Challenging a central school district's decision to discontinue reimbursements for certain Medicare Part B premium surcharges

In various collective bargaining agreements [CBA] between the Chappaqua Central School District [District] and the Chappaqua Congress of Teachers [CCT], an association representing certain District employees, the District agreed to provide healthcare benefits for active and retired employees and their spouses and dependents. Retired employees over age 65 were required to enroll in a Medicare Part B program [Part B] and, in keeping with the provisions set out in the several CBAs, the District reimbursed retirees the cost of Part B coverage. 

Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium, the so-called "income-related monthly adjustment amount" [IRMAA]. Prior to August 2018, the Districtreimbursed retirees for IRMAA surcharges in addition to the standard Medicare premium cost.

The CCT challenged the District's action. Supreme Court granted CCT's petition, annulled the District's determination, and directed the District to reinstate reimbursement for the Medicare Part B surcharges.  

In response to the District's appeal, the Appellate Division sustained the lower courts ruling. The text of its decision is set out below:

 

Matter of Bailenson v Board of Educ. of the Chappaqua Cent. Sch. Dist.

2021 NY Slip Op 03318

Decided on May 26, 2021

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 26, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
CHERYL E. CHAMBERS
LEONARD B. AUSTIN
ANGELA G. IANNACCI, JJ.

2019-08292
(Index No. 70427/18)

[*1]In the Matter of Myrna Bailenson, et al., respondents,

v

Board of Education of the Chappaqua Central School District, et al., appellants.

Shaw, Perelson, May & Lambert, LLP, Poughkeepsie, NY (Mark C. Rushfield of counsel), for appellants.

Robert T. Reilly, New York, NY (Oriana Vigliotti of counsel), for respondents.

 

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Education of the Chappaqua Central School District dated August 16, 2018, which discontinued reimbursements for certain Medicare Part B premium surcharges, the appeal is from a judgment of the Supreme Court, Westchester County (Susan Cacace, J.), dated May 20, 2019. The judgment granted the petition, annulled the determination, and directed the respondents to reinstate reimbursement for the Medicare Part B surcharges.

ORDERED that the judgment is affirmed, with costs.

Pursuant to collective bargaining agreements (hereinafter CBAs) between the Chappaqua Central School District (hereinafter the district) and the Chappaqua Congress of Teachers (hereinafter the CCT), an association representing district employees, the district agreed to provide healthcare benefits for active and retired employees and their spouses and dependents. Retired employees over age 65 were required to enroll in a Medicare Part B program (hereinafter Part B) and, in keeping with the CBAs, the district reimbursed retirees the cost of Part B coverage. Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium, known as the income-related monthly adjustment amount (hereinafter IRMAA). Prior to August 2018, the district reimbursed retirees for IRMAA surcharges in addition to the standard premium cost.

On August 16, 2018, the district informed retirees that it would no longer reimburse them for IRMAA surcharges. In response, the petitioners commenced this CPLR article 78 proceeding against the Board of Education of the Chappaqua Central School District, the district, and Christine Ackerman, as superintendent of the district, seeking to annul the August 16, 2018 determination on the ground that it violated chapter 729 of the Laws of 1994 (as amended by L 2007, ch 22), known as the Retiree Health Insurance Moratorium Act (hereinafter the moratorium statute), and seeking reinstatement of the reimbursements.

The Supreme Court agreed that the district's discontinuation of reimbursements violated the moratorium statute, granted the petition, and directed the district to reinstate the reimbursement, including retroactive reimbursements. This appeal ensued.

The moratorium statute sets "'a minimum baseline or "floor" for retiree health benefits'" which is "'measured by the health insurance benefits received by active employees. . . . In other words, the moratorium statute does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees'" (Matter of Altic v Board of Educ., 142 AD3d 1311, 1312, quoting Matter of Anderson v Niagara Falls City Sch. Dist., 125 AD3d 1407, 1408). Thus, a school district may not diminish retirees' health insurance benefits unless it makes "a corresponding diminution in the health insurance benefits or contributions of active employees" (Matter of Baker v Board of Educ., 29 AD3d 574, 575). The purpose of the moratorium statute is to protect the rights of retirees who "'are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired'" (Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134, 1135, quoting Assembly Mem in Support, 1996 McKinney's Session Laws of NY at 2050; see Matter of Jones v Board of Educ. of Watertown City School Dist., 30 AD3d 967, 970).

Here, it is undisputed both that the CBAs between the district and the CCT did not address Part B or IRMAA reimbursements and that the district in fact provided such reimbursements, even if, as it claims, the reimbursements were made inconsistently. Thus, the reimbursements were "retiree health insurance benefits that were voluntarily conferredas a matter of school district policy" (Kolbe v Tibbetts, 22 NY3d 344, 358). Accordingly, the Supreme Court correctly concluded that the discontinuation of IRMAA reimbursements was a matter subject to the moratorium statute (see Matter of Anderson v Niagara Falls City Sch. Dist., 125 AD3d at 1408-1409; Matter of Baker v Board of Educ., 29 AD3d at 575; Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1136; see generally Matter of Albany Police Officers Union, Local 2841, Law Enforcement Officers Union Dist. Council 82, AFSCME, AFL-CIO v New York Pub. Empl. Relations Bd., 149 AD3d 1236, 1238; Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479, 1480-1481, affd 95 AD3d 1479).

Like the Supreme Court, we find unpersuasive the district's claim that IRMAA reimbursements were disbursed for a decade as the result of an administrative error without the district becoming aware of the error. However, even if proved, the district has pointed to no authority suggesting that this alleged error removes the matter from the scope of the moratorium statute. Similarly, the court correctly rejected as "circular reasoning" which was "entirely inconsistent with the legislative intent" of the moratorium statute the district's claim that the new policy would cause a corresponding diminution in active employees' benefits since, upon retirement, they, too, would not receive IRMAA reimbursements. The purpose of the moratorium statute was to tie retiree benefits to active employee benefits so that retirees could benefit from the collective bargaining power of the active employees. To accept the district's argument would eviscerate that purpose (see Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1135; Assembly Mem in Support, 1996 McKinney's Session Laws of NY at 2049-2050). Accordingly, the court correctly determined that discontinuation of IRMAA reimbursements violated the moratorium statute and properly granted the petition.

LASALLE, P.J, CHAMBERS, AUSTIN and IANNACCI, JJ., concur.

2019-08292 DECISION & ORDER ON MOTION

N.B.

In the Matter of Myrna Bailenson, et al., respondents,

v Board of Education of the Chappaqua Central

School District, et al., appellants.

(Index No. 70427/18)

Motion by the petitioners to strike footnote 2 on page 5 of the appellants' reply brief on the ground that it refers to matter dehors the record. By decision and order on motion of this Court dated July 31, 2020, the motion was held in abeyance and referred to the panel of Justices [*2]hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is granted, and footnote 2 on page 5 of the appellants' reply brief is deemed stricken and has not been considered in the determination of the appeal.

LASALLE, P.J, CHAMBERS, AUSTIN and IANNACCI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

School district directed to resume reimbursing its retirees' Medicare Part B surcharges

Pursuant to collective bargaining agreements [CBAs] between the School District [District] and the Congress of Teacher [Congress], an association representing district employees, the District agreed to provide health care benefits for active and retired employees and their spouses and dependents. 

Retired employees over age 65, however, were required to enroll in a Medicare Part B program [Part B] and the district reimbursed retirees the cost of Part B coverage.

Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium. This surcharge was an income-related monthly adjustment amount and referred to as the "IRMAA". Prior to August 2018, the district reimbursed retirees for IRMAA surcharges in addition to their standard Medicare premium payments.

In response to the District's informing retirees that it would no longer reimburse them for IRMAA surcharges, certain retirees [Plaintiffs] commenced a CPLR article 78 proceeding seeking [1] a court order annulling the District's decision, contending that the District's discontinuing such reimbursements violated Chapter 729 of the Laws of 1994 (as amended by Chapter 22 of the Laws of 2007), the State's Retiree Health Insurance Moratorium Act [Act]* and [2] a court order reinstating the reimbursements.

The Supreme Court agreed that the District's discontinuation of its reimbursements of IRMAA surcharges violated the Act, granted the Plaintiff's petition, and directed the District to reinstate providing the reimbursement, plus making appropriate retroactive reimbursements. The District appealed.

Explaining that Act sets "a minimum baseline or 'floor' for retiree health benefits" which is "measured by the health benefits being received by active employees," the Appellate Division sustained the lower court's ruling. In other words, the Act does not permit an employer to whom the statute applies to provide its retirees with lesser health insurance benefits than it provides its active employees.

Citing Matter of Baker v Board of Educ., 29 AD3d 574, the Appellate Division opined that a school district may not diminish retirees' health insurance benefits unless it makes "a corresponding diminution in the health insurance benefits or contributions of active employees." 

In the words of the court, the purpose of the Act was to protect the rights of retirees who "are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired"**

It was undisputed both that the CBAs between the District and the Association did not address Part B or IRMAA reimbursements and that the district provided such reimbursements, even if, as it claims, it made such reimbursements inconsistently. 

The parties, said the court, conceded that the reimbursements were "retiree health insurance benefits that were voluntarily conferred as a matter of school district policy." Accordingly, the Appellate Division held that Supreme Court "correctly concluded that the discontinuation of IRMAA reimbursements was a matter subject to the moratorium statute."

Additionally, the Appellate Division noted reimbursing retirees for Medicare Part B premiums is not an improper gift of public funds in violation of Article VIII, §1, of the New York State Constitution," citing Baker v Board of Education, 29 AD3d 574.

The Appellate Division sustained the Supreme Court ruling, finding it to have correctly determined that the District's discontinuation of IRMAA reimbursements violated the Act and thus had properly granted the Plaintiffs' petition.

* The purpose of the moratorium statute was to tie retiree benefits to active employee benefits so that retirees could benefit from the collective bargaining power of the active employees.

** See Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134, quoting Assembly Memorandum in Support of Bill, 1996 McKinney's Session Laws of New York at 2050.

Click HERE to access the Appellate Division's decision.

School district directed to resume reimbursing its retirees' Medicare Part B surcharges

Pursuant to collective bargaining agreements [CBAs] between the School District [District] and the Congress of Teacher [Congress], an association representing district employees, the District agreed to provide health care benefits for active and retired employees and their spouses and dependents. 

Retired employees over age 65, however, were required to enroll in a Medicare Part B program [Part B] and the district reimbursed retirees the cost of Part B coverage.

Some retirees, based upon their household income, were subject to a surcharge in addition to the standard Part B premium. This surcharge was an income-related monthly adjustment amount and referred to as the "IRMAA". Prior to August 2018, the district reimbursed retirees for IRMAA surcharges in addition to their standard Medicare premium payments.

In response to the District's informing retirees that it would no longer reimburse them for IRMAA surcharges, certain retirees [Plaintiffs] commenced a CPLR article 78 proceeding seeking [1] a court order annulling the District's decision, contending that the District's discontinuing such reimbursements violated Chapter 729 of the Laws of 1994 (as amended by Chapter 22 of the Laws of 2007), the State's Retiree Health Insurance Moratorium Act [Act]* and [2] a court order reinstating the reimbursements.

The Supreme Court agreed that the District's discontinuation of its reimbursements of IRMAA surcharges violated the Act, granted the Plaintiff's petition, and directed the District to reinstate providing the reimbursement, plus making appropriate retroactive reimbursements. The District appealed.

Explaining that Act sets "a minimum baseline or 'floor' for retiree health benefits" which is "measured by the health benefits being received by active employees," the Appellate Division sustained the lower court's ruling. In other words, the Act does not permit an employer to whom the statute applies to provide its retirees with lesser health insurance benefits than it provides its active employees.

Citing Matter of Baker v Board of Educ., 29 AD3d 574, the Appellate Division opined that a school district may not diminish retirees' health insurance benefits unless it makes "a corresponding diminution in the health insurance benefits or contributions of active employees." 

In the words of the court, the purpose of the Act was to protect the rights of retirees who "are not represented in the collective bargaining process, [and] are powerless to stop unilateral depreciation or even elimination of health insurance benefits once the contract under which they retired has expired"**

It was undisputed both that the CBAs between the District and the Association did not address Part B or IRMAA reimbursements and that the district provided such reimbursements, even if, as it claims, it made such reimbursements inconsistently. 

The parties, said the court, conceded that the reimbursements were "retiree health insurance benefits that were voluntarily conferred as a matter of school district policy." Accordingly, the Appellate Division held that Supreme Court "correctly concluded that the discontinuation of IRMAA reimbursements was a matter subject to the moratorium statute."

Additionally, the Appellate Division noted reimbursing retirees for Medicare Part B premiums is not an improper gift of public funds in violation of Article VIII, §1, of the New York State Constitution," citing Baker v Board of Education, 29 AD3d 574.

The Appellate Division sustained the Supreme Court ruling, finding it to have correctly determined that the District's discontinuation of IRMAA reimbursements violated the Act and thus had properly granted the Plaintiffs' petition.

* The purpose of the moratorium statute was to tie retiree benefits to active employee benefits so that retirees could benefit from the collective bargaining power of the active employees.

** See Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134, quoting Assembly Memorandum in Support of Bill, 1996 McKinney's Session Laws of New York at 2050.

Click HERE to access the Appellate Division's decision.

New appointments to New York State Governor Cuomo's administration

New appointments to New York State Governor Cuomo's administration

Source: Office of the Governor

On April 2, 2018, Governor Andrew M. Cuomo today announced the following new appointments to his administration.

  

Lindsey Boylan has been appointed Deputy Secretary for Economic Development and Special Advisor to the Governor. She previously served as Chief of Staff and Executive Vice President at Empire State Development. Prior to joining the agency, Lindsey spent several years in municipal finance, ultimately as Vice President, at RBC Capital Markets. Earlier, she served in an executive role steering operations and business development for three interconnected New York City business improvement districts, public-private partnerships best known for their restoration of Midtown's iconic Bryant Park. Lindsey also worked for noted urban planner Alexander Garvin, focusing on a master planning and management process for a 4,500-acre park in Memphis, Tennessee. She is a graduate of Columbia Business School and received her B.A. in Political Science from Wellesley College, where she was elected Student Body President. 

 

Michael Schmidt has been appointed Senior Economic Advisor to the Governor. Mr. Schmidt most recently served as Deputy Secretary for Economic Development, where he oversaw policy and operations for twelve state agencies and authorities, including Empire State Development, the Department of Taxation and Finance, the Division of Homes and Community Renewal, and the Department of State. Previously, Mr. Schmidt served as economic policy advisor to Hillary Clinton during in her 2016 presidential campaign, where he led the development of Secretary Clinton's agenda on financial regulation, trade, infrastructure, housing, small business, and economic development. He has also served in the Office of Domestic Finance at the U.S. Department of the Treasury and as a Senior Financial Analyst at the Yale Investments Office. He holds a J.D. and a B.A from Yale.

 

Zackary Knaub has been appointed First Assistant Counsel to the Governor. Mr. Knaub most recently served as Assistant Counsel to the Governor, handling energy and environmental matters. Before joining the Executive Chamber, Mr. Knaub served as Regional Attorney for the Department of Environmental Conservation, managing the Department's legal affairs for the lower Hudson River Valley. Prior to his state service, he was a partner in the Shlansky Law Group, a boutique commercial and environmental litigation law firm, and an associate in the New York City office of Beveridge & Diamond, P.C. He began his legal career as a pro se and motions law clerk for the United States Court of Appeals for the Second Circuit. He graduated cum laude from Cardozo Law School, and holds a M.A. from Columbia University, and a B.A. with honors from the University of Iowa.

 

Carolyn Pokorny has been appointed Special Counsel for Public Integrity. She most recently served as Chief Special Counsel for Ethics, Risk and Compliance. Previously, she served as Deputy Chief of Staff and Counselor to U.S. Attorney General Loretta E. Lynch. Prior, she spent nearly fifteen years with the U.S. Attorney's Office in Brooklyn, where she held a number of leadership positions, including Deputy Chief of the Criminal Division. She received the U.S. Attorney General's Award for Distinguished Service, and the Federal Prosecutor of the Year award from the Federal Law Enforcement Foundation. Ms. Pokorny began her career as a prosecutor in the Bronx District Attorney's Office and then clerked for federal judge Arthur D. Spatt on Long Island. She has a B.A. from New York University, and a J.D. from Brooklyn Law School.

 

Camille Joseph Varlack has been appointed Deputy Director of State Operations. In 2017, she was appointed New York State Chief Risk Officer and Special Counsel and will retain those titles. Ms. Varlack has served as deputy director for ethics, risk and compliance in the Executive Chamber and as a principal law clerk for the New York State Supreme Court. She has also served as Assistant Vice President and Counsel at AXA Financial, Inc. and as an Assistant District Attorney for the Kings County District Attorney's Office. Ms. Varlack holds a B.A. from the State University of New York at Buffalo and a J.D. from Brooklyn Law School.

 

Giancarlo Pellegrini has been appointed Assistant Counsel to the Governor. Mr. Pellegrini most recently practiced law at Sidley Austin LLP in Washington, D.C., and he previously served as an Empire State Fellow in the Governor's Counsel's Office. Mr. Pellegrini holds a J.D. from Harvard Law School and a B.A. from Lehigh University. 

 

Andrew Chan Wolinsky has been appointed Assistant Special Counsel for Public Integrity. Previously, he was an associate in the litigation departments of Sullivan & Cromwell LLP and Davis Polk & Wardwell LLP, where his practice focused on white-collar criminal defense, regulatory enforcement proceedings, and internal investigations. He clerked for the Honorable Jane R. Roth of the United States Court of Appeals for the Third Circuit and the Honorable Loretta A. Preska, Chief Judge of the United States District Court for the Southern District of New York. Mr. Wolinsky earned his J.D. from Fordham University School of Law and his B.A. from Tufts University. 

 

Abigail Belknap Seidner has been appointed Assistant Special Counsel for Public Integrity in the Executive Chamber. Prior to entering public service, Ms. Seidner began her legal career at Cooley LLP, where she represented numerous pro bonoclients in addition to her private litigation practice. Ms. Seidner previously served as a legal intern in the U.S. Attorney's Offices for both the Southern and Eastern Districts of New York and at the New York Civil Liberties Union. Ms. Seidner holds a B.A. from Pomona College and a J.D. from New York University School of Law.

 

Michael Donegan has been appointed General Counsel at the Justice Center for the Protection of People with Special Needs.  Mr. Donegan has been with the Justice Center since August of 2013, where he was appointed as the first Director of the Employee Discipline Unit, supervising a staff of attorneys who represented state oversight agencies at disciplinary arbitrations. Prior to coming to the Justice Center, Mr. Donegan served 16 years as the General Counsel at the State Commission of Correction. He is a graduate of SUNY Albany and Hofstra University School of Law.

 

Mark Noordsy has been appointed General Counsel and Deputy Commissioner at the Office of Mental Health. He most recently served as Deputy Counsel for Litigation at OMH. Previously, he served at the New York State Department of Health, and Office of the Medicaid Inspector General, after twenty-eight years of private practice. Mr. Noordsy received a B.A., magna cum laude, from St. Lawrence University, and a J.D., with honors, from George Washington University.

 

Karen Mintzer has been appointed General Counsel at the New York State Office of Parks, Recreation and Historic Preservation. Ms. Mintzer joined Parks from the New York State Department of Environmental Conservation, where she served as Regional Attorney - General Counsel for Region 2 (New York City). Previously, she was in private practice, most recently as special counsel at Kramer Levin Naftalis & Frankel. She holds a B.A. from Lafayette College and a J.D. from Georgetown University Law Center.   

 

Sumit Sud has been appointed Deputy Chief Special Counsel for Ethics, Risk and Compliance. In this new role, Mr. Sud will coordinate the statewide program for ethics, risk and compliance across agencies and authorities, working with the Special Counsel for Public Integrity and New York State's Chief Risk Officer. He will assume this role while continuing to act on his previous appointments as Special Counsel to the Director for the New York State Insurance Fund and the Commissioner to the New York Department of Labor. Prior to joining the state, Mr. Sud served as Senior Counsel at the New York City Law Department, where he had been for almost ten years. He holds a J.D. from Case Western Reserve University in Ohio and a B.S. from the University of Washington, Seattle. 

Hearing officer considers failed efforts at “progressive discipline” in setting disciplinary penalty

Hearing officer considers failed efforts at “progressive discipline” in setting disciplinary penalty

OATH Index No. 1721/16

The New York City Human Resources Administration (HRA) served disciplinary charges against Carey Bryant, a clerical associate, alleging Bryant was guilty of being late to work excessively, several instances of discourtesy, threatening and disruptive conduct, and making a false statement in a supervisory conference.

OATH Administrative Law Judge ALJ Noel A. Garcia held that HRA proved that Bryant was late on 53 occasions, had engaged in discourteous conduct on three occasions, was disruptive during a training class, and made a false statement during a supervisory conference.

Judge Garcia, however, found that HRA failed to prove its allegations that Bryant had engaged in other instances of discourteous conduct. The ALJ explained that HRA did not provide any corroboration to support the statements it alleged Bryant had made nor did not specify Bryant’s words or actions it alleged were discourtesy or threatening.

The ALJ requested and received Bryant’s personnel history.* The record indicated Bryant had been served with disciplinary charges on a number of occasions resulting, respectively in [1] a 5-day suspension without pay for using obscene and abusive language directed towards a supervisor; [2] a 10-day suspension  without pay for using “obscene and abusive language, oral threats and discourteous conduct; [3] a 45-day suspension without pay for using abusive language, discourteous conduct, making oral threats, insubordination, and failing to comply with time and leave regulations; and, ultimately, [4] a 60-day suspension without pay for using obscene or abusive language, making oral threats, and discourteous conduct.

Judge Garcia found that Bryant had repeatedly engaged in discourteous, threatening and unprofessional conduct. Despite accepting longer and longer suspensions for such behavior, Bryant conduct did not improve. Further, said the ALJ, “Even when [Bryant] admitted at trial to making statements that undermined his superiors, or to making inappropriate comments regarding potential workplace violence, [Bryant] never took any responsibility for any of his actions, or expressed any regret.

According, due to Bryant’s poor disciplinary history and his continued unwillingness to follow agency rules or behave in a professional manner, Judge Garcia recommended Bryant’s termination from his position as the appropriate penalty for his misconduct.

* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if [1] the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and [2] the employee is given an opportunity to submit a written response to any material he or she deemed “adverse” contained in the record or an opportunity to offer “mitigating circumstances.”

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-1721.pdf

_____________
 

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

_____________

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan

Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.* 

The Public Employment Relations Board directed the School District to rescind its June 2003 memorandum in which it notified employees and retirees that it was terminating its practice of reimbursing Medicare Part B premiums.

In a companion case PERB ruled that the school district must reinstate its former practice of reimbursing retirees for Medicare Part B premiums -- the same relief sought in the current proceeding.

The Appellate Division noted that PERB's order in the companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op 04039 (2013)]. Accordingly, Bryant received the full relief challenged by School District in the current appeal as a result of that determination, . Accordingly, the court ruled that the instant appeal is now moot.

As to argument advanced under color of an exception to the mootness doctrine, the Appellate Division held that the claimed exception “does not apply in that, although the issue advanced herein may recur and is significant, it is not likely to evade review.”

* The underlying facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134 [2005]) and in the companion case brought by the Chenango Forks Central School District (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the Internet at http://publicpersonnellaw.blogspot.com/search?q=bryant

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm

Administrative Appointments Announced on January 15, 2015

Administrative Appointments Announced on January 15, 2015

Source: Office of the Governor

Kevin John Bishop, Esq.has been named assistant counsel to the Governor. Mr. Bishop previously worked as an associate at Condon & Forsyth, LLP for six years, where he oversaw commercial litigation, including federal and state practice, for major corporations. Additionally, during that time, Mr. Bishop worked in a secondment with British Airways, PLC, where he advised company leadership on all aspects of corporate governance, oversaw regulatory compliance, negotiated and drafted contracts, and coordinated litigation strategy. Prior to that, Mr. Bishop was an assistant university counsel at the University of North Carolinaat Chapel Hilland an associate at McDermott Will & Emery, LLP. Mr. Bishop holds a J.D. from the University of North Carolinaat Chapel Hill, an M.P.P. from Duke University, and a B.S. and M.S. from Boston University.

David Perino, Esq. has been appointed assistant counsel to the Governor with a focus on legislative matters. Prior to this role, Mr. Perino served as special counsel at the New York State Legislative Bill Drafting Commission. Before that, he was a special prosecutor for the City of Watervliet. Mr. Perino was also assistant corporation counsel for the City of Cohoes Corporation Counsel’s Office and performed assigned counsel work for the New York State Appellate Division – Third Department. He holds a J.D. from Albany Law School of Union University and a B.S. in Chemical Engineering from Carnegie Mellon University.

Terrance Pratt, Esq. has been named assistant counsel to the Governor with a focus on education. Mr. Pratt previously served as assistant director for government relations with the New York State Council of School Superintendents. Mr. Pratt has also worked as an associate attorney at Malkin & Ross, providing legal services to a diverse client group on a wide range of critical policy issues. Prior to that, Mr. Pratt served as counsel to former New York State Assemblyman Pete Grannis and the Assembly Insurance Committee. In 2007, Mr. Pratt served as an assistant counsel at the New York State Department of Environmental Conservation. Mr. Pratt holds a J.D. from Albany Law Schooland a B.A. from Monmouth University.

Rosemary J. Powers has been appointed deputy director of state operations for programs. Ms. Powers previously served as chief operating officer of the New York State Department of Transportation where she was responsible for regional office functions, all statewide business service initiatives and the Office of Right of Way. Ms. Powers has held a variety of positions in state and local government, including deputy chief of staff in the Office of Massachusetts Governor Deval Patrick. In this position, Ms. Powers was a lead strategist for Governor Patrick, providing advice and counsel to him and many other senior members of the Patrick Administration. Achievements included enactment of the Transportation Finance Reform bill, groundbreaking legislation related to controlling the cost of health care and proposals to address youth and gun violence. Prior to that, Ms. Powers served as both chief of staff at the Massachusetts Department of Environmental Protection and as government affairs director for the Department of Conservation and Recreation. Ms. Powers received her B.A. from Suffolk Universityand an M.P.A. from Harvard’s John F. Kennedy School of Government.

Brenda Torres has been appointed assistant secretary for the environment. Ms. Torres most recently served as director of the Northeast Regional Office in the Unites States for the Puerto Rico Federal Affairs Administration. In that role, Ms. Torres managed and coordinated community service programs for more than 3 million people living in the Tri-State region; and represented the Commonwealth of Puerto Rico before federal, state and local governments on issues related to infrastructure, health care, and economic development. Ms. Torres has also served as a consultant for El Puente where she helped develop two major sustainability initiatives. Prior to that, Ms. Torres was the executive director of Santa Clara Valley Audubon Society in California, and the San Juan Bay National Estuary Program in Puerto Rico. Ms. Torres is a LEED AP and holds a masters in environmental management from Yale University. She has also completed a certificate executive program for nonprofit leaders at Stanford University’s Graduate School of Business and finished her B.S. in Environmental Sciences at the University of Puerto Rico.

Andrew Ball has been appointed director of scheduling for Governor Cuomo. Previously, Mr. Ball served as confidential assistant to the Governor where he coordinated many aspects of the Governor’s travel and schedule, including helping manage advance and logistical operations for public events statewide. Mr. Ball joined the Cuomo administration in 2011 as special assistant for legislative and intergovernmental affairs, where he served as a liaison between local elected officials and the administration, including addressing constituent issues and facilitating coordination between legislative members and state agencies. A Long Island native, Mr. Ball graduated from Syracuse Universityin 2010.

Reid Sims has been appointed deputy director of Executive Chamber operations. Mr. Sims previously served as an operations coordinator for the New York State Executive Chamber, where he oversaw advance and event operations for the Governor. Mr. Sims previously worked on Governor Cuomo’s 2010 gubernatorial campaign. Mr. Sims holds a B.A. in political science from the City University of New York.

Camille Joseph Varlack, Esq. has been appointed deputy director for ethics, risk and compliance in the Executive Chamber. Until recently, Ms. Varlack was special counsel to the superintendent of the Department of Financial Services for ethics, risk and compliance. In her new role, Ms. Varlack will coordinate the Governor's statewide ethics, risk and compliance program across agencies and authorities, working with the state's chief risk officer. She will continue to directly advise the superintendent of the Department of Financial Services. Ms. Varlack previously served as a principal law clerk for the New York State Supreme Court and assistant vice president and counsel at AXA Financial, Inc. Ms. Varlack has also served as an assistant district attorney for the Kings County District Attorney’s Office, legal assistant in the law department of News Corporation and an investigative assistant for the New York State Attorney General. Ms. Varlack holds a B.A. from the State University of New York at Buffaloand a J.D. from Brooklyn Law School.

Kevin Amien Younis has been appointed chief operating officer for Empire State Development. Mr. Younis has worked for ESD for the past nine years – serving in a variety of high-level positions, including executive vice president of public policy, planning and incentives; senior vice president for government affairs and regional president; vice president for intergovernmental and legislative affairs; and director of state legislative affairs. Prior to that, Mr. Younis was policy director for the Civil Service Employees Association and chief of staff to former New York State Assemblyman David Koon. Mr. Younis holds a certificate in trade union management and leadership from Harvard University, an M.P.A. from Nelson A. Rockefeller College of Public Affairs and Policy and B.A. from SUNY Cortland.

Maria Lehman has been appointed chief operating officer for the New York State Thruway Authority where she is currently the interim director of maintenance and operations. While at the Thruway, Ms. Lehman served as the program manager for New York Stateon the Peace Bridge, and the project director for risk management and project controls on the new New York Bridgeover the Hudson. Before working in state government, Ms. Lehman was the vice president and corporate business sector lead for transportation at Bergmann Associates, and the corporate director for quality assurance at URS Corporation. She has also served as the commissioner of public works for Erie County, New York. Ms. Lehman holds a B.S. in civil engineering from SUNY Buffalo and is a licensed professional engineer in several states.

Lindsey Boylan has been appointed chief of staff at the Empire State Development, after previously serving as the vice president of business development. Prior to her time at ESD, Ms. Boylan was the vice president of RBC Capital Markets. She has also held a number of roles at the Bryant Park Corporation, including director of business affairs, associate director of operations and operations manager. Ms. Boylan has also served as a project manager for Alex Garvin & Associates, a planning and consulting firm. Ms. Boylan holds an M.B.A from Columbia Universityand a B.A. in Political Science from Wellesley College.

Richard J. Zahnleuter, Esq. has been appointed general counsel at the New York State Department of Health, where he recently served as acting general counsel. Mr. Zahnleuter has held multiple roles at the Department of Health over the past 15 years, including director of the Bureau of Litigation and associate counsel for the Bureau of Professional Medical Conduct. Mr. Zahnleuter was a trial attorney in the private sector between 1989 and 1999, served as deputy special counsel to Governor Mario Cuomo for four years, and was an attorney with the Department of Health from 1981 to 1985. Mr Zahnleuter holds a J.D. from Albany Law Schooland a B.S. in Biology from SUNY College of Environmental Science and Forestry at Syracuse University.

Karen M. Hunter has been appointed Chief of Staff at the New York State Thruway Authority, after previously serving as interim executive director. Prior to that, Ms. Hunter served as Director of Financial Administration at New York State Homes and Community Renewal. In that role, Ms. Hunter oversaw banking, investment and payment processes, contracting and purchasing functions, federal and state reporting requirements, and regulatory compliance. Before that, Ms. Hunter worked as upstate regional director for the Housing Finance Agency and was an associate budget examiner for the New York State Division of the Budget. Ms. Hunter has an M.B.A. from SUNY Albany, and holds a B.A. from University of Illinoisat Urbana-Champaign.

Stephanie Davis has been appointed deputy commissioner of policy and communications at the Division of Homes and Community Renewal. Since 2003, Ms. Davis has worked at Excellus BlueCross BlueShield where she held positions as the regional vice president of communications for the Utica Region and the director of communications for the Southern Tier. From 1992 to 2003, she held multiple roles working for the New York State Senate. She is former chair of the Greater Utica Chamber of Commerce Government Affairs and Economic Development Council and holds a B.A. in Political Science from Union College.

Janet Ho has been appointed deputy commissioner at the New York State Department of Motor Vehicles. Ms. Ho most recently served as the assistant secretary for transportation for Governor Cuomo. Prior to her time at the Executive Chamber, Ms. Ho worked for the New York State Senate Finance Committee as a deputy director of budget studies concentrating primarily in the areas of transportation, environment, economic development, energy and housing. Before that, she was a senior legislative budget analyst for the New York State Assembly Waysand Means Committee. She holds an MPA from John Jay College of Criminal Justice, a B.A. in Psychology, as well as a B.A. in Criminology, Law and Society, from U.C. Irvine.

Maria Knirk, Esq. has been appointed deputy commissioner of the New York State Department of Agriculture and Markets, where she has held multiple titles, including special assistant for federal policy and assistant commissioner. Prior to working in New York Stategovernment, Ms. Knirk was a regulatory policy analyst at the Delaware Department of Agriculture. Ms. Knirk has previously served as a law clerk for Varnum Attorneys at Law, and an adjunct instructor at Southwestern Michigan College. She holds a B.A. in communications, a B.B.A. and an M.B.A. from Ferris State University. She also holds a J.D. from Michigan State University College of Law.

Raymond LaMarco has been appointed assistant commissioner for administrative services at the New York State Department of Transportation. Mr. LaMarco has more than 33 years of experience working in New York Stategovernment. He has held multiple positions at the Department of Transportation, including director of human resources management and employee relations. He has previously held positions as the Director of Labor Relations at the NYS Office of Children and Family Services and Director of Human Resources Management at the NYS Office of Alcohol and Substance Abuse. He holds a B.S. in organizational management from Nyack College, an A.A.S. degree in construction technology from Herkimer Community College and an occupational health and safety certification from Cornell University.

Thomas A. Pohl, Esq. has been appointed deputy counsel for the New York State Office of General Services. Mr. Pohl has been with OGS for more than 40 years, previously serving as an associate attorney for Legal Services. In this role, Mr. Pohl worked with senior staff on New York State’s real property issues, including the development of public policy and management of litigation and defense. Prior to that, Mr. Pohl served as a senior attorney for Realty in the OGS Division of Land Utilization, chief of the OGS Bureau of Land Disposition, and attorney in the OGS Bureau of Land Disposition. Mr. Pohl holds a J.D. from Albany Law Schooland a B.A. from Siena College.

Patrick Meredith has been appointed assistant commissioner for regional operations at the Department of Transportation, Western New York. Mr. Meredith has nearly two decades of experience in the public sector, overseeing the management and construction of capital improvement projects including roads, parks, storm water and sewer systems. Mr. Meredith previously served as commissioner of public works for the Town of Irondequoit, and before that, as deputy commissioner for the Town. Previously, Mr. Meredith owned his own construction company and served as assistant engineer for the Town of Penfield. Mr. Meredith holds an A.O.S. from Alfred State College, State University of New York.

John J. McCarthy has been appointed special advisor for agency operations and initiatives at the Metropolitan Transportation Authority, where he previously served as deputy press secretary. Most recently, Mr. McCarthy was a senior advisor at Everytown for Gun Safety. Prior to that, he served as deputy commissioner for public information at the New York City Police Department. Mr. McCarthy has also held positions under Mayor Bloomberg, including senior advisor for public safety and deputy press secretary. Mr. McCarthy has previously worked for a number of government agencies including, the Port Authority of New York and New Jersey, the New York State Office of Homeland Security and the United States General Services Administration. He holds a J.D. and a B.A. from Fordham University.

John McKay has been appointed executive officer of corporate communications, branding and marketing at the Metropolitan Transit Authority. Mr. McKay most recently served as the director of communications for the New York City Comptroller’s Office. Prior to that, he was the vice president of corporate communications at NBC Universal. Mr. McKay has held a number of roles at Sony Music Entertainment/SONY BMG, including vice president of Communications, vice president of media relations, senior director of communications and director of editorial services. Mr. McKay holds a B.A. in East Asian studies with a minor in religious studies from Pennsylvania State University.

Kelli Owens has been appointed legislative coordinator at the New York State Office of Child and Family Services. Ms. Owens has more than two decades of experience in both the public and private sector. She previously served as vice president for external affairs at Planned Parenthood Advocates of New York, where she was the principal in-house lobbyist. Prior to that, Ms. Owens worked as the government relations and public policy director for the YWCAs of the northeast region, supervising legislative and media affairs for New York, Connecticut, Massachusetts, and New Jersey. Ms. Owens holds a B.A. in Political Science from Utica College of Syracuse University.