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.

 

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan
Bryant v Board of Educ., Chenango Forks Cent. Sch. Dist., 2013 NY Slip Op 04379, Appellate Division, Third Department

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 reason for reimbursing retirees for Medicare Premiums that they are required to pay is explained in a “comment" in NYPPL’s summary of Munger v Board of Educ. of the Garrison Union Free School Dist., 85 AD3d 747, posted on the Internet at:  http://publicpersonnellaw.blogspot.com/2009/12/city-to-pay-100-of-cost-of-health.html

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Employer’s reimbursement of Medicare Part B premiums is a "term and condition of employment" subject to mandatory negotiation

Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 03700, Appellate Division, Third Department

The Chenango Forks Central School District distributed a memorandum to its faculty and staff represented by the Chenango Forks Teachers Association announcing that it would discontinue its longstanding practice of reimbursing retirees' Medicare Part B premiums.

While the relevant collective bargaining agreement (CBA) between the parties did not explicitly obligate the school district to make such reimbursements, it had done so since at least 1980 when such reimbursement was required by the Empire Plan, the health insurance plan provided to employees up until 1990.

In 1990 the parties entered into a new CBA, and health insurance coverage was changed to Blue Cross/Blue Shield, which did not require the reimbursement of Medicare Part B premiums. Chenango Forks, however, continued to make such reimbursements.

The Association filed a grievance alleging a violation of the CBA.* At the same time, the Association filed an improper practice charge with the Public Employment Relations Board (PERB) alleging that Chenango Forks had violated Civil Service Law §209-a(1)(d) when it failed to negotiate the discontinuance of reimbursement of Medicare Part B premiums.**

PERB’s Administrative Law Judge (ALJ) found that school district's practice of reimbursement had "giv[en] rise to a reasonable expectation by current employees that they proceed under a promise of post-retirement [reimbursement]" and, thus, Chenango Forks’ unilateral decision to discontinue reimbursement violated its collective bargaining obligations under Civil Service Law §209-a(1)(d).

Ultimately PERB affirmed the ALJ's  conclusions regarding the school district's obligations under Civil Service Law §209-a(1)(d). The district filed an Article 78 challenging PERB's determination.

Rejecting the school district’s argument that reimbursement of Medicare Part B premiums is not a "term and condition of employment" subject to mandatory negotiation, the Appellate Division said that health benefits for current employees are a form of compensation, and thus a term of employment that is a mandatory subject of negotiation.

Although Civil Service Law §201(4) prohibits negotiation of certain retirement benefits, the Appellate Division pointed out that the continuation of health insurance payments to current employees after their retirement is not a retirement benefit within the meaning of that provision, citing Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398, 404 [1979]; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d 801, 802 [1995], lv denied 87 NY2d 812 [1996].

The court explained that such health insurance benefits, although paid after retirement, constitute a form of compensation earned by the employee while employed. Thus, noted the Appellate Division, as the Court of Appeals has held, and PERB rationally concluded, here that Chenango Forks "ha[d] a duty to negotiate with the bargaining representative of current employees regarding any change in a past practice affecting their own retirement health benefits," citing Matter of Aeneas McDonald Police Benevolent Assn. v City of Geneva, 92 NY2d at 332 [emphasis omitted]; see Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d at 404; Matter of Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES [JLHHO BOCES Professional Assn.], 219 AD2d at 802; Matter of Corinth Cent. School Dist. [Corinth Teachers Assn.], 77 AD2d 366, 367 [1980], lv denied 53 NY2d 602 [1981].

As to the question of whether a binding past practice was established, the Appellate Division said that the issue before PERB was whether, irrespective of any contractual obligation in the parties' CBA, a past practice of reimbursing retirees for Medicare Part B premiums was established such that Chenango Forks was barred from discontinuing that practice without prior negotiation with the Association.***

As to the merits of its past practice determination, the Appellate Division found that PERB had determined that there was a reasonable expectation by unit employees that they would receive reimbursement of Medicare Part B premiums upon their retirement, which finding was “supported by the stipulated facts that [the school district had] reimbursed Medicare Part B premiums to active employees and retirees since at least 1980 and that, despite the fact that the health insurance coverage provided under the CBAs subsequent to 1990 did not require such reimbursement, [the school district had] continued to do so until July 2003.”

Significantly, the Appellate Division said that it could not conclude that, by entering into a new CBA for the 2004-2007 period, which is silent regarding the reimbursement of Medicare Part B premiums, the Association waived its right to negotiate a change in [school district’s] practice of providing Medicare Part B reimbursement, explaining that. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it . . . Such a waiver must be clear, unmistakable and without ambiguity."

As a final point, the Appellate Division stated that the “reimbursing active employees for Medicare Part B premiums does not constitute an improper gift of public funds (see NY Const, art VIII, § 1), as the reimbursements represent compensation earned by employees while employed and in consideration for a benefit furnished to [the school district].”

* A group of school district retirees also commenced a CPLR Article 78 proceeding to annul the district's decision to discontinue Medicare Part B premium reimbursements (Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d 1134 [2005]). This action wast remitted to Supreme Court for further record development to determine whether there had been a "corresponding diminution of benefits or contributions" effected by petitioner from active employees (Chapter 48 of the Laws of 2003; see Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., 21 AD3d at 1137-1138). The instant proceeding before the Appellate Division, in contrast, involved current, active employees of school district.

** PERB conditionally dismissed the charge subject to a motion to reopen the matter after the conclusion of the grievance procedure. When the grievance proceeded to arbitration, an arbitrator determined that petitioner was under no contractual obligation to continue the payments.

*** In contrast, the specific issue before the arbitrator was whether school district was under a contractual obligation to make Medicare Part B reimbursement payments to retirees.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03700.htm

Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)

Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)
Matter of Rivera v DiNapoli, 2010 NY Slip Op 07852, Decided on November 4, 2010, Appellate Division, Third Department

Although typically an applicant for accidental disability retirement benefits or performance of duty disability benefits has the burden of proof with respect to showing that his or her disability resulted from the performance of his or duties, such is not always the case.

For example, the Retirement and Social Security Law §507-b(c) sets out a rebuttable presumption that where an individual has "successfully passed a physical examination on entry into service as a correction officer" that did not reveal evidence of heart disease and later becomes disabled as the result of a heart condition sustained during employment, it is presumed that the disability was "incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence."

Juan C. Rivera’s had successfully passed his physical examination when he began his employment as a correction officer. He subsequently suffered a myocardial infarction after falling ill while at work.

When it was determined that he could not return to work because of his resulting medical condition, Rivera applied for performance of duty disability retirement benefits.

The New York State and Local Retirement System [ERS], however, denied his application, concluding that although Rivera was permanently incapacitated, his disability "was not sustained as a result of the performance or discharge of his . . . duties."

Ultimately the Comptroller sustained the ERS’s denial of his application for benefits and Rivera filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Comptroller’s determination.

Under the circumstances, said the Appellate Division, ERS had the obligation to rebut the statutory presumption that Rivera's disability occurred as a result of his performance and discharge of his duties as a correction officer.

The Appellate Division concluded that ERS had rebutted the presumption that Rivera’s disability was related to his employment as a correction officer by presenting evidence of risk factors coupled with expert testimony that excludes an applicant's employment as a causative factor" and sustained the Comptroller’s decision.

The court said that considering the record as a whole, it found that ERS had “effectively rebutted” the presumption set out in RSSL §507-b(c) and thus Rivera’s application for benefits was properly denied.

The record indicated that ERS had relied on the opinion of a cardiologist who, after examining Rivera, concluded that while work-related stress "can aggravate the symptoms of coronary artery disease," Rivera's coronary artery disease "was not related to his employment as a correction officer." The cardiologist made reference to the fact that Rivera suffered from a variety of risk factors commonly associated with coronary heart disease, including obesity and hypertension.

The Appellate Division said that it had previously held "the [statutory] presumption is effectively rebutted when evidence of risk factors is coupled with expert testimony that excludes an applicant's employment as a causative factor," citing Bryant v Hevesi, 41 AD3d at 932.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07852.htm
NYPPL

School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums

School district ordered to reimburse Medicare-eligible retirees enrolled in Medicare the cost of Medicare premiums
Matter of Bryant v Board of Educ., Chenango Forks Cent. School Dist., Supreme Court, Broome County, 2010 NY Slip Op 20360, Decided on September 3, 2010, Supreme Court, Broome County, Judge Philip R. Rumsey

The Chenango Forks Central School District discontinued reimbursing its Medicare-eligible retirees and their dependents participating in its health insurance plan the premiums they were required to pay for participating in Medicare.

The District’s Health Insurance Plan was underwritten by “Blue Cross/Blue Shield” [Plan] that did not require that eligible individuals enroll in Medicare. However, the Plan would not cover services that would be provided to a Medicare recipient by Medicare even if an eligible individual or his or her covered dependent failed to enroll in Part B.*

Theodora Q. Bryant and a number of other school district retirees or the survivors of such retirees brought an Article 78 action in an effort to annul the School District’s failure to reimburse them for the Medicare premiums that were required to pay for their Medicare coverage. Bryant contended that the District’s action violated the statutory moratorium against reducing the health insurance benefits of school district retirees, or the contributions made to obtain such benefits, in the absence of a similar decrease in benefits or contributions for active employees.**

All petitioners are 65 years of age, or older, and are eligible to receive Medicare benefits, including Part B, which provides coverage for physician and outpatient services. A monthly premium for Part B coverage is deducted from the Social Security benefits payable to an enrolled individual. In 1987 and 1988, in accordance with a collective bargaining agreement, respondent provided health insurance to teachers and eligible retirees through NYSHIP, New York’s health insurance plan for State officers and employees and the officers and employees of political subdivisions of the State electing to become “participating employers.”

NYSHIP required Medicare-eligible individuals to enroll in Medicare as NYSHIP but reimburse the Medicare premiums that they were required to pay in accordance with the provisions of Civil Service Law §167-a.

In 1988, the collective bargaining agreement between the District and the Chenango Forks Teachers Association replaced NYSHIP with a Blue Cross/Blue Shield Plan (Plan), which does not require that eligible individuals enroll in Medicare. However the Plan did not provide benefits services that would be provided to a Medicare recipient in the event a Medicare-eligible participant failed to enroll in Medicare. Although the new collective bargaining agreement was silent with respect to the District reimbursing Medicare premiums to the Medicare-eligible participants, the District reimbursed such retirees for their Medicare premiums continuously since at least 1980.

The District discontinued making such reimbursements effective July 1, 2003.

Bryant, however, contended that the Moratorium precluded any diminution in health insurance benefits provided to retirees or their dependents, or contributions made toward the payment of retiree health benefits, "unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees, [emphasis Judge Rumsey's]. Judge Rumsey agreed and, annulling the District’s discontinuing it practice of reimbursing Medicare-eligible retirees their Medicare premiums and directed it to pay Bryant and her co-litigants “the amounts of such premiums that would have been so reimbursed, in the absence of the challenged determination.”

* The State’s NYSHIP health insurance plan incorporates a similar limitation in that its health insurance plan does not pay for those services that would be otherwise paid by Medicare on behalf of a Medicare-eligible individual thereby requiring such an individual and his or her dependents to enroll in Medicare and pay the premiums required for such Medicare coverages in order to have such coverages.

** Initially enacted in 2003 (see Chapter 48 of the Laws of 2003), the prohibition was periodically extended and made permanent in 2009 [Chapter 504, Laws of 2009, §14(b)].

The Byrant decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20360.htm

For additional information concerning the issues concerning reimbursing Medicare-eligible retirees for their Medicare premiums, please go to:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html
.

Workers’ compensation leave pursuant to Civil Service Law Section 71

Workers’ compensation leave pursuant to Civil Service Law Section 71
Bryant v City of New York, App. Div., 3rd Dept, 252 A.D.2d 777, Motion for leave to appeal denied, 92 N.Y.2d 813

Section 71 of the Civil Service Law, commonly referred to as “workers’ compensation leave,” requires a public employer to give an employee who is injured on the job and as a result is unable to perform his or her duties a leave of absence for at least one year unless he or she is permanently disabled. The standard applied: the employee’s disability must result from an occupational injury or disease as defined in the Workers’ Compensation Law [WCL].

Many Taylor Law agreements provided for workers’ compensation leave, incorporating by reference the provisions of Section 71 of the Civil Service Law. However, not every injury or disease suffered at work that prevents an individual from performing the duties of the position is an “occupational injury or disease” within the meaning of WCL. As the Court of Appeals held in Mack v Rockland County, 71 NY2d 1008, for the purposes of determining eligibility for workers’ compensation benefits, “an occupational disease derives from the very nature of the employment, not a specific condition peculiar to the employee’s place of work.”

The Bryant case illustrates the fact that not every disease or injury arising in the work place is an occupational injury or disease for the purposes of receiving workers’ compensation benefits and thus such a claim does not automatically trigger eligibility for workers’ compensation leave.

Meridie Bryant, a word processor employed by the City of New York, applied for workers’ compensation benefits claiming that neck, shoulder and back ailments she suffered were caused by the physical layout of her work site and the chair in which she sat while at work. The Workers’ Compensation Board rejected her application on the grounds that she had not suffered an occupational injury or disease within the meaning of the Workers’ Compensation Law.

Byrant’s appeal from the Board’s ruling was rejected by the Appellate Division.

The court, citing the Court of Appeals’ decision in Mack, said that in order to be eligible for workers’ compensation benefits, the applicant “was required to demonstrate a recognizable link between the disease from which [he or] she allegedly suffers and some distinctive feature of [his or] her employment.”

The Appellate Division decided that Byrant’s condition related to her particular work area and not the “very nature of her employment.” Accordingly, the court upheld the Board’s determination rejecting Byrant’s workers’ compensation claim and dismissed her appeal.

The practical effect of this for the purposes of Section 71, however, is not as drastic as it might appear. Section 71 leave is provided as a leave without pay, although the employee may be continued on the payroll using his or her leave credits in order to continue to be paid.

If the individual viewed as being on workers’ compensation leave by the employer is later found not to have suffered an occupational injury or disease as was the situation in Bryant’s case, all that need be done is to amend the employee’s personnel record to show that he or she is on Section 72, rather than Section 71 leave.

Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in WCL. Again employees are entitled to such a leave of absence without pay as a matter of law. As is the case in a Section 71 situation, “an employee on such leave of absence shall be entitled to draw all accumulated, unused sick leave, vacation, overtime and other time allowances standing to his [or her] credit” while on such leave.

There is, however, one significant difference between Section 71 leave and Section 72 leave. The one-year leave period allowed under Section 71 is determined on the basis of the individual’s cumulative absence while the minimum leave period under Section 72 is based on the employee’s consecutive absence for one year.

In other words, under Section 72, the employee may be terminated pursuant to Section 73 of the Civil Service Law if he or she has been absent from work for an uninterrupted period of at least one year. On the other hand, an employee absent on Section 71 leave may be terminate after he or she has been absent for a cumulative total of at least one year, even if such absences are intermittent whereby the employee returns to work and then goes on Section 71 leave again because of the same injury or disease.

It should be remembered that under both Section 71 and Section 72, separating an employee from service after the employee has been absent for the minimum period mandated for such leave is discretionary and the appointing authority is not required to terminate the employee.

Failure to serve the proper party a fatal procedural error

Failure to serve the proper party a fatal procedural error
Appeal of Stephanie Baker from action of the Board of Education of the City School District of the City of Elmira, Decisions of the Commissioner of Education #15,696

Stephanie Baker, a probationary teacher, appealed the termination of her probationary appointment and denial of tenure by the Board of Education of the City School District of the City of Elmira.

The Commissioner dismissed her appeal without addressing its merits, noting that there was a “lack of proper service on the board.”

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district must made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).

Baker’s affidavit of service stated only that the notice of petition and petition were served on “Valerie–Secretary of Dr. Bryant.” The Commissioner said that the “Valerie” mentioned is Valerie Costiglia, Executive Secretary to the superintendent.

As Ms. Costiglia is not the district clerk, a member of the board, or the superintendent of schools, nor has she or her position as Executive Secretary been designated by the board as authorized to accept service of process within the meaning of 8 NYCRR §275.8, the Commissioner ruled that “When there is no proof that an individual is authorized to accept service on behalf of the school board or the superintendent, service on that individual is improper and the appeal must be dismissed.”

The full text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2008/01/failure-to-serve-board-of-education.html