Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing

Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing

OATH Index No. 300/13*

As a general rule, evidence of prior disciplinary action taken against an employee may not be admitted at his or her disciplinary hearing to show that the employee “has a propensity to commit the charged misconduct.”

In this case, where the employee was charged with threatening and assaulting a supervisor, OATH Administrative Law Judge Faye Lewis admitted evidence that the employee had earlier pled guilty to prior charges of time and leave violations for the purpose of impeaching or rebutting the employee’s claim that he his supervisor was “scapegoating” him for “non-existent time and leave issues.”

ALJ Lewis noted that there is an exception to the rule barring the introduction of evidence of  “prior disciplinary action” taken against the individual. Such evidence may be may be admitted and considered when [1] it is offered for a different reason or another purpose; [2] where prior violations have independent relevance and [3] the fact-finder is an attorney or a judge trained to consider potentially prejudicial evidence introduced for limited purposes.

Judge Lewis also observed that “four different sets of charges, each with multiple specifications,” were served on the employee. Some of the charges, said the ALJ, were duplicative in that they alleged the same misconduct while citing an alleged violation of  a different rule.

Such duplicative pleadings are “confusing and verbose” said the ALJ. The better practice is to plead misconduct as “a single factual allegation, with citation to the agency rules that are alleged to have been violated

* The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-300.pdf

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 22, 2013  [Click on text highlighted in bold to access the full report] 


DiNapoli Releases Fiscal Stress Scores for Local Communities

Two dozen communities in New York have been designated as fiscally stressed under State Comptroller Thomas P. DiNapoli’s new Fiscal Stress Monitoring System. The listincludes eight counties, three cities and 13 towns. A video release is available here.

DiNapoli Applauds Legislature for Passage of Superstorm Sandy Legislation

State Comptroller Thomas P. DiNapoli Tuesday commended the state Assembly and Senate for passing legislation to help local governments deal with the financial impact of Superstorm Sandy. The three bills submitted by DiNapoli will now go to the Governor. For copies of the complete legislation, visit: http://www.osc.state.ny.us/legislation/.

DiNapoli Commends Legislature For Action On Bill Calling For Tighter Oversight Of Special Education Providers

State Comptroller Thomas P. DiNapoli Friday commended the Legislature for passing legislation mandating audits of every special education services program provider for preschool children with disabilities in the state and urged Governor Cuomo to sign the bill to ensure taxpayer monies are spent as intended and to deter further provider fraud. This legislation was a program bill of the Office of the State Comptroller and was sponsored by Sen. John Flanagan (S.5568-A) and Assemblywoman Catherine Nolan (A.7302-A). For copies of the complete legislation, visit: http://www.osc.state.ny.us/legislation/.

DiNapoli: NYC Rental Housing Less Affordable

Housing is becoming increasingly unaffordable for rental households in New York City, with only 44 percent of all apartments considered affordable in 2011 for families earning the median income, according to a reportreleased Monday by State Comptroller Thomas P. DiNapoli.

DiNapoli: State Revenue Outpacing Estimates

State tax collections of $12.6 billion through May, rose 25.8 percent from collections during the same period last year, primarily due to non–recurring estimated Personal Income Tax payments made in April, according to the May Cash Report released Friday by State Comptroller Thomas P. DiNapoli.

Employee testified that his use of “Nazi” and “Fascist” directed towards his supervisors constituted profanity and was intended to be offensive

Employee testified that his use of  “Nazi” and “Fascist” directed towards his supervisors constituted profanity and was intended to be offensive

NYC Dept. of Corrections v RM, OATH Index No. 651/13

RM, an employee of the NYC Department of Corrections, was served with disciplinary charges alleging that he acted in a disrespectful manor towards his supervisors, that he failed to obey an order to submit a report, he performed doing less work than his co-employees, that he refused to perform certain duties and that he had made false entries into Department records.

OATH Administrative Law Judge Astrid B. Gloade found that RM called his supervisors “Nazis” and “Fascists,” refused to conduct workshops to assist inmates, and processed less than one percent of the discharge letters issued by his three-person unit.

The ALJ said that RM had testified that the use of “Nazi” and “Fascist” to him amounts to profanity, which Judge Gloade viewed as indicating that RM’s intent was to offend his supervisors.

Further, Judge Gloade said that RM only expressed remorse that his statements, meant to be insults, “might not have hit their mark” because he “realized [his supervisors] didn't even know what [he] was talking about because they weren't even around when Nazis were current events.”

RM’s own testimony, said Judge Gloade, established that he directed highly inappropriate remarks towards his supervisors.

However, the ALJ found the Department did not prove that RM failed to submit a report when ordered to do so nor did it prove that he made false entries in Department documents with the intent to defraud.

Finding RM guilty of the remaining allegations of misconduct, ALJ Gloade recommended that the appointing authority suspend RM for 45 days without pay.

N.B. In Matter of Shafer, 2013 NY Slip Op 04571, Appellate Division, Third Department, an individual dismissed from her employment for “insubordinate behavior” that included rude, disrespectful and hostile conduct,was found guilty of disqualifying misconduct for the purposes of eligibility for Unemployment Insurance benefits by the Unemployment Insurance Appeal Board.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-651.pdf

Governor Cuomo announces Senate confirmation of a number of individuals he nominated for appointment to various public offices

Governor Cuomo announces Senate confirmation of a number of individuals he nominated for appointment to various public offices

Source: Office of the Governor

On June 20, 2013, Governor Andrew M. Cuomo announced the Senate’s approval of multiple appointments within the administration. Below are the individuals confirmed.

New York State Office of Temporary and Disability Assistance

Kristin Proud

Ms. Proud will serve as Commissioner. She earlier served in Governor Andrew Cuomo’s Office as Deputy Secretary for Human Services, Technology & Operations. She is a member of the Governor’s Olmstead Cabinet and the State’s Mandate Relief Council. She previously served in the Governor’s Office as the Deputy Director of State Operations from November 2007 to August 2009 and the Director of Health and Human Services from January to November 2007. Ms. Proud spent fourteen years in the New York State Assembly, during which time she worked for three Speakers of the Assembly. Ms. Proud was the Deputy Secretary of the Assembly Ways and Means Committee and was also the principal staff advisor to the Speaker and the Assembly Majority on issues related to health and human services. Following that, she served as Senior Director of Community Relations and Planned Giving for the Center for Disability Services, the largest provider of services to individuals with disabilities in the Capital Region. Ms. Proud is a summa cum laude graduate of the State University of New York at Albany. She also attended Florida State University.

Gaming Commission

John A. Crotty

A founding member of Workforce Housing Advisors, a New York City-based development firm with a particular focus on affordable housing. Mr. Crotty has nearly two decades of experience in housing, government and finance in a variety of capacities. Mr. Crotty is a former member of the Board of Directors of the New York City Off-Track Betting Corporation and was appointed by Governor Paterson to a panel to restructure the Off Track Gaming system statewide. Mr. Crotty was also a member of the New York State Franchise Oversight Board, which oversees the finances of The New York Racing Association, Inc.

John J. Poklemba

Served as General Counsel to American Transit Insurance Company, a New York City-based Commercial Automobile Insurer. Previously, Mr. Poklemba was the managing partner of his general practice in Saratoga County for more than a decade. Prior to that, Mr. Poklemba was the principal attorney responsible for governmental relations and litigation for Bartlett, Pontiff, Stewart & Rhodes, P.C. in Glens Falls. Mr. Poklemba also served in New York State government for many years working on criminal justice.

Barry Sample

Mr. Sample recently retired from Governor Cuomo’s Administration as Deputy Director of State Operations where he handled the day-to-day management of state government following nearly two decades in service to New York State. Previously, Mr. Sample served as Deputy Director at the New York State Division of Criminal Justice Services, Deputy Director at the New York State Division of Budget, and Director of Intergovernmental Affairs and Community Relations at the New York State Comptroller’s Office.

Todd R. Snyder

Serves as executive vice chairman of North American Global Financial Advisory and co-head of the debt and restructuring group at Rothschild, Inc., a leading international investment banking and financial advisory firm where he is also Senior Managing Director. Mr. Snyder has been an advisor for Rothschild Inc.’s companies for more than two decades, including work with Emerald Casino, Dow Corning and United Airlines. Mr. Snyder also served as part of Governor Cuomo’s Labor Negotiating Team, where he was instrumental in forging new contracts with the state’s public sector unions. He advised the Bush and Obama administrations on the restructuring of the auto industry.

Justice Center Advisory Council

William Gettman

Mr. Gettman will serve as Chair. He is Executive Director of St. Catherine’s Center, with more than 25 years of experience in the child welfare field in both the public and private sectors. Previously, he was Executive Deputy Commissioner at OCFS, responsible for all child welfare programs throughout the State.

Other appointees include:

Euphemia Strauchn-Adams

Joseph Rich

Snowden Earl Eichelberger

Glen Liebman

Jeremy Klemanski

Leslie Hulbert

Judith O’Rourke

Alfred Kingon

Robert Weisman, DO

Michael Arsham

Shirley Flowers

Peter Pierri

Denise Figueroa

Harvey Rosenthal

Gabrielle Horowitz-Prisco

Walter Joseph, Jr.

David Allen Lamphere

Norwig Debye-Saxinger

Ronald Lehrer

Tanya Hernandez

Christopher Tavella

Delores McFadden

Brian McLane

Scott Salmon

Lisa Goring

Mary Bonsignore

Clint Perrin

Belinda Lerner

Eva Dech

Behavioral Health Services Advisory Council

Paul Samuels, JD

Mr. Samuels will serve as Chair. He is the Director and President of the Legal Action Center (LAC), a non-profit law and policy organization whose mission is to fight discrimination against people with histories of addiction, HIV/AIDS, or criminal records, and to advocate for sound public policies in these areas. Mr. Samuels has served as a member of the NYS Advisory Council on Alcoholism and Substance Abuse Services as Vice-Chairperson.

Other appointees include:

Kunsook Song Bernstein, PhD

John Kastan, PhD

Jennifer Havens, MD

Tino Hernandez

Ralph Fasano

William Gettman, Jr.

Howard Meitiner

Katherine Breslin

Lt. Colonel April Critelli

James Scordo

Stephanie Orlando

Patrice Wallace-Moore

Sharon Gillette

Grant Mitchell, MD

John Lee

Maura Kelley

Euphemia Strauchn-Adams

Andrew Roberts

Deborah Mayo

Michael Martin

Glenn Martin

Robert Cruz

Scott LaVigne

Dormitory Authority of the State of New York (DASNY)

Alfonso Carney, Jr.

Mr. Carney will serve as Chair. He is a principal of Rockwood Partners, LLC, which provides medical consulting services in New York City. He has served as Acting Chief Operating Officer and Corporate Secretary for the Goldman Sachs Foundation and has held senior level legal positions with Altria Group Inc., Philip Morris Companies Inc., Philip Morris Management Corporation, Kraft Foods, Inc. and General Foods Corporation.

Other appointees include:

Beryl Snyder

John B. Johnson

New York Convention Center Operating Corporation (Javits Center)

Henry Silverman

Senior Advisor and Vice Chairman of Investment Management Business for Guggenheim Partners, a diversified financial services firm in New York City, Mr. Silverman will serve as Chair. He currently serves as Chair of the New York Convention Center Development Corporation.

Other appointees include:

Daniel De Vita

Andrew Murstein

David Emil

Civil Service Commission

Jerry Boone

Continuing to serve as Commissioner and President, Mr. Boone is currently the Managing Principal of Boone Consulting, where he has helped develop human resources and operations infrastructure. Previously, Mr. Boone founded Pride Properties, LLC, in 2008, a company based in Memphis, Tennessee, focused on the acquisition and rehabilitation of distressed properties to develop quality, affordable housing for sale or rental to lower to middle income households. Mr. Boone still serves as President of the organization, which also offers financial counseling provided for first-time home buyers.

State Board for Historic Preservation

Robert MacKay, PhD

Executive Director of the Society for the Preservation of Long Island Antiquities in Cold Spring Harbor, where he led the society's evolution and growth from being primarily a manager of traditional house museums to becoming a vibrant regional preservation organization that provides assistance to communities to safeguard and revitalize their historic built environments in the midst of ever increasing development pressure, Dr. MacKay will continue to serve as the Board’s Chair.

Other appointees include:

John Winthrop Aldrich

Randall Crawford

Jay DiLorenzo

Douglas Perrelli, PhD

State Commission of Correction

Thomas A. Beilein

Mr. Beilein, holds the distinction of being the only former sheriff in the history of the Commission to serve as the Commission’s Chair. His experience as the Niagara County Sheriff from 1994 to 2008 – which includes running a jail with an average daily population of 450 – is unique in the annals of Commission history. Mr. Beilein brings a wealth of law enforcement and administrative experience. He has worked as a correction officer, road patrol officer, investigator and administrator.

Other appointees include:
Thomas Loughren 

The Port Authority of New York and New Jersey

Basil Alexander Paterson

Mr. Paterson, a member of the law firm of Meyer, Suozzi, English & Klein and Co-Chair of the firm’s Labor practice, is a Harlem native and former New York State Senator, having first been elected in 1965. A former New York City Deputy Mayor for Labor Relations and Personnel, he was appointed as New York’s first African American Secretary of State in 1979. He previously served on the Port Authority’s Board of Commissioners from 1989 to 1995. Mr. Paterson has also taught at the State University of New York at New Paltz, Fordham University School of Education, and Hunter College. He is a double alumnus of St. John’s University in Queens.

Kenneth Lipper

Mr. Lipper brings years of experience in public and private sector management and investment banking to the Port Authority. Since 1987 he has served as Chairman and Chief Executive Officer of Lipper & Co. LLC, an investment management and investment banking firm. He is has also been a Director of CNH Global NV, a leading agricultural and construction equipment company since 1996. Previously, Mr. Lipper was Executive Vice President and Senior Adviser of the leading global real estate firm Cushman & Wakefield. He also served as Advisor and Deputy Mayor to New York City under Mayor Ed Koch, and is a former adjunct professor at Columbia University’s Graduate School of International and Public Affairs.

Olympic Regional Development Authority (ORDA)

J. Patrick Barrett

Mr. Barrett will continue serving as ORDA Chair. He is Chairman and Chief Executive Officer of CARPAT Investments, a private investment company. Previously, he was Chairman and CEO of Avis.

Other appointees include: 
Jill Ruhm Broderick
Robert Francis Flacke

State Athletic Commission
John Signorile – Commissioner 

Battery Park City Authority
Lester Petracca 

State Council on the Arts
Deborah Ronnen 

Saratoga-Capital District State Parks, Recreation and Historic Preservation Commission
Karen Lee Bilowith
John McEneny

Niagara Frontier Transportation Authority
LaVonne E. Ansari
Anthony Baynes
Peter G. Demakos
Margo Dawn Downey
Michael P. Hughes
Adam W. Perry

Adirondack Park Agency 
Daniel Wilt
Arthur Lussi
William Thomas
Karen Feldman

Allegany State Parks, Recreation and Historic Preservation Commission
Michael Lyons 
Thomas Erlandson 
Michael McLaughlin 

Genesee State Parks, Recreation and Historic Preservation Commission
Frank Allkofer 
Thomas Jennings 
Peter Humphrey 
Martin Miskell 
Loren Penman 

Niagara Frontier State Parks, Recreation and Historic Preservation Commission
Thomas Yots 
Stuart Angert 

Palisades Interstate State Parks, Recreation and Historic Preservation Commission
Howard G. Seitz

Thousand Island State Parks, Recreation and Historic Preservation Commission
James Ransom 

Central New York State Parks, Recreation and Historic Preservation Commission
Stephen Buechner 
Terry Ettinger 
Cornelius B. Murphy 

Finger Lakes State Parks, Recreation and Historic Preservation Commission
Ludi Augustine 
Mitchell Cornish 
Robert Scharf 

New York City State Parks, Recreation and Historic Preservation Commission 
Allison Whipple Rockefeller 
Leisle Lin 
Alexander Durst 
Simon Roosevelt

Niagara Frontier Transportation Authority
Charles (Sam) Gurney
Wesley Hicks, MD 

Workers’ Compensation Board
Frances Libous (Vice Chair)

CUNY Board of Trustees
Alfreida D. Foster-Tolbert

State Insurance Fund
Joseph Canovas 
Barry Swidler

NYS Housing Finance Agency
Nestor Davidson
Joyce Miller 

Tax Appeals Tribunal
Roberta Moseley Nero 

Advisory Council on Agriculture 
Samuel Casella
Lesa Sobolewski 
David Haight 

Albany Pine Bush Commission
John Brust 
Harvey Alexander 
Nancy Pierson 
Steven Rice, PhD

Citizen’s Policy and Complaint Review Council
Nicholas A. LaBella

New York State Council on the Arts 
Laura Aswad

Ogdensburg Bridge and Port Authority 
Samuel James LaMacchia

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law”

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law” 

2013 NY Slip Op 04472, Appellate Division, Fourth Department

The Appellate Division reversed a Supreme Court decision that denied a tenured teacher’s [Educator] Article 78 petition seeking to annul the school district’s suspending her without pay for 30 days.

The Appellate Division said it agreed with Educator that the school district failed to comply with the requirements of Education Law §3020(1) when it disciplined her without affording her a hearing pursuant to Education Law §3020-a.

The court explained that “the plain language of Education Law §3020(1) provides that a tenured teacher facing discipline, and whose terms and conditions of employment are covered by a collective bargaining agreement (CBA) that became effective on or after September 1, 1994, is entitled to elect either the disciplinary procedures specified in Education Law §3020-a or the alternative procedures contained in the CBA.”

The court determined that the relevant CBA took effect on July 1, 2006. Accordingly, said the court, Educator was entitled to choose whether to be disciplined under the procedures set forth in the CBA or to elect a disciplinary hearing in accordance with Education Law §3020-a as a matter of law regardless of whether or not the CBA offered such an option.

The school district, however, had denied Educator’s written request for a §3020-a hearing.

Finding that the school district’s action was “incorrect,” the Appellate Division annulled the school district’s imposing a disciplinary penalty suspending Educator for 30 days without pay and directed the school district to [1] reinstate her to her position with back pay and benefits retroactive to the date of her suspension and [2] to remove all references to the discipline imposed from Educator’s personnel file.

Significantly, §3020.1, in pertinent part, provides that any such ”alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September 1, 1994, must provide for the written election by the employee of either the procedures specified in such §3020-a or the alternative disciplinary procedures contained in the collective bargaining agreement.” [emphasis supplied].

Further, the negotiated alternative disciplinary procedure must provided constitutional due process protections equivalent to those available under the statutory procedure [Antinore v State, 40 NY2d 6].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04472.htm

_____________________________

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

Local Government Performance and Efficiency Program (LGPEP) grant assistance

Source: Department of State

On June 19, 2013, the New York Department of State announced over $12 million in Local Government Performance and Efficiency Program (LGPEP) grant assistance in recognition of the recurring financial savings generated by 13 projects.  The grants will be distributed in equal parts over three years, and are contingent upon continued demonstration of savings. 

A competitive program, LGPEP rewards local governments for undertaking significant and innovative actions that reduce the property tax burden confronting residents.  The projects recognized today are estimated by applicants to generate $38.2 million in combined annual savings. In accepting an award, these local governments commit to measuring and sustaining the financial impact of these savings. 

The Awards were as follows: 

City of Corning, $279,575.00, Fire Department Efficiency Initiative

Town of Gates, $710,000.00, Health Insurance Consolidation Project

Town of East Hampton, $536,425.00 Re-engineering of Town Government

Village of Liberty, $99,375.00, operations streamlining

Essex County, $244,881.40, Creation of the Office of Community Resources

Madison County, $1,615,724.00, Home Care Services Privatization

Town of Alden, $138,905.00, Town Clerk/Tax Receiver Consolidation Project

Nassau County, $5,000,000.00, Police Department Personnel Reduction and Precinct Consolidation Initiative

Town of New Castle, $194,313.14, Once per Week Garbage Collection

Town of Bethlehem, $776,107.36, Departmental Restructuring of Payment System and Maintenance Staff

Essex County, $984,250.00, Privatization of the Horace Nye Nursing Home

Town of Alden, $72,578.20, Innovative Employee Health Insurance Program

City of Rochester, $1,857,183.30, Neighborhood & Business Development Consolidation and Efficiencies Program

For additional information concerning the grant program please call the Office of the LGPEP Program Manager, (518) 473-3355.

Article 75 petition seeking to confirm an arbitration award holding the current CBA preserved the rights retirees obtained under previous CBAs granted by court

Article 75 petition seeking to confirm an arbitration award holding the current CBA preserved the rights retirees obtained under previous CBAs granted by court

Port Auth. of N.Y. & N.J. v Port Auth. Police Lieutenants Benevolent Assn., 2013 NY Slip Op 50953(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

Due to budget constraints, the Port Authority, effective January 1, 2011, discontinued its free E-Z Pass program available to all Port Authority retirees. As a result, the Port Authority Police Lieutenants Benevolent Association [LBA] filed a grievance under the arbitration provision in its Collective Bargaining Agreement, [CBA] claiming that the Port Authority had violated the CBA by discontinuing the E-Z pass program for retirees.

The Arbitrator framed the issues as follows:

1. Is the grievance substantively arbitrable?

2. If so, did the Employer violated [sic] the Collective Bargaining Agreement (CBA) by discontinuing on or about December 2010 or January 2011 free passage and parking at Port Authority facilities for retirees of the bargaining unit?

3. If so, what shall the remedy be?

The relevant CBA was agreed to in April 2005, effective retroactive to January 21, 2003, through to January 20, 2010. It contained a "Savings Clause," which provides that wages, benefits and conditions of employment "shall remain in full force and effect until a new Memorandum of Agreement [i.e., CBA] is executed." The provision relied upon by the LBA provided “for distribution of free passes for ‘permanent and project employees, retired employees, and employees on military leave for use at tunnels, bridges and some air terminals.’" Retired Lieutenants were provided with free passage “in the form of E-Z Passes.”

Arbitrator Howard C. Edelman found in the LBA's favor, ruling that the Port Authority had "violated the Collective Bargaining Agreement by discontinuing on or about December 2011 free passage and parking for retirees of the bargaining unit." The Port Authority was directed to reinstate the free passage and parking, and reimburse retirees for the monies they had expended on passage and parking since the program was terminated.

The Port Authority filed an appeal pursuant to Article 75 of the CPLR seeking to vacate the award. It contended that the Arbitrator exceeded his powers in ruling that free passage should be applicable to all LBA retirees, because the issue before the Arbitrator was limited to those employees who retired under the CBA 2003-2010 CBA. Accordingly, the Port Authority contended that it was error to apply the Arbitrator’s ruling to all “LBA retirees” and argued that the court should modify the award so as to limit the benefit to employees in the negotiating unit retiring between 2003 and 2010.

Judge Anil C. Singh said the Arbitrator had acknowledged the Port Authority’s argument in the Award but found that under Savings Clause which provided that, "all clauses of the contract ... continue in full force and effect' after the expiration of the [CBA]" and that the CBA thus "requires the continuation of the retiree benefit in question until the parties modify it in collective bargaining."

Judge Singh found that the Arbitrator had not exceeded his power by including pre-2003 retirees in the award where the arbitration was conducted pursuant to the 2003-2010 CBA.

Citing Riverbay Corp. (Local 32-E, S.E.I.V. AFL-CIO), 91 AD2d 509, the court said that “An arbitrator exceeds his or her power by giving ‘a totally irrational construction to the contractual provisions in dispute,’ so as to effectively rewrite the parties' contract.” The court then held that the Arbitrator did not exceed his powers, or rewrite the parties' agreement, when he found that the right to free E-Z Passes and parking applied to more than just retirees who had retired under the 2003-2010 CBA. The decision indicates that the language in CBA’s “Savings Clause” retained the right of retirees from previous MOAs to receive these benefits.

Concluding that the current CBA preserved the rights retirees obtained under previous CBAs, Judge Singh ruled that Arbitrator was not acting irrationally or exceeding his powers when he applied his ruling to past LBA retirees and confirm the LBA’s petition to confirm the award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50953.htm

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan
Bryant v Board of Educ., Chenango Forks Cent. Sch. Dist., 2013 NY Slip Op 04379, Appellate Division, Third Department

Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.*

The Public Employment Relations Board directed the School District to rescind its June 2003 memorandum in which it notified employees and retirees that it was terminating its practice of reimbursing Medicare Part B premiums.

In a companion case PERB ruled that the school district must reinstate its former practice of reimbursing retirees for Medicare Part B premiums** -- the same relief sought in the current proceeding.

The Appellate Division noted that PERB's order in the companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op 04039 (2013)]. Accordingly, Bryant received the full relief challenged by School District in the current appeal as a result of that determination, . Accordingly, the court ruled that the instant appeal is now moot.

As to argument advanced under color of an exception to the mootness doctrine, the Appellate Division held that the claimed exception “does not apply in that, although the issue advanced herein may recur and is significant, it is not likely to evade review.”

* The underlying facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134 [2005]) and in the companion case brought by the Chenango Forks Central School District (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the Internet at http://publicpersonnellaw.blogspot.com/search?q=bryant

** The reason for reimbursing retirees for Medicare Premiums that they are required to pay is explained in a “comment" in NYPPL’s summary of Munger v Board of Educ. of the Garrison Union Free School Dist., 85 AD3d 747, posted on the Internet at:  http://publicpersonnellaw.blogspot.com/2009/12/city-to-pay-100-of-cost-of-health.html

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm

The Statute of Limitations for seeking payment of compensation alleged due an employee pursuant to a contract begins to run when the employee had a legal right to demand such payment

The Statute of Limitations for seeking payment of compensation alleged due an employee pursuant to a contract begins to run when the employee had a legal right to demand such payment

2013 NY Slip Op 04321, Appellate Division, Second Department

The Village Police Commissioner and the Village had signed a contract that provided that the Commissioner was to earn $5,000 more than the highest-ranking lieutenant for each year that he served as Commissioner. In June 2010, the Commissioner learned that he would not be reappointed as Commissioner and alleged that he subsequently learned that his Lieutenants were earning more than he had been earning.

The Commissioner filed a written claim with the Village on November 2, 2010 alleging that the Village had breached its contract with him from 1999 through 2010 and on September 28, 2011commenced an action in Supreme Court pursuant to CPLR Article 78 alleging breach of contract and sought to “recover the wages that allegedly were owed him for those years.”

Supreme Court denied the Village’s motion [1] to dismiss so much of the Commissioner’s complaint that sought to recover payments allegedly due him prior to March 28, 2010 and [2] to transfer the Commissioner’s complaint to District Court, Nassau County. The Village appealed.

The Appellate Division reversed Supreme Court’s ruling and remanded the matter to District Court, Nassau County. In the words of the court, ”the damages sought [by the Commissioner] in connection with the portion of the complaint that is not time-barred fall within the jurisdictional limit of the District Court. Therefore, removal to that court is appropriate.”

Addressing the issue of the timeliness of the Commissioner’s petition, the Appellate Division [1] said that §9802 of the Civil Practice Act and Rules provides that, "no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued," and [2] explained that “Where the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment.”

The Village had argued that the Commissioner's causes of action alleging breach of contract accrued at the end of each year that the Commissioner allegedly was not paid in accordance with his contract. The Appellate Division agreed, ruling that as the Commissioner’s action was not commenced until September 28, 2011, the Village established, prima facie, that the action was time-barred to the extent that the Commissioner sought to recover damages accruing prior to March 28, 2010, i.e., 18 months prior to the commencement of his action.

Significantly, the Appellate Division held that the Commissioner’s reliance on “his lack of knowledge that the several breaches had occurred” did not toll the running of the statute of limitations for bringing a timely action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04321.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

Reports issued during the week ending June 15, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Watertown Boasts Strong Finances

The City of Watertown has maintained a stable tax base, developed healthy revenue streams and built up rainy day reserves, according to a fiscal profile of the city issued by State Comptroller Thomas P. DiNapoli. The report was released June 12, 2013 in conjunction with the Comptroller’s 2013 Local Government Leadership Institute in Watertown.

DiNapoli: Auditors Uncover $3 Million in Improper Unemployment Insurance

State Comptroller Thomas P. DiNapoli uncovered up to $3 million in inappropriate unemployment insurance payments made by the Department of Labor, including payments to recipients who were ineligible because they were employed, had collected more than the maximum weekly benefits or were not authorized to work in the United States, according to a reportreleased June 14, 2013.

Comptroller DiNapoli Releases Municipal Audits

On June 13, 2013 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of:

the Village of Belle Terre;

the Town of Calicoon;

the Town of Gardiner;

the Town of New Berlin;

the Village of Nichols;

the Town of Pittsfield; and,

the Sylvan Beach Fire District.

Comptroller DiNapoli Releases Audits

On June 14, 2013 New York State Comptroller Thomas P. DiNapoli announced that his office completed the following audits:

the Metropolitan Transit Authority;

the Office of General Services;

the Workers’ Compensation Program;

the Department of State; 

the Office of Children and Family Services; and,

the Division of State Police.