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 June 2, 2013 [Click on text highlighted in bold to access the full report] 


DiNapoli Calls For End To Discrimination At ExxonMobil

New York State Comptroller Thomas P. DiNapoli Wednesday took his case to ExxonMobil shareholders for the fourth consecutive year as the New York State Common Retirement Fund’s resolution (page 69) calling on the company to explicitly prohibit discrimination based on sexual orientation and gender identity heads to a vote.

DiNapoli: State Labor Department’s Failure to Collect Millions in Fees Masks Implications for Public Safety

The state Department of Labor’s failure to maintain records on building boilers and asbestos remediation projects needing inspection may jeopardize public health and safety, according to an audit released Friday by New York State Comptroller Thomas P. DiNapoli. The audit also found that DOL failed to collect $3.8 million from building owners who had boilers inspected, asbestos abatement contractors and employers who failed to comply with workplace safety rules.

DiNapoli Reaches Agreement With Ralph Lauren to Report on Labor Practices, Environmental Impacts

New York State Comptroller Thomas P. DiNapoli Monday announced an agreement with Ralph Lauren, a New York–based global apparel retailer, for the company to produce a report measuring and analyzing its labor practices, human rights and environmental impacts. As a result of the agreement, DiNapoli has withdrawn his shareholder resolution filed with the company.

DiNapoli Takes on Board Diversity at Urban Outfitters

Shareholders at Urban Outfitters Inc. vote Tuesday on a resolution requesting the company take steps to improve its poor record of accountability and diversity on its board of directors at the company’s annual meeting in Philadelphia. New York State Comptroller Thomas P. DiNapoli, trustee of the New York State Common Retirement Fund, noted that the nomination of Margaret Hayne, the spouse of Urban Outfitters Chairman, CEO and founder Richard Hayne, and an employee of the company for more than 30 years, to the board of directors failed to meet the resolution’s request for an open and inclusive candidate selection process.

DiNapoli Encourages New Yorkers To Participate In New York’s 529 College Savings Program

May 29 is College Savings Day, and New York State Comptroller Thomas P. DiNapoli is encouraging parents to enroll in New York’s 529 College Savings Program to help offset college costs. The program, available nationwide, is administered in New York State by DiNapoli in partnership with the New York State Higher Education Services Corporation. Comptroller DiNapoli oversees the investment function for the New York State 529 program.

Comptroller DiNapoli Releases Municipal Audits

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

the Village of Castleton–on–Hudson;

the Town of Davenport;

the Town of Fort Ann;

the Town of Huntington; and,

the Town of Wayne.

NYS Cyber Security Conference: June 4-5, 2013

This message was received from New York State's new, official system for press releases. NYS Cyber Security Conference: June 4-5, 2013 Conference to bring internationally-recognized cyber security experts to Albany

Brian Digman, Chief Information Officer Michelle McDonald, Public Information Officer 518-408-2475 The 16th Annual New York State Cyber Security Conference will be held on June 4-5, 2013 at the Empire State Plaza in Albany.  Recognized as the premier Northeast conference for cyber security education, the event is co-hosted by the NYS Office of Information Technology Services’ Enterprise Information Security Office, the New York State Forum, Inc., and the University at Albany's School of Business and College of Computing and Information. Each year the event draws approximately 1,000 attendees from government, the private sector, and academia to the Capital Region. This year’s conference theme is Helping Navigate Stormy Seas. Two full days of sessions are offered. "Given that we live in a world in which Internet-connected systems are relied upon in every aspect of our public and private lives and there are an increasing number of threats to the security of those systems, the State of New York focuses considerable attention on protecting the sensitive information entrusted to its care.  This focus includes initiatives such as the Governor’s Cyber Advisory Board and the Department of Financial Services’ efforts to review the security steps taken by insurance companies that do business in the state.  Another important aspect of this focus is the state’s longstanding commitment to outreach, training, and awareness in the area of cyber security. It is incumbent upon information security professionals to receive regular training and share information in order to maintain their ability to secure these systems," said Thomas D. Smith, New York’s Chief Information Security Officer.  “The 16th Annual Conference continues our efforts to provide a venue in which information security professionals, as well as members of the broader community, are afforded an opportunity to learn from leading experts from government, industry, and academia and to network with their peers." On June 4, the conference opens with a welcome by Fran Reiter, Executive Deputy Director of State Operations.  The conference continues with  featured  keynote speaker Michael Papay, Vice President of Information Security and Cyber Initiatives for Northrop Grumman’s Information Systems sector and Chief Information Security Officer, presenting “Recommended Cyber Actions for Large Enterprises: An Industry Perspective.”  Billy Rios of Cylance returns on June 5 to provide the Annual Symposium on Information Assurance’s keynote talk “Why every CSO needs to know Industrial Control Systems (ICS).” The Annual Symposium on Information Assurance (ASIA) runs concurrently with the main conference and presents academic papers on information security topics by academic experts. Other highlights of the conference include 48 training sessions featuring topics such as: threat landscape, mobile, legal and cloud security issues, incident response, public–private partnerships, IT solutions, and more. For more information, including conference agenda, keynote biographies, and registration information, visit the conference website at http://www.dhses.ny.gov/go/conference2013, follow the conference on Twitter @#nyscyber, and on Facebook at https://www.facebook.com/nystatecio.

The “personal records” exemption from disclosure set out in Civil Rights Law §50-a (1) applies to both active and former employees of the agency

The “personnel records” exemption set out in Civil Rights Law §50-a (1) applies to both active and former employees of the agency

Hearst Corp. v New York State Police, 2013 NY Slip Op 03900, Appellate Division, Third Department

Supreme Court dismissed the Hearst Corporation’s [Hearst] appeal of an administrative decision denying its Freedom of Information [FOIL] request for “all records” maintained by the Division of State Police concerning a former State Trooper. The Division had claimed that the records sought “records were exempt from disclosure under Civil Rights Law §50-a.”

Essentially §50-a.1 provides that the personnel records of police officers, deputy sheriffs, peace officers, firefighters, firefighter/paramedics and correction officers used to evaluate their performance with respect to their continued employment or promotion are confidential and not subject to inspection or review without the express written consent of the individual concerned “except as may be mandated by lawful court order.”*

Addressing the Civil Rights Law §50-a.1 arguments advanced by Hearst in seeking a former State Trooper’s personnel records, the Appellate Division sustained the lower court’s ruling, explaining:

1. Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2);

2. Public Officers Law §87(2)(a) permits an agency to deny access to public records that "are specifically exempted from disclosure by state or federal statute." One such exemption is found in Civil Rights Law §50-a.1** and

3. Such statutory exemptions to disclosure under FOIL must be narrowly construed and the agency opposing disclosure "carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access."

Considering the Hearst newspaper’s claim that “as a matter of law, Civil Rights Law §50-a does not apply to records related to former officers,” the court said that §50-a.1 exempts from disclosure personnel records "used to evaluate performance toward continued employment or promotion" and so long as a document was used “at any time during the officer's employment” to evaluate the officer for promotion or continued employment, it is exempt from disclosure as a personnel record.

The Appellate Division said that the fact that the individual is a “former officer” does not mean that there is no realistic possibility of abusive use of the records against him in litigation, noting that to hold otherwise “would lead to the illogical result that a document ceases to be a personnel record immediately upon the officer's severance from employment.”

Accordingly, the court concluded that a document that is a personnel record within the meaning of Civil Rights Law §50-a does not depend on whether the officer to whom it relates is a current or former employee of the agency maintaining the record.

* Civil Rights Law §50-a.4 provides that “The provisions of this section shall not apply to any district attorney or his assistants, the attorney general or his deputies or assistants, a county attorney or his deputies or assistants, a corporation counsel or his deputies or assistants, a town attorney or his deputies or assistants, a village attorney or his deputies or assistants, a grand jury, or any agency of government which requires the records described in subdivision one, in the furtherance of their official functions.

** Other New York State statutes limiting the disclosure of public records include Education Law, §1127 - Confidentiality of records; and §33.13, Mental Hygiene Law - Clinical records; confidentiality].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03900.htm

Municipalities intending to promulgate or amend civil service personnel rules must comply with the provisions of Civil Service Law §20

Municipalities intending to promulgate or amend civil service personnel rules must comply with the provisions of Civil Service Law §20

Floyd v City of New York, 2013 NY Slip Op 03772, Appellate Division, First Department

Under color of New York City Mayoral Personnel Orders No. 2012/1 and 2012/2, the City issued rules allocating certain “ungraded” civil service titles otherwise subject to prevailing wage bargaining under Labor Law §220 to positions allocated to a salary grade. Such positions, however, upon their being allocated to a salary grade fell within the ambit of the New York City Collective Bargaining Law rather than the provisions of  Labor Law §220. The City’s rules were challenged by the several unions in this action.

The unions argued that the City's actions unilaterally changed ungraded civil service titles which are subject to Labor Law §220 application of prevailing rate wages and supplemental benefits by effectively deleting these classifications and reclassified the ungraded prevailing rate titles into 14 new “Maintenance and Operation Services” titles in violation of Civil Service Law §20.2.*

The City, on the other hand, contended that it had complied with Civil Service Law §20.1 when it allocated titles to a salary grade because it had not change the  jurisdictional classification of the position as §20 “only applies when a title is changed from competitive to noncompetitive or exempt class.” The City also argued that the Department of Citywide Administrative Services has authority to act as a municipal civil service commission pursuant to the New York City Charter and may review salaries and titles, grade and classify them, and remove them from the scope of Labor Law §220 subject to the Mayor's approval and that “the grading of competitive class titles was rational because it is within the City's managerial prerogative, and therefore notice, public hearings and New York State Civil Service Commission approval are not required.”

Supreme Court Judge Manuel J. Mendez annulled the City’s rules that resulted in the several previously “unallocated positions” being allocated to a salary grade. In the words of Judge Mendez, "the changes proposed and implemented by the [the City] resulted in not just grading but reclassification of job titles subject to the provisions of Civil Service Law §20 [36 Misc.3d 653].

Citing Corrigan v Joseph, 304 NY 172, 185 [1952], cert denied 345 US 924, the Appellate Division dismissed the City’s appeal, ruling that the City had promulgated the rules in question without complying with the procedures mandated by Civil Service Law §20 as they had been adopted without notice, without a public hearing, and without approval by the State Civil Service Commission.

* Civil Service Law §20.2, in relevant part, provides as follows: "Procedure for adoption of rules. Such rules, and any modifications thereof, shall be adopted only after a public hearing, notice of which has been published for not less than three days, setting forth either a summary of the subject matter of the proposed rules or modifications or a statement of the purpose thereof. Except for the city of New York, notice shall be given to any person or agency filing written request, such request to be renewed yearly in December, for notice of  hearings which may affect such person or agency. Such notification shall be made by mail to the last address specified by the person or agency at least thirty days prior to the public hearing  … The rules and any modifications thereof adopted by a city civil service commission or city personnel officer shall be valid and take effect only upon approval of the mayor or a deputy mayor designated in writing by the mayor, such designation to be filed in the offices of the state civil service commission, ... provided, however, that where the mayor, deputy mayor or city manager, or other authority, as the case may be, fails to approve or disapprove a rule or modification thereof within thirty days after the same has been submitted to him, such rule or modification thereof shall be deemed to be approved by him…."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03772.htm

Amending the qualifications for appointment to a position in the public service is a “Management Right” and is not a mandatory subject of collective bargaining

Amending the qualifications for appointment to a position in the public service is a “Management Right” and is not a mandatory subject of collective bargaining
Uniformed Firefighters Assn. of Greater N.Y., Local 94 v City of New York, 2013 NY Slip Op 03763, Appellate Division, First Department

State Supreme Court Judge Carol E. Huff denied the Uniformed Firefighters Association petition seeking to annul the New York City Board of Collective Bargaining’s (BCB), decision dismissing the Association’s improper practice complaint.

BCB had rejected the Association’s improper practice charge challenging the New York City Fire Department’s decision to change the job requirements for the position of fire company chauffeur without first negotiating the proposed change with the Association.

Sustaining the Supreme Court’s ruling, the Appellate Division said that BCB's determination was neither arbitrary and capricious, contrary to law, nor an abuse of discretion, explaining that the “ … Fire Department's decision to alter the job requirements for the position … was within the sound exercise of its managerial discretion.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03763.htm

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 26, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Releases Report on Proposed NYS DREAM Act

New York State Comptroller Thomas P. DiNapoli released a reporton May 20, 2013 estimating the cost and economic benefits of the proposed New York State Development Relief and Education for Alien Minors Act, which would increase access to financial aid for undocumented college students.

The report concluded that extending eligibility for the state’s Tuition Assistance Program to undocumented undergraduate students would provide economic benefits to the state at a very small cost.

DiNapoli: Poughkeepsie Facing Severe Fiscal Stress

Inaccurate budgeting has created an $11 million general fund deficit in the city of Poughkeepsie, according to an auditissued on May 22, 2013  by State Comptroller Thomas P. DiNapoli. 

The report also found the city’s debt burden has increased 45 percent over the past five years.

DiNapoli Response to Arrest of Former Old Field Treasurer

While conducting an audit and investigation of the Village of Old Field in Suffolk County, State Comptroller Thomas P. DiNapoli’s staff uncovered the misappropriation of nearly $60,000 in village funds by Andrea Brosnan, the former village treasurer.

Comptroller DiNapoli Releases Municipal Audits

On May 22, 2013 New York State Comptroller Thomas P. DiNapoli announced   that his office completed audits of:

the Apalachin Fire District;

the Town of Hanover;

the Lakeville No. 2 Fire District;

the Town of Rhinebeck;

the Town of Summerville;

the Town of Southampton;

the Village of Sylvan Beach; and,

the Town of Wethersfield.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued on May 20, 2013:

Department of Health;

New York State Thruway Authority;

Rochester–Genesee Regional Transportation Authority;

Department of Environmental Conservation;

State University of New York, Fuller Road Management Company;

Department of Agriculture and Markets;

Capital District Transportation Authority;

Department of Transportation; and,

State University of New York: College at Plattsburgh.

Delaying the processing of an application for retirement and the denial of “retiree benefits” because of alleged employee misconduct

Delaying the processing of an application for retirement and the denial of “retiree benefits” because of alleged employee misconduct

Union Endicott Cent. Sch. Dist. v Endicott Teachers' Assn., 2013 NY Slip Op 50833(U), Supreme Court, Broome County [Not selected for publication in the Official Reports.]

State Supreme Court Judge Ferris D. Lebous’ decision in this action considered issues raised by the union on behalf of a retired teacher concerning the school district’s delay in processing her application for retirement benefits and her eligibility for retiree health insurance under a Collective Bargaining Agreement.

The events leading to this proceeding was summarized by the court as follows. :

A teacher for the Union-Endicott Central School District became “a person of interest” in an investigation involving stolen school property. The teacher, however, tendered her resignation before the investigation was completed. Although the resignation indicated that the teacher intended to resign and retire at the end of the academic year, the Board of Education decided to delay the processing of the teacher’s application for retirement pending determinations on criminal charges and disciplinary charges.

The Association filed grievances challenging the Board of Education's decision to delay the processing of the teacher’s retirement ("Grievance No.1") and its denial of the teacher’s retiree health insurance benefits ("Grievance No.2"). Judge Lebous stayed the arbitration of Grievance #1 as “not arbitrable,” but ordered the arbitration of Grievance #2 (see Union Endicott Cent. School Dist. v Endicott Teachers' Assn., 25 Misc 3d 1210 [A]).

The Appellate Division affirmed the court's rulings, holding that arbitration could not be compelled with respect to Grievance # 1 [see http://www.nycourts.gov/reporter/3dseries/2009/2009_01060.htm] and that Grievance #2, the grievance challenging the denial of the teacher’s health insurance benefits upon retirement, was arbitrable [see http://www.nycourts.gov/reporter/3dseries/2010/2010_07647.htm].

Ultimately, the arbitration hearing on the issue of the teacher’s eligibility for health insurance benefits upon retirement was conducted and arbitrator Louis Patack issued an Opinion and Award in favor of the teacher. The school district then filed a petition pursuant to CPLR Article 75 seeking a court order vacating the arbitrator’s award.

As phrased by the court, “The School District's primary argument in support of it's petition is that the arbitrator failed to consider the issue of [the teacher’s] misconduct” in terms of  “the faithless servant doctrine,” contending that the Appellate Division had “instructed” the consideration of that issue.  The School District claimed that this failure on the part of the arbitrator constituted “misconduct in rendering his award and constitutes a ground for vacating the same under CPLR §7511 (b) (1) (i) and (iii).”

Noting that the Appellate Division “… did not mandate that the arbitrator apply the doctrine but merely stated that '[t]he issue of the effect, if any, of [the teacher’s] alleged misconduct on her entitlement to benefits goes to the merits of her grievance, not to its arbitrability,'” Further, Judge Lebous rejected the School District's representation that the arbitrator failed to consider or address the faithless servant doctrine. Rather, said the court, the record “clearly reflects that the arbitrator did considerwhether the doctrine applied under the CBA and held that it did not.”

In addition the court commented that “as outlined by the Association,” the parties had entered into a stipulation at the arbitration hearing that the School District would offer evidence of [the teacher’s] alleged misconduct only if the arbitrator determined that the doctrine applied and because he did not so rule no such evidence was accepted.

Accordingly, the court denied the school district’s petition to vacate or modify the arbitration award and, in addition, denied its application for a stay of enforcement and implementation of the arbitration award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50833.htm