2009 fire in one of its residences that resulted in the death of four individuals.

Office of Alcoholism and Substance Abuse Services, Fire Prevention, Safety and Control (2013-S-40)
Auditors found OASAS is in compliance with applicable fire prevention, safety and control requirements that help ensure the safety of the vulnerable populations it serves.

Department of Civil Service, New York State Dental Program: Payments for Scaling and Root Planing Procedures (Follow-Up) (2013-F-20)
An initial audit report issued in July 2010 focused on Group Health Incorporated’s (GHI) controls over the payment of scaling and root planing procedures and to determine if GHI overpaid for scaling and root planing services. GHI officials have made progress in correcting the problems auditors identified in the initial report. However, improvements are still needed. Of the three prior audit recommendations, two have been implemented and one recommendation is no longer applicable.

Metropolitan Transportation Authority, Inspecting Highway Bridges and Repairing Defects (2012-S-32)
Generally, the MTA’s Long Island Rail Road its Bridges and Tunnels department perform bridge inspections and related repairs to correct flag deficiencies in a timely manner as required by state and federal regulations. However, there were a limited number of exceptions suggesting a need for further improvement.  From a sample of 116 flags, auditors found that nine B&T safety flags and two department safety flags on LIRR bridges remained unresolved for extended periods of time ranging from 12 to 45 months after being identified.  For three B&T Red Flags, the required re-inspections were performed from two to eleven days late.  Five LIRR bridges were being inspected by both the department and the LIRR.

Department of Health, Overpayments to Cabrini Medical Center - Follow-Up (2013-F-19)
An audit report issued in April 2012, identified $1.9 million in Medicaid overpayments to Cabrini Medical Center. The overpayments occurred because a billing company (hired by Cabrini) incorrectly altered information on Cabrini's claims and resubmitted the incorrect claims to Medicaid. In a follow-up, auditors found DOH officials made significant progress in addressing the problems identified in the initial audit. This included the recovery of improper payments totaling $1.46 million, in addition to $904,000 in payments prevented by the initial audit.  However, further actions are still needed. Of the six prior audit recommendations, three were implemented and three were partially implemented.

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Retirees had vested health insurance rights that could not be abrogated by successor collective bargaining agreement

Retirees had vested health insurance rights that could not be abrogated by successor collective bargaining agreement
Kolbe v Tibbetts, 22 NY3d 344

Four former non-instructional employees of the Newfane Central School District retired between 2003 and 2008. One of the employees retired while the 1999-2003 collective bargaining agreement [CBA] was in effect; the other three retired under the 2003-2007 CBA.* In January 2010, well after the four employees had retired, the CSEA and the District executed a successor CBA, which was retroactively effective to 2007 and set to expire in 2012. 

By letters dated December 30, 2009, the District informed the four retired employees that their co-pays would now be governed by the three-tier system under the terms of the 2007-2012 CBA, resulting in an increase from their previous co-pay charges.The retirees sued, alleging breach of contract in that by increasing their co-pays, Newfane had violated the terms of the CBAs in effect when they had retired.

In the words of the Court of Appeals, “This case calls on us to decide whether certain collective bargaining agreements conferred upon plaintiff-retirees a vested right to the same health insurance coverage they had when they retired and, if so, whether unilateral modifications to that coverage are nonetheless permissible under either the contract terms or the New York Insurance Moratorium Law.”

The court indicated that "As a general rule, contractual obligations do not survive beyond the termination of a collective bargaining agreement. However, '[r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement' , and we must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right. '[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms'. The language upon which plaintiffs base their claim reads as follows: '[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.' {citations omitted]" 

Essentially the court held that:

1. The collective bargaining agreements conferred upon plaintiff-retirees a vested right to the same health insurance coverage they had when they retired

2. Unilateral modifications to that coverage are not permissible under either the contract terms or the New York Insurance Moratorium Law.

3. Newfane's interpretation of the New York Insurance Moratorium Law relies on the erroneous conclusion that the Legislature's silence regarding contracted-for health coverage should be read as an intention to abrogate contractual rights.

4. Unions and employers are free to negotiate the terms of such provisions as they see fit and the terms of active employees' health insurance coverage during retirement are properly subjects for collective bargaining.*

The Court of Appeals' observed that "the Insurance Moratorium Law's [relied on by Newfane] primary purpose was to prevent school districts from eliminating or reducing retiree health insurance benefits that were voluntarily conferred as a matter of school district policy, not rights negotiated in the collective bargaining context.”

The court then noted that “The 1994 final report of the Temporary Task Force on Health Insurance for Retired Educational Employees, which originally recommended the legislation, proposed amending the then-temporary law to apply to contractually vested rights. Significantly, said the Court of Appeals, “the Legislature never adopted this proposal ….”

The court then remitted the case to Supreme Court, explaining that "Because an issue of fact remains as to whether the parties intended for the right to the "same coverage" to preclude any modifications to the benefits or their attendant costs, including prescription co-pays, it is necessary to remit the case to Supreme Court for a hearing on this issue" 

* The Court of Appeals, in a Footnote, stated “Despite the fact that the successor CBA was retroactively effective to 2007, it is undisputed that even those plaintiffs who retired in 2007 and 2008 effectively retired under the 2003-2007 CBA, since the subsequent CBA was not executed until 2010. This stipulation accords with the reality that these plaintiffs were not represented by the CSEA in the portion of the negotiations that took place after their retirement, and that the bargains struck in the 2007-2012 agreement would thus not be enforceable by them.”

** This implies that unions and employers are not free to negotiate the terms of such provisions with respect of the health insurance coverage then available to those already retired and such changes and modifications are not properly subjects for collective bargaining.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08290.htm
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Employee’s appointment from an open competitive list to a higher grade position deemed a promotion within the meaning of Civil Service Law §63(1) under a local civil service commission’s rules

Employee’s appointment from an open competitive list to a higher grade position deemed a promotion within the meaning of Civil Service Law §63(1) under a local civil service commission’s rules 

2013 NY Slip Op 08085, Appellate Division, Second Department

The school district initially appointed Employee as a cleaner and later appointed him to the position of “custodial worker.” Subsequently the school district permanently appointed Employee to a higher level position, senior custodian, from an open-competitive eligible list. This appointment was subject to Employee’s satisfactory completion of a 12-month probationary period.

Before Employee had completed the 12-month probationary period the school district had "reason to believe" that Employee had engaged in certain improper conduct and terminated him from its employ.

Employee sued the school district, contending that, among other things, his termination was unlawful and that he was entitled, pursuant to the provisions of Civil Service Law §63(1), to return to his previous position of "custodial worker."

The Supreme Court, among other things, granted that branch of Employer’s petition that restored him to his former position, custodial worker, with back pay and benefits.

The Appellate Division sustained the Supreme Court’s decision, stating that it had “properly determined that [Employee’s] appointment as "senior custodian" was a "promotion," despite its having been made from the "open competitive" list rather than from the "promotional list."*

The Appellate Division explained that although the Civil Service Law does not expressly define "promotion," Civil Service Rule 10.1 of the local commission having jurisdiction provides that "[a]ny advancement of an employee from a position in one title to a position in another title having either greater responsibilities or for which a higher maximum rate of pay is prescribed, shall be deemed a promotion, and shall be made only in accordance with the provisions of the Civil Service Law and these rules. All vacancies in the competitive class shall be filled by promotion[s] as far as is practicable"

As Employee’s advancement from the position of "custodial worker" to "senior custodian" involved both greater responsibilities and carried a higher maximum rate of pay, the Appellate Division ruled that the advancement constituted a "promotion" within the meaning of the [responsible commission’s rules].

Observing that Employee had not been removed from his probationary employment pursuant to Civil Service Law §75, the Appellate Division said that the district should have reinstated him to his prior permanent position of custodial worker.

Thus, said the court, Employee’s termination “was made in violation of lawful procedure.”

* Civil Service Law §63(1) mandates that "[w]hen probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term” [emphasis supplied by the Appellate Division].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08085.htm
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Appointing authority not required to offer a probationary employee a second extension of his or her probationary period

Appointing authority not required to offer a probationary employee a second extension of his or her probationary period

2013 NY Slip Op 07686, Appellate Division,

Supreme Court, New York County, annulled the New York City Department of Education’s decision to terminate a probationary principal, [Probationer] and directed the Department to reinstate her to her position, with back pay. The Appellate Division unanimously reversed the lower court’s decision, on the law.

The Appellate Division explained that Probationer had failed to meet her burden of establishing that she was terminated in bad faith or for an improper or impermissible reason.

The court said that the record indicated that the district superintendent had various concerns about Probationer’s performance with respect to “students' academic performance, school budgetary issues, and her leadership abilities” throughout Probationer’s probationary period.

As a result, Probationer was offered extensions of her probationary employment twice.

Although she had accepted the initial offer of extending her probationary period, Probationer did not willingly accept the Department’s offer to extend the probationary employment a second time, noting on the second probationary extension agreement that “she disagreed with numerous clauses and that she was signing the offer ‘under duress.’" The Department then terminated Probationer from the principal position.

In particular, the Appellate Division noted that “[The Department was] not required, simply because [it] had done so once, to extend [Probationer’s] probation a second time despite [its] concerns about her performance.”

Addressing other aspects of Probationer’s petition, the Appellate Division said that:

1. Probationer had failed establish a prima faciecase of unlawful discrimination or retaliation, based on her claim of an environmental disability, under the State and City Human Rights Laws; and

2. The facts in this case “undermine the allegation that [Probationer] was denied a reasonable accommodation by the Department of Education's Medical Bureau,” as she had been provided with an air purifier, and she did not complain again about her condition until after she was offered the second extension of probation, rather than tenure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07686.htm
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Adequate evidence in the record supported the arbitrator’s determination that the employee was guilty of disciplinary charges filed against him

Adequate evidence in the record supported the arbitrator’s determination that the employee was guilty of disciplinary charges filed against him

2013 NY Slip Op 08027, Appellate Division, First Department

Supreme Court granted the New York City Department of Education’s motion to confirm an arbitration award terminating Educator’s employment as a New York City schoolteacher.

The Appellate Division affirmed the Supreme Court’s ruling, indicating that there was adequate evidence in the record to support the arbitrator’s determination that Educator was guilty of disciplinary charges and specifications alleging insubordination, neglect of duty, conduct unbecoming his position, and using language that constituted verbal abuse of his students as prohibited by the regulations of the Department of Education.

Further, said the court there was no basis to disturb the Hearing Officer's decision to credit the testimony of multiple students and the assistant principal over that of Educator.

Addressing Educator’s claim that that the arbitration award “was not in accord with due process and was arbitrary and capricious,” the Appellate Division said that Educator was given notice of the charges against him, had the opportunity to defend himself at a hearing at which he testified and presented other evidence, and was able to cross-examine witnesses.

Although thee Hearing Officer acknowledged that there were flaws in the investigation leading to the filing of disciplinary charges against Educator, he noted that it was fair and objective.

With respect to Educator’s challenge to the penalty imposed, termination, the Appellate Dividing said that such a penalty did not shock one's sense of fairness and that the record showed that the Hearing Officer considered mitigating circumstances such as Educator’s lack of and prior disciplinary history during his 14-year career with the Department of Education and the likelihood that Educator would not correct his inappropriate behavior.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08027.htm
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A school board’s statutory discretion to set additional qualifications for appointment of an educator may not be impaired through collective bargaining.

A school board’s statutory discretion to set additional qualifications for appointment of an educator may not be impaired through collective bargaining.
Board of Educ. of Valhalla Union Free Sch. Dist. v Valhalla Teachers Assn., 2013 NY Slip Op 08076, Appellate Division, Second Department

The collective bargaining agreement [CBA] between the Board of Education of the Valhalla Union Free School District and the Valhalla Teachers Association provided that, where a teacher's position has been "excessed" and another position becomes available, the Board must appoint the teacher whose position was excessed to the available position, if the teacher is certified in the teaching area in the available position.

A Spanish language teacher retired and the Board made an appointment to the resulting vacancy. Two weeks later the Board "excessed" Teacher, a teacher of English as a second language.

The Association filed a grievance on behalf of Teacher claiming that Teacher, who was certified to teach Spanish and had experience teaching the subject in another school district, should have been appointed to the Spanish language teacher position.

The Superintendent of Schools denied the grievance and ultimately the Association demanded the grievance be submitted to arbitration. The Board thereupon filed a petition to permanently stay arbitration, contending that the CBA provision at issue conflicted with public policy and the mandates of the Education Law.

The Supreme Court denied the Board’s petition, which decision the Appellate Division reversed and granted the Board’s petition to permanently stay arbitration of the grievance.

The Appellate Division explained that the intent to arbitrate of parties to a collective bargaining agreement in the field of public employment may not be presumed but "[I]t must be taken, in the absence of clear, unequivocal agreement to the contrary, that the board of education did not intend to refer differences which might arise to the arbitration forum," and such reference "may not be based on implication.”

In County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, the Court of Appeals set out the following “two-part test” to determine whether a dispute between a public employer and the organization representing its employees is subject to arbitration:

1. Whether anything in a statute, constitution, or public policy prohibits the parties from referring the dispute to arbitration; and 

2. Whether the language of the CBA indicates a clear agreement between the parties to arbitrate the matter.

Noting that the Education Law §§3012[1][a]; 1709[16] vests discretion to the board of education, upon recommendation of the superintendent of schools, to appoint "qualified" teachers to nontenured teaching positions, the Appellate Division said determining if a prospective candidate is possessed of qualifications "is a responsibility of the type that may not be bargained away, as it is central to the maintenance of adequate standards in the classroom."

The court said that the CBA provision at issue mandates that the Board appoint a "certified" teacher, whose position has been "excessed," to a vacant position in the teacher's area of certification.

Noting that although certification may be a central qualification, the Appellate Division, citing Education Law § 2573[9], said that the Board has discretion under that provision to prescribe additional qualifications. In this instance, said the court, the CBA, in effect, divests the Board of its discretion by mandating automatic appointment of certified teachers without inquiry into any additional qualifications the Board may have prescribed. The Appellate Division held that such discretion may not be bargained away through collective bargaining.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08076.htm
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Employee placed on administrative leave without pay after failing to report to work

Employee placed on administrative leave without pay after failing to report to work

2013 NY Slip Op 07183, Appellate Division, Second Department

Employee challenged Employer’s placing her on “administrative leave without pay,” contending that Employer had ”wrongfully suspended her without pay for a period exceeding 30 days in violation of Civil Service Law §75(3).” Employee had been served with disciplinary charges pursuant to §75.

Supreme Court dismissed Employee’s Article 78 petition; the Appellate Division affirmed the lower court’s ruling.

The Appellate Division noted that as the issue “under review” – Employee’s suspension without allegedly in violation of Civil Service Law §75(3), had not been made as a result of a quasi-judicial evidentiary hearing it would review the determination under the standard set forth in CPLR 7803(3) and consider only “whether the determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion.”

Although Employee argued that suspension without pay was unlawful to the extent that it exceeded a suspension for 30-days without pay permitted pursuant to §75(3), the Appellate Division ruled that Employee had not been suspended without pay pending the hearing and determination of charges of incompetency or misconduct within the meaning of 75(3).

Rather, explained the court, Employee had “failed to report to work,” whereupon she was placed on administrative leave without pay pending her return to work

Accordingly, the Appellate Division found that Employer had not violated Civil Service Law §75(3) and thus its determination “was not made in violation of lawful procedure.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07183.htm
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Refusing to use employer supplied equipment that was mandatory in performing the duties of the position results in dismissal of the employee

Refusing to use employer supplied equipment that was mandatory in performing the duties of the position results in dismissal of the employee
2013 NY Slip Op 08128, Appellate Division, First Department

In a number of instances employees have been disciplined because of their unauthorized use of the employer’s equipment in violation of the employer’s rules.

For example, a 15-day suspension without pay was recommended as the disciplinary penalty after the worker was found guilty of using a department vehicle for an unauthorized purpose [OATH Index No. 1976/08] while an employee found guilty of the misuse of employer’s e-mail to senda "questionable e-mail" to his co-employees was terminated [Smith v Commissioner of Labor, 296 AD2d 803].

In this case Employee challenged her termination because she refused to use equipment supplied by Employer in order for Employee to perform the duties of the position. The equipment in question: an electronic ticket issuing machine [TIM], the use of which was mandatory by individuals performing the duties of a train conductor when issuing tickets to passengers.

The Appellate Division dismissed Employee’s appeal, noting that although Employer was not obligated to exempt Employee from the system-wide mandatory use of the TIM, it had ‘engaged in a good faith interactive process and offered [Employer] a choice of positions that did not require use of the TIM, which she rejected”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08128.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 7, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 7, 2013

Click on text highlighted in color  to access the full report

State Comptroller co-sponsoring webinars for local officials

The Office of the State Comptroller devotes significant resources to assisting local officials. Whether you’re newly elected or a returning veteran, there are many exciting opportunities and interesting challenges that lie ahead. To help ease your transition, my office is co–sponsoring a webinar with the Association of Towns of the State of New York on December 12, 2013 as well as two New Town Officials Schools in the second and third week of January. For additional details and registration information, please visit: http://www.osc.state.ny.us/localgov/training/index.htmand www.nytowns.org.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of

the City of Little Falls;

the Swan Lake Fire District; and

the Town of Wawayanda.

"Let State Comptroller Audit LDCs in New York" Op–Ed by State Comptroller DiNapoli

New York State Comptroller Thomas P. DiNapoli has published an op–edin the Rochester Democrat & Chronicle, "Let State Comptroller Audit LDCs in New York," which details the problems and reasons more oversight of Local Development Corporations by his auditors is necessary.

State Comptroller DiNapoli, A.G. Schneiderman & DOI Commissioner Gill Hearn Announce Arrest of Not–For–Profit Executive in Six–Year Theft Scheme

Comptroller Thomas DiNapoli, Attorney General Eric T. Schneiderman and New York City Department of Investigation (NYC DOI) Commissioner Rose Gill Hearn Thursday, December 5, 2013 announced the arrest of a nonprofit executive accused of pocketing taxpayer dollars intended for public services and capital improvements in New York City. A multi–agency joint investigation, including NYC DOI and two federal agencies, exposed the theft of approximately $373,000 in public funds provided by New York State, the New York City Council, and federal earmark grants.

DiNapoli Leads Investor Group Urging Olympic Corporate Sponsors to Speak Out for Russian LGBT Rights

New York State Comptroller Thomas P. DiNapoli announced on Thursday, December 5, 2013 that the $160.7 billion New York State Common Retirement Fund, leading a coalition of investors with $327 billion of assets under management, has sent lettersto ten major corporate sponsors of the upcoming Winter Olympic Games in Sochi, Russia urging the sponsors to use their influence to ensure the human rights of Russian citizens, as well as athletes and visitors to the Olympics.

DiNapoli to Audit Hate Crime Reporting in New York State

The Office of the State Comptroller is auditing the Division of Criminal Justice Services’ oversight and management of hate crime reporting across the state, State Comptroller Thomas P. DiNapoli announced Friday, December 6, 2013.

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Employee dismissed notwithstanding having earlier resigned from the position and recorded as having been terminated from the position

Employee dismissed notwithstanding having earlier resigned from the position and recorded as having been  terminated from the position

2013 NY Slip Op 08022, Appellate Division, First Department

Judge Michael D. Stallman, Supreme Court, New York County, denied the petition filed by Individual, a former probationary employee, seeking to annul employer’s decision terminating Individual’s employment as a probationer and so noting the individual's personnel file notwithstanding Individual's having earlier resigned from the position.

The Appellate Division affirmed Judge Stallman’s decision, explaining that “As a probationary employee, [Individual] was subject to termination "at any time and for any reason, unless [Individual] establishe[d] that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith." Here, said the court, Individual failed to meet her burden of proof of demonstrating such an impermissible reason for her termination.

Individual had also contended that the employer had terminated her employment occurred after the effective date of her resignation which demonstrated “bad faith” of the part of the employer. The Appellate Division disagreed, noting that despite her resignation, there was still a possibility that Individual could return to work in the future, and thus her resignation was not irrevocable, citing Folta v Sobol, 210 AD2d 857.

In Folta an employee resigned while the adjudication of disciplinary charges filed against the employee pursuant to Education Law §3020-a were pending. The Hearing Panel, nevertheless, proceeded to render its decision, finding the employee guilty and recommending that he be dismissed from his position, which finding and recommendation was adopted by the appointing authority and made part of the individual's personnel file.

The Folta court held that as the individual’s resignation was not irrevocable, it was possible that under the terms of the then applicable collective bargaining agreement and "Chancellor's Regulation §205(25)" the individual could, subject to the approval of the Chancellor, withdraw his resignation and apply for reemployment.

The existence of such a possibility, said the court, provides a valid reason for allowing an Education Law §3020-a hearing to proceed and placing the ultimate decision in the individual's personnel file,

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_08022.htm

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Termination follows employee’s refusal to participate in training in a new position

Termination follows employee’s refusal to participate in training in a new position
2013 NY Slip Op 08115, Appellate Division, First Department

Employer filed disciplinary charges against Employee alleging misconduct after Employee refused to comply with orders to participate in training for a new position after being reassigned to a different department and absenting himself from work for more than 11 months. Found guilty of the charges and specifications, Employee was terminated from his position.

The Appellate Division sustained Employer’s action, holding that substantial evidence supported its determination. The court also stated that the penalty imposed, termination, was not so disproportionate to Employee’s offense as to shock its sense of fairness, explaining that the evidence established that Employer’s requirement that Employee participate in processing training was not in excess of its authority.

In addition, the court mentioned that Employee had not observed the rule of "work now, grieve later" and that Employee had failed to show that any exceptions to the rule applied in Employee’s situation, citing Ferreri v New York State Thruway Authority, 62 NY2d 855.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08115.htm
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Transgender client of New York City's HIV/AIDS Service Administration sue after agency refused to change its records to reflect her legal name and change of gender

Transgender client of New York City's HIV/AIDS Service Administration sues after agency refused to change its records to reflect her legal name and change of gender

Doe v City of New York, 2013 NY Slip Op 23403, Supreme Court, New York County 

A transgender female client of the New York City Human Resources Administration's (HRA) HIV/AIDS Services Administration (HASA) sued HASA after her request that HASA update its records to reflect her legal name change and change of gender information and provide her with a benefits card to reflect this was denied.

Supreme Court Judge Margaret A. Chan ruled that, accepting the allegations as true for the purposes of HASA’s motion to dismiss Doe’s action, HASA’s purposeful use of masculine pronouns in addressing plaintiff, who "presented as female" and the insistence that she sign a document with her birth name despite the court-issued name change order is laden with discriminatory intent. 

The court, rejecting HASA's motion to dismiss Doe's complaint, said that HASA employees knew of Doe's "convertive surgery" and yet did not treat her accordingly or appropriately and thus Doe has sufficiently stated a cause of action.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_23403.htm
 

Powers of the arbitrator set out in a collective bargaining agreement may not be enlarged without the informed agreement of the parties

Powers of the arbitrator set out in a collective bargaining agreement may not be enlarged without the informed agreement of the parties

Town of Babylon v Carson, 2013 NY Slip Op 07980, Appellate Division, Second Department

In this Article 75 action, the Appellate Division reversed a Supreme Court ruling that vacated an arbitration award that provided a lesser penalty than the penalty imposed by the appointing authority, granting the union’s motion to confirm the arbitration award.

Following a “workplace incident,” the Town of Babylon told one of its employees [Employee] that she was suspended without pay for up to 30 days, pending a disciplinary hearing on four charges of alleged misconduct. The hearing officer sustained all four charges and recommended that Employee be suspended for 30 days without pay and placed on probation for a period of six months.

Employee’s union filed a grievance and demand for arbitration. At the initial meeting of the parties the arbitrator stated that "the first item of business is to stipulate the issue." The Town's attorney and the union’s attorney agreed that the issue to be determined was:

1. Was there just cause to suspend [Employee] for 30 days and to impose a six-month probationary period for her conduct …and 30-day suspension is without pay? and

2. Was progressive discipline considered when imposing that sanction?

3. And if not, what shall the remedy be?

The parties then proceeded with the arbitration. Ultimately the arbitrator concluded that the hearing officer properly determined that although there was just cause to impose a penalty upon Employee, the Town did not apply the principles of progressive discipline.

Accordingly, the arbitrator concluded that the imposition of a less severe disciplinary penalty was warranted and directed that 10 days' pay be restored to Employee, and that the term of probation be reduced to three months.

The Town filed a petition pursuant to Article 75 of the CPLR seeking to vacate so much of the arbitration award as reduced the penalty imposed upon Employee by the Town while the union and Employee cross-petitioned to confirm the arbitration award providing for a lesser penalty..

Supreme Court decided that, "notwithstanding the restrictive language of the [collective bargaining agreement] which would seem to preclude the arbitrator from reducing a penalty absent a finding that the discipline imposed was not for just cause,'" it was "evident from the terms of the parties' submission to the arbitrator that the parties intended to confer a broader authority on him." The Supreme Court then denied the Town’s the petition and granting the cross petition.

The Appellate Division commenced its review of the Supreme Court’s ruling by noting that "Judicial review of an arbitrator's award is extremely limited" and that a court may vacate an arbitration award pursuant to CPLR 7511(b)(1)(iii) "only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Further, said the court, “A party can only waive its contention that an arbitrator acted in excess of his or her power ‘by participating in the arbitration with full knowledge’ of the alleged error that is being committed and ‘by failing to object until after the award’ is issued.”

Citing Article X(E)(6) of the collective bargaining agreement [CBA] between the parties, which provided that "[t]he arbitrator shall have the power to restore any fine, any penalty including loss of vacation or personal days, reinstate any discharged employee, with or without back pay or remove any written reprimand in the event he [or she] finds the discipline imposed was not for just cause", the Appellate Division decided that the Town had not consented to the arbitrator having authority to modify the penalty imposed upon Employee in the event that he made a finding that the Town had just cause to discipline her.

The Appellate Division, noting that at the beginning of the arbitration, the issue to be determined was defined as whether there was just cause to punish Employee and, "if not," what the remedy should be, explained that “As framed in this manner, the issue to be determined by the arbitrator was in accordance with his powers, as set forth in Article X(E)(6) of the CBA, which only empowered the arbitrator to provide [Employee] with a remedy upon a finding that the imposition of discipline was not founded on just cause.

As the arbitrator found that there was just cause for the discipline imposed, the Appellate Division held that the arbitrator had exceeded his authority in reducing the penalty imposed. Further, said the court, “Contrary to the contention of the Union and [Employee], the stipulation that the arbitrator would determine whether the hearing officer had considered progressive discipline in the course of imposing the initial penalty upon [Employee] did not confer upon the arbitrator an independent power to reduce the penalty imposed.”

Commenting that the record reflects that the Town did not participate in the arbitration with full knowledge that the arbitrator intended to render a determination in excess of the powers set forth in the CBA, the Appellate Division ruled that that “Supreme Court erred in denying the petition to vacate so much of the arbitration award as reduced the penalty imposed upon [Employee] and erred in granting the cross petition of [Employee] and the Union to confirm the award.”

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07980.htm

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