Comptroller's audit focuses on school district's payroll and overtime practices

Comptroller's audit focuses on school district's payroll and overtime practices

Source: Office of the State Comptroller, Division of Local Government and School Accountability

The State Comptroller’s Division of Local Government and School Accountability audit report of the Webster Central School District explains that the thrust of its auditing of the District “… is to help school district officials manage their districts efficiently and effectively and, by so doing, provide accountability for tax dollars spent to support district operations.”

The focus of this audit was “to determine if District officials have established adequate controls over payroll and overtime pay to effectively protect District assets from loss or misuse for the period July 1, 2008 to November 16, 2010” and addressed the following related questions:

• Has the District established and implemented adequate internal controls to ensure that only appropriate and supported payroll payments are made?

• Has the District established and implemented adequate internal controls to effectively manage overtime, control costs and safeguard District assets?

Among the recommendations made:

1. The District should restructure its payroll process to avoid making any salary payments to employees in advance of services being rendered, in compliance with Education Law, State Education Department regulations and internal control best practices.

2. The District should ensure that it complies with all legal requirements when hiring retired public employees.

The Division’s report of its findings and recommendations are posted on the Internet at:

www.osc.state.ny.us/localgov/audits/schools/2011/webster.pdf

Administrative Law Judge recommends termination of employee found guilty of misconduct unrelated to official duties

Administrative Law Judge recommends termination of employee found guilty of misconduct unrelated to official duties

NYC Department of Sanitation v Ragone, OATH Index #1970/11

Pursuant to Mayoral Executive Order No. 16, the Department of Sanitation sought to terminate the employment of a worker who had been convicted of petit larceny.

The Order provides for the dismissal of any City employee convicted of a crime relating to their employment, which crime involves moral turpitude or bears upon their fitness to perform their duties.

OATH Administrative Law Judge Ingrid M. Addison found that Andrew Ragone had obtained a pension loan from the City. After cashing the check, he filed a sworn affidavit that he had not received it. NYCERS issued two supplemental checks, both of which Ragone cashed.

Judge Addison found that although the crime was not committed on Department property and did not concern Ragone’s work-related duties, the theft related to his status as a City worker because through that status, he obtained the loan and subsequent checks.

In the absence of compelling mitigating factors, Judge Addison recommended that Ragone be terminated.

Judge Addison’s decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1970.pdf

Employer liability for employee’s off-duty conduct

Employer liability for employee’s off-duty conduct

Donahue v Young, 298 AD2d 354

What liability does a municipality have when one of its firefighters assists in extinguishing fire - but not while on duty? According to the Donahue ruling, if the employee is not acting in the performance of his or her official duties, the employer does not have any liability for his or her action.

Ken Young, a New York City Firefighter, was off-duty, pursing personal business, when he spotted a car on fire while on the Van Wyck Expressway. Young stopped to assist. Apparently, as a result of Young's attempt to provide assistance, Walter Donahue sustained an injury and sued the City for damages.

The City argued that because Young was not on duty at the time, the City could not be held liable for the injury Donahue suffered. The Appellate Division agreed, stating that since Young acted voluntarily, "the doctrine of respondeat superior does not apply here." It ruled that the City could not be held vicariously liable for Young's actions.*

Although public employers may discipline an employee for off-duty conduct that negatively impacts upon the reputation or good name of the employer, it does not necessarily follow that an employer is responsible for its employees’ actions while they are off duty.

* The doctrine of “respondeat superior” expresses the concept that the employer is responsible for the actions of its employees in connection with their work 

Errors of law made in the course of arbitration

Errors of law made in the course of arbitration

Goldman v Architectural Iron Co., CA2, 306 F.3d 1214

From time to time, an arbitration award is challenged on the ground that the arbitrator applied the law incorrectly or did not properly consider the applicable law in making the award. Typically, the courts do not vacate an arbitration award merely because a party demonstrates the award is based on an "error of law."

Rather, as the Circuit Court held in DiRussa v Dean Witter Reynolds, Inc., 121 F.3d 818, an arbitration award may be vacated only if it exhibits a "manifest disregard of the law." What constitutes "manifest disregard of the law?"

In deciding the Goldman case, the Second Circuit said that "[g]iven the deference afforded arbitration decisions, this standard requires more than a mistake of law or a clear error in fact finding.” According to the Second Circuit:

Manifest disregard [of the law] can be established only where a governing legal principle is "well defined, explicit, and clearly applicable to the case," and where the arbitrator ignored it after it was brought to the arbitrator's attention in a way that assures that the arbitrator knew its controlling nature.

The Circuit Court cited New York Telephone Company v Communications Workers of America Local 1100, 256 F.3d 89, as authority for its ruling

Establishing positions in the public service

Establishing positions in the public service

Charleson v City of Long Beach, 297 AD2d 777

Establishing a new classified service position in the public service of a municipality is typically a fairly routine operation: the civil service commission having jurisdiction reviews the municipality's application and then classifies the position based on its duties as described in the application.*

Once classified, the appointing authority provides for its establishment in accordance with the controlling budgetary procedures.

The Charleson case concerned a variation of this: the establishment of a municipal position claimed to be a "public office." However, although public officers are public employees, not all public employees are public officers.

Carl R. Charleson and his co-plaintiffs filed a "taxpayers' action pursuant to General Municipal Law Section 51." They sought a court order declaring the positions of Director of Operations, Special Projects Manager, and Executive Assistant to the Director of Operations established in the City of Long Beach unlawfully established public offices. The three positions were included in budgets approved by the City Council.

Charleson contended that all three positions had been unlawfully created and thus the appointments of the incumbents, Eugene C. Cammarato, Robert Piazza, and Michelle Meiselman, respectively, to those positions were illegal. According to Charleson, "given the nature of the positions at issue, including the powers, duties, and authority thereunder, and the titles and salaries, the positions are de facto public or city offices that can only be lawfully created by legislative enactment" not merely by inclusion of such positions in a budget.

The Appellate Division's decision notes that "[t]he challenged positions ... are not among the lawfully created offices set forth in City Charter, Article 2, Section 11, which positions may be filled by appointment by the City Manager."

The City argued that the challenged positions were not de facto public or city offices and that the powers and authority exercised by the incumbents are not commensurate with those of public or city offices that may only be lawfully created by legislative enactment. Rather, said the City, the positions were "duly-created civil service positions that require no legislative action and that they were filled by the City Manager in a proper exercise of his general powers under the City Charter, rather than Article 2, Section 11 of the Charter."

After observing that Charleson’s and the City's arguments raised triable issues of fact, the court noted that aspects of the litigation was moot because "the disputed positions of Special Projects Manager and Executive Assistant to the Director of Operations no longer exist ... that Piazza and Meiselman have been reassigned to existing civil service positions, and that the position of Director of Operations has since been duly established as an appointive office by the City Council."

* A municipal position in the classified service is automatically in the competitive class unless placed in a different jurisdictional classification by law or by the State Civil Service Commission pursuant to the procedures set out in Section 20 of the Civil Service Law.

Public Employee Federation members to vote on new proposed collective bargaining agreement

Public Employee Federation members to vote on new proposed collective bargaining agreement

Sources: The Public Employees Federation; Office of the Governor

The Executive Board of the New York State Public Employees Federation (PEF) on October 17, 2011 voted to send a revised contract agreement with the State to the full union membership for ratification.

Ballots for ratification will be mailed immediately to union members. Votes must be returned by Thursday, November 3 for counting that day by the American Arbitration Association in Manhattan.
PEF President Ken Brynien said:

“Today’s vote gives hope to the 3,496 members who face losing their jobs if the contract is not approved. The revised agreement balances the needs of all of our members and I am strongly encouraging our membership to ratify the new agreement to save the jobs of their co-workers while preserving the level of service to taxpayers"

In a press release dated October 16, 2011, Governor Cuomo said of this new, proposed agreement: "The Administration has worked very hard with the PEF leadership to make modifications which the leadership believes will address the concerns of the membership. The contract modifications are revenue neutral to the state and achieve the same level of savings as the first proposal.”

A summary of the key provisions of the tentative agreement is available on the Internet at:

http://www.pef.org/storage/files/hoa.pdf

The entire agreement, 229 pages of text, is posted on the Internet at:

http://www.pef.org/storage/files/tent_contract.pdf