Employees “demoted” to a lower grade position as a result of their exercise of their “displacement rights” in a layoff situation are not entitled to a “pre-demotion” hearing

Employees “demoted” to a lower grade position as a result of their exercise of their “displacement   rights” in a layoff situation are not entitled to a “pre-demotion” hearing

Yackel v City of Rochester, 2012 NY Slip Op 09253, Appellate Division, Fourth Department

The Rochester Firefighters Association file an Article 78 petition challenging an administrative order issued by the Fire Chief of the City of Rochester Fire Department that resulted in the "demotion" of a number of Fire Department battalion chiefs to the rank of captain.

These demotions were the “fall-out” resulting from the abolition of battalion chief positions* as part of budget cuts made by the City of Rochester and the decision of the individual battalion chiefs to exercise their "displacement rights" pursuant to Civil Service Law §80.6.

The Appellate Division said that Supreme Court “properly granted [the City’s] motion to dismiss the Association’s petition, rejecting the Association’s argument that the Fire Chief acted in excess of his authority as the appointing authority for City of Rochester Fire Department when he issued the challenged administrative order.

The court explained that although §8B-4 of the City Charter provided that that "members of the Fire Department . . . hold their respective offices during good behavior or until by age or disease they become personally incapacitated to discharge their duties" did not truncate the "undisputed management prerogative of the [City], as an employer, to abolish positions in the competitive class civil service in the interest of economy."**

The Appellate Division also affirmed Supreme Court’s rejection of the Association’s contention that, as a matter of procedural due process, the individual Battalion Chiefs that exercised their “displacement rights” to an appointment is a lower grade position were entitled to a hearing prior to their "demotions" commenting that the Chief’s action was not based upon any question involving the conduct or the competency of the Battalion Chiefs involved but, rather, was based on their seniority and the mandates of Civil Service Law §§80 and 81.
 

* There must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 or 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).

** CSL §80 controls with respect to the rights of employees in the competitive class in the event of a layoff; §80-a controls with respect to employees in State service in positions in the non-competitive class. See §45 of the Civil Service Law with respect to determining seniority for the purposes of a layoff involving employees continued in public service following a “take-over” of a private institution or enterprise by a government entity.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09253.htm

=========================

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

=========================

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

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

Issued during the week of December 31, 2012 – January 6, 2013 [Click on the caption to access the full report]

DiNapoli Seeks Disclosure Of Political Spending At Qualcomm

New York State Comptroller Thomas P. DiNapoli announced Thursday that the New York State Common Retirement Fund has filed suitin a Delaware court against Qualcomm Inc. for the right to inspect the company’s books and records to determine how shareholder funds are being spent for political purposes.

DiNapoli: Local Governments Continue to Face Significant Fiscal Challenges

Many local governments have nearly exhausted their resources in an effort to avoid severe fiscal stress, according to an annual reportreleased last week by State Comptroller Thomas P. DiNapoli.

DiNapoli: Snowmobile Association Treasurer Misdirected Grooming Funds

The Herkimer County Snowmobile Association Treasurer falsified documentation and improperly used his dual authority as the association’s treasurer and president of a trail maintenance entity to redirect funds from one snowmobile club to his own, according to an audit. released Wednesday by State Comptroller Thomas P. DiNapoli. The findings were referred to the Herkimer County District Attorney’s Office.

Comptroller DiNapoli Releases Audits

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

the SUNY at New Paltz;

the Department of Economic Development;

the Office of General Services; and,

the New York State Health Insurance Program.

An entity making an administrative decision should not be permitted to create or rely upon reasons for its denial not stated at the time of the denial should the decision be challenged

An entity making an administrative decision should not be permitted to create or rely upon reasons for its denial not stated at the time of the denial should the decision be challenged

White v County of Sullivan, 2012 NY Slip Op 09131, Appellate Division, Third Department

Supreme Court granted Earl White’s CPLR Article 78 to partially vacate Sullivan County’s determination denying White benefits pursuant to General Municipal Law §207-c.

White, a correction officer with the Sullivan County Sheriffs’ Department, was injured in the performance of his duties and filed for, and received, disability benefits pursuant to General Municipal Law §207-c. White’s physician subsequently cleared him to return to work in a light duty capacity, and White began working full time as a control room officer.

Some time later White again suffered an injured in the course of his employment and again filed for benefits pursuant to General Municipal Law §207-c. White’s superior at the Sheriff's Department approached him with a disability retirement application, but White refused to sign it or related medical releases.*

The County denied White's application for General Municipal Law §207-c benefits due to a lack of medical evidence. In response to White’s petition challenging the County’s decision, Supreme Court, concluding that the county's determination was arbitrary and capricious, remanded the matter and directed the County to hold a hearing.

The Hearing Officer determined, among other things, that White had established his eligibility to receive §207-c benefits beginning at the time of his injury but that he was able to resume light duty work. The Hearing Officer also found that White's eligibility for benefits ended effective July 24, 2009 due to his refusal to cooperate with County's attempts to file retirement paperwork on his behalf.**The County adopted the Hearing Officer's determination.

The Sheriff, however, preferred charges of misconduct against White pursuant to Civil Service Law §75, alleging that his refusal to sign retirement forms constituted misconduct. The disciplinary hearing officer found White guilty and the Sheriff adopted the hearing officer’s findings, imposing the penalty of termination from his position effective in January 2011.

White then initiated this action, challenging [1] the determination one denying him benefits pursuant to General Municipal Law §207-c and [2] the Sheriff’s decision finding him guilty of misconduct and terminating his employment. Supreme Court partially granted White’s petition, vacating the County’s determination that White was ineligible for benefits after July 2009 and vacated Sheriff’s decision terminating White from his position.***

As to that part of White’s appeal concerning the County’s termination of his §207-c benefits, the Appellate Division noted that Sullivan County Local Law No. 1 (1989) vested in the County’s “insurance administrator the exclusive authority’ to make determinations of eligibility for General Municipal Law §207-c benefits for Sheriff's Department staff.

Noting that both State Law and Sullivan County Local Law provided that the payment of §207-c salary benefits "shall be discontinued" for any officer "who is permanently disabled" as a result of the injury occurring in the performance of his or her duties if that officer is granted a disability retirement and in the event such an officer does not apply for a disability retirement, “the head of the police force may apply on behalf of the officer,” citing General Municipal Law § 207-c [2] and the relevant collective bargaining agreement with White's union, governing its procedure for compliance with General Municipal Law §207-c” pursuant to Local Law No. 1.

Local Law No. 1, provides that in the event the County’s insurance administrator determines that an officer is permanently disabled, the administrator "shall" notify [the County's] personnel officer, who then "shall request that the [officer] make application for" a disability retirement (Local Law No. 1 § 210). "If application for such retirement is not made by the [officer], application therefor[] may be made by the Sheriff or [p]ersonnel [o]fficer," again citing Local Law No. 1.

The court then explained that initially the County’s denied White benefits based on a lack of medical proof, without mentioning petitioner's refusal to sign retirement documents.

The Hearing Officer found that medical proof did exist, rejecting the basis relied upon by the County for its denial of benefits. Noting that the county “is not now challenging that finding,” said that the County “should not be permitted to create or rely upon different reasons for the denial that were not raised and stated at the time of that denial” and  "judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination."

Further, said the court, even were County permitted to rely on White's refusal to sign retirement documents despite not having included that reason in its denial letter, the County concedes that its personnel officer never requested White to apply for disability retirement. Accordingly, the Appellate Division granted that portion of White’s petition seeking the annulment of the County’s determination finding White ineligible for General Municipal Law §207-c benefits as of July 2009.

The Appellate Division then observed that White was entitled to §207-c benefits beginning at the time of his injury in June 2009 but that “No end period for those benefits has been established, as that may depend on the outcome of the remittal regarding the Sheriff's termination of [White’s] employment.”

* See  GML §207-c.2.

** The County contended that Retirement and Social Security Law §605 provides an alternate basis upon which it could apply for retirement benefits on White's behalf, but it did not make an application pursuant to that section. See, also, GML §207-c.2.

*** The Appellate Division, noting that the Sheriff was not named as a respondent in the action before Supreme Count with respect to White’s dismissal from his position, said that the Sheriff was a necessary party and “join the Sheriff as a respondent” in the action. The Sheriff, however, was not a necessary party with respect to that portion of White’s action challenging the County’s discontinuing his §207-c benefits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09131.htm

====================================

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 and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

====================================

Decisions of the US Department of Labor Administrative Review Board - October, November and December 2012

Decisions of the US Department of Labor Administrative Review Board - October, November and December 2012

Source: USDOL/OALJ Reporter

The United States Department of Labor, Office of Administrative Law Judges website has been updated with the following:

Case summaries and case links for December 2012

ARB decisions are found at
http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/12_2012.HTM

Case summaries and case links for November 2012

ARB decisions are found at
http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/11_2012.HTM

Case summaries and case links for October 2012

ARB decisions are found at
http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/10_2012.HTM

Code of Silence Litigation - Police Officer's use of force

Code of Silence Litigation - Police Officer's use of force

Source: AELE*

AELE reports that "In November, 2012, a federal jury in Chicago returned a verdict in favor of a plaintiff and against the city on a claim that the city had a persistent widespread custom or practice of protecting officers from citizen complaints. The article reveals how the plaintiff and two expert witnesses proved her allegations. At the end, there is an extensive list of references."

The article is posted on the Internet at http://www.aele.org/law/2013-01MLJ101.html

* AELE has a free search tool covering our database of more than 33,000 case summaries at http://www.aele.org/htdig/common/search.html

An appeal pursuant to Education Law §310 is not available to an individual seeking to challenge an administrative decision by the New York State Education Department

An appeal pursuant to Education Law §310 is not available to an individual seeking to challenge an administrative decision by the New York State Education Department

Decisions of the Commissioner of Education, Decision #16,440

In this appeal the issue concerned an applicant's challenge to a decision by the New York State Education Department Office of Teaching Initiatives that the applicant for a permanent teaching certificate was not eligible for such a certificate.

Dismissing the appeal on the grounds that the Commissioner of Education does not have jurisdiction to consider such an appeal, the Commissioner explained that “it is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department.

However, said the Commissioner, such a challenge may be advanced in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16440.html

Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB

Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB

City of New York v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 09130, Appellate Division, Third Department

The State’s Public Employment Relations Board found that the Board of Education of the City School District of the City of New York [Board] committed an improper employer practice in response to a complaint filed by the union representing certain employees employed by the Board. The union had alleged that the Board unilaterally changed a condition of employment by eliminating the automatic granting of parking permits after the City adopted a new plan aimed at reducing traffic congestion in the City. 

The City of New York filed a petition in Supreme Court seeking an annulment of PERB's decision. PERB counterclaimed seeking enforcement of its remedial order. Supreme Court dismissed the City’s petition and granted PERB's counterclaim.

Addressing a “procedural issue,” the Appellate Division, noting that PERB's order did not make any findings against the City nor did it order the City to do anything, ruled that the City did not have standing to commence a proceeding seeking to annul PERB's decision. Thus, said the court, Supreme Court properly dismissed that the petition brought by the City, explaining that the City and the Board are separate legal entities.

Further, said the court, the City was not a party to the PERB proceeding and although it was argued that “the City could have intervened,” the court noted that PERB’s regulations only permit intervention by public employees, a union acting on their behalf or the public employer, citing 4 NYCRR 212.1 [a]. In this instance, said the court, the relevant employer was the Board and not the City of New York.

As to PERB’s ruling concerning the merits of the alleged improper practice charge filed against the Board, the Appellate Division considered Board’s argument that it had no control over changes with respect to parking that was imposed upon it by the City and therefore had no power to negotiate anything regarding this parking permit situation.

Conceding that the power to regulate traffic and parking on city streets is expressly delegated to the City, the Appellate Division said that the relevant questions for it to address were [1] did the Board had any control over the change in producing and distributing parking permits and [2] did PERB intruded on an area under the authority of the City or its Department of Transportation [DOT].

The Appellate Division’s answer: it agreed with PERB that the Board did have control over some aspects of the new parking permit situation as DOT produced and provided to Board 10,007 site-specific placards and 1,000 three-hour permits for on-street parking and did not have any oversight responsibilities as to the distribution of such placards and permits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09130.htm

Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely

Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely

Feuer v State of New York, 2012 NY Slip Op 09129, Appellate Division, Third Department

Prior to retiring in June 2009, a teacher, a Tier 4 member of the New York State Teachers' Retirement System [TRS], met her financial advisor and a TRS representative for a preretirement consultation. The teacher then submitted her application for retirement, selecting the option entitled "Largest Lump Sum," which provided the "largest possible lump sum payment to a beneficiary" following the member's death (emphasis in the decision), and designated her niece and nephew as her beneficiaries.

The retirement application the teacher completed also detailed another option available to a retiree entitled the "Maximum" option. It described this option as follows: "MAXIMUM — Do notdesignate a beneficiary if you select this option. This election will provide you with the largest possible annual benefit. All payments will cease at your death."

In addition, the application stated that, in the event an applicant wished to change options, notice of such a change had to be received by the Retirement System "within 30 days after [the] effective date of retirement" —  in this retiree's case, no later than July 30, 2009.

After submitting her application, the retiree received a letter from the Retirement System dated March 23, 2010, summarizing her retirement benefits and established her monthly pension payment. More then 30 days after the effective date of her retirement, however, the now retired teacher notified the Retirement System that she wanted to change her retirement option selection from "the Largest Lump Sum" option to the "Maximum" option.

The Retirement System denied her request and the retiree filed a petition with the Court of Claims seeking permission to file a late notice of claim.*

The Court of Claims denied her request because the retiree, by her own admission, did not notify the Retirement System that she wanted to change her retirement option within 30 days of the effective date of her retirement. The Appellate Division affirmed the Court of Claims’ ruling, explaining that the Court of Claims is a court of limited jurisdiction that has no capacity "to grant strictly equitable relief, [although it] may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases."

Although the relief that the retiree seeks is couched in money damages,** the Appellate Division characterized her application as requiring  the review of an administrative agency's determination. In that regard, the Appellate Division noted that the money damages that the retiree sought were calculated by using as a base figure what she would have received as her pension benefit had she initially selected the "Maximum" option.

The bottom line: The Appellate Division ruled that as the retiree, in essence sought judicial review and reversal of an administrative determination made by the Retirement System, the Court of Claims lacked subject matter jurisdiction and it properly denied the retiree's motion for leave to file a late notice of claim.

* The retiree also sued TRS’ representative in Supreme Court, contending that the representative was negligent regarding the her retirement options. Supreme Court dismissed this action as it sought money damages from a state employee in connection with the performance of her duties and, as such, could only be commenced in the Court of Claims.

** The Appellate Division said that the relief that the retiree sought would result in her receiving “windfall, because not only would she receive the monthly pension benefit under the Maximum option, but she still would have a lump sum available to her beneficiaries upon her demise.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09129.htm

The relationship of a statute to the provisions of a Taylor Law agreement

The relationship of a statute to the provisions of a Taylor Law agreement

Civil Service Employees Association v. Town of Harrison, 48 NY2d 66

Where the court determines that a statute sets out a strong public policy, that provision will trump a  provision in a collective bargaining agreement inconsistent with the statute.

In the Town of Harrison case the Court of Appeals said that there is only one way a new position in the classified service of a municipality may be created: the way the controlling law requires.

In this instance the statutory imperatives of §22 of the Civil Service Law were viewed as reflecting such a strong public policy with respect to establishing new positions that it may not be ignored nor may it be circumvented under color of an “alternative” to the provisions of §22 contained in a collective bargaining agreement negotiated pursuant to the Taylor Law (§200 et seq, Civil Service Law). Failing to comply with the mandates of Civil Service Law §22 was fatal and no new position can come into being unless it is created as prescribed by Section.

Although the court did not address the “status” of the incumbent of the “new position” in its decision, it would appear that the “status” of the individual is not dependent on the “existence” of any position and, presumably, other relevant provisions of the Civil Service Law (i.e., §80, Layoff) would control if the “nonexistent new position” could no longer serve as a “position” for payroll purposes.

Another example of a provision in the Civil Service Law nullifying a provision in a collective bargaining agreement is City of Plattsburgh v Local 788, 108 AD2d 1045. In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a demotion involving a layoff situation.

The collective bargaining agreement between the City and Local 788 provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

In this instance the employee retained by the City had been initially appointed after the individual that Plattsburgh had been demoted. However the retained employee had been permanently appointed to the position prior to the effective date of the permanent appointment of the individual Plattsburgh had demoted.

The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away and granted the City’s Article 75 petition to permanently stay the Local from submitting its grievance alleging a contract violation to arbitration.

Does the State’s Son of Sam Law allow recovery from any and all of a convicted person’s assets, including his or her NYSERS retirement allowance?

Does the State’s Son of Sam Law allow recovery from any and all of a convicted person’s assets, including his or her NYSERS retirement allowance? 

New York State Off. of Victim Servs. v Raucci, 2012 NY Slip Op 04440 [97 AD3d 235], Appellate Division, Third Department, Motion before the Court of Appeals for Leave to Appeal Granted, Slip Opinion No: 2012 NY Slip Op 84607

The Court of Appeals will consider the appeal of Steven C. Raucci and his spouse, Shelley Raucci, a nonparty-appellant from an Appellate Division ruling that held that the Son of Sam Law, which does not expressly exempt pension funds from its reach, trumps §110 of the Retirement and Social Security Law. §110 exempts the pension funds from garnishment or any other legal process.

Steven C. Raucci was sentenced to a lengthy prison term upon his conviction of numerous crimes related to his employment with a school district. After receiving notice from two victims of these crimes of their intent to commence civil actions against Raucci for money damages, the New York State Office of Victim Services commenced this proceeding on their behalf pursuant to the Son of Sam Law (see Executive Law §632-a).

Victim Services contended that Raucci’s pension checks from the New York State and Local Employees' Retirement System are delivered to his wife, Shelley Raucci, who holds a power of attorney that enables her to cash such monthly pension checks, thereby giving her control over the funds and threatening their disbursement in a manner that would render ineffectual any civil judgments obtained by the crime victims.

The Appellate Division noting that in 1991 the Legislature, subject to certain limitations,  "expand[ed] the [Son of Sam] [L]aw to cover money and property that a convicted criminal receives from any source," concluded that the statute, as amended, permits crime victims to commence an action “within three years of the discovery of any profits from a crime or funds of a convicted person."

In the words of the Appellate Division, “Apart from [certain] exceptions, however, the amendments to the Son of Sam Law were intended to ensure that convicted criminals are ‘held accountable to their victims financially, regardless of their source of wealth’" Thus, said the court, it its view both the unambiguous statutory language of the Son of Sam Law and the legislative history of the 2001 amendments support Victim Services’ argument that Raucci's pension funds are not exempt from the statute's reach.

The New York Law School Law Review has published an article by Jessica Yager, Esq. that addresses various aspects of the Sun of Sam Law titled Investigating New York’s 2001 Son Of Sam Law: Problems with the Recent Extension of Tort Liability for People Convicted Of Crimes,  [Vol. 48, 2004, Pages 433-488]  Ms. Yager’s Law Review article is posted on the Internet at: http://www.nyls.edu/user_files/1/3/4/17/49/Vol48no3p433-488.pdf

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 December 28, 2012 [Click on the caption to access the full report]

New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued:

SUNY at New Paltz Selected Employee Travel Expenses (2012-S-140)

Auditors examined the travel expenses for one college employee whose travel charges totaled $269,627. They found that the selected employee was responsible for arranging travel for other college staff members, charging these travel expenses to her travel card. Auditors reviewed a sample of charges to this employee’s travel card and found the expenses were documented and adhered to state travel rules and regulations. 


Department of Economic Development Quality of Internal Control Certification (2012-S-48)

In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring state agencies and public authorities to each institute a comprehensive system of internal controls over their operations. Each covered State agency and public authority is required to certify compliance with act by April 30 of each year. DED's Internal Control Certification was submitted timely. 

However, auditors identified several areas where the quality of the certification could be improved. In three instances, DED's certification did not provide the required level of detail to explain the actual steps taken to implement certain provisions, including describing its internal control testing and monitoring processes and the results of its reviews of high risk activities. Although DED certified full compliance with all provisions of the act, its internal audit function has not had an external quality control assessment completed as required by professional auditing standards. 


Office of General Services Disposal of Electronic Devices (2012-S-4) 

The New York State Office of Cyber Security requires all state entities to establish formal processes to address the risk that information may be improperly disclosed. Information can be compromised through careless disposal of electronic equipment. OGS' surplus unit disposes of such equipment for many State agencies. 

The Surplus Unit does not accept any responsibility for clearing the data from these devices. However, OGS' Information Resource Management (IRM) bureau provides IT support for some state agencies. In these cases, IRM is responsible for removing information from the devices prior to making them available to the surplus unit. 

At the time of the audit, the surplus unit had 429 electronic devices in its possession for disposal and IRM was responsible for removing information from 25 of the devices on hand. Of these, three did not have information completely removed. One of the three devices still had sensitive information on a hard drive, including multiple social security numbers, medical records and confidential human resource information. 


New York State Health Insurance Program -Department of Civil Service Empire BlueCross BlueShield Selected Payments for Special Items for the Period April 1 Through June 30, 2011 (2011-S-42) 

Empire processes claims for hospital services in accordance to agreements they negotiate with member hospitals. Payments for hospital services are generally based on standard fee schedules. However, hospitals may be entitled to additional payments for special items that are not covered by the standard fee schedules. 

Many of Empire's agreements with member hospitals limit charges for special items, while agreements with other hospitals do not have such limitations. Auditors found Empire did not have adequate controls to ensure special items were paid according to contract limitations. 

As a result, Empire made a net overpayment of $119,141 on 33 claims. Empire made an excessive payment to a hospital that did not have formal contract provisions limiting reimbursements for special items. On one claim we reviewed, Empire paid about $52,755 (or 444 percent) more than the costs of the three special items in question.

Pension Fund permitted to credit report of the scene were the alleged accident occurred made at the time of the event over a description of the scene made two years later

Pension Fund permitted to credit report of the scene were the alleged accident occurred made at the time of the event over a description of the scene made two years later
Lang v Kelly, 2012 NY Slip Op 08788, Appellate Division, First Department

 
Board of Trustees of Police Pension Fund of Police Dept. of City of New York, by a tie vote, rejected Jean Lang’s application for accidental disability retirement benefits.

Supreme Court dismissed Lang’s Article 78 petition challenging the rejection of her application and the Appellate Division affirmed the lower court’s ruling. The Appellate Division held that Lang “failed to demonstrate as a matter of law that her injury was the result of an accident, i.e., a sudden, unexpected, out of the ordinary event, rather than a misstep during the routine performance of her job.”

According to the decision, Lang was injured when she tripped over computer wires extending across the threshold of the doorway between two rooms. In a statement made contemporaneously with the accident, Lang indicated that the wires were "exposed."

Two years later, however, Lang submitted a statement indicating that the wires had initially been secured to the floor with duct tape and that the tape was removed on the day she fell.

The Appellate Division held that the Pension Fund was entitled to credit Lang's contemporaneous account and reject her more recent statement that the condition of the wires changed on the day of the accident, explaining that the Fund “reasonably inferred that, since the wires had been in place for several months before [Lang’s] fall, she must have been aware of them and routinely stepped over them.

Another case illustrating the importance of a comprehensive physical description of the scene where the event occurred in the initial accident report is Slagle v McCall, 293 AD2d 923.

John K. Slagle, a firefighter, was injured while responding to a fire. According to the decision, the incident report and application for accidental disability retirement filed by Slagle both indicated that as he stepped over a downed chain link fence his boot caught on the fallen fence, causing him to fall.

Slagle, however, testified at his disability hearing before the Retirement System that he was unaware of the fallen fence because it was hidden in tall grass and weeds. Significantly, said the court, no mention of "tall grass and weeds" was noted in either Slagle's incident report or his application for accidental disability retirement benefits.

Slagle argued that his encounter with the fence and his subsequent fall constituted an accident since it was "sudden and unexpected." The Comptroller, however, concluded that Slagle's injury was the result of a misstep as he attempted to step over the fallen fence and that, therefore, he did not sustain an accident within the meaning of the Retirement and Social Security Law. The Appellate Division sustained the Comptroller's determination.

The court said that assuming that Slagle's testimony that he was unaware of the fence was sufficient to demonstrate an accident, "neither the accident report filed by [Slagle] shortly after the injury nor his application for benefits contained any reference to tall grass, weeds or the hidden nature of the fallen fence."

The court found that incident report and disability retirement application form submitted by Slagle provided the substantial evidence necessary to support the Comptroller's finding that "Slagle's fall was caused by his misstep or miscalculation in attempting to step over the fallen fence while engaged in the performance of his ordinary employment duties."

Thus, said the court, "there is no basis to disturb the Comptroller's conclusion that [Slagle] did not sustain an accident."

Clearly including references to "tall grass and weeds" hiding the downed fence might not have guaranteed approval of Slagle's application for accidental disability retirement benefits. However, the information he initially supplied in the incident report and in his application for benefits, despite his somewhat different testimony at the hearing, proved sufficient to allow the Comptroller to base his decision solely on the information contained in the incident report and Slagle's disability retirement application form.

The Lang decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08788.htm

====================================

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 and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

====================================

Contempt proceeding used to enforce a court order directing reinstatement

Contempt proceeding used to enforce a court order directing reinstatement
Angel Nunez v City of New York, 43 AD3d 808

Angel Nunez obtained a court order directing his reinstatement to his former position, or a comparable position, with the New York City Department of Sanitation, together with back pay and benefits [City of New York v New York State Div. of Human Rights, 229 AD2d 307, leave to appeal denied, 89 NY2d 801]. Sanitation, however, neither reinstated Nunez to his former position nor to an equivalent position.

Nunez then petitioned the court to compel his reinstatement. Supreme Court dismissed his petition to have the Department to reinstate him, ruling that he delayed too long in bringing his action and thus Nunez was guilty of laches 

The Appellate Division reverse the lower court’s ruling, noting that although Nunez, an attorney, had waited 15 months before bringing the matter to the attention of the court rather than seeking earlier judicial intervention, both he and the Department had contributed to the delay.

The Appellate Division said that Nunez’s recourse was to bring a contempt proceeding when the Department failed to comply with the order of the court. It said that it “was futile to insist that [Nunez] bring a new complaint with the Division of Human Rights before seeking enforcement.” It then converted Nunez’s action into a “contempt proceeding” and remanded the case to Supreme Court for a hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2007/2007_07072.htm

Arbitrator’s ruling employee worked “out-of-title” does not violate public policy

Arbitrator’s ruling employee worked “out-of-title” does not violate public policy
County of Westchester v Edward Doyle, Jr., 43 AD3d 1055

Westchester County filed a CPLR Article 75 petition in an effort to vacate an arbitration award holding that one of employees had been working “out-of-title” on the grounds that the award constituted a “violation of public policy.” The Appellate Division disagreed, ruling that “public policy was not violated here merely because the determination that the respondent William Leverance was working out-of-title was made by an arbitrator.”

Another issue involved in this action: what is the date from which interest on the addition compensation due the employee is payable?

The Appellate Division said, and the employee conceded, interest was to be paid from the date of the arbitration award, rather than from the date from which the employee was entitled to compensation for his performing out-of-title work.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06874.htm

Court of Appeals to consider arbitration award reinstating school bus driver terminated from the position after testing positive for marihuana in a random drug test

Court of Appeals to consider arbitration award reinstating school bus driver terminated from the position after testing positive for marihuana in a random drug test

Shenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864), 90 AD3d 1114

The Court of Appeals will hear Shenendehowa Central School District’s appeal from the Appellate Division's ruling sustaining an arbitrator’s award that reinstated a school bus driver terminated after testing positive for marihuana in a random drug test.

Motions by New York State School Boards Association, Inc. and by New York State United Teachers for leave to file briefs amicus curiae on the appeal were also granted by the court.

NYPPL summary the Appellate Division’s ruling in this action is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/search?q=Shenendehowa