Employee has a duty of loyalty to the appointing authority

Employee has a duty of loyalty to the appointing authority

56 N.Y.2d 656

An employer is sometimes confronted with a situation in which an employee’s duty of loyalty to the employer is called into question or there appears to be a conflict of interest with respect to the employee’s performance.

In this action, the employee sued the agency after it had discharged him for “disloyalty and conflict of interest.”

At the time of his dismissal, the employee served as an associate counsel to the agency. The agency alleged that while its employee, the individual was also actively assisting one of the organizations that the agency was established to regulate.

In the words of the Court of Appeals, “Given the nature of the attorney-client relationship and petitioner's position as associate counsel to [agency] ... it cannot be said that reports of [the employee's] active assistance to two public interest lobbying groups regulated by the [agency] were an improper basis for the [agency's] decision to terminate petitioner's employment (cf. Arnett v Kennedy, 416 U.S. 134; Cooper v Johnson, 590 F.2d 559). Nor was petitioner entitled to a due process hearing* inasmuch as he never alleged that there was public dissemination of the reasons for his dismissal. Finally, petitioner, a nontenured employee, has demonstrated no procedural violation in the manner in which his employment was terminated.”

* Presumably the court was referring to a "name clearing hearing."
.

Retirement System not required to explain the tax implications of its response to an employee’s question

Retirement System not required to explain the tax implications of its response to an employee’s question

Hauser v. Comptroller, 83 A.D.2d 649

From time to time Personnel Officers receive questions from employees that may require extensive analysis or speculation because of the fact that there may be different results depending on the course of action followed by the employee. It seems that as long as the answer is correct, the Court will not impose an unreasonable burden on the administrator to explain the implications of the answer.

The case arose when a retiree sought to change the basis for his retirement from “service retirement” to “ordinary disability” retirement.

Max Hauser contended that the Employees’ Retirement System should have advised him of the possible federal tax benefits were he to elect “ordinary disability” retirement rather than the service retirement option.

In rejecting the argument, the Court indicated that the information given Hauser regarding the amount of benefits was correct and “to require the Retirement System to advise every applicant of the tax implications of their retirement would impose an unreasonable burden on the system”.
.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 16, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 16, 2013

Click on text highlighted in color  to access the full report

DiNapoli Announces New In–State Private Equity Investment Through Softbank Capital

On Friday, November 15, 2013 State Comptroller Thomas P. DiNapoli Friday announced the New York State Common Retirement Fund’s In–State Private Equity Program investment in The Dodo Inc., a start–up website focusing on animal issues, through investment manager SoftBank Capital.

DiNapoli: Former Fire District Treasurer Accused of Stealing More Than $50,000

The former Crystal Beach Fire District treasurer was arrested Thursday, November 14, 2013 for allegedly stealing and spending more than $50,000 of public funds on tanning, TV and shopping sprees, according to State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of the

Northern Onondaga Public Library District and the

Town of Sidney.

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli announced Wednesday, November 13, 2013 the following audits have been issued:

Plaza College;

Dowling College;

Mercy College;

Department of Health;

New York State Energy Research and Development Authority;

State University of New York Farmingdale State College; and the

State Education Department.
.

Employee terminated after being found guilty of “excessive absence”

Employee terminated after being found guilty of “excessive absence”
2013 NY Slip Op 07430, Appellate Division, First Department

The Appellate Division sustained the termination of a Senior Court Officer [Appellant] employed by the Unified Court System following a disciplinary hearing. The hearing office determined that that Appellanthad engaged in misconduct by missing 197 days of scheduled work assignments in the course of a 14-month period and recommended that he be dismissed from his position.

The appointing authority adopted the findings and recommendation of the hearing officer and terminated Appellant. .

The Appellate Division sustained the appointing authority’s decision, noting that substantial evidence supported the hearing officer’s determination.

Noting that Appellant’s absences “were not caused by his psychological disorders,” court said that the penalty imposed by the appointing authority, termination, did not shock its sense of fairness, citing Dickinson v NYS Unified Court System, 99 AD3d 569.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07430.htm
.

Replacement of a 55-year-old Webmaster by a younger “web guru” in course of a business reorganization did not constitute a violation of the ADEA

Replacement of a 55-year-old Webmaster by a younger “web guru” in course of a business reorganization did not constitute a violation of the ADEA

Source: Employment Law Daily - a Wolters Kluwer publication

Decision summarized by Majorie Johnson, J.D.

A 55-year-old website coordinator who was laid off during a restructuring in which his employer adopted a web-based multimedia marketing model, and hired a younger “web guru” to rebuild the website with the latest technology, could not advance his ADEA and state law claims of age bias, a federal district court in New York ruled. Dismissing the employee’s pro se claims on summary judgment, the court held that the disparity in age between him and his “replacement,” standing alone, was insufficient to prove age discrimination.

The full text of Ms. Johnson’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/no-age-bias-when-55-year-old-webmaster-replaced-by-younger-web-guru-in-restructuring-failed-to-advance-age-bias-claims/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29
.

Audits issued by New York State Comptroller Thomas P. DiNapoli posted on the Internet

Audits issued by New York State Comptroller Thomas P. DiNapoli posted on the Internet

Source: Office of the State Comptroller

On November 13, 2013 the State Comptroller issued the following audit reports.

Click on text highlighted in color  to access the full report

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 Farmingdale State College, Selected Employee Travel Expenses (2012-S-137)
Auditors selected one State University of New York Farmingdale State College employee with travel expenditures totaling $212,573 for audit. Most of the travel expenses were appropriate. However, college officials could not provide documentation to support 21 travel charges totaling $8,386.

State Education Department, Selected Employee Travel Expenses (2012-S-97)
Auditors examined the travel expenses of three State Education Department employees with outliers in the areas of train fare and fuel expense. They also reviewed and considered the possible tax implications of travel and work locations for one of the three employees. In total, auditors examined $100,908 in travel costs associated with these three individuals. Auditors found the travel expenses for two of the three SED employees selected for audit adhered to state travel rules and regulations. 

However, the travel expenses for one employee implicated the Internal Revenue Service "tax home" rules for 2009 and are taxable as income. As a result, the travel reimbursements made to the employee were reported to the taxing authorities and an amended W-2 was issued.

Tuition Assistance Program, Plaza College (2011-T-2)
Auditors determined that Plaza College was overpaid $549,316 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include 18 students who received awards but did not meet the requirements for full-time status, nine students who did not maintain good academic standing, and four students who did not meet the requirements for accelerated TAP. Many of these disallowances result from Plaza students enrolling in courses not required for their programs of study.

Tuition Assistance Program, Dowling College (2012-T-2)
Auditors determined that Dowling College was overpaid $191,020 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include five students who received awards but did not meet the requirements for full-time status, four students who did not maintain good academic standing, two students who were not credited with their awards, and one student who had not declared a major by the beginning of her junior year.

Tuition Assistance Program, Mercy College (2012-T-3)
Based on a preliminary sample of certification transactions, auditors determined that Mercy College’s certification procedures were appropriately designed and were substantially complied with during the audit period. Auditors therefore concluded that there is a low risk that a significant number of students certified by Mercy College for TAP were not eligible for awards. Nonetheless, tests did disclose 14 awards totaling $25,011 that school officials certified in error.

Department of Health, Unnecessary Managed Care Payments for Medicaid Recipients with Medicare (Follow-Up ) (2013-F-15)
An initial audit report, issued in April 2012, examined whether inappropriate Medicaid payments were made for selected providers who also received payments from Medicare. For the two year audit period ended Dec. 31, 2011, auditors determined that, although DOH implemented the new automated crossover system to reduce Medicaid overpayments, it was flawed. As a result, auditors identified potential and actual overpayments of $100,387 for 12,715 duplicate claims. In a follow-up, auditors found the DOH and Office of the Medicaid Inspector General officials have made progress in correcting the problems identified in the initial report. However, improvements are still needed.

New York State Energy Research and Development Authority, Compliance With Executive Order 111: Agency Energy Efficiency Goals and Practices (2012-S-159)
E.O. 111 required that, by 2010, all affected state agencies (ASEs) seek to achieve a reduction of their energy consumption by 35 percent as compared to 1990 levels. NYSERDA was designated the lead entity responsible for coordinating implementation and assisting other ASEs to fulfill their responsibilities under the order.

Auditors found NYSERDA made significant efforts to provide guidance, and to directly and indirectly assist ASEs in meeting their energy reduction goals, but was deficient in its oversight and monitoring of the statewide progress toward the goal, and these deficiencies likely hampered the effort's outcomes. As a result no one can be certain what was accomplished on a statewide basis and whether program goals were achieved by anyone except a few select agencies that chose to comply.

.

Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related

Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related
2013 NY Slip Op 07254, Appellate Division, First Department

A number of statutes providing disability retirement include a rebuttable presumption that the claimed disability was incurred in the performance of the applicant’s official duties. For example, General Municipal Law §207-kk provides that with respect to a disability “caused by cancer” by certain firefighters constitutes “presumptive evidence that [the cancer] was   incurred in the performance and discharge of duty unless the contrary be   proved by competent evidence.”

In this appeal a New York City police officer, [Applicant] challenged the denial of her application for World Trade Center [WTC] accidental disability retirement benefits based on her claim to have suffered the disability as defined by Retirement and Social Security Law §2(36) as a result of a qualifying condition is presumed to be caused by his or her exposure at the WTC site.

One of arguments advanced by Applicant was that Supreme Court “improperly” shifted the burden of proof to her.

The Appellate Division ruled that the lower court had not shifted the burden of proof to her, explaining that Applicant “was not entitled to the statutory WTC presumption that her condition or impairment of health was incurred in the performance and discharge of duty” because, she failed to demonstrate that she was present at the WTC site and she failed to demonstrate a qualifying WTC condition as defined by Retirement and Social Security Law.*

The Appellate Division said that there was credible evidence that Applicant “was not present at the World Trade Center (WTC) site during the requisite time period” in that the appointing authority had shown that ”there were no contemporaneous records, roll call or command logs, records of the Medical Division, or exposure logs, indicating that [Applicant] was present at the WTC site.”

* Further, §13-252.1 of New York City’s Administrative Code was amended by adding a new provision, §13-252.1[1], the so-called “World Trade Center Law.” This amendment established a rebuttable presumption that "any condition or impairment of health . . . caused by a qualifying World Trade Center condition" as defined in the Retirement and Social Security Law, "shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident . . . unless the contrary be proved by competent evidence."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07254.htm
.

Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related

Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related
2013 NY Slip Op 07254, Appellate Division, First Department

A number of statutes providing disability retirement include a rebuttable presumption that the claimed disability was incurred in the performance of the applicant’s official duties. For example, General Municipal Law §207-kk provides that with respect to a disability “caused by cancer” by certain firefighters constitutes “presumptive evidence that [the cancer] was   incurred in the performance and discharge of duty unless the contrary be   proved by competent evidence.”

In this appeal a New York City police officer, [Applicant] challenged the denial of her application for World Trade Center [WTC] accidental disability retirement benefits based on her claim to have suffered the disability as defined by Retirement and Social Security Law §2(36) as a result of a qualifying condition is presumed to be caused by his or her exposure at the WTC site.

One of arguments advanced by Applicant was that Supreme Court “improperly” shifted the burden of proof to her.

The Appellate Division ruled that the lower court had not shifted the burden of proof to her, explaining that Applicant “was not entitled to the statutory WTC presumption that her condition or impairment of health was incurred in the performance and discharge of duty” because, she failed to demonstrate that she was present at the WTC site and she failed to demonstrate a qualifying WTC condition as defined by Retirement and Social Security Law.*

The Appellate Division said that there was credible evidence that Applicant “was not present at the World Trade Center (WTC) site during the requisite time period” in that the appointing authority had shown that ”there were no contemporaneous records, roll call or command logs, records of the Medical Division, or exposure logs, indicating that [Applicant] was present at the WTC site.”

* Further, §13-252.1 of New York City’s Administrative Code was amended by adding a new provision, §13-252.1[1], the so-called “World Trade Center Law.” This amendment established a rebuttable presumption that "any condition or impairment of health . . . caused by a qualifying World Trade Center condition" as defined in the Retirement and Social Security Law, "shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident . . . unless the contrary be proved by competent evidence."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07254.htm
.

A candidate improperly disqualified for appointment from the eligible list does not have a right to be appointed to the title in the event he or she successfully challenges the disqualification

A candidate improperly disqualified for appointment from the eligible list does not have a right to be appointed to the title in the event he or she successfully challenges the disqualification

2013 NY Slip Op 07250, Appellate Division, First Department

 
An individual seeking an appointment as a New York City Correction Officer [Candidate] filed an administrative appeal challenging the removal of his name from the eligible list. He successfully argued that he had been improperly disqualified for the appointment and his name was again placed on the eligible list for appointment.

However, Candidate’s claim that his winning the administrative appeal “entitled him to an appointment as a correction officer” was rejected by Supreme Court.

The Appellate Division agreed.

Restoring the name of a candidate to an eligible list, even one improperly earlier removed from the list, does not obviate the application of the so-called Rule of Three, Civil Service Law §61(1). The Rule of Three authorizes the appointing authority to select of any one of three persons with the highest rankings on an eligible list willing to accept the appointment or promotion.

In the event there are more that three eligibles certified for appointment because of “tied-scores,” the appointing authority may select any one of the eligibles certified to it.

For example, in the event one candidate had a score of 95, a second candidate had a score of 90 and 20 candidates had a score of 85, the names of all 22 eligibles would be certified for appointment and the appointing authority could select any one of the 22 individuals so certified for the appointment.

In contrast, had there been 20 eligibles with a score of 95, one eligible with a score of 90 and one eligible with a score of 85, the appointing authority could select any on of the 20 candidates certified have a score of 95 but could not “reach” either the candidate with a score of 90 or with a score of 85 unless there were 18 or 19 "declinations" of the offer of appointment, as the case may be, among those eligibles attaining a score of 95..

In some instances, a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14] may require the appointing authority to observe the “Rule of the List” or “The Rule of One,”* and appoint the person whose name is listed first on the certification.

As the Court of Appeals held in Cassidy v Municipal Civil Service Commission of City of New Rochelle, 37 N.Y.2d 526, Civil Service Law §61(1) grants the appointing authority broad discretion in the selection of candidates, including that of appointing a lower-scoring candidate over a higher-scoring one.

However, should the appointing authority be faced with a mandatory eligible list, it must either select one of those certified to it as standing highest on the eligible list within the meaning of the Rule of Three or elect to keep the position vacant.

Another issue considered by the Appellate Division in Candidate’s appeal focused on the refusal of DOC to have the circumstances underlying Candidate’s not being appointed to the position expunged from the record before DOC as well as expunging that portion of  DOC’s  record that indicated that that it did not to appoint him notwithstanding his name being restored to the eligible list and considering him, along with other eligibles, for appointment on three occasions.

The Appellate Division ruled that DOC’s rejection of Candidate’s request to expunge the material to which he objected from his record was neither arbitrary nor capricious and dismissed his appeal.

* Preferred and special military lists are subject to the “Rule of One” by operation of law. In this instance the appointing authority must either appoint the persons whose name is certified as "first" on the preferred or special military list or elect to keep the position vacant.

The DOC decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07250.htm

Employee's request for a laptop computer to use at home after surgery ruled not an accommodation request within the meaning of the ADA

Employee's request for a laptop computer to use at home after surgery ruled not an accommodation request within the meaning of the ADA

Source: Employment Law Daily - a Wolters Kluwer publication

Decision summarized by Kathleen Kapusta, J.D.

"An employee’s request for a laptop so he could work from home while recovering from surgery was a “far cry from a ‘sufficiently direct and specific’ request for an accommodation” that would put his employer on notice that he wanted assistance for his disability, the Tenth Circuit ruled in an unpublished decision.

"Accordingly, the appeals court affirmed summary judgment in favor of the employer on his ADA failure to accommodate claim.(Dinse v Carlisle Foodservice Products, Inc, November 6, 2013, Holmes, J)."

The full text of Ms. Kapusta’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/request-for-laptop-after-surgery-not-ada-accommodation-request/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29

.