Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings

Technical guilty of failing to follow hospital procedure

Recommended penalty: 30-suspension without pay recommended

An ultrasound technician was charged with failing to follow hospital procedures requiring that a patient’s name and medical record number be placed on each image of the patient’s echocardiogram. Without the required identifiers, the reviewing cardiologist could not prepare his report, and the patient had to return to re-take the test.

Though the hospital sought the penalty of termination of employment, Administrative Law Judge Tynia D. Richard recommended a 30-day suspension, noting that the misconduct, while serious, was a single error and caused no harm except inconvenience.

The decision is posted on the Internet at:

Health & Hospitals Corp (Jacobi Medical Ctr.) v. Goldfayn (in PDF), OATH Index No. 2100/12

Employee found guilty of sexually harassing female co-workers

Penalty recommended: termination

Administrative Law Judge Spooner found that a pharmacy technician sexually harassed two female co-workers by forcibly grabbing one from behind and pressing himself against her, and by forcibly kissing the other employee three times. Termination of employment was recommended.

The decision is posted on the Internet at: 

Health & Hospitals Corp (Elmhurst Hospital Ctr.) v. Polepalle (in PDF), OATH Index No. 142/13

Interest arbitration held to contravene public policy insofar as a public entity's being bound to nonmandatory subjects of collective bargaining in negotiating a new agreement

Interest arbitration held to contravene public policy insofar as a public entity's being bound to nonmandatory subjects of collective bargaining in negotiating a new agreement

Niagara Frontier Tr. Metro Sys., Inc. v Amalgamated Tr. Union Local Union 1342,2013 NY Slip Op 00622, Appellate Division, Fourth Department

Supreme Court denied Niagara Frontier Transit Metro System’s petition to stay arbitration in case that involved a labor dispute arising from a collective bargaining agreement [CBA] between the System, a public benefit corporation that provides bus and light rail transit service, and the Amalgamated Transit Union Local Union 1342 (Local 1342), which represents a unit of System’s employees.

Local 1342 had demanded that the terms and conditions of a new CBA be determined by compulsory "interest arbitration." 

The Appellate Division reversed the lower court’s decision and granted the System’s petition.

The Appellate Division explained that “even assuming, arguendo, that the [Collective Bargaining] Agreement entitles Local 1342 to interest arbitration over [the System’s] objection, we would conclude, as we did in ATU,* that such a result ‘contravenes public policy, both by compelling a public entity, which has broad responsibilities to the entire population of the State, to be bound forever to nonmandatory subjects of bargaining, i.e., interest arbitration, and by encumbering its ability to negotiate an entirely new collective bargaining agreement which reflects the changing requirements and mandates of the public interest’"

* Matter of Local Union 1342 of Amalgamated Tr. Union v Niagara Frontier Tr. Metro Sys, 183 AD2d 355, leave to appeal denied, 81 NY2d 710.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00622.htm

A court’s power to vacate an arbitration award is limited

A court’s power to vacate an arbitration award is limited
Professional, Clerical, Tech., Employees Assn. (Board of Educ. for Buffalo City Sch. Dist.), 2013 NY Slip Op 00612, Appellate Division, Fourth Department

The issue before the arbitrator was whether the Board of Education’s selection process used in its filling two vacancies of a newly created title, Assistant Management Analyst, violated the collective bargaining agreement between the parties. The arbitrator concluded that it had not.

Essentially the arbitrator rejected the Association’s argument that the collective bargaining agreement provided that seniority "trumps" a supervisor's discretion in selecting the individual to fill the vacancies in question.

Supreme Court granted the Professional, Clerical, Tech., Employees Assn.’s application to vacate an arbitration award.

The Appellate Division unanimously reversed the lower court’s ruling and granted the Board of Education’s the cross petition seeking to confirm the arbitration award, explaining that Supreme Court erred in vacating the award as the award was not irrational and the arbitrator did not exceed a specific limitation on her authority.*  

Noting that “It is well established that "an arbitrator's rulings, unlike a trial court's, are largely unreviewable," citing Matter of Falzone, 15 NY3d 530, the Appellate Division said that "a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

As the Court of Appeals held in New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326), "Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one. Indeed, even in circumstances 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."

* The Appellate Division also held that Supreme Court erred in determining that the arbitrator impermissibly modified the collective bargaining agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00612.htm

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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 February 3, 2013 [Click on text highlighted in bold to access the full report]


DiNapoli Finalizes Fiscal Monitoring System

State Comptroller Thomas P. DiNapoli announced Monday his office has finalized plans to implement a statewide fiscal monitoring system that would publicly identify local governments experiencing financial strain.

DiNapoli: Inappropriate Payments Cited In Kingston Audit

The city of Kingston made $23,000 in improper payments to employees for unearned leave time, according to an auditreleased Thursday by State Comptroller Thomas P. DiNapoli. As a result of the audit, former fire chief Richard Salzmann was arrested and charged by Ulster County District Attorney D. Holley Carnright with offering a false instrument for filing in the second degree, a class A misdemeanor.

DiNapoli: Empire BlueCross BlueShield Paying Hospitals Windfalls For Special Medical Items

New York State health insurance provider Empire BlueCross BlueShield has routinely allowed hospitals to charge excessive amounts for special medical items such as implants, drugs and blood, because they did not sign agreements to limit reimbursement for those items, according to an auditof the New York State Health Insurance Program released Friday by State Comptroller Thomas P. DiNapoli.

DiNapoli: Utica Facing Continued Fiscal Challenges

The city of Utica continues to struggle with recurring budget gaps and has nearly depleted its fund balances, according to a fiscal report issued Tuesday by State Comptroller Thomas P. DiNapoli. The report is the latest in a series of fiscal profiles on cities across the state.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of:

the Big Flats Fire District No. 2;

the Golden Glow Volunteer Fire Company, Inc.;

the Lincoln Fire District; and,

the Village of Richmondville.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of:

the Hadley–Luzerne Central School District; and,

the Hyde Park Central School District

State Comptroller's auditors alledge that NYSHIP provider Empire Bluecross Blueshield paid excessive amounts for special medical items

State Comptroller's auditors alledge that NYSHIP provider Empire Bluecross Blueshield paid excessive amounts for special medical items

Source: Office of the State Comptroller

New York State Health Insurance Program (NYSHIP) provider Empire BlueCross BlueShield [Empire] has routinely allowed hospitals to charge excessive amounts for special medical items such as implants, drugs and blood because they did not sign agreements to limit reimbursement for those items according to an audit of the NYSHIP released on February 1, 2013 by New York State Comptroller Thomas P. DiNapoli.  

The Comptroller's Office said:
 
"DiNapoli’s auditors reviewed claims for a series of special items, finding Empire paid hospitals on average 344 percent more than the costs of the items in question. While the details of the special items cannot be disclosed due to proprietary concerns, examples of Empire’s excessive payments include:

Claim Example	Amount Empire Paid Hospital for Special Items	Hospitals’ Purchase / Acquisition Cost	Excess to Hospital
A	$82,407	$18,000	$64,407	358%
B	$94,656	$25,000	$69,656	279%
C	$102,877	$24,780	$78,097	315%
D	$80,307	$13,399	$66,908	499%
Totals	$360,247	$81,179	$279,068	344%

"DiNapoli’s auditors were unable to obtain supporting documentation from 13 hospitals for 44 selected claims for special items because Empire cannot compel the hospitals to submit that information. If Empire paid these hospitals 344 percent more than the costs of the items, the hospitals could have generated profits of nearly $1.6 million on these claims, auditors estimated.

"NYSHIP provides health insurance coverage to active and retired state, participating local government and school district employees and their dependents.

"The Department of Civil Service contracts with Empire Blue Cross and Blue Shield (Empire) to provide hospitalization coverage under the Empire Plan, the largest insurance option provided by NYSHIP. Empire processes Plan claims for hospital services and medical items in accordance with agreements it negotiates with participating hospitals.

"Empire’s hospital agreements provide for additional payments for certain special items. Agreements with many member hospitals often limit payments for special items, but others do not. For the period January 1, 2011 through March 31, 2011, Empire paid 246,870 claims totaling over $529 million for services provided to plan members. This included payments totaling $24 million for 12,990 claims for special items submitted by hospitals whose agreements did not limit Empire’s reimbursements for such items.

"DiNapoli’s auditors recommended Empire:

·        Ensure that future agreements with hospitals contain language that specifies the basis of reimbursement for the purchase and acquisition of special items; and require hospitals to provide appropriate support documentation (including invoices for special items) upon request; and

·        Develop and implement internal controls to ensure that payments for special items are made in accordance with hospital agreements.

"For a copy of the roll-up report documenting the findings on 15 hospitals visit: http://osc.state.ny.us/audits/allaudits/093013/11s17.pdf

"The audits of 11 other individual hospitals with special item payment agreements can be found under the NYSHIP section at: http://www.osc.state.ny.us/audits/index.htm "

Employee privacy and Internet Social Media

Employee privacy and Internet Social Media

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201120120AB1844

California’s Governor Edmund G. Brown has signed into law a bill that prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media.

The law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions.

The new law provides as follows:

California Labor Code

CHAPTER  2.5. Employer Use of Social Media

§980.

 (a) As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.

(b) An employer shall not require or request an employee or applicant for employment to do any of the following:

(1) Disclose a username or password for the purpose of accessing personal social media.

(2) Access personal social media in the presence of the employer.

(3) Divulge any personal social media, except as provided in subdivision (c).

(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

Employee terminated following his falsely reporting he was unable to work and engaging in unauthorized outside employment

Employee terminated following his falsely reporting he was unable to work and engaging in unauthorized outside employment  

The Appellate Division sustained the termination of a deputy sheriff’s employment as a deputy sheriff, holding that substantial evidence supports the findings that the deputy sheriff:

[1] Falsely reported that he was unable to work from October through the following June;

[2] Engaged in unauthorized outside employment: and

[3] Lied under oath when he denied engaging in such outside employment at his workers' compensation hearing.

The court ruled that there was no basis to disturb the credibility determinations of the Administrative Law Judge and that the penalty of termination “does not shock our sense of fairness,” citing Cherry v Horn, 66 AD2d 556

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00427.htm

Challenging the denial of an appeal of an unsatisfactory performance rating

Challenging the denial of an appeal of an unsatisfactory performance rating 
102 AD3d 586

Supreme Court denied a petition seeking to annul the determination by the New York City Board of Education denying an educator’s appeal of an unsatisfactory rating (U-rating) for school year.

The Appellate Division unanimously affirmed the lower court’s ruling, explaining that the educator “failed to show that the U-rating was arbitrary and capricious, or made in bad faith.”

The court noted that detailed observations in reports prepared by the principal and two assistant principals describing the educator's poor performance in class management, engagement of students, and lesson planning provided a rational basis for the U-rating.

Further, said the Appellate Division, the record showed that after the educator received a U-rating at the end of the prior school year and was then provided with a professional development plan at the start of the succeeding school year and, throughout that year, received professional support and had a series of classroom observations by the principal and two assistant principals. Each observation, said the court, was documented by a detailed letter to the educator noting areas of improvement and making specific recommendations for addressing continuing deficiencies.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00418.htm

Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Appeal of C.Z. from actions of the Board of Education of the Jordan-Elbridge Central School District, et. al.

Decisions of the Commissioner of Education, Decision No. 16,450

In this appeal to the Commissioner of Education C.Z. contended that certain alleged actions by school board members were “inappropriate and/or in violation of the Education Law and the Educational Rights and Privacy Act [FERPA].”  C.Z asked the Commissioner to issue an order admonishing the board members.

The Commissioner, stating that he lacked jurisdiction to consider FERPA claims, dismissed this branch of C.Z.’s appeal. The Commissioner explained that “The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]).

The Commissioner also dismissed that portion of C.Z. appeal that, in the words of the Commissioner, “attempts to allege violations of the Open Meetings Law through her claims that [the school board] declined to allow her to attend and to discuss certain issues at an executive session." The Commissioner noted that the §107 of the Public Officer Law “vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

As to the redress sought, admonition of certain members of the school board, The Commissioner noted that it is “well established” that the Commissioner of Education does not have  members any authority to censure or reprimand a board member.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16450.html

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings

Correction officer found guilty of improper use of force

Recommended penalty: 15-day suspension without pay

A correction officer was charged with improper use of force against two inmates. That officer and his partner were also charged with making false reports and failing to obtain medical attention for an injured inmate.

Administrative Law Judge John B. Spooner found petitioner proved that the first officer used improper force against one of the inmates but he recommended dismissal of the rest of the charges. The recommended penalty was a 15-day suspension, given the inconclusive proof as to the precise extent of the force used.

This was the first OATH case involving videoconference testimony by an inmate from a City jail.

The decision is posted on the Internet at:

Dep't of Correction v. Wingate (in PDF), OATH Index Nos. 1490/12 & 1491/12

Employee found guilty of being intoxicated while on duty

Recommended penalty: termination

An office worker was charged with being intoxicated at work on four occasions during a one-month period.

Administrative Law Judge Kevin F. Casey sustained two of the charges. He rejected as implausible respondent’s claim that his medications and illnesses cause a variety of symptoms, including dizziness and vomiting, which give people the mistaken impression that he was intoxicated, in view of proof that respondent was diagnosed with acute alcohol intoxication at a hospital on one of the charged dates.

Given respondent’s prior disciplinary record -- which included a 40-day suspension for similar, recent misconduct -- and in the absence of evidence of rehabilitation, ALJ Casey recommended termination of respondent’s employment.

The decision is posted on the Internet at:

Human Resources Admin. v. Anonymous (in PDF), OATH Index No. 212/13

Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Supreme Court denied the petition of an individual seeking to annul the appointing authority’s:

[a] terminating him from his from his position during the required probationary period: and

[b] declining to reinstate the individual to his former “permanent position.”

According to the decision, the individual, then serving as a “Computer Aide,” was appointed to the position of “Computer Science Technician (CST), Level II” from an open-competitive eligible list.

The Appellate Division vacated the Supreme Court’s ruling and remanded the matter for a determination if the individual “effectively resigned* from his permanent position.”

The court explained that while an individual appointed from an open-competitive eligible list to the position from which he or she had been terminated during the probationary period would not be entitled to reinstatement to his or her prior, permanent position “if he voluntarily accepted his appointment to the new position, which would constitute an effective resignation from his prior, permanent position,” in this instance there was a triable issue of fact as to whether the individual “voluntarily accepted the appointment to the subsequent, probationary position.” Accordingly, the Appellate Division remanded the matter to Supreme Court for its further consideration.

A corollary issue that the Supreme Court may be required to explore: was the individual “promoted” to his or her new position within the meaning of the Civil Service Law? §63.1 of the Civil Service Law provides, in pertinent part, as follows:

When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.

Typically “promotion” is the word of art used to describe the advancement of an individual from a lower grade position to a higher-grade position in the “line of promotion.” In the absence or exhaustion of a “promotion list,” an appropriate “open-competitive eligible list” may be used to fill the vacancy.

Indeed, in situations where a promotion examination is not expected to produce sufficient eligibles to fill all the vacancies, actual and anticipated, during the life of the eligible list, an open-competitive examination may be authorized to be held simultaneously with the promotion examination, with the resulting open-competitive eligible list to be certified upon the exhaustion of the promotion eligible list.

In Bethel v McGrath-McKechnie, 95 N.Y2d 7, the Court of Appeals ruled that an individual who accepts an original appointment to a position from an open-competitive examination effectively resigned from his or her former position. The Court of Appeals decided that Bethel had not been promoted and thus Section 63(1) did not apply to her situation.

Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said that Section 63 provides job security to a permanent employee who is transferred or promoted to a position in which he or she is required to serve, but does not satisfactorily complete, a probationary period.

* Typically a resignation from a position is required to be in writing to be effective.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00397.htm

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

Kaslow v City of New York, 2013 NY Slip Op 00210, Appellate Division, Second Department

In this CPLR Article 78 proceeding David Kaslow asked Supreme Court to review a determination of the New York City Employees' Retirement System [NYCERS]. 

Kaslow had retired from employment with the New York City Department of Correction [DOC]. NYCERS however, had denied his request for service credit for his prior employment with the New York City Department of Environmental Protection [DEP] for purposes of determining his retirement allowance.

While Kaslow had contended that he was entitled to service credit for his prior employment with DEP, NYCERS said that in accordance with Retirement and Social Security Law §504-a, Kaslow, as a member of the Tier 3 CO-20 retirement plan, was not entitled to service credit for his civilian service with DEP prior to his employment with DOC.

Supreme Court granted Kaslow’s petition, holding that his service with the City's Department of Environmental Protection should have been credited. NYCERS and the City of New York appealed the court’s ruling.

The Appellate Division, noting that "An agency's interpretation of the statutes and regulations that it administers must be given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute,'" said that in the event the question is one of pure legal interpretation of statutory terms, “deference to the agency is not required."

In this instance, said the court, NYCERS's interpretation of the term "credited service," was irrational, unreasonable, and inconsistent with the other applicable statutes governing the retirement benefits of officers employed with the DOC.

Accordingly, and under the circumstances presented in this instance, the Appellate Division concluded that for purposes of determining Kaslow retirement allowance upon his retirement from DOC, his creditable civilian service with DEP should have been included in NYCERS's calculation of his benefits, and, thus, Supreme Court had properly granted Kaslow’s petition.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00210.htm

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings 

Firefighter admitted using cocaine

Penalty recommended: termination and forfeiture of the vesting his pension recommended

A firefighter who tested positive for cocaine admitted to using the drug but argued that he should be permitted to vest his pension and retire when eligible to do so.

Administrative Law Judge Alessandra F. Zorgniotti noted that pursuant to the Department’s “zero tolerance policy,” termination of employment is the usual penalty for a first time positive test, in the absence of exacerbating or extenuating circumstances.

Judge Zorgniotti found that respondent failed to present sufficient evidence in mitigation to justify a lesser penalty and recommended termination of the individual’s employment, without an allowance that his pension be permitted to vest fully.

The decision is posted on the Internet at:

Fire Dep’t v. Arcello (in PDF), OATH Index No. 109/13 

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

On January 28, 2013, State Comptroller Thomas P. DiNapoli announced that his office has finalized plans to implement a statewide fiscal monitoring system that would publicly identify local governments experiencing financial strain. The monitoring system will include nine financial indicators, such as cash-on-hand and patterns of operating deficits, together with broader demographic information like population trends and tax assessment growth. The system will start by analyzing those localities whose fiscal year ended December 31, 2012 and later apply it to villages and school districts whose fiscal years end at various periods throughout the year.

DiNapoli’s office drafted the ‘early warning’ monitoring system in September 2012 and shared details of the proposal with all of the state’s local governments and school districts for their review during a 60-day comment period. More than 85 local government and school district officials, as well as a number of affiliated organizations, submitted comments.

Using data already submitted by more than 3,000 local governments, DiNapoli’s office will calculate and publicize an overall score of fiscal stress for approximately 2,300 municipalities and school district across the state. They will be listed as in “significant fiscal stress,” in “moderate fiscal stress,” “susceptible to fiscal stress,” or “not in fiscal stress.”

Once the monitoring system has identified local governments and school districts experiencing fiscal stress, an array of services will be offered by DiNapoli’s office including budget reviews, technical financial assistance, guidance on multi-year financial planning, financial management publications and training.

Additional information concerning the Comptroller’s fiscal stress monitoring system is posted on the Internet at: www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm