ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

March 08, 2013

Accrual of a cause of action commences upon the receipt of the final administrative determination


Accrual of a cause of action commences upon the receipt of the final administrative determination

In this Article 78 action the Appellate Division affirmed Supreme Court’s determination that the employee’s claim  did not accrue until she received the final administration decision, citing Education Law §3813.2-b.

As the individual commenced her action within one year of her receiving the final determination, the Supreme Court ruled that she had satisfied the relevant statute of limitations.

In some case, however, the final administrative determination may not initially be sent to the individual.

Significantly, the delivery of a final administrative decision to an employee's union does not count with respect to the commencement of the running of the statute of limitations. In Weeks v State of New York, 198 AD2d 615, the court held that the statute of limitations begins to run when the decision is served on the employee, not from the date on which the union received its copy.

The basic rules are:

1. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to commence the running of the statute of limitations.

2. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.

It should be remembered, however, that an individual’s request for reconsideration of a “final administrative determination” neither tolls the running of the statute of limitations [see Lavin v Lawrence, 54 AD3d 412] nor extends the statute of limitations [see Raykowski v NYC DOT, 259 AD2d 367] for the purposes of perfecting an appeal.  

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01358.htm

March 07, 2013

Alcohol-related misconduct


Alcohol-related misconduct
OATH Index No 543/13

OATH Administrative Law Judge Kevin F. Casey found that the Department of Sanitation sustained seven charges relating to time and leave violations brought against a sanitation worker, R.M.

R.M. admitted much of the charged misconduct.

ALJ Casey, however, found that most of R.M.’s time and leave issues were related to an alcohol problem, that R.M. had completed inpatient alcohol rehabilitation, and that R.M. had not been late or AWOL since completing the program.

Citing McEniry v. Landi, 84 N.Y.2d 554, in which the Court of Appeals ruled that an employee should not be terminated for alcohol-related misconduct that occurred before rehabilitation if he or she completed it successfully and maintains satisfactory performance afterwards, Judge Casey recommended that R.M. should not be terminated from his position. Rather, the ALJ recommended that R.M. be suspended without pay for 30-days.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-543.pdf

March 06, 2013

Alleged violation of a job security clause in a collective bargaining agreement not always subject to arbitration


Alleged violation of a job security clause in a collective bargaining agreement not always subject to arbitration
Village of Monticello v Monticello Police Benevolent Association, Supreme Court, Sullivan County, Index #2974-12

Contending that the Village of Monticello had breached the relevant collective bargaining agreement which provided that the Monticello Police Department shall not consist of less than a Chief of Police and twenty-three sworn officers, the Monticello Police Benevolent Association [PBA] demanded that its grievance be submitted to arbitration.

The Village filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to stay the arbitration, contending that the staffing provision as set out in the agreement, which it characterized as a “job security clause,” violated public policy and thus was not subject to arbitration.

Supreme Court Justice Christopher E. Cahill said the sole issue to be resolved was whether the so-called “job security clause” in the collective bargaining agreement satisfies the stringent test the Court of Appeals referred to in deciding Johnson City Professional Firefighters Local 921, 18 NY3d 32, i.e., did the employer explicitly agree to bargain away its rights to eliminate positions and terminate or layoff employees for budgetary or other reasons.

In Board of Educ. of Yonkers City Sch. Dist. v Yonkers Federation of Teachers, 40 NY2d 268, the Court of Appeals noted that “Not all job security clauses are valid and enforceable, nor are they ‘valid and enforceable under all circumstances.’" In Yonkers Federation of Teachers the court found that a "job security" wasexplicit in its protection of the [workers] from abolition of their positions due to budgetary stringencies" and thus enforceable.

In contrast, in CSEA v City of Yonkers [Crossing Guard Union], 39 NY2d 964, the Court of Appeals concluded that the "job security" clause in the collective bargaining agreement relied upon by the Crossing Guard Union was ambiguous and thus not enforceable.

Similarly, the clause relied upon by the Monticello PBA, said Justice Cahill, did not explicitly protect the police officers from the abolition of their positions due to economic and budgetary stringencies. Concluding that provision was ambiguous, the court ruled that it did not constitute an “explicit” provision barring such layoffs.

__________________

Brian D. Nugent, Esq., Feerick Lynch MacCartney PLLC, represented the Village of Monticello in this proceeding and sent a copy of Justice Cahill’s February 21, 2013 decision to NYPPL.

March 05, 2013

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

March 04, 2013


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


Comptroller DiNapoli Releases Municipal Audits

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

City of Saratoga Springs.

March 01, 2013

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: 


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.

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.
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.
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.
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.
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:

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