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
.