Commissioner of Education does not have jurisdiction to resolve FOIL or Title IX appeals

Commissioner of Education does not have jurisdiction to resolve FOIL or Title IX appeals
Application of Gary Berman to remove a member of the Boards of Education of the Valley Stream Central High School District and the Valley Stream Union Free District No. 13., Decisions of the Commissioner No. 15,537

Gary Berman asked the Commissioner of Education to remove Dr. Frank Chiachiere from his positions as president and member of the Board of Education of the Valley Stream Central High School District and as a member of the Board of Education of the Valley Stream Union Free School District No. 13. Berman, in support of his request, alleged that that Dr. Chiachiere ignored, and has permitted district officers to ignore, the requirements of the State Freedom of Information Law (Public Officers Law §§84-90) (usually referred to as “FOIL”) and Title IX of the Education Amendments of 1972 (see 20 USC §1681 et seq.).

The Commissioner said that Berman’s complaints involving alleged violations of FOIL requests in January 2006, must be dismissed because §89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York. Accordingly, alleged FOIL violations may not be adjudicated in an appeal to the Commissioner.

Similarly, the Commissioner said that he did not have jurisdiction to adjudicate Title IX claims.

However, the Commissioner said that there was one additional administrative matter to consider in connection with Berman’s appeal -- Dr. Chiachiere’s request that the Commissioner grant him a certificate of good faith pursuant to Education Law §3811(1).

Granting such a certificate would allow the school board to indemnify Dr. Chiachiere for legal fees and expenses he incurred in defending a proceeding arising out of the exercise of his powers or performance of his duties as a member and, or, president of the board.

The Commissioner said that “[i]t is appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith. Finding no evidence of bad faith on the part of Dr. Chiachiere in record before him, the Commission ruled that Dr. Chiachiere was entitled to receive a certificate of good faith.

Discontinuing General Municipal Law Section 207-c disability benefits

Discontinuing General Municipal Law Section 207-c disability benefits
Gamma v Bloom, 274 AD2d 14

In Gamma, the Appellate Division concluded that an agreement negotiated pursuant to the Taylor Law can set out the controlling procedures for resolving disputes concerning Section 207-c benefits, including resolving any dispute concerning light duty assignments and the continuation of such benefits through arbitration.

City of Newburgh police officer Stephen J. Gamma suffered a line-of-duty back injury in June 1996. Newburgh approved his claim for disability benefits pursuant to General Municipal Law Section 207-c.

A year later Gamma was examined by a Newburgh police surgeon and found fit to perform light duty. Gamma reported to his light duty assignment as directed but he left work before the completion of his first shift, complaining of pain and fatigue.

When Gamma, contending that he was still disabled, failed to return to work following his initial reporting for light duty, Newburgh terminated his Section 207-c effective June 21, 1997. The City placed Gamma on sick leave and his absence charged to his leave accruals.

Effective October 22, 1997, Gamma’s Section 207-c benefits were restored to him. Gamma, however, sued, contending that he was entitled to benefits for the period June 21, 1997, through and including October 21, 1997.

Gamma argued that Newburgh improperly discontinued his Section 207-c benefits in violation of due process because it did not give him any pre-termination due process hearing. A New York Supreme Court judge directed Newburgh to (1) restore his Section 207-c benefits and, (2) recredit Gamma with any accumulated sick leave credits that Gamma had used to remain on the payroll.

Newburgh challenged the court’s ruling, claiming that Gamma had failed to exhaust his administrative remedies because the collective bargaining agreement between the PBA and Newburgh mandated arbitration of any dispute over continuing Section 207-c benefits.

The City argued that the issues of Gamma’s qualification for light duty, the restoration of his sick leave credits and the reinstatement of his Section 207-c benefits should have been submitted to arbitration.

The PBA, on the other hand, asked the Appellate Division to affirm the lower court’s ruling, contending that Gamma could bring his Article 78 action because the collective bargaining agreement merely preserved Gamma’s rights under the statute and that he had the option of proceeding by way of arbitration or judicial review.

The Appellate Division said no, holding that Newburgh was correct -- arbitration was the only means available to Gamma if he wished to contest Newburgh’s decision.

The court declined to consider the merits of the issue, holding that the arbitrator had to resolve those issues as mandated by the parties’ collective bargaining agreement.

The relevant contract provision provides that [i]f the [Union] and the Chief of Police fail to agree on an on-the-job injury or continuation of, then both sides agree to send the issue to grievance arbitration.

Accordingly, said the Appellate Division, whether Gamma remained disabled within the meaning of Section 207-c, and whether the collective bargaining agreement required arbitration prior to the termination of benefits, are issues for the arbitrator to resolve.

The court also indicated that disability benefits payable to police officers pursuant to Section 207-c, once awarded, are a property interest that may not be terminated without procedural due process under the Fourteenth Amendment.

The Court of Appeals in Uniform Firefighters of Cohoes Local 2562, v City of Cohoes, 94 NY2d 686, addressed this issue, clarifying the requirements of due process in terminating such benefits under the procedures set forth under the statute, which include the ability to seek judicial review pursuant to CPLR article 78.

This, however, said the Appellate Division, did not mean that a union and an employer could not agree to follow different procedures in resolving disputes concerning Section 207-c matters, including the termination of Section 207-c disability benefits.

Finding that the collective bargaining agreement did not provide Gamma with the option of seeking arbitration or, in the alternative, judicial review, the court held that prior to the exhaustion of the contractual remedy of arbitration, judicial relief pursuant to CPLR article 78 is not warranted.

The court decided that the questions raised by Gamma must be submitted to arbitration as that was the exclusive remedy available to him under the collective bargaining agreement.

In another case involving essentially the same parties, Gamma v Ferrara, 274 AD2d 479, decided on the same day, the Appellate Division, Second Department, addressed the issue of the reinstatement of the payment of Section 207-c benefits to Gamma pending receipt of an arbitration award.

This appeal concerned Newburgh’s petition pursuant to Article 75 of the Civil Practice Law and Rules to compel arbitration of Gamma’s Section 207-c claims.

The court said:

... because the continuation of Gamma’s General Municipal Law Section 207-c benefits during the pendency of the arbitration cannot be sustained as provisional relief granted pursuant to CPLR 7502(c), in that the failure to grant such relief will not render any subsequent arbitration award in Gamma’s favor ineffectual, the grant of such relief must be reversed. If Gamma prevails after arbitration, he will be entitled to reimbursement of all benefits found to have been improperly denied.

This means that if Newburgh elects to discontinue its payment of Section 207-c benefits to Gamma pending receipt of the arbitrator’s determination, Gamma must charge his absences to his leave accruals or be placed on leave without pay.

The same rationale would probably be applied in cases involving disputes arising under Section 207-a of the General Municipal Law. Section 207-c applies to law enforcement personnel injured in the line of duty while Section 207-a covers firefighters injured in the line of duty.
______________

General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. Click on http://section207.blogspot.com/

Certain New York State Department of Civil Service Rules and President's Regulations scheduled to be reviewed

Certain New York State Department of Civil Service Rules and President's Regulations scheduled to be reviewed
Source: State Register, January 5, 2011

The NYS Register dated January 5, 2011 reports that “Pursuant to section 207 of the State Administrative Procedure Act (SAPA), notice is hereby provided of rules adopted by the New York State Civil Service Commission and President of the Commission during calendar years 2001 and 2006.”

Below is a brief description of each rule to be reviewed, the statutory authority underlying its promulgation, and a statement setting forth the justification for the ongoing need for each rule and its proposed continuation without further modification.

Rules adopted by the New York State Civil Service Commission during the Calendar Year 2001

Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service) Statutory Authority: Civil Service Law section 64(4)

Description of the Rule: The rule repealed sections 4.11 and 4.12 of the Rules for the Classified Service and added a new section 4.11 to such Rules.

The rule describes the rights and limitations of ‘‘contingent permanent’’ appointments to positions in the competitive, non-competitive and labor classes, which are defined as permanent appointments to positions that have been temporarily left vacant due to a leave of absence of the permanent incumbent of the position.

Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.

Amendments to Chapter II of Title 4 of NYCRR (Attendance Rules for Employees in New York State Departments and Institutions) Statutory Authority: Civil Service Law section 6

Description of the Rules: The rules amended sections 28-1.3(b), 28-2.1(c) and 28-3.7(a) and (c) of the Attendance Rules for managerial/confidential employees in New York State Departments and Institutions.

Sections 28-1.3(b) and 28-2.1(c) were amended upon the request of the Governor's Office of Employee Relations (GOER) to provide that qualified managerial/confidential employees may utilize up to 200 days of accrued sick leave credits to pay for health insurance premiums during retirement.

The amendments to sections 28-3.7(a) and (c) provide that the rules governing donations of leave credits for managerial/confidential employees shall be consistent with such leave donation policies granted represented employees through collective bargaining agreements.

Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.


Rules adopted by the New York State Civil Service Commission or Regulations adopted by the President of the Civil Service Commission during the Calendar Year 2006

Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified
Service) Statutory Authority: Civil Service law section 63

Description of the Rule: The rule revised section 4.5 of the Rules for the Classified Service to provide for probationary terms for positions of University Police Officer 1 and University Police Officer 1 (Spanish Language) of not less than 52 nor more than 78 weeks.

Proposed Action: The rule has functioned consistent with the purposes underlying its adoption and shall be continued without modification.

Amendment to Chapter V of the Title 4 of NYCRR (Regulations of the Department of Civil Service [President's regulations]) Statutory Authority: Public Officers Law sections 87, 89

Description of the Rule: Public Officers Law Article 6 (Freedom of Information Law; ‘‘FOIL’’) requires subject agencies to adopt regulations regarding public access to records.

The regulation amended Part 80 of the President's Regulations, ‘‘Public Access to Records,’’ to conform the language of such Part with provisions of FOIL by replacing references to ‘‘applications’’ for records with ‘‘requests ‘‘for records.

In accordance with FOIL, the regulation specifies how requests shall be acknowledged and addresses when the Department is unable to grant or deny a request for records within the initial twenty day period from when the request is received.

Proposed Action: The rule is required by the Public Officers Law and shall be continued without modification.

Various amendments to the Appendices to the Rules for the Classified Service

Appendix 1 (Exempt Class)

Appendix 2 (Non-competitive Class)

Statutory Authority:

Appendix 1: Civil Service Law, sections 6 and 41; 4 NYCRR 2.1

Appendix 2: Civil Service Law, sections 6 and 42; 4 NYCRR 2.2

N.B. Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from compliance with Executive Order No. 20 review requirements by the Governor's Office of Regulatory Reform (GORR), upon a finding by GORR that such review lacked substantial benefit.

Based upon this determination by GORR, and pursuant to subdivision (5) of SAPA section 207, a full recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted by the Civil Service Commission during calendar years and 2001 and 2006 is hereby omitted.

Public Comments:

There is a forty-five (45) day public comment period following publication of this notice in the State Register on January 5, 2011.

Requests for information and public comments should be addressed to Judith I. Ratner, Esq., Deputy Commissioner and Counsel, Department of Civil Service, Alfred E. Smith Bldg., Albany, NY, 12239, (518) 473-2624, or by e-mail to judith.ratner@cs.state.ny.us

Equal pay for equal work

Equal pay for equal work
Bertoldi v State of New York, 275 AD2d 227; Motion to appeal denied, 96 NY2d 706; Motion to appeal on constitutional grounds denied, 95 NY2d 958

Section 115 of the Civil Service Law provides that State employees are entitled to equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of equality of work demonstrated in service.

While Section 115 applies only to employees of the State of New York, in Evans v Newman, 71 AD2d 240, the Appellate Division ruled that nonjudicial court employees were to be treated consistent with the provisions of Civil Service Law Article 8, Classification and Compensation of State Employees.

The Appellate Division, First Department’s interpretation of Section 115 proved critical in resolving Bertoldi’s claim that certain trial court clerks were entitled to back salary because their positions had been improperly allocated to a lower salary grade.

The New York State Court Clerks Association and other clerks employed by the State’s Unified Court System complained that appellate court level clerk positions had been allocated to higher salary grades than trial court clerk positions. The Classification Review Board found that trial clerks and appellate clerks were essentially performing the same type of work with equivalent difficulty, and that they were therefore entitled to equal pay.

The trial clerks then sued to recover the salary differential for the approximately 14 years the appellate clerks received a higher salary. The Appellate Division rejected the trial clerks’ theory that Section 115 mandated that they be awarded such retroactive pay. The court said that:

1. The principle of equal pay for equal work need not be applied in all cases under any and all circumstances; and

2. Section 115 enunciates a policy and confers no jurisdiction on a court to enforce such policy.

The court characterized the discrepancy in pay as due to oversight or error and therefore insufficient to establish that [the trial clerks] were not provided equal pay for equal work.

Also rejected was the trial clerks’ contention that they were denied equal protection under the New York State and United States Constitutions as a result of the allocation of the two titles to different salary grades.

The court’s rationale: the decision not to award the trial clerk’s the pay differential had a rational relationship to a legitimate state interest in view of the high costs involved and the limited ability of the court system to absorb such costs within its existing budget.

Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits

Exposure to possibly suffering a permanent disability if continued in the job not persuasive for the purposes receiving disability retirement benefits
Greenway v NYS Employees’ Retirement System, 274 AD2d 662; Motion to appeal dismissed as untimely, 95 NY2d 917

Corrections Officer Gary Greenway’s appeal of a determination by the New York State Employees’ Retirement System rejecting his application for performance of duty disability retirement appeared to present a familiar scenario: the System’s physician concluded that Greenway was not permanently disabled; Greenway’s physician came to the opposite conclusion.

However, there was a significant difference between the two opinions. The System’s medical expert’s opinion was based on his physical examination of Greenway and his review of Greenway’s medical records and diagnostic test results. In contrast, although Greenway’s medical expert concluded that he was permanently incapacitated, the court pointed out that his opinion was not based upon Greenway’s present condition but upon the possibility that Greenway might sustain a serious permanent injury in the event that he was assaulted by an inmate in the future.

The court said that in order to demonstrate his entitlement to accidental and performance of duty disability retirement benefits, Greenway was required to demonstrate that he currently was permanently incapacitated from the performance of his duties. This he failed to do considering the statement of his medical expert that he could be permanently disabled as the result of an assault by an inmate in the future.

Given the nature of conflicting medical opinions offered in this case, the Appellate Division concluded that it was within the Comptroller’s discretion to weigh the expert testimony in the record and to accept the opinion of one medical expert as more credible than that of the other. The court then dismissed Greenway’s appeal.

Union’s lawsuit alleging a breach of the CBA held subject to a six-year statute of limitations, not a four-month period for an Article 78 action

Union’s lawsuit alleging a breach of the CBA held subject to a six-year statute of limitations, not a four-month period for an Article 78 action
Arkport Staff United v Arkport Cent. School Dist., 2010 NY Slip Op 09745, Appellate Division, Fourth Department

The Arkport Staff United claimed that members were entitled to longevity increases under Article 27 of a collective bargaining agreement between it and the Arkport Central School District.

Claiming that the union’s lawsuit was untimely, the School District asked Supreme Court to dismiss the union’s petition court in view of the four-month statute of limitations applicable to CPLR article 78 proceedings.

Supreme Court denied Arkport’s motion.

The Appellate Division sustained the Supreme Court’s determination, holding that the union’s action was subject to the six-year statute of limitations applicable to "breach of contract" actions rather than the four-month statute of limitations controlling filing an Article 78 action.

As the union’s “underlying claim” is an action on the contract – in this instance a collective bargaining agreement -- the Appellate Division said that its lawsuit was timely as it had been commenced “within six years of the alleged breach” of the agreement.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09745.htm

Arbitrator cannot add “implied contract terms” based on a past practice but, in contrast, may consider a past practice interpreting specific CBA terms

Arbitrator cannot add “implied contract terms” based on a past practice but, in contrast, may consider a past practice interpreting specific CBA terms
Matter of Monroe County Sheriff's Off. v Monroe County Deputy Sheriffs' Assn., Inc., 2010 NY Slip Op 09797, Appellate Division, Fourth Department

In a CPLR Article 75 proceeding seeking to vacate an arbitration award Supreme Court held that the arbitrator had exceeded his authority by adding an implied contract term to the collective bargaining agreement (CBA) based on the Sheriff Department’s past practice.

The Appellate Division agreed, explaining that while "[p]ast practices may be considered by an arbitrator . . . when interpreting a specific contractual provision . . .[, a]n arbitrator may not rewrite a contract by adding a new clause based upon past practices," citing Hunsinger v Minns, 197 AD2d 871.

On the other hand, said the court, it agreed with the Deputy Sheriff’s Association that Supreme Court was incorrect in concluding that the arbitrator exceeded his authority by determining that Sheriff’s Office’s denial of paid release time requests submitted by members of Association t to prepare for upcoming contract negotiations with the Office was unreasonable.

The court noted that the CBA provided that requests for "[r]elease time for union business shall not be unreasonably denied" by the Sheriff’s Office.

Accordingly, it ruled that the arbitrator determination that that the denial of the Association’s requests “to keep overtime costs down” was unreasonable absent evidence of some "financial exigency."

In addition, the Appellate Division said that it deemed that the arbitrator's reasonableness determination was not irrational inasmuch as "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09797.htm

Freezing the payment of salary increments does not freeze the crediting of service for the purpose of determining an employee's increment step

Freezing the payment of salary increments does not freeze the crediting of service for the purpose of determining an employee's increment step
Matter of Meegan v Brown, 63 AD3d 1673

In response to a State Comptroller's report concerning a fiscal crisis in the City of Buffalo, the State Legislature passed the Buffalo Fiscal Stability Authority Act on July 3, 2003. The Act, Public Authorities Law §3850 et seq, created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.

On April 21, 2004, the BFSA imposed a wage freeze on all employees of the City. The BFSA subsequently lifted the wage freeze effective July 1, 2007.

One of the issues considered in this case was the impact of the wage freeze on the eligibility of employees to “earn increments” under their respective “salary plan” as set out in various collective bargaining agreements. These agreements between the City and the unions representing various negotiating units contain salary plans or schedules for career advancement or promotion. Essentially the plans provided that as an employee acquires service credit or years of employment, he or she is to receive additional salary within his or her salary grade – i.e., a salary increment -- as a result of their being placed in a higher step in the salary grade.

Upon the lifting of the wage freeze, the employees were told would be entitled only to a one "step" increase in salary, in effect providing a “one-step” advancement in their salary grade from the step that they were at when the salary freeze was imposed in 2004.

In contrast, the unions contended that, although the employees could not be paid salary grade increases to which they otherwise would have been entitled during the wage freeze period, they nevertheless were entitled upon the lifting of the wage freeze to be moved ahead four salary "steps" in their salary grade rather then provided with a "one-step" increase. In other words, the employees should be “credited” for their service notwithstanding the fact that they had not actually received salary increments during the period when the salary plan had been frozen by the BFSA.

In the litigation that followed, Supreme Court concluded that the employees were entitled to their previously negotiated “wage increase benefits” – i.e., the negotiated step advancements -- immediately, thereby allowing them to be placed at the step that they would have otherwise enjoyed but for the “wage freeze imposed” by the BFSA.

The Appellate Division agreed, holding that under the plain meaning of the relevant provisions of Public Authorities Law §3858, the negotiated provision providing for the employees' ongoing advancement on the salary schedules as a result of continued accrual of service credit was not cancelled, annulled or eliminated.

Rather, said the court, “the City's obligation to make payment of the type of wage increases in question was suspended until the wage freeze was terminated” [emphasis supplied by the court].
The Appellate Division explained that although employee wage increases were frozen during the period of fiscal crisis, “The City cannot ignore the fact that the employees have continued to accrue service credit and have climbed the ladder of salary and career increments set forth in the collective bargaining agreements.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_04805.htm

Free speech does not protect employee making a racist statement

Free speech does not protect employee making a racist statementPereira v Commissioner of Social Services (SJC-08218), the Supreme Judicial Court, Mass., 432 Mass. 251

The First Amendment’s guarantee of free speech did not shield a twelve-year public employee from dismissal for telling a racist joke at a political gathering.

Linda M. Pereira, a social worker, was terminated after making remarks that she, herself, described as a stupid, racist, and unthinking joke.

While citing a line of cases that included Pickering v Board of Education, 31 U.S. 563, and Connick v Meyers, 461 U.S. 138, 1983, the Massachusetts high court said that although a public employee’s speech may be entitled to constitutional protection if the employee speaks out on a matter of public concern, and his or her interests as a citizen are not outweighed by the state’s interest in performing a public service, Pereira’s speech was not so protected.

Why not? Because, the court explained, while Pereira spoke at a political event, she conceded that her off-the-cuff ‘joke’ was not intended to convey any message and therefore did not address any matter of public concern. Further, the court noted that although the political affair was not a public gathering, Pereira’s remark was widely reported in the press.

Executive Order #3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity

Executive Order 8-3 requires certain State government executives to participate in "ethics training" conducted by the Commission on Public Integrity

Among his first acts as Governor, Governor Andrew M. Cuomo signed an Executive Order, Executive Order 8-3, requiring all Executive Chamber staff and other top state officials to participate in ethics training offered by the Commission on Public Integrity. Individuals covered by EO 8-3 includes agency commissioners and their respective counsels and ethics officers.

The training, which will focus on the rules about serving in government. will be available beginning no later than January 31st and must be completed within sixty days.

"Honor and integrity will be a hallmark of this administration, and I am confident that we have assembled a team that reflects that commitment," Governor Cuomo said. "Nonetheless, it is imperative that Chamber staff and other high ranking government officials be versed in the ethics rules and regulations that apply to them. Top government employees should have no questions, no gray areas, and no possibility of confusion regarding what is proper and what is not."

The Executive Order also requires officials to participate in this ethics training every two years.

The text of the Executive Order follows:


EXECUTIVE ORDER -- No. 3 ETHICS TRAINING

WHEREAS, all New York State taxpayers and residents and all those who depend on New York State government services have the right to expect that government programs will be administered and managed with the highest degree of professionalism;

WHEREAS, it is the obligation of every New York State officer and employee to pursue a course of conduct that will not engender public concern as to whether the individual is engaged in acts that may violate his or her public trust;

WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies are subject to certain ethical statutes and rules, including but not limited to the New York State Code of Ethics, statutory restrictions on business and professional activities and opinions issued by the New York State Commission on Public Integrity;

WHEREAS, officers and employees of the Executive Chamber, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies play an important role in ensuring ethics compliance by all State officers and employees;

WHEREAS, New York State has a responsibility to ensure that its officers and employees are versed in the ethical statutes and rules that apply to them; and

WHEREAS, it is appropriate to take steps to ensure that employees and officers maintain the highest ethical and professional standards;

NOW, THEREFORE, I, Andrew M. Cuomo, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and the laws of the State of New York, do hereby order as follows:

A. Definitions

1. “Agency” shall mean any state agency, department, office, board, bureau, division, committee, council or office.

2. “Covered Employees” shall mean all officers and employees working in the Executive Chamber in the office of the Governor, commissioners of New York State agencies, counsel to New York State agencies and ethics officers of New York State agencies.

3. “Officers and employees” shall have the meaning given to “state officer or employee” in Section 73 of the Public Officers Law.

B. Ethics Training

1. Every Covered Employee shall participate in an ethics training within sixty days of when such training is prepared and available. The ethics training program will be prepared and available no later than January 31, 2011.

2. New Covered Employees shall participate in such ethics training within sixty days of the later of commencing their employment or when such training is prepared and available.

3. Such training shall include a discussion of the provisions of Sections 73, 73-A, 74 and 78 of the Public Officers Law and Sections 75-b and 107 of the Civil Service Law.

4. Every Covered Employee shall participate in an ethics training every two years following his or her initial training session pursuant to this order.

5. Covered Employees shall submit a signed statement certifying their participation in each training session pursuant to this order, which statements shall be placed in their personnel files.

6. The Executive Chamber shall coordinate with the ethics officers of state agencies, and with the Commission on Public Integrity, to establish regular training sessions sufficient to allow affected individuals to comply with this order.

C. Penalties

Any violation of this order may result in dismissal or other appropriate sanction as determined by the appointing officer of the individual committing such violation.