Newspaper reports admitted into evidence in an administrative disciplinary proceeding

Newspaper reports admitted into evidence in an administrative disciplinary proceeding
2012 NY Slip Op 07479, Appellate Division, Fourth Department

A volunteer firefighter filed an Article 78 petition challenging the Volunteer Fire Company’s decision,  to expel him from membership in the Fire Company following a hearing held pursuant to General Municipal Law §207-l.

The petitioner contended that the Fire Company had violated §160.50 of the Criminal Procedure Law, which provides for the “sealing” of certain record, when the Company admitted into evidence media reports related to the petitioner's arrests or when it presented the testimony of a police investigator who was involved in the relevant criminal investigations.

As to newspaper media reports concerning petitioner's arrests, the Appellate Division, citing New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 AD2d 546, 549, affd 66 NY2d 752, said that such newspaper reports are not "official records and papers . . . relating to [the petitioner's] arrest or prosecution" within the meaning of CPL §160.50(1)(c). Further, said the court, it is " permissible to consider the independent evidence of the conduct [of the petitioner] leading to the criminal charges."

As to the testimony of the police investigator, the court explained that the police investigator was "free to testify from memory" concerning the conduct that led to the petitioner's arrests.”

The Appellate Division then stated there was substantial evidence establishing that the petitioner had exhibited a lack of "good moral character" in violation of Article II, §2 of the Fire Company's Constitution and By-laws and had committed misconduct under General Municipal Law §209-l".

N.B. §209-l provides for the removal of volunteer officers and volunteer members of fire departments charged with, and found guilty of, misconduct or incompetence after a hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07479.htm

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law
Hernandez v Office of the Mayor of the City of New York, 2012 NY Slip Op 08067, Appellate Division, First Department

Sergio Hernandez filed an Article 78 petition seeking a court order annulling the determination of the Office of the Mayor of the City of New York denying his requests under the Freedom of Information Law (FOIL) for certain e-mails sent from or “received by any government email accounts assigned to the Office of the Mayor to or from Cathleen Black, at the time she was a nominee for the position of New York City School Chancellor” and certain other records.

Supreme Court directed the City to produce redacted copies of such e-mails, which as the Appellate Division subsequently noted, were not exempt from disclosure as inter- or intra-agency materials within the meaning of Public Officers Law §89[2][g].

The City appealed the court’s order.

The Appellate Division sustained the lower court’s ruling, explaining that Black was not an agent of the City since she had not yet been retained as Chancellor. In addition, said the court, Black was not acting simply as an outside consultant on behalf of the City, but was a private citizen with interests that may have diverged from those of the City.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08067.htm

Failure to correctly identify the court and the name of the judge signing a search warrant a fatal defect

Failure to correctly identify the court and the name of the judge signing a search warrant a fatal defect

People v Gavazzi, 2012 NY Slip Op 08054, Court of Appeals

This LawBlog’s summary of Gusler v. City of Long Beach, USCA, Docket #11-4493-cv [see http://publicpersonnellaw.blogspot.com/2012/11/the-failure-to-name-parties-appealing.html] noted that the U.S. Court of Appeals, Second Circuit, ruled that the failure to correctly name the parties appealing a federal district court’s ruling was a fatal jurisdictional defect.

In People v Gavazzi the defects challenged by Gavazzi involved the name of the jurisdiction, the name of the court and the name of the justice signing a search warrant.

The Court of Appeals, Justice Smith dissenting, held that a warrant to search Gavazzi’s residence in the Village of Greene, Chenango County, was defective as the result of the inadvertent typing of "Local Criminal Court, Town of Broome, Broome County" at the head of the warrant instead of "Local Criminal Court, Town of Greene, Chenango County." There is no municipality of Broome in either Broome County or Chenango County and the Village Justice signed the warrant without correcting the error.

Further, said the court, the Justice’s signature on a line marked "Signature of Judge or Justice” was illegible.

The Appellate Division had held that the warrant did not substantially comply with §690.45(1)* of the Criminal Procedure Law because it contained "no information from which the issuing court can be discerned" (see 84 AD3d 1427 at 1429). The Court of Appeals agreed with the Appellate Division's analysis, explaining that a search warrant must contain "[t]he name of the issuing court," again citing CPL §690.45 [1]).** Here, however, the Village Justice who signed the warrant included no designation of his court, his signature was illegible, there is no seal, and the caption referred to a nonexistent town.

In the words of the Appellate Division, "on its face the warrant appears to [have been] issued by an unidentified judge in a nonexistent court and town in a different county", concluding that the warrant did not substantially comply with CPL §690.45(1).

The bottom line: evidence sized under color of the warrant had to be suppressed.

* §690.45, in pertinent part, provides that “A search warrant must contain: 1. The name of the issuing court and, except where the search warrant has been obtained on an oral application, the subscription of the issuing judge;"

** The Court of Appeals noted that standard for adherence to the statutory requirement is "substantial — rather than literal — compliance."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08054.htm

Possession of a valid license or permit to perform the duties of the position

Possession of a valid license or permit to perform the duties of the position

Lutz v Krokoff, 2012 NY Slip Op 07938, Appellate Division, Third Department

It is well settled that employment in certain positions or occupations in New York State requires the individual to posses a valid license or its equivalent. Examples of this include teaching in a public school, operating motor vehicle on public highways, practicing law or medicine and serving as a certified public account. In the event the individual no longer possesses the required license or permit, he or she can neither lawfully perform nor be permitted to perform the duties requiring the possession of a valid permit or license.*

When it learned that a police officer’s driver's license was temporarily revoked, the police department’s chief advised the officer that possession of a valid driver's license was a minimum qualification for employment by the department as a police officers and gave him an opportunity to provide documentation demonstrating that he possessed a valid driver’s license.**

When the officer could not produce evidence that he possessed a valid driver’s license his employment was terminated “for failure to meet the minimum qualifications for his position.”

The officer then initiated an Article 78 proceeding challenging his termination as arbitrary and capricious and affected by an error of law. Supreme Court dismissed the police officer’s petition, prompting his appeal to the Appellate Division.

The police department, conceding that possession of a valid driver's license was not specifically listed as a minimum qualification for appointment to the position of a police officer, nevertheless contended that such a license was an implied requirement in view of the fact that the job description for its police officers listed, among other things, the "[a]bility to operate an automobile."

The Appellate Division was not persuaded by this argument, ruling that “summary dismissal of an employee based merely upon an inference cannot be countenanced.” In contrast, said the court, “Where summary dismissal has been upheld for failure to maintain a minimum qualification of employment, the qualification at issue has been clearly and explicitly set forth.”

Further, the court observed that the record indicated that almost one third of the police officers employed by the department performed functions other than those requiring possession of a valid driver’s license and noted that the department’s “Standard Operating Procedures” stated that a police officer shall "[p]ossess a valid New York State driver[']s license, whenever required as a condition of employment" (emphasis supplied by the court).

In the court’s view, this “conditional language” suggested that that there were police officers in the department who were not required to possess a driver's license as a necessary condition of employment.

Noting that the civil service commission having jurisdiction had promulgated a class specification for another position, firefighter, that explicitly required the possession of a valid New York State driver's license at the time of employment and throughout the duration of the individual’s employment as a firefighter, the Appellate Division concluded that the police officer’s termination without a hearing was both arbitrary and capricious and contrary to law and reversed the lower court’s ruling

* See, for example, Meliti v Nyquist, 41 NY2d 183

** In the words of the Appellate Division, citing Carr v NYS Dept. of Transportation, 30 AD3d 1110, "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07938.htm

Self-critical privilege not available to public entities in New York State objecting to the release of certain information

Self-critical privilege not available to public entities in New York State objecting to the release of certain information

Uniformed Fire Officers Assn., Local 854 v City of New York, 2012 NY Slip Op 07899, Appellate Division, First Department

Supreme Court denied the City of New York’s motion to quash a judicial subpoena obtained by the Uniformed Fire Officers Association, Local 854, requiring the City to supply it with copies of drafts of a public safety consultant's report recommending a change affecting the City’s 911 call system.

The Appellate Division sustained the Supreme Court’s ruling, holding that the City failed to show that the public interest would be harmed by the disclosure of drafts of the consultant's report to the Local.

The court explained that the City’s claim of protection under the so-called "self-critical" privilege*was misplaced as “This privilege has never been recognized under New York law.”

Further, the Appellate Division observed that the City had not demonstrated that there were "exceptional and compelling circumstances" that might justify the judicial creation of a new privilege

In the words of the court, “Absent sensitive subject matter or exposure of review participants to liability, the City's contention that the disclosure of the drafts would have a chilling effect on the internal discussions of those engaged in reviewing technical projects such as this is speculative.”

In contrast, said the court, Local 854 had shown a need for the drafts for the purpose of  preparing its case before the City’s Collective Bargaining Board.

* The self-critical analysis privilege, if available, would protect an entity’s self-evaluative materials from disclosure when it is shown that the public interest in preserving the internal evaluations of the organization outweighs an interested party's right to the information.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07899.htm

The failure to name the parties appealing a lower court’s ruling held a fatal jurisdictional defect

The failure to name the parties appealing a lower court’s ruling held a fatal jurisdictional defect

Gusler v. City of Long Beach, USCA, Docket #11-4493-cv

Jay Gusler, acting pro se, filed an action under 42 U.S.C. §1983 alleging that the defendants* unlawfully retaliated against him.

The district court dismissed claims against some of the defendants but then dismissed a motion by the remaining individual defendants' raising a defense of qualified immunity. The remaining defendants then appealed the district court's dismissal of their motion.

The Circuit Court of Appeals rejected the appeal filed by the remaining individual defendants, finding that it lacked jurisdiction to consider the merits of the appeal as they had not filed a timely notice of appeal.

Although the notice of appeal contained the full caption of the action, the body of the appeal stated: “Notice is hereby given that the defendant Nassau County hereby appeals.” However, said the court, while The City of Long Beach is in Nassau County, Nassau County itself is not a party in the action.

The Circuit Court said that the appeal as initially filed did not “provide notice to the court [or] to the opposing parties of the identity of the appellant or appellants” so that neither the Circuit Court, nor the district court, nor the plaintiff  “know . . . which parties are bound by the district court’s [decision] [and] which parties may be held liable for costs or sanctions on the appeal.”

Further, noted the Circuit Court, the amended notice of appeal did not cure the problem as the amended notice was filed after the time to appeal had run.**

The Circuit Court dismissed the appeal, explaining that “Because the notice of appeal did not specify which defendants were taking an appeal of the district court’s decision, we lack jurisdiction to consider their appeal.”

* Gusler had named as the defendants in his action The City Of Long Beach, The Long Beach Volunteer Fire Department, The Long Beach Police Department, and twelve individuals.

** The Circuit Court also pointed out that the defendants “did not seek an extension of time to amend and correct the notice of appeal … and the time to do so has long since passed….”

The Circuit Court's decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/67fcaa5c-1014-4d83-957a-173edf363d85/1/doc/11-4493_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/67fcaa5c-1014-4d83-957a-173edf363d85/1/hilite/

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:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07888.htm

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

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

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

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:  Department of Health;  Division of Housing and Community Renewal;  Office of Mental Health,  Quality of Internal Control Certification;  Office of Parks, Recreation and Historic Preservation;  Department of Health Overpayments for Hospital Readmissions; and,  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:

Saratoga Springs Housing Authority criticized in audit Comptroller’s Audit Finds Problems In Dunkirk NY Thruway toll hike on hold

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.

Allegations of negligent hiring and supervision of employee rebutted by evidence submitted by employer in support of its motion to dismiss the lawsuit

Allegations of negligent hiring and supervision of employee rebutted by evidence submitted by employer in support of its motion to dismiss the lawsuit

"John Doe 1," v Board of Educ. of Greenport Union Free Sch. Dist., 2012 NY Slip Op 07633, Appellate Division, Second Department

Parents of a student at the Greenport Union Free School District alleged that a teacher's aide employed by the school district engaged in an inappropriate sexual relationship with their child.

Among the complaints asserted against the school district and certain of its officers was a cause of action alleging that these defendants were [1] vicariously liable for the actions of teacher’s aide and [2] were liable for the negligent hiring and supervision of the aide.

The Appellate Division held that the evidentiary material submitted in support of the school district’s motion to dismiss the action as to the district and certain of its employees demonstrated that the parents did not have a cause of action against those defendants sounding in either vicarious liability or negligent hiring and supervision, explaining that all of the alleged improper acts by school aide took place off school premises and, or, outside of school hours, when the school defendants had no custody or control of the students and no duty to monitor or supervise the conduct of the school aide.

Further, said the court, the evidence demonstrated that the conduct of aide was personally motivated and constituted a complete departure from her duties as a school district employee, thereby negating any potential vicarious liability on the part of the school defendants for her alleged tortious acts.

As to the claim that the school district was liable for negligent hiring and supervision of the aide, the Appellate Division said that the evidence established that school district “properly investigated” the aide prior to her being hired, and that the school district had no notice of any propensity on her part to sexually assault students.

The court also noted that the parents did not allege that the school district defendants knew or had reason to know of any improper behavior by the aide nor was any nexus between aide's employment and the alleged sexual assaults, since they were separated by time, place, and the intervening independent acts of the aide.

Accordingly, ruled the Appellate Division, Supreme Court should have granted that branch of the school district's motion to dismiss the complaint insofar as asserted against the school district and its named officials.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07633.htm

Unless limited by the collective bargaining agreement, an arbitrator has broad powers to fashion an appropriate remedy in resolving a contract grievance

Unless limited by the collective bargaining agreement, an arbitrator has broad powers to fashion an appropriate remedy in resolving a contract grievance
Westchester County Corr. Officers' Benevolent Assn. v County of Westchester, 2012 NY Slip Op 07307, Appellate Division, Second Department

An arbitrator issued an award that directed the Westchester County Department of Correction to cease from denying correction officers the use of a floating holiday or floating vacation day where the maximum allowable number of correction officers who were permitted to take off from work on any particular day had not been reached. When the Westchester County Corr. Officers' Benevolent Association attempted to confirm the award, Supreme Court denied its Article 75 petition.

The Appellate Division reversed the Supreme Court’s ruling.

The Appellate Division explained that "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies," and a court may not "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes that its interpretation would be the better one," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321 and other decisions.

Further, said the court, even where an arbitrator makes errors of law or fact, "courts will not assume the role of overseers to conform the award to their sense of justice."

In contrast, while "judicial review of arbitration awards is extremely limited," the Appellate Division noted that a court may vacate an arbitrator's award where the arbitrator "exceeded his [or her] power." Typically courts find that an arbitrator exceeds his or her power where his or her award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

In this instance the Appellate Division found that the Supreme Court’s determination that the arbitrator had exceed a specifically enumerated limitation on his power was incorrect.

The court noted that the collective bargaining agreement provides that "[a] grievance dispute arising under any term of the Agreement involving County policy or discretion may be submitted for arbitration only as to the question of whether or not the County policy was disregarded, or was applied in so discriminatory, arbitrary, or capricious a manner as to constitute an abuse of discretion." However, said the Appellate Division, this provision “does not contain any limitation upon the arbitrator's power to fashion an appropriate remedy where he or she determines that a County policy has been applied in so discriminatory, arbitrary, or capricious a manner as to constitute an abuse of discretion.”

Here, the arbitrator determined that a policy of the Westchester County Department of Correction that permitted only one correction officer per day to use a floating holiday or vacation day was applied in an arbitrary manner to the named grievant.

As the collective bargaining agreement did not set out any limitation on the arbitrator's power to award relief upon making such a finding, the court ruled that the arbitrator had not exceed his power by “directing the Department to cease and desist from denying correction officers the use of a floating holiday or floating vacation day where the maximum allowable number of correction officers who were permitted to take off from work on any particular day, as determined by the Department, has not been reached.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07307.htm