Ratification of the proposed contract for staff in the professional service of the State University of New York represented by United University Professions announced

Ratification of the proposed contract for staff in the professional service of the State University of New York represented by United University Professions announced

On June 4, 2013, Governor Andrew M. Cuomo and United University Professions (UUP) President Frederick Kowal announced the ratification of a collective bargaining agreement between the state and the union representing more than 35,000 SUNY employees in the professional service of the State University of New York.*

UUP members had been without a contract since 2011. The agreement won the approval of 77 percent of UUP members who cast ballots.

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.

Contract highlights:

· Zero percent General Salary Increases for the three years 2011-2013, and 2% General Salary Increase increases in 2014 and 2015.

· Deficit Reduction Program involving nine days.

· A two percentage point increase in the employee's health insurance premium contribution for employees earning less than $40,137, making the employee contribution 12% for individual coverage and 27% for dependent coverage.

· A six percentage point increase in the employee's health insurance premium contribution for employees earning $40,137 and above, making the employee contribution 16% for individual coverage and 31% for dependent coverage.

· 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.

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

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

* See Subdivision three of Section three hundred fifty-five-a of  the Education Law.

Misconduct conduct that results in the termination of employment may not necessarily constitute “disqualifying misconduct” for unemployment insurance benefit purposes

Misconduct conduct that results in the termination of employment may not necessarily constitute “disqualifying misconduct” for unemployment insurance benefit purposes
2013 NY Slip Op 03734, Appellate Division, Third Department

A Lieutenant with the Sheriff's Department was served with disciplinary charges pursuant to Civil Service Law §75 alleging misconduct, incompetence and insubordination.

One of misconduct charge resulted from an incident in which the Lieutenant was served with an order of protection obtained on ex parte* by his estranged wife. When two superior officers served the order of protection, which required that the Lieutenant surrender all firearms, he became upset, orally protested the surrender of his firearms and used profanity toward his superior officers. The Lieutenant eventually complied with the terms of the order of protection.

Found guilty of the disciplinary charged, the Lieutenant was terminated from his position. He challenged his termination but the Appellate Division sustained the penalty imposed [see 90 AD3d 1390).

At the time of his termination the Lieutenant applied for unemployment insurance benefits. Initially disqualified from receiving benefits on the ground that he lost his employment through misconduct, a Department of Labor Administrative Law Judge concluded otherwise after a hearing and awarded him unemployment insurance benefits.

Finding that the Lieutenant’s termination did not result from disqualifying misconduct, the Unemployment Insurance Appeal Board sustained the Administrative Law Judge’s ruling.

The Lieutenant’s former employer appealed the Board’s decision but the Appellate Division sustained the Board’s decision.

The court explained that as the Lieutenant “had a full and fair opportunity to litigate the issue of misconduct at the Civil Service Law §75 hearing,” the Board was correct in applying the Doctrine of Collateral Estoppel to the factual findings of the Hearing Officer. However, said the court, it was incumbent on the Board to draw its own conclusion as to whether such factual findings amounted to misconduct disqualifying the Lieutenant from receiving unemployment insurance benefits.

Significantly, said the Appellate Division, "[t]he same conduct that leads to a claimant being discharged for cause may not necessarily rise to the level of misconduct for unemployment insurance purposes," citing Matter of Wright [City of Syracuse—Commissioner of Labor], 101 AD3d 1198 and its decision will be sustained if supported by substantial evidence.

In this instance the Board found that although the Lieutenant had used vulgar and intemperate language toward his superior officers, it concluded that, given the context of his conduct, it was not so egregious as to disqualify him from receiving benefits. The Board relied on evidence of claimant's marital problems and his lack of knowledge of the order of protection prior to being served with it. Furthermore, the superior officers testified that they were not directly threatened by Lieutenant and that the Lieutenant fully complied with the terms of the order of protection by timely surrendering his firearms.

The Appellate Division dismissed the employer’s appeal, holding that “… substantial evidence supports the Board's finding that [the Lieutenant] did not engage in disqualifying misconduct, despite the existence of substantial evidence supporting the contrary conclusion.”.

* An ex parte proceeding is one in which only one side is present and the other side absent or unrepresented:  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03734.htm

Benefits available to certain dependents of a volunteer firefighter who died in the line of duty

Benefits available to certain dependents of a volunteer firefighter who died in the line of duty

Dickinson v Cape Vincent Volunteer Fire Dept., 2013 NY Slip Op 03723, Appellate Division, Third Department

The Lt. Michael E. Neuner/Timothy Goff Memorial Death Benefit Program [see Volunteer Firefighters' Benefit Law §7(46)], provides, among other benefits available to dependents of volunteer firefighters killed in the line of duty, for payments “for the support of each parent or grandparent of the deceased if dependent upon the deceased at the time of the injury.” *

Marsha Dickinson, the mother of a volunteer firefighter who died in the line of duty,* applied for benefits for herself and the volunteer firefighter's younger brother, contending that they were "dependent upon the deceased at the time of his death."

The Workers' Compensation Board ultimately agreed, whereupon the employer and its workers' compensation carrier appealed the Board’s determination.

The Appellate Division, noting that "The issue of dependency is a factual one for the Board to resolve and, if supported by substantial evidence, its decision will not be disturbed", affirmed the Board’s decision.

Noting that the record indicated that the volunteer firefighter lived with his mother, his stepfather and his younger brother and that the parents worked very little due to their physical limitations, and his brother, a high school student, worked part time at a grocery store and that the volunteer firefighter “was the primary breadwinner for the family,” the Appellate Division concluded that “Given these facts, the Board properly found ‘that the loss of . . . decedent's financial contribution had an adverse or detrimental effect on the claimant’ and decedent's brother thereby warranting an award of benefits.”

* $532 per week is payable during such dependency is payable pursuant to §7(46), but in no case may the aggregate amount payable under §7(46) exceed $887 per week.

** The volunteer firefighter was shot and killed by a patient in the course of his work as a volunteer firefighter/emergency medical technician.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03723.htm

Teacher terminated after being found guilty of subjecting a student to corporeal punishment

Teacher terminated after being found guilty of subjecting a student to corporeal punishment

2013 NY Slip Op 03769, Appellate Division, First Department

A New York City schoolteacher filed a petition seeking to vacate a post-hearing award finding her guilty of administering corporal punishment on a kindergarten student and of directing students who witnessed the incident not to discuss what they had observed, and imposing the penalty of termination of her employment. The court granted her petition in part, vacating the penalty imposed and remanding the matter to a different hearing officer for a determination of the penalty based on the administrative record, “but taking no account of any evidence of uncharged wrongdoing.”

The Appellate Division modified that award and reinstated the penalty imposed – termination

The Appellate Division explained that Supreme Court had found that there was adequate evidence in the record made at the disciplinary hearing to support the hearing officer’s determination that the teacher was guilty of administering corporal punishment on the kindergarten student and directing the students who witnessed the incident not to discuss what they had observed.

The apparent basis for the Supreme Court’s remanding the matter to a different arbitrator was the teacher’s representation that she was denied due process because the Hearing Officer's decision to terminate her employment was based upon evidence of wrongdoing that was not charged.

The Appellate Division said that the allegation that the Hearing Officer's decision to terminate her employment was based upon evidence of wrongdoing that was not charged is unavailing, since the Hearing Officer “expressly based the penalty upon the charged misconduct.”

Finding that the record showed that the teacher “showed a lack of remorse for her actions,” the Appellate Division concluded that “the penalty of termination does not shock one's sense of fairness, in light of petitioner's egregious misconduct of kicking a kindergarten student with special needs and then directing her other impressionable students not to discuss what they had observed.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03769.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 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.