Probationary employee’s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits

Probationary employee’s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits

Matter of Jackson (Commissioner of Labor), 2014 NY Slip Op 06237, Appellate Division, Third Department

The employer chose not to grant a probationary teacher [Probationer] tenure but did offer to extend Probationer’s probationary term for one year if she executed an agreement requiring her to "waive any rights, claims or causes of action" related to tenure or the extension of her probationary period.*  Despite being aware that she could lose her job if she did not sign the agreement, Probationer refused to do so. The employer then told her that it was not “certifying completion” of her probationary period so her employment was terminated.**

In response to Probationer’s applying for unemployment insurance benefits following her termination, the Unemployment Insurance Appeal Board ruled that Probationer's refusal to sign the agreement constituted “insubordination that rose to the level of misconduct" so as to disqualify her from receiving benefits.

The Appellate Division disagreed, holding that although “[r]efusing to comply with an employer's reasonable directive to sign a document can constitute insubordination” and thus support a finding of “disqualifying misconduct” for the purposes of eligibility for unemployment insurance benefit, Probationer’s situation did not constitute such misconduct under the circumstances.

The court explained that unlike situations in which an employee is asked, and refuses, to sign a document that was necessary to the operation of the employer's business, in this instance the employer chose not to grant Probationer tenure and, instead, offered her an extension of probation. In contrast to refusing to perform a job duty, here Probationer merely declined to enter into a new contract with the employer under the terms it offered.

The court pointed out that Probationer’s refusal to sign the extension agreement could possibly be classified as her voluntarily leaving employment without good cause while the employer was offering continuing work, which would be a basis for the Board's denying her application for unemployment insurance benefits. However the employer did not contend that Probationer had quit her job but testified that Probationer had been terminated by the employer.

In any event, the Unemployment Insurance Appeals Board did not rely on the ground of “voluntarily leaving employment” in denying Probationer’s claim for benefits but rather based its denial on “misconduct” for alleged insubordination in refusing to agree to an extension of her probationary period as offered by the employer. This, said the Appellate Division was “factually incorrect” under the circumstances as the employer's termination letter indicated that Probationer was “based on the operation of law … not based on insubordination.”

Observing that “[r]efusing to renew a contract does not constitute employee insubordination or misconduct, the court explained that even if the employer would have been warranted in firing Probationer for not signing the extension agreement, her refusal to sign would not constitute disqualifying misconduct if she had a legitimate reason to refuse to do so. Finding that Probationer had not engage in any act of insubordination and, therefore, did not commit disqualifying misconduct, the Appellate Division ruled that “the Board's decision cannot stand.”

* The decision stated that Probationer “was concerned that those provisions would cause her to waive her rights to argue that the denial of tenure and proffered extension were retaliation for her pursuing a sexual harassment claim.”

** Education Law §2573 (1) provides that the employer must either [1] grant the teacher tenure, [2] terminate the teacher’s employment or [3] agree to an extension of the teacher’s probationary term once he or she has completed the three year probationary period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06237.htm

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Providing confidential information to a drug dealer

Providing confidential information to a drug dealer

OATH Index No. 556/14; adopted, Bd. Dec. COIB Case No. 2013-258

The New York City Conflicts of Interest Board (COIB) adopted in full OATH Administrative Law Judge Kara J. Miller’s finding that a former clerical associate [Accused] employed by the Staten Island District Attorney's Office violated the Conflicts of Interest Law by offering confidential information to a drug dealer.

The drug dealer asked Accused if he was under investigation in exchange for providing cocaine to Accused's husband. On another occasion Accused  displayed her District Attorney’s Office identification to detectives in an attempt to prevent her husband's arrest.

The ALJ found that although Accused submitted an answer denying the charges, the record established that Accused was properly served with the notice of hearing and advised of the consequences of a failure to appear at the hearing. Notwithstanding being so advised, Accused failed to appear at a settlement conference and her attorney filed a motion to withdraw as counsel, stating that Accused was not responding to her telephone calls or letters.

After further conversations with Accused, Judge Miller ultimately proceeded to hold the hearing in absentia*when Accused failed to appear for a scheduled hearing. The ALJ found Accused was in default based upon her written and actual notice of the hearing, her demonstrated reluctance to participate, and her failure to appear. The Administrative Law Judge also granted Accused’s attorney’s motion to be relieved as counsel.

The ALJ sustained the charges, setting out the following findings and conclusions:

1. Accused was properly served with charges and notice of the hearing.

2. COIB proved that Accused attempted to use her position for personal advantage by offering to provide confidential information to a drug dealer in exchange for narcotics, in violation of §2604(b)(3) of the City Charter.

3. COIB proved that Accused displayed her employee identification for a non-City purpose in violation of §2604(b)(2) of the City Charter.

4. COIB proved that Accused attempted to use her position for personal advantage in violation of §2604(b)(3) of the City Charter when she identified herself to the police as an employee of the District Attorney’s office in the course of their investigation of her husband for his allegedly participating in a drug transaction.

COIB adopts Judge Miller's recommended penalty of imposing a $10,000 fine on the former associate clerk.

By law, an OATH report and recommendation in an enforcement action brought by the Conflicts of Interest Board is confidential until the Conflict of Interest Board determines that a violation has occurred.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia. The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held “in absentia.” [Source: The Discipline Book, http://booklocker.com/books/5215.html ]

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-556.pdf
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A municipality may discontinue a retiree’s health insurance benefit in the absence of a contract or provision of law granting the retirees a vested right to such a benefit

A municipality may discontinue a retiree’s health insurance benefit in the absence of a contract or provision of law granting the retirees a vested right to such a benefit

Iasillo v Pilla, 2014 NY Slip Op 06056, Appellate Division, Second Department

Former mayors and former members of the Board of Trustees of the Village of Port Chester [Plaintiff] continued to receive health care benefits payable by the Village pursuant to Board of Trustee resolutions dated June 1, 1988, and November 2, 1994 upon retirement.

On April 21, 2010, the then Board rescinded both the June 1, 1988, and November 2, 1994, resolutions, thereby terminating the post-retirement health care benefits being provided to Plaintiff by the Village.

Plaintiff sued, seeking a court decision declaring that the resolution dated April 21, 2010, “null and void and without legal effect” as to them. In addition, Plaintiff sought a “permanent injunction enjoining the [Village] from terminating or otherwise modifying [Plaintiff’s] post-retirement health care benefits.”

Plaintiff argued that [1] the Village was contractually obligated to provide them with post-retirement health care benefits, and that [2] the Village was estopped from terminating those benefits.

Supreme Court dismissed Plaintiff’s complaint, holding that the Village’s resolution dated April 21, 2010, was neither “null and void” nor “without legal effect.”

The Appellate Division affirmed Supreme Court’s ruling, holding that the Village had established, prima facie, its entitlement to judgment as a matter of law by demonstrating that the then sitting Board was entitled to terminate the post-retirement health care benefits afforded by the June 1, 1988, and November 2, 1994, resolutions. Those resolutions, said the Appellate Division, did not establish a vested interest in those post-retirement health care benefits, explaining that "A municipal resolution is, in general, a unilateral action that is temporary in nature and, thus, it does not create any vested contractual rights."

The court also noted that the Village was not barred by the doctrine of equitable estoppel from terminating Plaintiff’s post-retirement health care benefits.

In McDonald PBA v City of Geneva, 92 N.Y.2d 326, the Court of Appeals concluded that "there is no legal impediment to the municipality's unilateral alteration of the past practice" regarding its providing health insurance benefits to its retirees and their dependents where there was neither a Taylor Law agreement nor some other contract or provision of law granting retirees a vested right to such a benefit.

The Court of Appeals has also ruled that health insurance for retirees is not a retirement benefit protected against being diminished or impaired by the State's Constitution [see Lippman v Sewanhaka Central High School District, 66 NY2d 313].

The Iasillo decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06056.htm

Selected reports and information published by New York State's Comptroller

Selected reports and information published by New York State's Comptroller

Click on text highlighted in color  to access the full report

On Friday, September 12, 2014, New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued by his office:

Office of Children and Family Services (OCFS): Day Care Licensing (2013-S-66)

OCFS’s licensing and inspection activities assure licensed and registered child care facilities are in compliance with applicable laws and are safe for children. Although the office investigates complaints about unlicensed or unregistered child care providers, it does not have proactive measures in place to identify illegal child care providers and otherwise mitigate illegal operations.

New York City Department of Education (DoE): Accuracy of Reported Discharge Data (2014-F4)

An initial audit issued in March 2011 found DoE classified some students as discharged without sufficient documentation under state guidelines to support a discharge classification. By classifying them as discharged, DoE’s reported graduation rate was higher than the actual rate and the reported dropout rate was lower than actual. In a follow-up, auditors found DoE has made significant progress in addressing the issues identified in the initial report and has implemented the report’s three recommendations.

Office of General Services (OGS): ReStacking Occupancy Initiative (2013-S-68)

OGS’ implementation of the ReStacking initiative, aimed at decreasing the amount of leased property occupied by State agencies, was successful in achieving - and in fact exceeding – the cost savings expectations established by the SAGE commission and the Division of the Budget. OGS has achieved about $51 million in lease costs savings which, after adjusting for move costs that total about $18 million, resulted in about $33 million in net savings. However, OGS calculated cost savings separately from expenses and only accumulated costs on an agency by agency basis, not at a statewide level.

Department of Health (DOH): Multiple Same-Day Procedures on Ambulatory Patient Groups Claims (2012-S-163)

The Medicaid program, run by DOH, reimburses outpatient services through the use of the Ambulatory Patient Groups (APG) payment methodology, which is based on patient condition and complexity of service. Auditors found Medicaid made $1,083,836 in actual and potential APG claim overpayments. Of this amount, payments of $614,260 were made for the same medical procedure billed multiple times on the same date of service, and $469,576 was paid for rehabilitation services beyond the allowed limits. Medicaid also made questionable APG claim payments totaling $10,195,755 for dental clinic claims that were processed without sufficient scrutiny of the propriety or frequency of the services billed.

State Education Department (SED): Controls over Cash Advance Accounts (2014-S-11)

Cash advances are issued to state agencies for purposes such as petty cash, travel and other funding needs. Advances are issued from agency appropriations and the cash is transferred from the State Treasury to a local bank account for use by the agency. SED was authorized to have three advance accounts with a total value of $300,000 as of March 31, 2012. Auditors found SED no longer issues checks for travel advances and infrequently issues checks for petty cash expenses. However, SED does not routinely resolve old outstanding items or review any paid checks and consequently has no assurance that potentially improper or fraudulent transactions are detected.

New York State Thruway Authority: Travel Plaza Revenues and Capital Improvements (Follow-Up) (2014-F-8)

In an initial audit report from January 2010, auditors found that the authority’s efforts were adequate to ensure fuel and food concessionaires pay full rent on time and make required capital improvements. Auditors also found some improvement opportunities and discovered that a fuel concessionaire under reported its fuel deliveries in one month tested, and as a result underpaid its rent for that month. In a follow-up, auditors found six of seven recommendations had been implemented while another was no longer applicable.
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