Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 7, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 7, 2013

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State Comptroller co-sponsoring webinars for local officials

The Office of the State Comptroller devotes significant resources to assisting local officials. Whether you’re newly elected or a returning veteran, there are many exciting opportunities and interesting challenges that lie ahead. To help ease your transition, my office is co–sponsoring a webinar with the Association of Towns of the State of New York on December 12, 2013 as well as two New Town Officials Schools in the second and third week of January. For additional details and registration information, please visit: http://www.osc.state.ny.us/localgov/training/index.htmand www.nytowns.org.

Comptroller DiNapoli Releases Municipal Audits

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

the City of Little Falls;

the Swan Lake Fire District; and

the Town of Wawayanda.

"Let State Comptroller Audit LDCs in New York" Op–Ed by State Comptroller DiNapoli

New York State Comptroller Thomas P. DiNapoli has published an op–edin the Rochester Democrat & Chronicle, "Let State Comptroller Audit LDCs in New York," which details the problems and reasons more oversight of Local Development Corporations by his auditors is necessary.

State Comptroller DiNapoli, A.G. Schneiderman & DOI Commissioner Gill Hearn Announce Arrest of Not–For–Profit Executive in Six–Year Theft Scheme

Comptroller Thomas DiNapoli, Attorney General Eric T. Schneiderman and New York City Department of Investigation (NYC DOI) Commissioner Rose Gill Hearn Thursday, December 5, 2013 announced the arrest of a nonprofit executive accused of pocketing taxpayer dollars intended for public services and capital improvements in New York City. A multi–agency joint investigation, including NYC DOI and two federal agencies, exposed the theft of approximately $373,000 in public funds provided by New York State, the New York City Council, and federal earmark grants.

DiNapoli Leads Investor Group Urging Olympic Corporate Sponsors to Speak Out for Russian LGBT Rights

New York State Comptroller Thomas P. DiNapoli announced on Thursday, December 5, 2013 that the $160.7 billion New York State Common Retirement Fund, leading a coalition of investors with $327 billion of assets under management, has sent lettersto ten major corporate sponsors of the upcoming Winter Olympic Games in Sochi, Russia urging the sponsors to use their influence to ensure the human rights of Russian citizens, as well as athletes and visitors to the Olympics.

DiNapoli to Audit Hate Crime Reporting in New York State

The Office of the State Comptroller is auditing the Division of Criminal Justice Services’ oversight and management of hate crime reporting across the state, State Comptroller Thomas P. DiNapoli announced Friday, December 6, 2013.

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Employee dismissed notwithstanding having earlier resigned from the position and recorded as having been terminated from the position

Employee dismissed notwithstanding having earlier resigned from the position and recorded as having been  terminated from the position

2013 NY Slip Op 08022, Appellate Division, First Department

Judge Michael D. Stallman, Supreme Court, New York County, denied the petition filed by Individual, a former probationary employee, seeking to annul employer’s decision terminating Individual’s employment as a probationer and so noting the individual's personnel file notwithstanding Individual's having earlier resigned from the position.

The Appellate Division affirmed Judge Stallman’s decision, explaining that “As a probationary employee, [Individual] was subject to termination "at any time and for any reason, unless [Individual] establishe[d] that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith." Here, said the court, Individual failed to meet her burden of proof of demonstrating such an impermissible reason for her termination.

Individual had also contended that the employer had terminated her employment occurred after the effective date of her resignation which demonstrated “bad faith” of the part of the employer. The Appellate Division disagreed, noting that despite her resignation, there was still a possibility that Individual could return to work in the future, and thus her resignation was not irrevocable, citing Folta v Sobol, 210 AD2d 857.

In Folta an employee resigned while the adjudication of disciplinary charges filed against the employee pursuant to Education Law §3020-a were pending. The Hearing Panel, nevertheless, proceeded to render its decision, finding the employee guilty and recommending that he be dismissed from his position, which finding and recommendation was adopted by the appointing authority and made part of the individual's personnel file.

The Folta court held that as the individual’s resignation was not irrevocable, it was possible that under the terms of the then applicable collective bargaining agreement and "Chancellor's Regulation §205(25)" the individual could, subject to the approval of the Chancellor, withdraw his resignation and apply for reemployment.

The existence of such a possibility, said the court, provides a valid reason for allowing an Education Law §3020-a hearing to proceed and placing the ultimate decision in the individual's personnel file,

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_08022.htm

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Termination follows employee’s refusal to participate in training in a new position

Termination follows employee’s refusal to participate in training in a new position
2013 NY Slip Op 08115, Appellate Division, First Department

Employer filed disciplinary charges against Employee alleging misconduct after Employee refused to comply with orders to participate in training for a new position after being reassigned to a different department and absenting himself from work for more than 11 months. Found guilty of the charges and specifications, Employee was terminated from his position.

The Appellate Division sustained Employer’s action, holding that substantial evidence supported its determination. The court also stated that the penalty imposed, termination, was not so disproportionate to Employee’s offense as to shock its sense of fairness, explaining that the evidence established that Employer’s requirement that Employee participate in processing training was not in excess of its authority.

In addition, the court mentioned that Employee had not observed the rule of "work now, grieve later" and that Employee had failed to show that any exceptions to the rule applied in Employee’s situation, citing Ferreri v New York State Thruway Authority, 62 NY2d 855.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08115.htm
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Transgender client of New York City's HIV/AIDS Service Administration sue after agency refused to change its records to reflect her legal name and change of gender

Transgender client of New York City's HIV/AIDS Service Administration sues after agency refused to change its records to reflect her legal name and change of gender

Doe v City of New York, 2013 NY Slip Op 23403, Supreme Court, New York County 

A transgender female client of the New York City Human Resources Administration's (HRA) HIV/AIDS Services Administration (HASA) sued HASA after her request that HASA update its records to reflect her legal name change and change of gender information and provide her with a benefits card to reflect this was denied.

Supreme Court Judge Margaret A. Chan ruled that, accepting the allegations as true for the purposes of HASA’s motion to dismiss Doe’s action, HASA’s purposeful use of masculine pronouns in addressing plaintiff, who "presented as female" and the insistence that she sign a document with her birth name despite the court-issued name change order is laden with discriminatory intent. 

The court, rejecting HASA's motion to dismiss Doe's complaint, said that HASA employees knew of Doe's "convertive surgery" and yet did not treat her accordingly or appropriately and thus Doe has sufficiently stated a cause of action.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_23403.htm
 

Powers of the arbitrator set out in a collective bargaining agreement may not be enlarged without the informed agreement of the parties

Powers of the arbitrator set out in a collective bargaining agreement may not be enlarged without the informed agreement of the parties

Town of Babylon v Carson, 2013 NY Slip Op 07980, Appellate Division, Second Department

In this Article 75 action, the Appellate Division reversed a Supreme Court ruling that vacated an arbitration award that provided a lesser penalty than the penalty imposed by the appointing authority, granting the union’s motion to confirm the arbitration award.

Following a “workplace incident,” the Town of Babylon told one of its employees [Employee] that she was suspended without pay for up to 30 days, pending a disciplinary hearing on four charges of alleged misconduct. The hearing officer sustained all four charges and recommended that Employee be suspended for 30 days without pay and placed on probation for a period of six months.

Employee’s union filed a grievance and demand for arbitration. At the initial meeting of the parties the arbitrator stated that "the first item of business is to stipulate the issue." The Town's attorney and the union’s attorney agreed that the issue to be determined was:

1. Was there just cause to suspend [Employee] for 30 days and to impose a six-month probationary period for her conduct …and 30-day suspension is without pay? and

2. Was progressive discipline considered when imposing that sanction?

3. And if not, what shall the remedy be?

The parties then proceeded with the arbitration. Ultimately the arbitrator concluded that the hearing officer properly determined that although there was just cause to impose a penalty upon Employee, the Town did not apply the principles of progressive discipline.

Accordingly, the arbitrator concluded that the imposition of a less severe disciplinary penalty was warranted and directed that 10 days' pay be restored to Employee, and that the term of probation be reduced to three months.

The Town filed a petition pursuant to Article 75 of the CPLR seeking to vacate so much of the arbitration award as reduced the penalty imposed upon Employee by the Town while the union and Employee cross-petitioned to confirm the arbitration award providing for a lesser penalty..

Supreme Court decided that, "notwithstanding the restrictive language of the [collective bargaining agreement] which would seem to preclude the arbitrator from reducing a penalty absent a finding that the discipline imposed was not for just cause,'" it was "evident from the terms of the parties' submission to the arbitrator that the parties intended to confer a broader authority on him." The Supreme Court then denied the Town’s the petition and granting the cross petition.

The Appellate Division commenced its review of the Supreme Court’s ruling by noting that "Judicial review of an arbitrator's award is extremely limited" and that a court may vacate an arbitration award pursuant to CPLR 7511(b)(1)(iii) "only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Further, said the court, “A party can only waive its contention that an arbitrator acted in excess of his or her power ‘by participating in the arbitration with full knowledge’ of the alleged error that is being committed and ‘by failing to object until after the award’ is issued.”

Citing Article X(E)(6) of the collective bargaining agreement [CBA] between the parties, which provided that "[t]he arbitrator shall have the power to restore any fine, any penalty including loss of vacation or personal days, reinstate any discharged employee, with or without back pay or remove any written reprimand in the event he [or she] finds the discipline imposed was not for just cause", the Appellate Division decided that the Town had not consented to the arbitrator having authority to modify the penalty imposed upon Employee in the event that he made a finding that the Town had just cause to discipline her.

The Appellate Division, noting that at the beginning of the arbitration, the issue to be determined was defined as whether there was just cause to punish Employee and, "if not," what the remedy should be, explained that “As framed in this manner, the issue to be determined by the arbitrator was in accordance with his powers, as set forth in Article X(E)(6) of the CBA, which only empowered the arbitrator to provide [Employee] with a remedy upon a finding that the imposition of discipline was not founded on just cause.

As the arbitrator found that there was just cause for the discipline imposed, the Appellate Division held that the arbitrator had exceeded his authority in reducing the penalty imposed. Further, said the court, “Contrary to the contention of the Union and [Employee], the stipulation that the arbitrator would determine whether the hearing officer had considered progressive discipline in the course of imposing the initial penalty upon [Employee] did not confer upon the arbitrator an independent power to reduce the penalty imposed.”

Commenting that the record reflects that the Town did not participate in the arbitration with full knowledge that the arbitrator intended to render a determination in excess of the powers set forth in the CBA, the Appellate Division ruled that that “Supreme Court erred in denying the petition to vacate so much of the arbitration award as reduced the penalty imposed upon [Employee] and erred in granting the cross petition of [Employee] and the Union to confirm the award.”

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The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07980.htm

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Automatic termination of certain NYC Emergency Medical Service employees violating the Department’s zero drug tolerance policy not subject to collective bargaining

Automatic termination of certain NYC Emergency Medical Service employees violating the Department’s zero drug tolerance policy not subject to collective bargaining
Roberts v New York City Off. of Collective Collective Bargaining, 2013 NY Slip Op 07870, Appellate Division, First Department

The issue raised in this appeal was whether the New York City Fire Department’s policy of "zero tolerance" regarding the use of illegal drug that required automatic termination of certain emergency medical services [EMS] employees who fail or refuse to provide a specimen for a drug test is subject to mandatory collective bargaining.

The New York City Board of Collective Bargaining decided that this policy was not subject to collective bargaining under the Taylor Law [Civil Service Law Article 14].

The Appellate Division upheld the Board’s determination, explaining that [1] “the City Charter provides that the discipline of these EMS employees is the sole province of the New York City Fire Commissioner” and [2] “the Fire Department's determination of an appropriate penalty for illegal drug use relates to its primary mission of providing public safety.”

Initially the Department’s “no illegal drug” policy did not always result in the termination of EMS workers who tested positive for drugs and in some instances “first-time offenders could avoid termination, in the discretion of FDNY on a case-by-case basis, if they sought counseling and treatment.”

However in May 2007 the Department implemented a new alcohol and drug testing policy for EMS workers which imposed a "zero tolerance" for illegal drug use, and provided that “EMS workers who test positive for illegal drugs, or who refuse to provide a specimen, shall be terminated for a first offense.” However, the policy also provided that EMS workers with a drug problem who voluntarily come forward could avail themselves of counseling services without any disciplinary consequences.

The Union representing EMTs and paramedics filed an improper practice petition alleging that the Department had violated the New York City Collective Bargaining Law (Administrative Code of City of NY § 12-301 et seq.) by unilaterally implementing the termination provision without first bargaining in good faith with the unions. The Department contended that the termination provision was not a substantive change in policy and, in any event, was not subject to mandatory collective bargaining.

Although the Board found that the new policy deviated from the earlier policy, which allowed for some exercise of discretion in deciding whether offenders should be offered alternative dispositions, including counseling and rehabilitation, it ruled that the new automatic termination provision was within management's right to take disciplinary action against its employees, and thus was outside the scope of mandatory bargaining.

The Appellate Division said that while “[t]here is no question that New York has a strong policy of supporting collective bargaining, and a presumption exists that all terms and conditions of employment are subject to mandatory bargaining,” this presumption can be overcome where there exists clear legislative intent to remove an issue from mandatory bargaining

Citing Matter of Patrolmen's Benevolent Assn., 6 NY3d at 563, the Appellate Division noted that the Court of Appeals held that “police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials.”

Subsequently the Court of Appeals ruled that “the triggers and methodology for testing city police officers for drugs are matters within the Police Commissioner's disciplinary authority and thus excluded from collective bargaining as a matter of policy” [Matter of the City of New York v Patrolmen’s Benevolent Asso., 14 NY3d 465.

The Appellate Division held that these two decisions by the Court of Appeals “mandate a conclusion that [Department’s] implementation of a policy of terminating EMS workers after failing or refusing to take a drug test is not subject to collective bargaining” as New York City Charter §487(a) gives the Fire Commissioner the "sole and exclusive power" to "perform all duties for the government, discipline, management, maintenance and direction of the fire department."

The policy of deterring illegal drug use by EMS workers is just as crucial as the policy of preventing police officers from using prohibited drugs and the Department “has a substantial and compelling interest in ensuring that workers responsible for the well-being and transportation of injured and sick citizens are free from the effects of illegal drugs.”

The Appellate Division also noted that the Court of Appeals has ruled that a public employer “cannot be compelled to bargain over ‘inherent and fundamental policy decisions relating to the primary mission of the public employer," citing Matter of New York City Tr. Auth., 19 NY3d 876.

Because the determination of the appropriate penalty for drug use by EMS workers goes directly to the Department’s core mission and involves public safety, and because specific legislation vests disciplinary authority over such matters with the Fire Commissioner, this issue is removed altogether from the sphere of collective bargaining.

The Union has also contended that the Department’s automatic termination policy “interferes with EMS workers' procedural due process rights to have an administrative law judge or arbitrator determine the appropriate penalty”

The Appellate Division disagreed, noting that the employee’s due process rights “were not abrogated completely by the challenged policy because they still are entitled to a hearing on any charges arising from drug testing, and to appeal any finding of guilt.” Further, said the court, the Union’s primary position that penalties for specific offenses must always be collectively bargained is a position that is at odds with both the City Charter and controlling Court of Appeals precedent.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07870.htm
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