Abandonment of a position

Abandonment of a position

Ciccarelli v West Seneca Central School District, 107 AD2d 105

In a case challenging a teacher’s alleged abandonment of her position, the Appellate Division rejected a Board of Education’s resolution holding that an educator had abandoned her position and terminating her.

The court said that the burden of proving that the educator had abandoned her tenured teaching position was upon the District. This must be established "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act" intended to relinquish her teaching position and forfeit her tenure rights. Otherwise, a tenured teacher may be terminated only in accordance with §3020-a of the Education Law.

In a similar situation involving an employee in the classified service [teachers are in the unclassified service] a former rule of the New York State Civil Service Commission [4 NYCRR 5.3(d)] providing that a State employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position was held to violate the employee's right to due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. However, this type of provision has survived in collective bargaining agreements, [see New York State Off. of Mental Health v New York State Div. of Human Rights, 53 A.D.3d 887].

Employer's use of payroll cards to pay workers under investigation by New York State Attorney General Schneierman

Employer's use of payroll cards to pay workers under investigation by New York State Attorney General Schneierman

Marnie E. Smith, Esq., an attorney with Harris Beach's Labor and Employment Law Practice Group, has posted an item on the NYMUNIBLOG reviewing Attorney General Eric T. Schneiderman’s investigation of the use of "payroll cards” by employers.

Ms. Smith observes that “Payroll cards are used as an alternative to the traditional written paycheck or direct deposit” whereby the employee’s wages “are loaded onto a debit card, which avoids having to cash a paycheck and does not require the employee to have a bank account.”

The full text of Ms. Smith’s posting is on the Internet at: http://nymuniblog.com/?p=3349

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 13, 2013 [Click on text highlighted in bold to access the full report] 


DiNapoli Finds Millions in Medicaid Overpayments

New York State’s Medicaid program overpaid providers $11.4 million, largely because providers overstated the amounts of Medicare coinsurance charges and incorrect rate changes, according to two audits of the Department of Health released Tuesday by State Comptroller Thomas P. DiNapoli. The state has recovered $3.8 million of these overpayments.

DiNapoli: Long Beach Faces Fiscal Challenges but Moving in Right Direction

Poor budgeting of the prior administration in the city of Long Beach created an $18 million multi–year deficit while also exhausting $21 million in rainy day funds, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The audit, which was requested by city officials, was conducted prior to the damage caused Superstorm Sandy.

DiNapoli Releases Bronx Economic Snapshot

The Bronx has made impressive economic gains in recent decades according to a report released Thursday by New York State Comptroller Thomas P. DiNapoli. Population, business and job growth has been strong and the Bronx continued to add jobs even during the Great Recession.

Comptroller DiNapoli Releases Municipal Audits

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

Cattaraugus County;

the Lansing Fire District;

the Town of Fremont; and,

the Middle Island Fire District.

Comptroller DiNapoli Releases School Audits

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

the Child Development Center of the Hamptons Charter School; and,

the Syracuse Academy of Science Charter School.

State Education Department, Rainbow Rhymes Learning Center (Follow-Up) (2012-F-31)

An audit issued in 2010 examined whether selected State Education Department grant payments to Rainbow Rhymes Learning Center were appropriate. Auditors found that Rainbow claimed $473,815 in expenses that were either not adequately supported, not program appropriate or were claimed for a period for which Rainbow was not entitled to receive reimbursement. In a follow-up report, auditors found that of the three prior audit recommendations, one was implemented and two were partially implemented. However, SED has not yet recovered the overpayments.

New York State Thruway Authority, Status of the Board-Approved Capital Plan For 2005-2011 (Follow Up) (2013-F-5)

An audit report issued in 2008 examined the actions taken by the Thruway in monitoring and reporting on the board-approved Capital Plan for 2005-2011. Auditors found the Thruway did not report whether the individual projects were starting and finishing on time and within budget. Furthermore, the authority could not support its decision-making and prioritization of all capital project items. Auditors also found that completing the plan as approved would take longer and cost significantly more than was originally forecast. In a follow-up report, auditors found Thruway officials have made progress in correcting the problems identified. However, additional improvements are needed.

Division of Housing and Community Renewal, Disposal of Electronic Devices (2012-S-101)

Auditors tested a total of 752 electronic devices at both the Albany and the New York City offices. In Albany, two devices still contained general agency information and personal pictures, but none contained personal, private or sensitive information. In New York City, 13 hard drives showed indications that they still contained data. Auditors were unable to locate 17 computer hard drives that had already been removed from computers and were scheduled for shredding. Auditors could also not locate 18 servers listed on the inventory records. Auditors could not locate eight other devices listed on inventory records and found one device recorded as surplus that was still in use.

Department of Corrections and Community Supervision, Seventeen Years of Fraud by the Former Director of the Department of Correctional Services' Food Production Center (Follow-Up) (2012-F-7)

An audit issued in 2010 identified longstanding fraudulent practices committed by former Director of the Food Production Center in Oneida County, Howard Dean. He failed to work on Fridays for 17 years although he claimed to be working a five-day week on his time and attendance records. He also submitted fraudulent travel vouchers and hotel invoices for days he did not stay at a hotel in Rome, N.Y. These practices cost the taxpayers more than a quarter-million dollars. Another quarter million in improper payments occurred because DOCCS failed in its responsibilities to operate in the best interest of the state. In a follow-up report, auditors found DOCCS officials have made progress in addressing the problems we identified in our initial report. Of the five recommendations, three have been implemented and two have been partially implemented.

Tuition Assistance Program - Higher Education Services Corporation, College of Mount Saint Vincent (2011-T-3)

Auditors determined the College of Mount Saint Vincent was overpaid $319,468 because school officials incorrectly certified students as eligible for TAP awards.

Statewide Travel Audits:

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities:

State University of New York Upstate Medical Center, Selected Travel Expenses (2012-S-147)

Auditors examined the travel expenses for two individuals paid by SUNY Center with outliers in the area of mileage; one of these individuals also had reimbursements of more than $100,000. In total, auditors examined $175,618 in travel costs associated with these two individuals. Auditors found the travel expenses for the two individuals selected for audit were documented and adhered to state travel rules and regulations.

Res judicata bars the granting of a wage increase awarded in a second arbitration after the initial arbitration award addressing the same issue involving the same parties was vacated by the Court of Appeals “in its entirety”

Res judicata bars the granting of a wage increase awarded in a second arbitration after the initial arbitration award addressing the same issue involving the same parties was vacated by the Court of Appeals “in its entirety”

Buffalo Professional Firefighters Assn., Inc., IAFF Local 282 v Buffalo Fiscal Stability Auth., 2013 NY Slip Op 02931, Appellate Division, Fourth Department

The Buffalo Fiscal Stability Authority [BFSA] prohibited the City of Buffalo from complying with an arbitration award known as “Rinaldo I” that set a wage increase for the collective bargaining agreement. The Rinaldo I arbitration award was vacated in its entirety by the Court of Appeals.*

Subsequently an arbitration award involving the same parties designated “Rinaldo II” was issued by the arbitrator. Rinaldo II provided for a wage increase with respect to the collective bargaining agreement in effect from July 1, 2002 to June 30, 2004 between Local 282 and the City. BFSA determined that the wage freeze applied to the wages awarded in Rinaldo II and adopted a resolution, Resolution 11-05, that froze the wages awarded in Rinaldo II..

Local 282 filed an Article 78 petition challenging the authority of BFSA prohibiting the City from effecting the wage increase awarded by the arbitrator in Rinaldo II. Supreme Court dismissed Local 282’s petition.

The Appellate Division affirmed the lower court’s ruling, explaining that “Supreme Court properly determined that the instant proceeding is barred by res judicata.”

Although Local 282’s petition challenged a resolution of the BFSA that applied to Rinaldo II rather than Rinaldo I, the Appellate Division ruled that both arbitrations were between the same parties in interest and concern the same cause of action, i.e., the application of the wage freeze to wage rates for the same CBA.” Thus, said the court, “the instant action therefore is barred by res judicata.…”

* Matter of Buffalo Professional Firefighters Assn., Inc., Local 282, IAFF, AFL-CIO-CLC [Masiello], 13 NY3d 803.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02931.htm

The lack of a full transcript of a disciplinary hearing for review by the court requires the annulment of the finding of guilt

The lack of a full transcript of a disciplinary hearing for review by the court requires the annulment of the finding of guilt
Farrell v New York State Off. of the Attorney Gen., 2013 NY Slip Op 05014, Appellate Division, Third Department

In this proceeding the Appellate Division reviewed a determination of Commissioner of Corrections and Community Supervision which found a prisoner guilty of violating a prison disciplinary rule.

The prisoner contended that, among other things, a meaningful review of the Commissioner’s decision by the court was precluded because a significant portion of the hearing was not transcribed.

The Appellate Division agreed, explaining that it appeared that only the first side of the audiotape made during the hearing was transcribed by the stenographer. The stenographer had noted that "[s]econd side of tape not audible - runs on fast speed only," and then “abruptly ended the transcript.”

The court said that it could not ascertain what was on the second side of the tape or if it would have been beneficial to the prisoner's defense. Accordingly, it ruled that the Commissioner’s determination must be annulled and remanded the matter for a new hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05014.htm