ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

November 26, 2012

Releasing medical records


Releasing medical records

The Port Authority of New York and New Jersey filed a motion to mandate that the plaintiff authorize the release of all of his medical records preceding the accident in which he alleged he was injured.

Supreme Court directed that the plaintiff provide authorizations to release his medical records but limited the release of his medical records to the five years preceding the accident.

The Appellate Division affirmed the lower court’s order, holding that the Authority “failed to demonstrate that all plaintiff's pre-accident medical records were material and necessary in the defense of this action,” explaining that the plaintiff did not allege that the accident “aggravated or exacerbated a preexisting injury or condition.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07898.htm

Challenging the employee's dismissal during his or her probationary period

Challenging the employee's dismissal during his or her probationary period

Supreme Court dismissed a former probationary employee’s petition seeking to annul his termination from his position, the revocation of his New York City Department of Education [DOE] teaching certification, his placement of his name on the DOE's Ineligible/Inquiry list,* and his overall unsatisfactory rating for the 2010-2011 school year.

The Appellate Division sustained the lower court’s actions, explaining that the probationer had failed to establish that his termination, the revocation of his teaching certificate and his placement on the DOE's ineligible/inquiry list, was done in bad faith.

Addressing the individual’s allegation of bad faith, the court noted the record contained evidence of good faith on DOE’s part. For example, said the Appellate Division, the school principal’s "intention was not to terminate [the] petitioner's employment but to extend his probation for an additional year."

In addition, said the court, the record contained evidence of deficiencies in individual's performance during the probationary period.

As to the individual’s challenge to the revocation of his teaching certification and the placement of his name on the ineligible/inquiry list, the Appellate Division ruled that those challenges were not untimely but that Supreme Court had correctly sustained those administrative determinations.

Finally the Appellate Division pointed out that the lower court had correctly dismissed the individual’s challenge to his “U-rating” as it was premature because he had not yet exhausted his administrative remedies.

*Placing an individual’s name on the "Ineligible/Inquiry" list maintained by the New York Department of Education bars that individual from employment at any DOE school while his or her name remains on such list [McPherson v. New York City Dep't of Education, 457 F.3d 211].

The decision is posted on the Internet at:


November 21, 2012

Reassignment of “exclusive duties” being performed by negotiating unit employees to non-unit employees

Reassignment of “exclusive duties” being performed by negotiating unit employees to non-unit employees
Stony Point Police Benevolent Association v Town of Stony Point, PERB Case #U-29118

Attorney Brian D. Nugent* advised NYPPL of a November 14, 2012 ruling by the Public Employment Relations Board [PERB] that considered “exclusivity of unit work” in the context of the employer's reassigning certain duties and functions being performed by employees in a negotiating unit to non-unit employees.

The Stony Point Police Benevolent Association [PBA] filed an improper practice charge with PERB contending that the Town of Stony Point violated §209-a.1(d) of the Civil Service Law [The Taylor Law] when it unilaterally reassigned certain security duties that had been performed exclusively by employees in the  negotiating unit represented by the PBA to non-unit employees.

PERB agreed with the Town that the parties' past practice established a discernible boundary between the work assignment at issue: the reassignment of certain security duties being performed by PBA unit members at the Town's Justice Court to non-unit part-time personnel who were not sworn officers.**

PERB, noting that the duties at issue were transferred from sworn police officers to civilian employees, ruled that under its precedents “it is well-settled that an employer’s civilianization of uniformed services constitutes a de facto change in job qualifications.”

PERB then considered the "balancing test" set out in its decision in Niagara Frontier Transportation Authority, 18 PERB 3083.

Finding that there had been a significant change in the "job qualifications" with respect to the "at-issue" duties, PERB said that the only loss suffered by the PBA and its unit members was the “loss of at-issue work” in contrast to a loss in the number of positions in the unit or a loss of unit member benefits.

PERB's conclusion: the Town had not violated §209-a.1(d) of the Taylor Law, explaining that the Town’s interests associated with the civilianization of the at-issue work outweigh the interests of the unit employees.

* Brian D. Nugent, Esq., Feerick Lynch MacCartney Pllc, http://www.flmpllc.com, represented the Town in this proceeding. 

** See Criminal Procedures Law §1.20.34

November 20, 2012

No legal obligation to initiate disciplinary charges against an individual

No legal obligation to initiate disciplinary charges against an individual
Decisions of the Commissioner of Education, Decision #16,427

A tenured high school teacher alleged that the high school superintendent neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against the principal of the high school at which he was serving.

The teacher alleged that he reported the school’s principal for alleged violations including failure to identify at-risk students as required by Title I of the federal Elementary and Secondary Education Act (20 USC §6301, et seq.) and scoring irregularities on New York State Regents mathematics examinations.

Following his reporting these alleged violations, the teacher claimed that the principal retaliated against him by [1] placing several disciplinary letters in his personnel file, [2] his being ordered to undergo medical examination and [3] his removal from the school to a “temporary assignment center.”*

The teacher asked the Commissioner to remove the high school superintendent and the Chancellor of the New York City Department of Education from their respective positions because they failed to take disciplinary action against the principal.

After considering a number of procedural issued, the Commissioner said that the teacher’s application “must be dismissed on the merits.”

The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

The teacher alleged that the high school superintendent “neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against [the principal].” However, said the Commissioner, the teacher s failed to meet his burden of proof as he did not establish how the superintendent’s failure to file an Education Law §3020-a charge against the principal, at his request, constituted a willful violation or neglect of duty under the Education Law, requiring her removal under Education Law §306 nor did the teacher show that the superintendent “was under a legal obligation to initiate Education Law §3020-a charges against [the principal].”

The Commissioner ruled that “On the record before me, I find that [the teacher] has failed to demonstrate that [the high school superintendent] has willfully neglected her duties [and] failed to establish any basis for [the superintendent’s] removal” and denied the teacher’s application.

* The teacher was later restored to service at the school..

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume52/d16427.html

November 19, 2012

A school district may sue its board members, employees, former board members and former employees for alleged mismanagement or misconduct


A school district may sue its board members, former board members, employees, and former employees for alleged mismanagement or misconduct
Roslyn Union Free Sch. Dist. v Barkan, 2012 NY Slip Op 07652, Appellate Division, Second Department

The Roslyn Union Free School District initiated a lawsuit  against Michael Barkan, Karen Bodner, William Costigan, Mary Ann Combs Ronna Niederman, Ellen Siegel, and Patricia Schissel to recover damages for alleged breaches of fiduciary duty and negligence.

Supreme Court denied their respective motions to dismiss the complaints insofar as asserted against each of them and they appealed the Supreme Court’s ruling to the Appellate Division.

The Appellate Division sustained the lower court's decision, rejecting their argument that, in the absence of specific enabling legislation, a school district may not commence an action against current or former members of its board of education.

Citing a decision by the Court of Appeals in a prior appeal in this action, Roslyn Union Free School Dist. v Barkan, 16 NY3d 643,the court explained that the plaintiff here – the Roslyn Union Free School District -- is a "corporation" and a corporation has the right to sue and be sued.

Accordingly, said the court, the school district has the right to prosecute an action "for injury and damages sustained by it by reason of mismanagement or misconduct in its affairs, waste of assets, or derelictions in duty by the directors, officers, agents or employees of the corporation."

Finding that the school district’s complaint “adequately alleges causes of action to recover damages for breach of fiduciary duty and negligence,” the Appellate Division dismissed the appeal.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07652.htm

November 18, 2012

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli



Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
For the week of November 12 - 18, 2012 [Click on the caption to access the full report]

DiNapoli: Improvements Needed At Saratoga Housing Authority

Auditors found lax spending controls at the Saratoga Housing Authority, according to an audit released Friday by State Comptroller Thomas P. DiNapoli.

DiNapoli: Schenectady’s Fiscal Condition Improving

The City of Schenectady faces an unstable financial future, but increased economic development and better long–term financial planning point to signs of progress, according to an audit issued Tuesday by State Comptroller Thomas P. DiNapoli.

DiNapoli: Dunkirk Mishandled Federal HUD Grant Funding

The City of Dunkirk spent more than $1 million from the U.S. Department of Housing and Urban Development’s (HUD) Community Development Block Grant program on unauthorized or questionable activities, according to an audit issued Tuesday by State Comptroller Thomas P. DiNapoli. The findings have been referred to HUD for further review.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli last Friday announced his office completed the following audits: 







Thoroughbred Breeding and Development Fund.

Hurricane Sandy Relief Efforts

Comptroller Thomas P. DiNapoli and volunteers from the Comptroller’s Office, along with family and friends, will deliver a semi–trailer truckload of supplies to residents of Long Beach at 1 p.m. Saturday, November 17, at the Long Beach Ice Arena as part of the Comptroller’s Office’s Hurricane Sandy relief campaign. The Comptroller and staff volunteers will unload the truck and assist the relief center with sorting and distribution of the household and cleaning supplies. The Comptroller’s Office continues to work with our partners in government to expedite the approval of all storm related contracts and expenditures.

Additional items:


November 17, 2012

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Issued during the week ending November 16, 2012 [Click on the caption to access the full report]

Department of Health, Improper Payments Related to the Medicare Buy-In Program (2010-S-76)
From March 2006 through February 2011, Medicaid made nearly 260,000 improper payments, totaling about $26.8 million, for people enrolled in the Medicare buy-in program. The improper payments included $21.1 million in Medicare premiums for people who were ineligible for the buy-in program. This included improper payments of $1.9 for 532 people who were deceased. The improper payments resulted from insufficient DOH oversight, poor local district practices, and weaknesses in certain Medicaid claims processing controls. Auditors recommended DOH increase oversight of local districts, recover inappropriate Medicare buy-in payments, and improve the Medicaid claims processing system to ensure accurate payment of medical claims for individuals eligible for the buy-in program.
 
Division of Housing and Community Renewal, Quality of Internal Control Certification (2012-S-31)
In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring State agencies and public authorities to institute a comprehensive system of internal controls over their operations. By April 30 each year, DOB requires each covered agency to certify compliance with the act. On April 26, 2011, DHCR submitted its annual Internal Control Certification and reported full compliance with all provisions of the Act. DHCR's internal control certification was submitted timely. However, auditors identified several areas where the quality of the certification and/or the actual internal control program could be improved.

Office of Mental Health, Quality of Internal Control Certification (2012-S43) See 2012-S-31 above for description of requirements
OMH's Internal Control Certification was submitted on time and generally exhibited the necessary quality. Answers to most questions were complete and responsive, and were supported by records and documents maintained by the agency. However, OMH's certification did not provide sufficient detail in describing the results of its reviews of high-risk activities.

Office of Parks, Recreation and Historic Preservation, Quality of Internal Control Certification (2012-S-49) See 2012-S-31 above for description of requirements
On June 25, 2012, Parks submitted its annual Internal Control Certification and reported full compliance with all provisions of the Act. Parks’ Internal Control Certification was submitted, 56 days after the April 30 deadline.  Parks’ certification did not provide the required level of detail, did not support some statements with sufficient documentation, and was unable to provide evidence of the communication of the Internal Control Officer designee to all staff. The office has not yet completed a program of internal control review and its internal audit function has not undergone an external quality assessment as required by professional standards.

Department of Health Overpayments for Hospital Readmissions (Follow-Up) (2012-F-11)
An initial audit report examined whether the Department of Health (DOH) overpaid hospitals when the hospitals readmitted patients they had recently discharged. The audit identified overpayments totaling nearly $163,000 from a review of a judgmental sample of claims from five hospitals. The hospitals have already refunded the overpayments to Medicaid. The audit also identified four other hospitals with questionable claims. In a follow-up report, auditors found DOH officials have made progress in correcting the problems identified in the initial report. Of the five prior audit recommendations, three have been implemented, one has been partially implemented, and one is no longer applicable.

Thoroughbred Breeding and Development Fund, Selected Operating Practices (2011-S-36)
The fund has been receiving the statutory commissions due from the tracks, OTBs, and VLT operators. However, while assessing the statutory commission rates due the fund, we found that the New York Racing Association (NYRA) had shortchanged winning bettors by approximately $7.4 million between Sept. 15, 2010 and Dec. 21, 2011. This happened because NYRA was not complying with statutory retainage rates on exotic bets. As a result of our finding, which was identified in December 2011, an investigation was conducted by the NYS Racing and Wagering Board which led to the firing of NYRA’s president/CEO and its senior vice president/general counsel.  Auditors found the fund improperly underreported statutorily limited administrative expenses and promotional expenses by $399,908 for calendar years 2009 and 2010.

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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