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 24, 2013 [Click on text highlighted in bold to access the full report] 


Independent Review of State Pension Fund Finds DiNapoli’s Reforms Highly Effective

New York State Comptroller Thomas P. DiNapoli Tuesday released an independent review of the New York State Common Retirement Fund (Fund) that found it is well–run, operates with an industry–leading level of transparency and invests effectively on behalf of its members. The review by Funston Advisory Services, required as part of robust oversight reforms pushed by DiNapoli, determined the Comptroller is fulfilling his fiduciary responsibilities and that Fund employees act within ethical and professional standards.

A.G. Schneiderman and Comptroller Dinapoli Announce Guilty Pleas Of Former Senator Shirley Huntley’s Co–Defendants

Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli Wednesday announced that the co–defendants in the case of former New York Senator Shirley L. Huntley have pleaded guilty for their roles in an illegal member item theft scheme and a cover up. Patricia Savage, Senator Huntley’s aide and president of Parent Workshop, a bogus nonprofit, and Lynn Smith, Senator Huntley’s niece and the treasurer of Parent Workshop, pleaded guilty today to the felony of Attempted Grand Larceny in the Third Degree, and agreed to pay $29,950 in restitution to the state of New York, the full amount of taxpayer dollars they had stolen. A third co–defendant, David Gantt, pleaded guilty to the charge of Falsifying Business Records in the Second Degree.

New York State Common Retirement Fund Announces Third Quarter Results

The New York State Common Retirement Fund’s (Fund) rate of return for the third quarter ending December 31, 2012 was 1.74 percent, according to New York State Comptroller Thomas P. DiNapoli. The Fund’s estimated value at the end of the third quarter was $152.9 billion, near its historical high.

DiNapoli: Yonkers Challenged by School Finances, Declining Property Values

The City of Yonkers has persistently faced significant budget gaps which have caused the city to draw down its fund balance. Recent declines in state aid, property values and growing school demands have added to the city’s financial challenges, according to a report released Wednesday by New York State Comptroller Thomas P. DiNapoli. Yonkers officials have started making tough choices needed to bring the City’s budget into structural balance. The report is the latest in a series of fiscal profiles on cities across the state released by the Comptroller’s office.

DiNapoli: Syracuse’s Fiscal Condition Challenged by Systemic Problems

The City of Syracuse is confronted by a large number of vacant and tax–exempt properties, low rates of home ownership and decreased home values, according to a report released Wednesday by State Comptroller Thomas P. DiNapoli. The rating agencies credit Syracuse for having a relatively strong financial position, but caution the City is susceptible to adverse economic conditions. The report is the latest in a series of fiscal profiles DiNapoli will issue on cities across the state.

Qualcomm Implements Industry–Leading Political Spending Disclosure Policy; DiNapoli Commends Action

Qualcomm Incorporated and the New York State Common Retirement Fund (Fund) were pleased to announce Friday that following informative discussions, the Fund has decided to withdraw the lawsuit it filed on January 2, 2013. Qualcomm will implement a revised political spending disclosure policy which is now available on its website.

Governor Cuomo introduced 30-day amendments to the Executive Budget

Governor Cuomo introduced 30-day amendments to the Executive Budget

Among the measures introduced by Governor Cuomo having a direct effect on public employees of the State are the following:

1. Implement teacher evaluation system in New York City. Under the Governor’s leadership, the state passed a comprehensive teacher evaluation system for every district across New York State. Though 99 percent of districts were able to reach an agreement on a plan with their local teacher unions, submit it to the state, and have their plan approved by the State Education Department before their January deadline, New York City failed to so. As a result, it lost $240 million in state aid and is in danger of losing additional funds if an evaluation system is not in place this year.

In the event the City and its collective bargaining units fail to reach agreement on a teacher evaluation system by the end of May, an expedited arbitration process, led by the Commissioner of Education, will occur. Following hearings and a review of evidence, the Commissioner, by June 1^st, will make a final, written determination on the structure of a teacher evaluation system for New York City schools. This legislation will ensure that New York City students and educators will not see another school year go by without the timely feedback, professional development, and accountability that a robust teacher evaluation plan will provide.


2. Expand availability of the Stable Pension option. The stable pension contribution rate for local governments and schools, submitted as part of the Executive Budget, will provide a new tool for local governments to access the long-term savings from Tier VI and have greater predictability in their fiscal planning. Given the positive response to this proposal from sectors who asked to take advantage of the program but were not initially included, the Governor would expand eligibility to include BOCES and three local public hospitals – Nassau University Medical Center, Westchester Medical Center, and Erie County Medical Center. The county sponsors of the three hospitals included in this amendment, as well as their taxpayers, have a direct interest in financial condition of these institutions and, therefore, the stable pension option is a viable approach to meeting local fiscal demands.

3. Provide retraining funds for state employees. The Executive Budget included a $5 million appropriation to be used to retrain State employees impacted by 2012-13 and 2013-14 facility closures at OMH, OPWDD, DOCCS and OCFS. Funding would be available to retrain employees for which comparable State positions could not be found nearby their current work location. This amendment reduces the radius to 25 miles, allowing the funds to be used to help a larger number of impacted employees.

The entire list of 30-day amendments is available at http://budget.ny.gov  

The Governor said that his 2013-14 Executive Budget and Management Plan builds on two years of balanced, fiscally responsible budgeting and invests in economic development, education reform, rebuilding after Superstorm Sandy, provides support to local governments and school districts, and includes no new taxes or fees. The budget is required to be passed by April 1.

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Matter of Beck-Nichols, Adrian, and Luchey v Bianco, 2013 NY Slip Op 01015, Court of Appeals

These three appeals stem from a residency policy that required employees of the School District of the City of Niagara Falls, New York (the District) hired or promoted after the policy's effective date, March 1, 1994, to reside in the City of Niagara Falls (Niagara Falls or the City), and maintain residency there during their employment.

The policy's implementing regulations define "residency" as "an individual's actual principal domicile* at which he or she maintains usual personal and household effects."

Essentially all three individual had signed affirmations signifying their understanding that they were required to become domiciled with in the City  in accordance with the District’s residency policy. Subsequently the District's School Board, after an investigation, concluded that three employees were not domiciled in Niagara Falls and terminated their respective employments with the District.

Supreme Court, in an Article 78 action involving two of the three employees,** characterized the District’s policy's definition of residency as creating a "vague and ambiguous" standard which, coupled with the Superintendent's failure to develop adequate procedures and guidelines, "resulted in varied and subjective interpretations leading to disparate results." The court held that the residency requirement was unenforceable, and that any termination of the two individuals involved in this phase of the litigation based on it was therefore arbitrary and capricious. Supreme Court directed the reinstatement of the two individuals with full back pay and benefits.

Different panels of the Appellate Division considered these appeals. One panel reversed the Supreme Court’s judgment as to one of the individuals (92 AD3d 1272), holding that the District established that the individual was not domiciled in Niagara Falls, and therefore the Board's determination was not arbitrary and capricious. The Court of Appeals affirm this ruling.

A second panel sustained the Supreme Court’s ruling with respect to the second individual without opinion (92 AD3d 1276) which ruling the Court of Appeals reversed.

The Court of Appeals explained that a residency policy for municipal workers serves "the legitimate purpose of encouraging city employees to maintain a commitment and involvement with the government which employs them by living within the city [citations omitted]."

Addressing the implementing regulations, the court noted that the regulation define "residency" as "an individual's actual principal domicile at which he or she maintains usual personal and household effects." This definition, said the court, may be criticized for redundancy or surplusage, but not ambiguity. The word "domicile" alone is enough to convey the sense that the Board mandates that District employees live in Niagara Falls "with intent to make it a fixed and permanent abode."

As to “administrative due process” issues advanced by the individuals, the Court of Appeals pointed out that the regulations “provide for notifying employees of the residency policy upon initial appointment and promotion; give employees six months after appointment to come into compliance, and allow the Board, in its discretion, to extend this grace period for another six months; provide for a "seven-day letter" to afford an employee the opportunity to respond to allegations of non-compliance; include a hardship waiver; and exempt non-administrative employees hired prior to the policy's effective date, subject to certain conditions.”

The regulations, said the court, “also include detailed forms to carry out the policy. These forms, in one way or another, call for employees to acknowledge that they have read, understand and agree to fulfill their responsibilities under the policy.”

As to claims advanced by two of the individual’s contending that they were entitled to pre-termination hearings in the nature of a disciplinary proceeding as a condition precedent to their termination, the Court of Appeals indicated that it had previously held that a residency requirement defines eligibility for employment, and so is "unrelated to job performance, misconduct or competency." Thus said the court, the individuals were not entitled to a pre-termination hearing such as set out Education Law  §§2509(2), 3020 or 3020-a, which deal with teacher discipline, explaining that in this instance “due process mandates only notice and some opportunity to respond.”

Finally, the court addressed the proper standard for judicial review in these cases, concluding that the standard is whether the Board's determination was arbitrary and capricious or an abuse of discretion. 

Conceding that this standard is ‘an extremely deferential one,” the Court of Appeals said that "The courts cannot interfere [with an administrative body's exercise of discretion] unless there is no rational basis for [its] exercise . . . or the action complained of is arbitrary and capricious, [a test which] chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact," citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222," [emphasis supplied by the court].

The bottom line: the Court of Appeals held that in Beck-Nichols the judgment of the Appellate Division should be reversed, with costs, and the petition dismissed; in Adrian, the order of the Appellate Division should be affirmed, with costs; and in Luchey, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

* In Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385, a case involving which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother, the Court of Appeals explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."

** Supreme Court transferred the petition filed by the third individual, Luchey, to the Appellate Division, which ruled in favor of the former employee. The Court of Appeals reversed this determination by the Appellate Division.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01015.htm

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Matter of Beck-Nichols, Adrian, and Luchey v Bianco, 2013 NY Slip Op 01015, Court of Appeals

These three appeals stem from a residency policy that required employees of the School District of the City of Niagara Falls, New York (the District) hired or promoted after the policy's effective date, March 1, 1994, to reside in the City of Niagara Falls (Niagara Falls or the City), and maintain residency there during their employment.

The policy's implementing regulations define "residency" as "an individual's actual principal domicile* at which he or she maintains usual personal and household effects."

Essentially all three individual had signed affirmations signifying their understanding that they were required to become domiciled with in the City  in accordance with the District’s residency policy. Subsequently the District's School Board, after an investigation, concluded that three employees were not domiciled in Niagara Falls and terminated their respective employments with the District.

Supreme Court, in an Article 78 action involving two of the three employees,** characterized the District’s policy's definition of residency as creating a "vague and ambiguous" standard which, coupled with the Superintendent's failure to develop adequate procedures and guidelines, "resulted in varied and subjective interpretations leading to disparate results." The court held that the residency requirement was unenforceable, and that any termination of the two individuals involved in this phase of the litigation based on it was therefore arbitrary and capricious. Supreme Court directed the reinstatement of the two individuals with full back pay and benefits.

Different panels of the Appellate Division considered these appeals. One panel reversed the Supreme Court’s judgment as to one of the individuals (92 AD3d 1272), holding that the District established that the individual was not domiciled in Niagara Falls, and therefore the Board's determination was not arbitrary and capricious. The Court of Appeals affirm this ruling.

A second panel sustained the Supreme Court’s ruling with respect to the second individual without opinion (92 AD3d 1276) which ruling the Court of Appeals reversed.

The Court of Appeals explained that a residency policy for municipal workers serves "the legitimate purpose of encouraging city employees to maintain a commitment and involvement with the government which employs them by living within the city [citations omitted]."

Addressing the implementing regulations, the court noted that the regulation define "residency" as "an individual's actual principal domicile at which he or she maintains usual personal and household effects." This definition, said the court, may be criticized for redundancy or surplusage, but not ambiguity. The word "domicile" alone is enough to convey the sense that the Board mandates that District employees live in Niagara Falls "with intent to make it a fixed and permanent abode."

As to “administrative due process” issues advanced by the individuals, the Court of Appeals pointed out that the regulations “provide for notifying employees of the residency policy upon initial appointment and promotion; give employees six months after appointment to come into compliance, and allow the Board, in its discretion, to extend this grace period for another six months; provide for a "seven-day letter" to afford an employee the opportunity to respond to allegations of non-compliance; include a hardship waiver; and exempt non-administrative employees hired prior to the policy's effective date, subject to certain conditions.”

The regulations, said the court, “also include detailed forms to carry out the policy. These forms, in one way or another, call for employees to acknowledge that they have read, understand and agree to fulfill their responsibilities under the policy.”

As to claims advanced by two of the individual’s contending that they were entitled to pre-termination hearings in the nature of a disciplinary proceeding as a condition precedent to their termination, the Court of Appeals indicated that it had previously held that a residency requirement defines eligibility for employment, and so is "unrelated to job performance, misconduct or competency." Thus said the court, the individuals were not entitled to a pre-termination hearing such as set out Education Law  §§2509(2), 3020 or 3020-a, which deal with teacher discipline, explaining that in this instance “due process mandates only notice and some opportunity to respond.”

Finally, the court addressed the proper standard for judicial review in these cases, concluding that the standard is whether the Board's determination was arbitrary and capricious or an abuse of discretion. 

Conceding that this standard is ‘an extremely deferential one,” the Court of Appeals said that "The courts cannot interfere [with an administrative body's exercise of discretion] unless there is no rational basis for [its] exercise . . . or the action complained of is arbitrary and capricious, [a test which] chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact," citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222," [emphasis supplied by the court].

The bottom line: the Court of Appeals held that in Beck-Nichols the judgment of the Appellate Division should be reversed, with costs, and the petition dismissed; in Adrian, the order of the Appellate Division should be affirmed, with costs; and in Luchey, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

* In Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385, a case involving which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother, the Court of Appeals explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."

** Supreme Court transferred the petition filed by the third individual, Luchey, to the Appellate Division, which ruled in favor of the former employee. The Court of Appeals reversed this determination by the Appellate Division.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01015.htm

Public entities may have monies being held in the State Comptroller's Abandoned Property Fund

Public entities may have monies being held in the State Comptroller's Abandoned Property Fund

The State’s Abandoned Property Law requires banks, insurance companies, utilities, and other businesses to turn dormant savings accounts, unclaimed insurance and stock dividends, and other inactive holdings over to the State. If there has been no activity in the account for a set period of time, usually between two and five years, the money or property is considered unclaimed or abandoned. Although Section 1402 of the Abandoned Property Law has a $20 threshold for such listing, the Comptroller uses a "$50 threshold” for the listings on his Internet website.

In these times of financial difficulties, every penny counts -- so below is a sample listing of various public entities currently listed as having monies being held by the State Comptroller in the Abandoned Property Fund and which may be claimed by the rightful owner. The Comptroller's dedicated web site for making such searches is at: http://www.osc.state.ny.us/ouf/index.htm    

How much money is being held in the Fund? Twelve Billion Dollars, give or take a few million.

A search of the Comptroller web site at for “nys dep” resulted in 15 matches, included those listed below. 

	Name	Address	Reported By
	NYS DEPARTMENT OF STATE CERTIFICATION UNIT	123 WILLIAM ST NEW YORK NY 10038	ROPES & GRAY LLP
	NYS DEPARTMENT OF STATE DIVIS	99 WASHINGTON AVENUE, 6TH FLR ALBANY NY 12231	STATE FARM FIRE & CASUALTY CO
	NYS DEPARTMENT OF TAXATION AND FINANCE	P O BOX 4127 BINGHAMTON NY 13902	NATIONAL FINANCIAL SERVICES LLC

Other public employers and employee organizations are listed by the Comptroller as having monies being held in the Abandoned Property Fund as well, although it may take some detective work as the organization’s “official name” may not be the one being used by the depositing organization. 

For example, a search for “County of” resulted in 129 matches such as:

	COUNTY OF COLUMBIA	PO BOX 458 HUDSON NY 12534	EMPIRE BLUE CROSS & BLUE SHIELD
	COUNTY OF CORTLAND	60 CENTRAL AVE PO BOX 5590 NY 13045	NATIONWIDE RETIREMENT SOLUTIONS
	COUNTY OF DUCHESS DE	60 MARKET ST POUGHKEEPSIE NY 12601	TELECHECK SERVICES INC

A search by county name is also possible, such as the following results using the search term “Yates Co”-

	YATES CO DEP OF SOCI	110 COURT ST PENN YAN NY 14527	SUBURBAN PROPANE PARTNERS LP
	YATES CO DEPT SOCIAL	110 COURT STREET PENN YAN NY 14527	AMERIGAS PROPANE LP
	YATES CO FIRE DEPT	227 E MAIN ST PENN YAN NY 14527	PEARSON EDUCATION INC
	YATES CO MENTAL HEALTH CLINIC	431 LIBERTY ST PENN YAN NY 14527	TRAVELERS INDEMNITY CO
	YATES CO SOIL WATECONSERVATION	110 COURT STREET PENN YAN NY 14527	MERCHANTS MUTUAL INSURANCE CO

A search for 'BOCES' resulted in 26 matches, some of which are listed below.

	BOCES	SUITE 102 900 WATERVLIET SHAKER RD ALBANY NY 12205	VERIZON WIRELESS
	BOCES	ATTN VAL WARD 435 GLENWOOD RD BINGHAMTON NY 13905	NEW YORK TELEPHONE CO
	BOCES	1126 BALDHILL RD HORNELL NY 14843	COCA COLA ENTERPRISES INC
	BOCES	1086 EAST MAIN STREET SCHRUB OAK NY 10588	AT&T CORP
	BOCES	CAYUGA-ONONDAGA BOARD OF COOPE P O BOX 4 51 SYRACUSE NY 13208	TIME WARNER ENTERTAINMENT CO L P

while a search using “school district” resulted in the following “hits:”

	SCHOOL DISTRICT GREE	10 GRAY AVE GREENWICH NY 12834	SHAKLEE U S LLC
	SCHOOL DISTRICT NO 3 5 LANGLEY	BUSINESS OFFICE 4875 222ND STREET	EDUCATIONAL TESTING SERVICE
	SCHOOL DISTRICT NORT	5355 W TAFT RD N SYRACUSE NY	NEW YORK TELEPHONE CO
	SCHOOL DISTRICT NUMBER 42	BUSINESS OFFICE 22225 BROWN AVENUE	EDUCATIONAL TESTING SERVICE

and there were four matches for “union free school” –

	UNION FREE SCHOOL DI	480 CLAY PITTS RD EAST NORTHPORT NY 11731	HEWLETT PACKARD CO
	UNION FREE SCHOOL DI	TOWN OF GREENBURGH BOARD OF ED 360 BROAD WAY HASTINGS NY 10706	PRUDENTIAL INSURANCE CO OF AMERICA
	UNION FREE SCHOOL DIST 1	399 KNOLLWOOD RD APT 103 WHITE PLAINS NY 10607	AETNA LIFE INSURANCE & ANNUITY CO
	UNION FREE SCHOOL DISTRICT 4 BOARD EDUCATION	27 FARRAGUT AVE HASTINGS ON HUDSON NY 10706	CHEMTURA CORP

Searching  for “Town of” produced 366 matches, including:

	TOWN OF ALDEN	2240 SOUTHWESTERN BLVD WEST SENECA NY 14224	CITIBANK NEW YORK STATE
	TOWN OF ANDES HIGHWAY DEP	PO BOX 246 ANDES NY 13731	HSBC FINANCE CORP
	TOWN OF ARIETA	PO BOX 37 PISECO NY 12139	CDW LLC
	TOWN OF ASHFORD	9377 ROUTE 240 WEST VALLEY NY 14171	EDP RENEWABLES NORTH AMERICA L

while a search for “Town clerk” produced 2 matches:

	TOWN CLERK - WATER &SEWER USUA	TOWN OF GREENPORT HUDSON NY 12534	NEW YORK TELEPHONE
	TOWN CLERK GREENBURGH	PO BOX 810 STONE RIDGE NY 12484	CITIBANK NA NATIONAL COMPLIANCE GRP

A search using the term “village of” resulted in 155 matches including:

	VILLAGE OF	JOE MARASCO 27 WEST AVE SPENCERPORT NY 14559	EXCELLUS HEALTH PLAN INC
	VILLAGE OF ADDISON	PO BOX B ADDISON NY 14801	TIME WARNER ENTERTAINMENT CO L P
	VILLAGE OF ALFRED	WATER DEPARTMENT 7 WEST UNIVERSITY STREE T ALFRED NY 14802	ALFRED UNIVERSITY
	VILLAGE OF ALTAMONT	PO BOX 643 ALTAMONT NY 12009	GALLS LLC

Public employee organizationshaving funds held by the Comptroller include:

	CSEA LOCAL 1000 AFSCM	143 WASHINGTON AVE CAPITON ST ALBANY NY 12224	STATE OF CALIFORNIA
	CSEA LOCAL 407	10 RAILROAD PL CAPITAL DISTRICT DSO SARATOGA SPRINGS NY 12866	MARRIOTT INTERNATIONAL INC
	CSEA LOCAL 431	61 LAKE ST TUPPER LAKE NY 12986	COCA COLA REFRESHMENTS USA INC
	CSEA LOCAL 667	PO BOX 903 TROY NY 12181	MARRIOTT INTERNATIONAL INC
	CSEA LOCAL 8	PO BOX 480 CARMEL NY 10512	VERIZON NEW YORK INC

and

	POLICE BENEVOLENT AS	112 STATE ST STE 1212 ALBANY NY 12207	UNITED STATES LIFE INSURANCE CO
	POLICE BENEVOLENT ASSN INC	NYC TRANSIT POLICE DEPARTMENT CO MR RICH ARD A DIENST NEW YORK NY 10279	CITIBANK N A
	POLICE BENEVOLENT ASSOC	CITY OF WHITE PLAINS PO BOX 68 WHITE PLAINS NY 10603	SAM ASH MUSIC CORPORATION
	POLICE BENEVOLENT ASSOC TOWN	BOX 89 ARRONK NY 10504	BANKERS TRUST CO

An individual seeking certain records disclosed by a party in another litigation must show that such records are “in controversy” in his or her action

An individual seeking certain records disclosed by a party in another litigation must show that such records are “in controversy” in his or her action

A teacher [Teacher] at a State correctional facility alleged that she had been subjected to unlawful discrimination based upon sex, age and disability and then subjected to retaliation for complaining about such alleged discrimination by her supervisor.

Supreme Court denied Teacher’s motion seeking the production of her supervisor’s medical records, which decision was sustained by the Appellate Division.

The Appellate Division explained that “[e]ven assuming, arguendo, that [the supervisor] waived the physician-patient privilege with respect to those records by disclosing them in an action commenced by [her] in federal court, we conclude that [Teacher] failed to meet her initial burden of making an evidentiary showing that [the supervisor’s] medical condition ‘in controversy’ in this action,” citing CPLR §3121[a].

The Appellate Division commented that “[t]he fact that [the supervisor] affirmatively placed her medical condition in controversy in the related action she commenced in federal court does not relieve [Teacher] of her initial burden herein.” 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00853.htm

An arbitration award that is rational and which neither violates strong public policy nor exceeds the power of the arbitrator may not be vacated by the courts

An arbitration award that is rational and which neither violates strong public policy nor exceeds the power of the arbitrator may not be vacated by the courts
New York Finger Lakes Region Police Officers Local 195 of Council 82, AFSCME, AFL-CIO (City of Auburn), 2013 NY Slip Op 00844, Appellate Division, Fourth Department

The Finger Lakes Region Police Officers Local 195 appealed Supreme Court's rejection of its petition to vacate an arbitration award in which the arbitrator had determined that the City of Auburn had not violated the terms of the relevant collective bargaining agreement (CBA) when it terminated the employment of one of the members of the Local.

The Appellate Division sustained the lower court’s ruling, explaining that "[a]n arbitration award may be vacated if it is irrational, violates a strong public policy, or clearly exceeds a specifically enumerated limitation on the arbitrator's power*" Here, and notwithstanding the Local’s arguments to the contrary, the Appellate Division concluded that the arbitrator's interpretation of the CBA was not irrational, "nor did the arbitrator alter the terms of the CBA based on his interpretation of its terms so as to exceed his authority."

Citing Communication Workers of Am., Local 1170 v Town of Greece, 85 AD3d 1668, leave to appeal denied 18 NY3d 802, the Appellate Division noted that an arbitrator is required to interpret and apply the terms of a CBA and while another entity could have applied a different construction to the relevant provision of the agreement, in this instance “it cannot be stated that the arbitrator gave a completely irrational construction to the provision in dispute and, in effect, exceeded [his] authority by making a new contract for the parties."

* §7511 of the Civil Practice Law and Rules sets out a number additional reasons that permit a court to set aside an arbitrator’s award such as a finding of corruption, fraud or misconduct in procuring the award; the partiality of an arbitrator appointed as a neutral,[except where the award was by confession], or the failure to follow procedures set out in Article 75 unless the party seeking to vacate the award on such grounds continued with the arbitration with notice of the defect[s] without objection.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00844.htm

Tentative Taylor Law contract agreement for SUNY employees in collective bargaining units represented by United University Professions announced

Tentative Taylor Law contract agreement for SUNY employees in collective bargaining units represented by United University Professions announced

Governor Cuomo and United University Professions [UUP] President Smith announce agreement on a  tentative Taylor Law contract agreement for State University of New York [SUNY] employees in collective bargaining units represented by United University Professions.

On February 19, 2013 Governor Andrew M. Cuomo and United University Professions [UUP] President Phillip H. Smith announced a tentative contract agreement between the state and the union representing more than 35,000 SUNY employees. UUP members had been without a contract since 2011. The proposed agreement is tentative pending ratification by UUP membership.

According to the State Budget Office, the agreement will save approximately $87 million in wages through a Deficit Reduction Program over the contract period. All changes to health benefits will save $99 million over the contract period.

The tentative pact includes the following provisions:

1. Zero percent wage increases for the three years 2011-2013, and 2% increases in 2014 and 2015.

2. Deficit Reduction Program involving nine days [of wages] over the contract period.

3. A two percentage point increase in health insurance premium contributions for employees earning less than $40,137, making the share 12% for individuals and 27% for family premiums.

4. A six percentage point increase for employees earning $40,137 and above, making the share 16% for individuals and 31% for family premiums.

5. Benefit design changes for use of out of network services in the Empire Plan, including deductible and coinsurance increases for out of network medical benefits.

6. A health plan opt-out provision so employees can opt-out through a spouse/partner to a non-State health plan.

7. Three payments of $500, $500, and $250 to be awarded to employees at the discretion of the Chancellor. UUP members receive no "step" increases or longevity payments but campus presidents may make performance incentive lump sum payments of 0.5% annually (1% at end of the contract term).

The American Arbitration Association [AAA] will conduct a ratification vote by mail this spring. UUP members will have approximately three weeks to return their ballots to AAA.

Seniority for the purposed of layoff held to include both a teacher's "actual full-time service rendered" and his or her full-time regular substitute service in the tenure area

Seniority for the purposed of layoff held to include both a teacher's "actual full-time service rendered" and his or her full-time regular substitute service in the tenure area

Education Law §2510[2] provides that a school district that abolishes a teaching position for economic reasons must discontinue "the services of the teacher having the least seniority in the system within the tenure of the position abolished." As this decision demonstrates, an incorrect determination with respect to which teacher is “least senior” for the purposes of layoff could prove expensive to the school district.

A teacher [Teacher] challenged the Board of Education’s determination that she was the least senior teacher in the foreign language tenure area. Teacher contended that the Board’s determination was affected by an error of law and was arbitrary and capricious. As redress, Teacher sought "seniority credit" for certain services as a substitute teacher that she had rendered to the District, reinstatement to her former position, and "restitution" for damages that she allegedly sustained as a result of the School Board's determination, which, in effect, terminated her employment.

The Appellate Division annulled the Board’s determination with respect to Teacher’s seniority for the purposes of layoff and it was [1] directed to award seniority credit to her for her service between November 6, 2006 through and including February 10, 2010, and [2] directed to reinstate her to her position as a full-time probationary teacher in the foreign language tenure area with back pay and benefits.* 

The significant issue in this action was the criterion used in determining a teacher's seniority, i.e., the "actual full-time service rendered" including full-time regular substitute service in a particular tenure area prior to his or her probationary appointment in that same area** and the rationale for equating full-time substitute service with full-time probationary service for seniority purposes.

The Appellate Division explained that employment as a regular substitute "constitut[es] employment by the board of education on a permanent basis" and is "equivalent to service rendered pursuant to a probationary appointment in contrast to an 'itinerant' or per diem substitute assigned on a temporary, as-needed basis" for which the educator does not accumulate seniority for the purposes of layoff.

The court noted that the District had argued that Teacher’s resignation severed her employment relationship with the District and that she therefore lost all seniority accumulated prior to that time notwithstanding the fact that Teacher had agreed to "resign" in exchange for the District's promise to immediately rehire her as a substitute teacher and to reappoint her to a new full-time probationary position upon her obtaining permanent certification to teach. The Appellate Division disagreed with the District's theory as to the effect of Teacher's resignation under the circumstances.

Although the District was correct that a teacher who voluntarily severs all of his or her professional relationship with a school district through retirement or resignation forfeits his or her seniority rights under Education Law §2510, the Appellate Division questioned whether Teacher’s resignation, under the relevant facts in this case, could be deemed to have been voluntary, noting that:

1 "Public policy" favors the protection of an employees' seniority rights;

2. Although an employee may relinquish his or her seniority rights by resigning or retiring, such a relinquishment must be knowing and voluntary, i.e., the employee must take "affirmative steps" to terminate all aspects of his or her employment by a school district and in the absence of a specific contrary intent, an employee who merely assents to being reassigned to a different title within the same tenure area — even under the guise of a resignation — is not deemed to have "resigned" for purposes of determining his or her seniority credit so long as the title to which he or she is reassigned is otherwise appropriate for inclusion in determining seniority credit in the tenure area.

3. Neither the District nor Teacher complied with the requirements of Education Law §3019-a ("Notice of termination of service by teachers"), which governs the formal resignation and termination of probationary teachers.

4. The record was devoid of any intent or affirmative act by Teacher to sever all aspects of her employment relationship with the District and thereby relinquish her seniority rights.

5. Unlike the severance cases relied upon by the School District, the circumstances in this case did not evince an intent by either Teacher or the District to sever their professional relationship but instead the arrangement allowed Teacher to continue teaching in the District while her permanent certification was pending.

6. There was no actual break in Teacher's service to the District as a result of her "resignation" as the resignation was effective at the end of the day on October 1, 2009 and the next day she returned to the same classroom to teach the same subject to the same students during the same hours.***

Accordingly, as noted earlier, the Appellate Division modified Supreme Court’s ruling “on the law,” and granting Teacher’s petition in part, annulled the District's determination, awarded Teacher seniority credit for the period from November 6, 2006 through February 10, 2010, and directed the District to reinstate Teacher to her former position as a probationary teacher in the foreign language tenure area, with back pay and benefits.

* N.B. The decision notes that Supreme Court held that the District was "justified in giving more seniority credit to another teacher because that teacher had obtain … permanent certification at an earlier date.” The Appellate Division said that "[s]eniority [for the purposes of layoff] … relates only to length of service" and considerations such as prior experience, training, or educational qualifications are not properly included therein.”

** Teacher’s service with the School District for the purposed of determining her seniority within the meaning of §2510[2] of the Education Law is set out in some detail in the Appellate Division’s decision.

*** The Appellate Division characterized Teacher’s "resignation" as essentially "a legal fiction designed to allow Teacher to continue her duties as a full-time Spanish teacher while ensuring the District's compliance with the Education Law, which prohibits a school district from employing uncertified teachers."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00867.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.

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

Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings

Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings

Barber v New York State Off. of Victim Servs, 2013 NY Slip Op 00958, Appellate Division, Third Department

An individual [Applicant] installed certain security and surveillance devices in response to alleged stalking and harassment the Applicant had experienced. Applicant filed a request for reimbursement for the cost of such devices with the State’s Office of Victim Services, which application was rejected on the ground that Applicant failed to prove that a crime had been committed.

Applicant appealed and a hearing was conducted by a three-member panel of the Office of Victim Services. The panel affirmed the disallowance of Applicant ‘s claim.

In response to Applicant‘s challenging the panel’s determination, the Appellate Division said that notwithstanding the substantial evidence in the record to support Victim Service’s denial of Applicant’s claim, reversal of the ruling was required because Applicant was not provided with the opportunity to cross-examine witnesses providing testimony at the hearing.

According to the decision, although the panel was advised that Applicant was waiting in the lobby for the hearing to begin, the panel members conducting the hearing made the affirmative decision to take the testimony from one of the witnesses without the Applicant being present. Further, Applicant was only invited to attend the hearing following the conclusion of that witness's testimony and Applicant was asked to leave the hearing after testifying. Then, said the court, testimony was taken from a second witness without Applicant being present.

The Appellate Division ruled that as Applicant was denied the right to cross-examine witnesses, the panel’s determination must be annulled and the matter remitted to Victim Services for a new hearing.

The court explained that "Regardless of the merits in a particular case, a party whose rights are being determined at a quasi-judicial administrative hearing must be given the opportunity to cross-examine witnesses," citing Matter of Seeger v Moduform, Inc., 146 AD2d at 923.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00958.htm