The State’s State Fire Prevention and Building Code Council to meet on July 16th 2013

The State’s State Fire Prevention and Building Code Council to meet on July 16^th 2013

Source: New York State Department of State

The New York Department of State’s State Fire Prevention and Building Code Council will hold a public meeting of the Council on Tuesday, July 16^th, 2013 at 10:00 a.m.at the Department of State, 99 Washington Avenue in Albany, 123 William Street in NYC, and 65 Court Street in Buffalo. 

The meeting will be held via videoconferencing to discuss a number of topics, including more restrictive local standards and the next Uniform Code and Energy Code Adoption update.

The public is welcome to attend the meeting at any of the locations listed below:

Albany:

Department of State

99 Washington Avenue (Commerce Plaza)

5^th Floor, Room 505

Albany, NY

New York City

123 William Street

20^th Floor, Executive Conference Room

New York, NY

Buffalo, New York:

65 Court Street

Room 208

Buffalo, NY

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 July 6, 2013 [Click on text highlighted in bold to access the full report] 


DiNapoli: ESDC Needs to Better Monitor Foreign Offices

The Empire State Development Corp. needs to set clear performance standards to determine if its remaining four foreign offices are fulfilling their missions and bolstering New York’s economy through overseas business and investment, according to an audit released July 1, 2013 by State Comptroller Thomas P. DiNapoli.

DiNapoli: Westchester Special Education Provider Overcharged Taxpayers $800,000

The Westchester School for Special Children overcharged taxpayers by more than $800,000 over a four–year period, and engaged in questionable business transactions with companies connected to board members and executives, according to an audit released Wednesday by New York State Comptroller Thomas P. DiNapoli. The findings of the audit are under review by the Office of the Attorney General. Legislation that would improve oversight of preschool special education by mandating audits of every provider was recently passed by the legislature.

DiNapoli Returns Record $347 Million in Unclaimed Funds to Rightful Owners

A record amount of unclaimed funds, totaling $347 million, were paid out to individuals and organizations in the state’s last fiscal year, according to State Comptroller Thomas P. DiNapoli. This new record surpasses the previous year by $33 million. Currently, there is $12.5 billion in lost or forgotten money that is still waiting to be claimed.

DiNapoli Releases Bond Calendar for Third Quarter

New York State Comptroller Thomas P. DiNapoli on July 2, 2013 announced a tentative schedule for the planned public sale of obligations for the state, New York City, and their major public authorities during the third quarter of 2013.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Tuesday, July 2, 2013, that his office completed audits of:

the Village of Albion;

the Bloomingburg Fire Company #1;

Cattaraugus County;

the Town of Dunkirk;

the Town of Hamden;

the City of Hudson;

the Killawog Fire District;

the City of Rochester;

the Town of Seneca Falls; and,

the Town of Wappinger.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced Monday, July 1, 2013, the following audits have been issued:

the Department of Corrections and Community Supervision;

the Department of Environmental Conservation;

the New York State Health Insurance Program; and,

Statewide Travel Audits of the Department of Labor;

the Office of Mental Health; and,

the Department of Corrections and Community Supervision.

Comptroller DiNapoli Releases School Audits

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

the South Country Central School District; and,

the Watervliet City School District.

A $12,500 fine imposed as the disciplinary penalty held shocking to one's sense of fairness and reduced to $1,250

A $12,500 fine imposed as the disciplinary penalty held shocking to one's sense of fairness and reduced to $1,250

2013 NY Slip Op 04278, Appellate Division, First Department

An arbitrator found a New York City Department of Education teacher guilty certain charges filed against her pursuant to Education Law §3020-a and imposed a fine of $12,500.

Supreme Court denied the teacher’s CPLR Article 75 petition* seeking to vacate the award and confirmed the arbitrator’s decision and penalty imposed. The teacher appealed.

The Appellate Division modified the Supreme Court’s ruling “on the law” only as to the fine imposed, reducing the fine to $1,250. 

The court said that the arbitrator found that the teacher was negligent in dealing with a stray kitten in her backyard rather than guilty of “intentional misconduct” as charged by the Department. Further, the arbitrator found that the teacher had “a 15 year unblemished record” and the conduct for which she was charged was completely unrelated to her professional work.

The Appellate Division found that the fine imposed, $12,500, was so “disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness” and reduce it accordingly.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04278.htm

Federal regulation did not preempt employer’s obligation to collectively bargain a new employer policy in this instance

Federal regulation did not preempt employer’s obligation to collectively bargain a new employer policy in this instance

City of New York v Board of Collective Bargaining of the City of N.Y., 2013 NY Slip Op 04887, Appellate Division, First Department

The City of New York filed a petition pursuant to CPLR Article 78 in an effort to annul a decision by the Board of Collective Bargaining of the City of New York granting the union’s improper practice petition.

Supreme Court denied the City’s petition and granted the Board’s motion to dismiss the action. The Appellate Division affirmed the lower court’s rulings.

The City had claimed that “federal regulations” permitted its Department of Transportation [DOT] to unilaterally require an employee to submit a doctor's "fit for duty" statement following his or her absence from work for three or more days. The Appellate Division concluded that the City’s reliance on federal regulation in this instance was misplaced and did not preempt its obligation to collectively bargain requiring those employees absent from work for three or more days to produce a physician’s statement of “fitness.”

The court also rejected the City’s argument that it was “absolved from bargaining on ‘public policy’ grounds based on DOT’s mission of providing safety in the ferry system.”

The Appellate Division explained that there was nothing in the record to establish that the rule unilaterally imposed by DOT would substantially further its core mission of “safety in the ferry system.” In addition, said the court, there was nothing in the record that demonstrated any need for the new requirement unilaterally imposed by DOT sufficient to outweigh its adverse impact on the collectively-bargained rights of the employees to whom it would apply.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04887.htm

The top ten “employment law” LawBlogs for the month of June 2013 as reported by Justia

The top ten “employment law” LawBlogs for the month of June 2013 as reported by Justia

Justia surveys 5,326 LawBlogs in 74 subcategories*.

Defero Law [Feed]

Community of UK legal bloggers.

Last Updated: July 2, 2013 

http://www.deferolaw.com/profiles/blog/list?promoted=1

Adjunct Law Prof Blog [Feed]

Focuses on issues of interest to adjunct law professors, including labor law, employment law, employee benefits law and education law issues. By Adjunct Law Professor Mitchell H. Rubinstein.

Last Updated: June 30, 2013 

http://lawprofessors.typepad.com/adjunctprofs/

New York Public Personnel Law [Feed]

Provides summary and commentary on selected court and administrative decisions and related matters affecting public employers and employees in New York State. By Harvey Randall Esq.

Last Updated: July 2, 2013 

http://publicpersonnellaw.blogspot.com/ 

Workplace Prof Blog [Feed]

Covers arbitration, disability, employment discrimination, labor law, public employment law and workplace safety. By Professors Richard Bales, Jeffrey M. Hirsch and Marcia L. McCormick.

Last Updated: July 1, 2013 

http://lawprofessors.typepad.com/laborprof_blog/

JOTWELL - The Journal of Things We Like (Lots) [Feed]

Edited by University of Miami School of Law Professor Michael Froomkin, The Journal of Things We Like (Lots)–JOTWELL–invites law professors to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship.

Last Updated: July 1, 2013 

http://jotwell.com/

The Kielich Law Firm Blog [Feed]

Covers employment law, personal injury and family law issues related to Texas and federal law.

Last Updated: July 2, 2013 -

http://kielichlawfirm.com/blog

Restaurant Worker News Blog [Feed]

Covers employment law issues in the restaurant industry. By Berke-Weiss & Pechman LLP.

Last Updated: June 27, 2013 

http://waiterpay.com/blog/

ERISA Lawyer Blog [Feed]

Covers employeee benefits, ERISA, and employment law. By Stanley D. Baum.

Last Updated: July 2, 2013 

http://www.erisalawyerblog.com/

Impact Litigation Journal [Feed]

Provides commentary and analysis about legal issues relating to class actions and other representative litigation in the areas of consumer and employment law. By Initiative Legal Group APC.

Last Updated: July 1, 2013 

http://impactlitigation.com/

Employment & Labor Insider [Feed]

Discusses timely issues in labor and employment law and human resources from management's perspective, with subjects ranging from discrimination to employee handbooks and religious accommodations. By Constangy, Brooks & Smith, LLP.

Last Updated: June 28, 2013 

http://www.employmentandlaborinsider.com/


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The Doctrine of Legislative Equivalency controls when abolishing positions in a layoff situation

The Doctrine of Legislative Equivalency controls when abolishing positions in a layoff situation

Civil Serv. Empls. Assn., Inc. v County of Orange, 2013 NY Slip Op 04798, Appellate Division, Second Department

In this action a number of employees challenged their termination from their respective positions with the County of Orange.

The Appellate Division, reversed a Supreme Court ruling dismissing the Article 78 petition filed by these individuals “on the law” and the County’s decision to terminate the employees was remitted to the Supreme Court, Orange County, for a determination of all the benefits those individuals “would have been entitled to had they remained employed for the period from October 29, 2010, to December 31, 2010, and for a calculation of the principal sum of back pay to be awarded to those [these individuals] in accordance herewith and thereafter for the entry of an appropriate amended judgment.”

The genesis of this case was a direction of the County Executive of Orange County to send letters “to 39 civil service employees notifying them that they were being laid off effective October 29, 2010, for economic reasons” and, indeed, on December 2, 2010, the Orange County Legislature passed a budget for the 2011 fiscal year*that did not provide funding for the positions held by these 39 “laid off” employees.

The employees were advised that their names would be placed on a preferred eligible list pursuant to a provision in their collective bargaining agreement, which pertained to "abolished" positions. Subsequently the employees were advised that their names had been placed on the preferred eligible list "[i]n accordance with §81 of Civil Service Law."

Citing Torre v County of Nassau, 86 NY2d 421, the Appellate Division explained that the doctrine of "[l]egislative equivalency requires that a position created by a legislative act can only be abolished by correlative legislative act."**

The court explained, the Orange County Charter and Orange County Administrative Code vests in the Orange County Legislature sole authority to "establish or abolish positions of employment and titles thereof." However, the County Legislature had not taken any action to abolish the relevant positions at the time the County Executive terminated the subject employees' employment.

Although the Orange County Charter and Orange County Administrative Code give the County Executive the authority to "supervise, direct and control and administer all departments," they do not give the County Executive the authority to terminate the employment of civil service employees without a proper abolition of the positions by the County Legislature in accordance with the doctrine of legislative equivalency.

Further, said the court, the County Charter does not authorize the County Executive to undertake any "remedial action" constituting unilateral modification to the budget and, or, abolition of legislatively created positions.

The bottom line: The County Executive did not have the authority to terminate the subject employees' employment for economic reasons, effective October 29, 2010. Thus, the court concluded, those individuals that were “laid off” effective October 29, 2010, are entitled to back pay, and presumably benefits, to which they would have been entitled had they remained County employees for the period from October 29, 2010, to December 31, 2010.

* Presumably the budget was to take effect January 1, 2011 and by not providing for the funding of the relevant positions, the Legislature was deemed to have “abolished them.”

** The Attorney General has opined that there must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 and 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04798.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645-page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on  http://nylayoff.blogspot.com/

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