Court cites the “principle of stare decisis” in affirming a custodian of public record’s denial of a Freedom of Information Law request

Court cites the “principle of stare decisis” in affirming a custodian of public record’s denial of a Freedom of Information Law request

Empire Ctr. for N.Y. State Policy v Teachers' Retirement Sys. of the City of N.Y, 2013 NY Slip Op 01329, Appellate Division, First Department

The Appellate Division, Third Department recently considered another “FOIL case” involving the not-for-profit Empire Center for New York State Policy’s request seeking the names of the New York State Teachers’ Retirement Systems [NYSTRS] retirees and concluded that the NYSTRS could lawfully deny such request within the exemptions from disclosure permitted by Public Officers Law §89(7)."*

The First Department came to the same conclusion in this action, holding “[The New York City Retirement System’s] decision to withhold the names of retirees of the public retirement system pursuant to the exemption set forth in Public Officers Law § 89(7) was not affected by an error of law.”

The City Retirement System’s determination, explained the court “is in accord with [the court’s] interpretation of that exemption in Empire Ctr. for N.Y. State Policy v New York City Police Pension Fund (88 AD3d 520 [1st Dept 2011]), motion for leave to appeal dismissed, 18 NY3d 901 [2012]).**

Accordingly, said the First Department, “we adhere to our prior holding under the principle of stare decisis,*** which applies with particular force to issues of statutory interpretation.”

 * Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2013 NY Slip Op 01117, Appellate Division, Third Department at http://publicpersonnellaw.blogspot.com/2013/02/a-foil-request-seeking-names-of-public.html

** The First Department also noted the decision in New York Veteran Police Assn. v New York City Police Dept. Art. I Pension Fund, 61 NY2d 659, cited by the Third Department in its ruling.

*** Latin for "to stand by things decided."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01117.htm

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

Issued during the week ending March 1, 2013 [Click on text highlighted in bold to access the full report]

Wall Street Bonuses Rose In 2012

Cash bonuses paid to New York City securities industry employees are forecast to rise by 8 percent to $20 billion during this year’s bonus season, according to an estimate released by State Comptroller Thomas P. DiNapoli. Click here to view video.

DiNapoli Audit Finds Errors and Potential Abuses in STAR Program

Administrative shortcomings in the School Tax Relief program have resulted in duplicate and improper exemptions going to individuals or entities not eligible to receive them, according to an audit released Thursday by New York State Comptroller Thomas P. DiNapoli. Auditors estimate these exemptions cost New York State $13 million during the 2010–11 fiscal year and could top $73 million by the 2015–16 fiscal year.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed audits of the

Albany City School District; and, 

KIPP Tech Valley Charter School.

Comptroller DiNapoli Releases Municipal Audits

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

Village of Brightwaters; 

Town of Bovina; 

Cooperative Information Technology Services; 

Village of Forestville; 

Lakeville Volunteer Fire Department; 

Town of Lindley; 

Town of Monroe; 

City of Norwich; 

Village of Parish; and, 

City of Saratoga Springs.

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 March 1, 2013 [Click on text highlighted in bold to access the full report] 

The state Department of Health [DOH] made $26 million in Medicaid overpayments and other questionable payments because of flaws in its eMedNY claims processing computer system according to an audit released on March 1, 2013 by State Comptroller Thomas P. DiNapoli.

DOH officials generally agreed with the audit’s findings and have begun to implement the recommendations.  For a copy of the report, including DOH’s response, click on: 

http://osc.state.ny.us/audits/allaudits/093013/11s28.htm

The audit looked at claims for patients who are both Medicare and Medicaid eligible, which are known as crossover claims. In December 2009, the Department of Health implemented a new payment mechanism in eMedNY to achieve greater control over Medicaid payments.  The new mechanism is an attempt to ensure Medicaid does not pay crossover claims denied by Medicare, only pays the portion of the claim that it actually owes and crossover claims are billed first to Medicare before being billed to Medicaid.

DiNapoli’s auditors found that from implementation of the new system in 2009 through March 31, 2012, the system was not working correctly, allowing nearly 866,000 improper and questionable payments to be made. Auditors identified $6.9 million that eMedNY improperly paid for, including 137,000 crossover claims previously denied by Medicare. Auditors also identified $3.1 million for 277,000 crossover claims where the payment exceeded the amount that Medicaid owed. In addition, auditors found that more than 24,800 providers were able to bypass crossover system controls and bill approximately 452,000 claims directly to Medicaid instead of first billing Medicare. As a result, Medicaid made potential overpayments totaling $16.4 million. Since December 3, 2009, Medicaid reimbursed a total of $1.1 billion for approximately 41.4 million crossover claims.

DiNapoli’s auditors recommended that the DOH:

 · Correct the eMedNY computer controls that caused the Medicaid overpayments identified during the audit;

 · Recover the Medicaid overpayments totaling $10 million caused byeMedNY computer programsthat incorrectly processed Medicare crossover claims; and

 · Review the $16.4 million in potential Medicaid overpayments and recover where appropriate.


Office of Children and Family Services, Oversight of Child Protective Services Outside New York City (Follow-Up) (2011-F-19)

An initial audit found that districts are intervening in a timely and appropriate manner to protect the children who are at risk in the most serious types of child abuse cases. However, the actions taken are not summarized in a format that would enable OCFS to readily determine that necessary interventions have actually occurred. In a follow-up report, auditors determined OCFS officials have not made progress in correcting the problems identified in the initial report.

Division of Housing and Community Renewal, Housing Preferences for Disabled Veterans (Follow-Up) (2012-F-21)

In November 2007, the Private Housing Law was amended to require housing companies to provide disabled veterans with a preference in the admission to Mitchell-Lama housing developments. An initial audit found disabled veterans did not receive the intended housing preference. The individual Mitchell-Lama housing companies failed to follow the Division’s guidance concerning the law, and the division failed to monitor the housing companies adequately. In a follow-up report, auditors found DHCR officials have made significant progress in correcting the problems identified in the initial report.

Alfred State College of Technology, Selected Employee Travel Expenses (2012-S-142)

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, Auditors examined travel expenses for the highest-cost travelers in the State. In an audit of $1,293,461 of the college’s travel payments, auditors found two Alfred employees had travel costs totaling $224,683. Auditors also examined other travel expenses, including $1,037,509 paid to a provider of campus services such as transportation, vending, and concessions, and airfare expenses incurred by one employee that totaled $31,269. Auditors found that the travel expenses for the three employees and the service provider were documented and adhered to state travel rules and regulations.

State University of New York College at Cortland, Selected Employee Travel Expenses (2012-S-144)

As part of a Statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state. Auditors found five SUNY Cortland employees had travel costs totaling $696,909. The travel expenses for the employees selected for audit were documented and adhered to state travel rules and regulations.

State University of New York College of Optometry, Selected Employee Travel Expenses (2012-S-148)

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state.

One employee at the College of Optometry had travel costs totaling $116,828. The selected employee was responsible for arranging travel for other college staff members, charging these travel expenses to his travel card. The expenses were documented and generally adhered to state travel rules and regulations. However, auditors found one instance where SUNY Optometry paid $9,000 to the Intrepid Museum Foundation for an event that was not related to travel. SUNY Optometry travel guidelines states that such payments are not permissible. A college official told auditors the card was uses only as a contingency because the vendor had not received the check issued for payment.

State University of New York College at Purchase, Selected Employee Travel Expenses (2012-S-149)

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state.

An employee at SUNY Purchase and incurred lodging costs totaling $991,999. Auditors found the employee was responsible for arranging overflow student housing at local hotels each fall semester when on campus housing was exhausted, charging these expenses to her procurement card. Housing students at local hotels has been the practice since 2002. The expenses were appropriately approved and documented. However, College management has not conducted a formal written study to examine the options for alleviating the student housing shortage and to ensure the most efficient use of state funds.

The fact that subordinates failed to complete an assigned task standing alone is not sufficient to prove a charge of “failure to supervise”

The fact that subordinates failed to complete an assigned task, standing alone, is not sufficient to prove a charge of “failure to supervise”

OATH Index No. 681/13

The Department of Investigation discovered that certain sanitation workers collected and sold recyclable scrap metal, referred to as “mongo.” As a result their supervisor was charged with failure to supervise subordinates who engaged in the activity.  

OATH Administrative Law Judge Kevin F. Casey noted that the charge of failure to supervise requires more than proof that a subordinate did not complete a task; there must be proof of neglect or fault by the supervisor. 

Judge Casey recommended dismissal of the charges, finding the Department of Sanitation did not prove that there was unauthorized material on the truck in a place where the supervisor should have discovered it before the crew was sent to the dump.  

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-681.pdf

Use of hearsay evidence in an administrative disciplinary proceeding

Use of hearsay evidence in an administrative disciplinary proceeding

OATH Index No. 1944/12

A New York City Health and Hospital Corporation facility filed disciplinary charges against its manager of building services alleging that the manager had engaged in sexual contact with a patient suffering from dementia.

The patient did not testify, but his prior statements, which indicated he had consented to the sexual contact and received $5 afterward, were taken in evidence as admissible hearsay after OATH Administrative Law Judge Tynia D. Richard found them to be reliable and probative as the hospital’s security videos substantiated the patient’s hearsay statements and contradicted accused employee’s testimony.

Judge Richard sustained the charges and recommended that the manager be terminated from his position, commenting that the individual’s prior positive performance record and long tenure did not mitigate against imposing the penalty of dismissal for such serious misconduct. 

Hearsay testimony, which typically is barred from testimony in a criminal trial, is permissible in an administrative hearing. Indeed, in some instances the statute providing for the due process hearing specifically excuses compliance with or the application of the technical rules of evidence. For example, Civil Service Law §75.2 provides that “compliance with technical rules of evidence shall not be required,” while §3020-a.3.c(C) of the Education Law states “rules and procedures for the conduct of hearings ... shall not require compliance with technical rules of evidence.”

As the court said in Gray v Adduci, 73 NY2d 741, "it is well settled that hearsay is admissible in administrative hearings and may form the basis of an adverse determination."  

Despite its admissibility as competent evidence, however, an employee may not be found guilty of charges solely on the basis of hearsay. As the court explained in Brown v Ristich, 36 NY2d 183, some "real evidence" is required. "Real evidence" can be “direct,” that is evidence which standing alone establishes the facts at issue, or “circumstantial.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1944.pdf

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

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 page e-book is now available from the Public Employment Law Press. Click on http://booklocker.com/books/5215.htmlfor additional information concerning this electronic reference manual.

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

An educator’s tenure rights are not sacrosanct and should yield to administrative decisions based on economics and sound educational policy

An educator’s tenure rights are not sacrosanct and should yield to administrative decisions based on economics and sound educational policy

Educator, a tenured foreign language teacher, taught .8 Full Time Equivalent [FTE] French, for which she is state certified, and .2 FTE Spanish, for which she is not certified.* The Board notified her that her full-time teaching assignment would be reduced to a .6 FTE part-time position. The Board then hired a new teacher to teach German on a .2 FTE basis.

Supreme Court dismissed Educator’s application seeking a review a decision of the Board of Education, contending that the Board acted in an arbitrary and capricious manner by reducing Educator's teaching assignment and hiring another teacher without first attempting to shuffle the schedules of other teachers in the school district, including the most senior teacher[Senior] in the foreign language tenure area who was certified to teach German.

The Appellate Division held that Supreme Court correctly found that the Board's determination was not arbitrary, capricious or unlawful explaining that school districts are granted "sufficient latitude within the law to manage their affairs efficiently and effectively," including the ability to consolidate and abolish teaching positions for financial reasons.

The decision also noted that in the event a teaching position is consolidated or abolished, the Education Law requires that "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

Citing a number of decisions including Chambers v Board of Educ. of Lisbon Cent. School Dist., 47 NY2d 279, the Appellate Division said that to comply with the statute, “a board of education must, if possible, make schedule adjustments and shuffle teachers within the same tenure area to retain a district's most senior teachers.” 

However, the court noted, tenure rights are not sacrosanct and "should yield to decisions based on economics and sound educational policy." In such situations the board of education bears the burden of proving that it was impossible to adjust schedules to retain the more senior teacher, and this burden can be met with proof that proposed schedules are "not educationally or financially feasible."

Educator contended that the Board could have shuffled schedules by having Senior teach .8 FTE French and .2 FTE German** and giving .2 FTE French classes to Educator, resulting in Senior  having a full-time schedule and Educator with .8 FTE schedule, eliminating the need to employ a new teacher to teach .2 FTE German.

The court said that the Board considered this schedule arrangement, but found it educationally unsound and not logistically feasible. In addition to considering Senior’s self-professed incompetency to teach German, the Board considered the difficulty or impossibility of scheduling Educator to teach classes in both the middle school and high school, considering the differences in starting and ending times, different bell schedules in the two buildings and travel time between the two buildings.

Although the Board had not meet its burden of proving the impossibility of "schedule shuffling" based on the logistical problems, the Appellate Division concluded that the Board met its burden overall.

Although it would have been legally possible for Senior to teach German as she was certified in that language, the record supports the Board's assertion that it would not have been educationally sound to adjust the schedules as Educator suggested considering the fact that Senior had not taught German in 20 years and was admittedly incompetent to teach it.

Given this educational reason and the Board's economic reasons for reducing the number of French classes, the Appellate Division ruled that Supreme Court correctly found that the Board complied with Education Law §3013 and its determination was not arbitrary or capricious.

* Teacher taught .2 FTE Spanish which although outside her area of certification was permitted by Department of Education regulations.

** The most senior teacher, although certified to teach German, “self-professed [her] incompetency to teach German” as she had only a few sections of German throughout her career, the last of which was in 1991, and has taught French exclusively since then.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01122.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.

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

US Department of Labor – Decisions of the Administrative Review Board

US Department of Labor – Decisions of the Administrative Review Board

January 2013

Case summaries and links to the decisions for the Board’s January 2013 decisions are posted on the Internet at:

http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/01_2013.HTM