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

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. 

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