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

May 14, 2013

Internet search engine focused on job opportunities


Internet search engine focused on job opportunities
On the Internet at: www.careerjet.com

Careerjet is a free employment opportunity search engine available to job seekers and offers users the ability to access jobs opportunities published on some 69,000 web sites. Careerjet indexes job descriptions from a large number of sources "around the web." The Careerjet's job search engine network encompasses over 90 countries, featuring separate interfaces that are translated into 28 languages.

Job seekers can search across these resources for positions in which they may be interested and once found, click on the link provided to get transferred to the original advertisement for specific information about the position[s] available.

Searching can be done using locations and other keywords such as "Attorney, Detroit" or "Human Resources Director, Los Angeles."

As examples, the two Careerjet posting shown below were dated May 13, 2013:

ACLU 
City of Richmond

Professions and employment areas currently listed by Careerjet include: 




Users may also post their resume and, in addition, create "job alerts" on Careerjet.

May 13, 2013

The State Commission on Public Integrity’s investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a Notice of Reasonable Cause.


The State Commission on Public Integrity’s investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a Notice of Reasonable Cause.
O'Connor v Ginsberg, 2013 NY Slip Op 03363, Appellate Division, Third Department

In 2009, the Commission on Public Integrity notified the then President and Chief Executive Officer of the State University of New York Research Foundation [CEO] that it had received information indicating that he may have violated Public Officers Law §74 (3) (d), (f) and (h). The information received by the Commission alleged that he had secured employment for an individual "for which she was not qualified and for which she did little or no work," and had given her privileges that he did not confer on the other Research Foundation employees.*

During the course of its investigation the Commission made several attempts to secure the CEO’s sworn testimony concerning these allegations on a voluntary basis. These efforts were unsuccessful and the Commission issued a subpoena requiring the CEO to appear before it. This resulted in the parties entering into an agreement whereby “in exchange for the Commission's withdrawal of the subpoena, [the CEO] would appear voluntarily for a sworn interview on a date certain. The agreement also provided that the CEO would be given an opportunity to provide an unsworn statement or explanation concerning the matters under investigation.

After the CEO failed to appear on the date scheduled the Commission issued a Notice of Reasonable Cause (hereinafter NORC)** alleging that the CEO had knowingly and intentionally violated Public Officers Law §74 (3) (d), (f) and (h). The CEO’s attorney notified the Commission that the subpoena that accompanied the NORC requiring the CEO to provide testimony “informed the Commission that the subpoena was ineffective and, thus, [the CEO] would not be appearing to give testimony.”

The CEO then sought a court order “directing [the Commission] to commence an administrative hearing on the NORC on a fixed date and to appoint an independent hearing officer to preside over the hearing.” The Commission opposed the CEO’s petition and asked the court for an order compelling the CEO to comply with its subpoena.

Supreme Court dismissed the CEO’s petition, finding that he had failed to demonstrate a clear legal right to the relief sought. The court also denied Commission’s motion, concluding that the Commission's power to issue a subpoena was limited to the investigatory period preceding the issuance of the NORC. ***

The Appellate Division expressed a different view, stating that the Commission's interpretation of its regulation****was consistent with the overall purpose and spirit of Executive Law §94, which is to "strengthen the public's trust and confidence in government through fair and just adjudicatory procedures that afford all parties due process protection and fair and just resolution of all matters." 

Accordingly, said the court, its investigatory powers were not truncated upon its issuing a NORC.

The Appellate Division pointed out that “[f]ollowing the issuance of a NORC, the Commission could become aware of other potential witnesses or additional information relevant to the possible violations. Thus, construing the regulation to permit the Commission to continue its investigation, despite having issued a NORC, would best serve the underlying purposes of the statute.”

Further, interpreting the regulation as “precluding investigation into new evidence, based solely on the fact that a NORC had been issued, would clearly impede the truth seeking function of the Commission.”

The Appellate Division concluded that the Commission's investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a NORC.

Observing that the CEO “has continually resisted efforts by the Commission to secure his testimony,” the Appellate Division opined “the Commission should not be hamstrung by [the CEO’s] tactics …. To do so would abridge the Commission's statutory power to conduct an investigation and subpoena witnesses and ultimately impede its truth seeking function.”

* Subsequently the Commission issued a second letter in January 2010, which superceded and replaced the first letter, clarifying that the alleged misconduct related to acts occurring after April 25, 2007, the effective date of legislation that deemed the Research Foundation to be a "state agency" subject to the provisions of the State Code of Ethics set forth in Public Officers Law §74.

** See Executive Law §94 former [12] [b].

*** Supreme Court agreed with the Commission and dismissed the CEO’s petition. The CEO did appeal that ruling by Supreme Court but subsequently elected not to pursue it.

**** The Appellate Division pointed out that the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference and should be upheld if not irrational or unreasonable, citing Transitional Services v NYS Office of Mental Hygiene, 13 NY3d 801.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_03363.htm

May 12, 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 May 12, 2013 [Click on text highlighted in bold to access the full report] 


DiNapoli: IDA Performance Improves, But Concerns Remain

New York’s Industrial Development Agencies (IDAs) supported nearly 4,500 projects and provided $560 million in net tax exemptions in 2011, increasing estimated job gains by almost 36,000 from the previous year, according to a reportissued Tuesday by State Comptroller Thomas P. DiNapoli. DiNapoli’s sixth annual report examining the performance of the state’s IDAs found improved reporting of data but recommended that IDAs do more to objectively weigh incentives against economic benefits to communities and evaluate projects receiving tax and other breaks.


State Pension Fund Invests $568,000 In Fieldlens

New York State Comptroller Thomas P. DiNapoli announced a $568,000 investment in FieldLens, creator of a mobile and web application designed for the construction industry. The investment was made through High Peaks Venture Partners, SoftBank Capital and Contour Venture Partners. The New York State Common Retirement Fund is an investor in these funds through its In–State Private Equity Program.


DiNapoli: Empire Continuing to Overpay for Special Medical Items

New York State health insurance provider Empire BlueCross BlueShield overpaid hospitals by nearly $490,000 for special medical items such as implants, drugs and blood, including more than $77,000 to just one hospital, over a six month period, according to an auditof the New York State Health Insurance Program released Thursday by State Comptroller Thomas P. DiNapoli.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits:









May 11, 2013

Decision of the Week - Applying the provisions of Civil Service Law §§71, 72 and 73


NYPPL's Decision of the Week for the Week ending May 11, 2013

Applying the provisions of Civil Service Law §§71, 72 and 73
Allen v City of New York, 2013 NY Slip Op 50717(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

This decision could serve as a model explanation of the critical elements to be considered and addressed in applying the provisions of Civil Service Law §§71, 72 and 73. It is set out in its entirety below.

Supreme Court, New York County


In the Matter of the Application of Lionel Allen, Petitioner,

against

The City of New York and the New York City Department of Environmental Protection, Respondents.



102624/12

ATTORNEY FOR THE PLAINTIFF :
Firm: MARY J. O'CONNELL [General Counsel, DC-37]

ATTORNEY FOR THE RESPONDENTS
Firm: CORPORATION COUNSEL – City of New York

Alexander W. Hunter Jr., J.

The application by petitioner for an order pursuant to Article 78 of the CPLR, declaring that respondents improperly terminated petitioner pursuant to Civil Service Law §73 and failed to satisfy due process requirements for termination pursuant to Civil Service Law §71, and in the alternative, failed to satisfy due process requirements for termination pursuant to Civil Service Law §73, is granted.

As a preliminary matter, it must be noted that the Workmen's Compensation Law was enacted in 1914 as such, but the title was changed to the Workers' Compensation Law in 1978 to acknowledge the significant presence of women in the work force.

Petitioner was employed by the New York City Department of Environmental Protection ("DEP") from on or about May 13, 1989 until his termination on January 6, 2012. Petitioner worked for the DEP in the Bureau of Water Supply with the title of Watershed Maintainer. Petitioner was originally terminated under Civil Service Law §73, which was addressed in the first motion sequence of the instant proceeding. However, after the commencement of the instant proceeding, the DEP rescinded its termination of petitioner pursuant to Civil Service Law §73 and terminated him pursuant to Civil Service Law §71 by letter dated December 14, 2012. The effective date of petitioner's termination remained January 6, 2012. Thereafter, motion sequence one was withdrawn and this court so ordered a stipulation allowing the instant amended petition to be filed in order to address petitioner's termination under Civil Service Law §71.

On February 3, 2010, petitioner slipped and fell while working to deice the grounds outside the Kensico Reservoir laboratory, which resulted in injuries to his right shoulder and knees. Petitioner promptly informed his supervisor at the DEP of the accident and submitted a workers' compensation claim. Petitioner consulted his primary care physician within several days of the accident and then in March 2010 he went to see Dr. Adam Soyer ("Dr. Soyer"), an orthopedic surgeon. Although petitioner initially returned to work, he took off numerous days between March 2010 and August 2010 due to a delay in the processing of his workers' compensation authorizations for diagnostic tests and treatment. Petitioner communicated to his supervisors that the cause of his increased use of leave time was attributed to his occupational injuries. Petitioner ultimately received authorizations for an MRI and a shoulder surgery with postoperative physical therapy in September 2010 and October 2010, respectively. A second shoulder surgery was later authorized and performed on or about August 3, 2012.

By letter dated September 29, 2010, petitioner informed the DEP that he was unable to return to work due to his shoulder injury and requested workers' compensation leave as he had exhausted his sick and annual leave by that time. Petitioner attached a note from Dr. Soyer, dated September 22, 2010, recommending that petitioner remain out of work from September 27, 2010 through November 1, 2010. An undated addendum to the September 29 letter stated that petitioner's request for workers' compensation leave had been changed in accordance with a second note from Dr. Soyer, dated October 25, 2010, which recommended that petitioner remain out of work pending authorization of the shoulder surgery.

The DEP granted petitioner leave for various periods of times from September 30, 2010 through November 1, 2010. However, as a matter of policy, the DEP does not accept doctors' notes indicating an indefinite period of leave. The DEP subsequently marked petitioner "absent without leave" for every work week from November 29, 2010 through December 30, 2011. By letter dated April 18, 2011, the DEP informed petitioner that he was required to provide continued proof of disability on a monthly basis. In addition, the DEP informed petitioner that he was required to provide information regarding his medical condition and when he would be able to return to work by April 29, 2011, or the DEP would consider petitioner absent without leave and take appropriate action.

By letter dated July 27, 2011, the DEP preferred charges against petitioner in accordance with Civil Service Law §75 and scheduled an informal conference. Civil Service Law §75 provides for removal for incompetency or misconduct shown after a hearing. Petitioner did not appear at the informal conference. The DEP did not pursue this method of termination and the charges preferred against petitioner were never filed with the Office of Administrative Trials and Hearings.

By letter dated December 5, 2011, the DEP gave petitioner a notice of intended action under Civil Service Law §73. Civil Service Law §73 provides that an employee may be terminated when he is continuously absent from his position for one year or more due to a disability, "other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law...."* Petitioner did not respond to this letter.

By letter dated January 6, 2012, the DEP gave petitioner a notice of termination pursuant to Civil Service Law §73, which stated that petitioner's employment with the DEP was thereby terminated because of his absence from work since November 8, 2010 due to a non-work related disability.

In January 2012, petitioner's attorney contacted the DEP to demand that it rescind petitioner's termination pursuant to Civil Service Law §73 because petitioner's absences from work were caused by an occupational injury. Petitioner would have been more properly terminated under Civil Service Law §71, which provides for reinstatement after an employee has been separated from service due to a disability caused by an occupational injury as defined in the workmen's compensation law and further entitles the employee to a leave of absence for at least one year.

In an email sent from the DEP's counsel to petitioner's counsel dated January 18, 2012, the DEP explained that it had proceeded with a non-disciplinary termination under Civil Service Law §73 in order to give petitioner the ability to be reinstated to his position after presenting medical documentation showing his fitness to return to work, which would not have been an option if petitioner was terminated under Civil Service Law §75 based on abandonment of his job. In addition, petitioner retained the same rights to reinstatement under Civil Service Law §71 and Civil Service Law §73.

After a lengthy appeal, the Workers' Compensation Board issued a notice of decision on April 12, 2012, directing petitioner's employer or insurance carrier to pay workers' compensation benefits for various past periods from December 2010 and to continue payments.

A non-probationary public employee possesses a constitutional property interest in his employment. See, Cleveland Bd. of Educ. v. Loudermill, 470 US 532 (1985); Faillace v. Port Auth. of NY & N.J., 130 AD2d 34 (1st Dept 1987). "In the context of termination from civil service employment under Civil Service Law §73, due process requires notice and some opportunity to respond.'" Matter of Hurwitz v. Perales, 81 NY2d 182, 185 (1993), citing Matter of Prue v. Hunt, 78 NY2d 364, 369 (1991). The due process requirements under Civil Service Law §71 should be at least as strict as those provided under Civil Service Law §73 as the former "affords greater procedural protections and opportunities for reinstatement." Matter of Allen v. Howe, 84 NY2d 665, 673 (1994).

This court finds that due process requires notice and some opportunity to respond before an employee is terminated from civil service employment under Civil Service Law §71.
There is no dispute that petitioner was improperly terminated under Civil Service Law §73 because his absences were due to a disability resulting from an occupational injury as defined in the workmen's compensation law. The DEP was admittedly aware all along that petitioner's injuries were occupational. The DEP belatedly realized its error and retroactively terminated petitioner under Civil Service Law §71. The DEP should not be rewarded for confusing an employee by continually changing its basis for termination from one section to another. Regardless, petitioner was improperly terminated because the DEP did not provide petitioner with a notice of intended action under Civil Service Law §71. Petitioner had no opportunity to respond to the specific charges leveled against him, which led to his termination.

The parties remaining contentions are without merit.

Accordingly, it is hereby,

ADJUDGED that the application by petitioner for an order, pursuant to Article 78 of the CPLR, declaring that respondents improperly terminated petitioner pursuant to Civil Service Law §73 and failed to satisfy due process requirements for termination pursuant to Civil Service Law §71, is granted with costs and disbursements to petitioner; and it is further

ADJUDGED and DECLARED that respondents' termination of petitioner was in violation of its duties under New York City Rules and Regulations, New York State Civil Service Law, and the New York State and United States Constitutions; and it is further

ADJUDGED that the final determination of respondent DEP, dated January 6, 2012, terminating petitioner as a Watershed Maintainer, is vacated and annulled and petitioner is reinstated to said position with any and all benefits to which he was lawfully entitled from January 6, 2012, the date of termination.

Dated: May 2, 2013

ENTER:
________________________
J.S.C.

* NYPPL Comment: Although the employee must be absent on leave pursuant to §72 continuously for period of one year or longer to trigger the appointing authority’s ability to elect to terminate the individual pursuant to §73, the appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an “accumulative period” of one year or longer. However, neither §71 nor §72 requires the termination of the employee after he or she has been absent for the requisite minimum period of such a leave.

CAUTION

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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