A full time employee’s refusal to accept a part time position does not affect the individual’s right to have his or her name placed on an appropriate preferred list

A full time employee’s refusal to accept a part time position does not affect the  individual’s right to have his or her name placed on an appropriate preferred list

Gervais v Board of Educ. of E. Aurora Union Free Sch. Dist., 2014 NY Slip Op 06414, Appellate Division, Fourth Department

In this CPLR Article 78 proceeding Supreme Court determined that the denial of certain teachers' rights to have their names placed on the preferred eligibility list was arbitrary and capricious. The court directed that the school district reinstate their names on the appropriate preferred eligibility list. The Appellate Division unanimously affirmed the lower court’s ruling.

The school district had contended that the teachers were not entitled to be placed on the preferred eligibility list because they had refused to accept the part-time teaching positions offered to them.*

The Appellate Division pointed out that Education Law §2510 (3) (a) provides that, if a teaching position "is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled."

Further, said the court, an individual "on such preferred list shall be reinstated or appointed to such vacancies . . . in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position."

The court explained that by reducing the teachers’ full-time teaching positions to part-time positions of .4 full time equivalent [FTE] and .2 FTE respectively, the district had "effectively abolished the full-time position[s] and created [] new part-time position[s]," thereby triggering teachers' rights under Education Law §2510 to be placed on the preferred eligibility list for possible reemployment in a full-time position.**

The fact that the teachers rejected the offer of appointment to a.4 FTE and .2 FTE position, respectively, which resulted in their termination from the school district, did not render them ineligible for placement on the preferred eligibility list nor to appointment from such a list should they become eligible for appointment to a suitable vacancy.

* On appeal the school district’s argued that the teachers “were not entitled to placement on the preferred eligibility list because they did not have tenure.” The Appellate Division said that any argument based on an alleged lack of tenure was not properly before it inasmuch as that argument was raised for the first time on appeal.

** See, also, Appeal of Morehouse, Decisions of the Commissioner of Education, Decision #13,896

For additional information concerning the layoff of personnel in the public service click on http://booklocker.com/books/5216.html.

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The “going and coming to work” rule may affect an injured employee’s eligibility for disability benefits

The “going and coming to work” rule may affect an injured employee’s eligibility for disability benefits
Dreher v DiNapoli, 2014 NY Slip Op 06631, Appellate Division, Third Department

Among Court Officer John P. Dreher’s duties was transporting a judge who needed assistance to the courthouse from his residence. While traveling to the judge's residence Dreher took a brief detour in order to purchase a cup of coffee and was struck by a car while crossing the street, sustaining various injuries.

Dreher obtained line of duty injury benefits as provided under the controlling collective bargaining agreement. He then filed an application with the New York State Employees' Retirement System seeking accidental disability retirement benefits. His application was denied and Dreher appealed the System's decision..

The Appellate Division affirmed the Retirement System’s determination. The court explained that the State Comptroller "is vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while in service, and if supported by substantial evidence, the determination must be upheld.”

The court noted that while Dreher testified that he was on duty when he was injured, he "'was engaged in a personal activity rather than performing work duties at the time when the incident occurred."

Finding that substantial evidence supported the Comptroller's determination that Dreher was not in service when he was injured, and notwithstanding the fact that he received line of duty injury benefits under the terms of the collective bargaining agreement, the court dismissed Dreher’s appeal.

Determining whether an individual was “in service” for the purposes of establishing eligibility for Workers’ Compensation benefits was an issue in Neacosia v NY Power Authority, 85 NY2d 471.

Here the Court of Appeals affirmed the Workers’ Compensation Board’s decision  that Michael Neacosia, who was injured after he stopped on his way home to leave his work uniform at a cleaning shop, was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

Neacosia was a security officer employed by the New York State Power Authority. The Authority provided its security officers with uniforms and required that they keep the uniforms clean and presentable. To this end the Authority had made arrangements with a number of cleaning establishments to clean their security officers’ uniforms and bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and then submit bills to the Authority for the cost of the cleaning.

Neacosia, after completing his tour of duty, left work and then stopped to deliver his uniforms for cleaning at one of the cleaners recommended by the Authority, which would then bill the Authority for its services.

Leaving the cleaning establishment, Neacosia headed home along his usual route and was involved in an automobile accident in which he sustained severe injuries. The Authority controverted Neacosia’s claim for Workers’ Compensation benefits, contending that he had been involved in an accident while driving his personal automobile on a public highway after leaving work and was not engaged in any work related activity at the time he was injured.

A Workers’ Compensation Administrative Law Judge decided that under the facts giving rise to Neacosia’s claim, which were stipulated, Neacosia's travel had a dual purpose that served to extend the scope of his employment. The Workers’ Compensation Board affirmed the ALJ’s determination.

Although the general rule is that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law, there are certain exceptions to this "going and coming" rule. One such exception arises when the employee is engaged in a "special errand" for the employer.

The Court of Appeals sustained the Workers’ Compensation Board's ruling that Neacosia was engaged in a "special errand" at the time he was injured and thus eligible for Workers' Compensation benefits.

For more information concerning disability retirement, workers’ compensation, disability leaves and related matters, click on http://booklocker.com/books/3916.html .

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Annulling a finding that the employee was guilty of one or more or several disciplinary charges served on the employee requires remanding the matter for a reconsideration of the penalty imposed.

Annulling a finding that the employee was guilty of one or more or several disciplinary charges served on the employee requires remanding the matter for a reconsideration of the penalty imposed.

Sullivan v County of Rockland, 2014 NY Slip Op 06593, Appellate Division, Second Department

This decision demonstrates that in the event an employee has been served with, and found guilty of, multiple disciplinary charges and the penalty is imposed based on such a finding of guilt, should one or more the charges of alleged misconduct be subsequently annulled by a court the matter is to be remanded to the appointing authority for its determination as to the appropriate penalty to be imposed based on the surviving charges of misconduct..

A hearing officer found the employee [Individual] guilty of two specifications of charges of misconduct and recommended that Individual be terminated from his position. The appointing authority adopted the findings made by hearing officer and, in consideration of such findings, imposed the penalty of dismissal of Individual from his position.

Individual appealed and Supreme Court sustained the findings of "guilty of the two specifications" adopted by the appointing authority but “found that the penalty of termination was excessive” and remitted the matter to the appointing authority for the imposition of an appropriate punishment.*.The appointing authority appealed the Supreme Court’s order.

The Appellate Division sustained the Supreme Court order only to the extent that it found the hearing officer's finding Individual guilty of Specification 1.

The court said that it found that there was substantial evidence in the record to support the findings and conclusions of the hearing officer with respect to finding Individual guilty of Specification 1. However, said the court, the appointing authority’s determination with respect finding Individual guilty of Specification two was not supported by substantial evidence and thus the appointing authority’s determination that Individual was guilty of the misconduct alleged in Specification two must be annulled and that Specification dismissed.

Addressing the procedures followed in this action the Appellate Division explained that "The review of an administrative decision made after an employee disciplinary hearing is limited to a consideration of whether the determination was supported by substantial evidence."  In the event the petition before Supreme Court raises a question of whether an administrative determination is supported by substantial evidence the proceeding should be transferred from the Supreme Court to the Appellate Division to address that issue.**

Substantial evidence "is related to the charge or controversy and involves a weighing of the quality and quantity of the proof." and the term "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

In the event there is conflicting substantial evidence or different inferences may be drawn from such substantial evidence, the duty of weighing the evidence and making the choice is vested in the  administrative body concerned, in this instance the appointing authority as the controversy involves a challenge to a disciplinary action taken against an employee. Courts may not weigh the evidence or reject the choice made by administrative body where substantial evidence is conflicting and room for choice exists.

Here, however, the Appellate Division held that because it found that one of the two specifications of misconduct relied upon was annulled as not supported by substantial evidence, the penalty imposed by the appointing authority must be vacated and the matter remitted to the appointing authority to consider the appropriate penalty to be imposed upon Individual as the result of his having been found guilty of Specification one alone.

* Individual also appealed Supreme Court’s decision that found the hearing officer's findings and conclusions were supported by substantial evidence and were appropriately adopted by the appointing authority.

** See §7804[g] of the Civil Practice Law and Rules.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06593.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 4, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 4, 2014

Click on text highlighted in color to access the full report

The Comptroller said that “In today’s fiscal climate, budget transparency and accountability for our local communities is a top priority by auditing municipal finances and operations ... my office continues to provide taxpayers the assurance that their money is being spent appropriately and effectively.”

Averill Park No. 2 Fire District – Controls Over Financial Activity (Rensselaer County)

Despite maintaining comprehensive, accurate and timely records, the treasurer did not file the district’s 2012 annual financial report with the Office of State Comptroller until April 2014. In addition, district officials used a request for proposal process to award the contract for auditing the district’s 2012 and 2013 financial statements. However, the audits have not been performed.

Village of Goshen – Financial Condition (Orange County)

The board did adopt realistic and structurally balanced budgets based on historical trends. As a result, the village ended 2011-12 with an unplanned net operating deficit of $372,471. In addition, village officials need to improve their oversight of the budget. Improved monitoring will enhance their ability to react to external influences such as economic downturns and emergencies.

Hortonville Fire District – Controls Over Financial Activities (Sullivan County)

The board did not establish adequate controls to ensure the district’s financial activity was properly recorded and reported and that district money was adequately safeguarded. The board did not adequately segregate the secretary-treasurer’s duties, provide any additional oversight or implement other compensating controls when segregating duties was not practical.

Margaretville Volunteer Fire Department – Cash Receipts and Disbursements (Delaware County)

While the treasurer does maintain up-to-date and accurate accounting records, the president and executive committee did not provide adequate oversight of the treasurer’s activities. Department officials were unaware of the need for additional controls over the cash disbursement process, such as an annual audit.

City of Ogdensburg – Payroll Processing (St. Lawrence County)

City officials did not ensure that internal controls over payroll processing provided for adequate segregation of duties. The payroll clerk performed all significant phases of the payroll process. She entered new employees, pay rates and employees’ time worked from their time records into the computerized payroll system, calculated withholding adjustments and finalized the payrolls.

Pulteney Volunteer Fire Department – Controls Over Financial Activities (Steuben County)

The board does not provide adequate oversight of the department’s financial activities. The treasurer makes all deposits, disburses cash without the board’s prior approval, performs all record keeping functions and prepares bank reconciliations without independent oversight. Further, the board does not audit the individual claims for accuracy or examine them for supporting documentation.

Village of Sharon Springs – Water Accountability (Schoharie County)

Village officials do not adequately monitor water operations. Although village officials were aware of the aging infrastructure and potential for leaks, no one determined whether water was unaccounted-for. For example, the village has unaccounted-for water totaling 36.7 million gallons annually, or approximately 60 percent of the water produced. Village officials do not have written policies or procedures requiring the reconciliation of the water produced by the water system with the water billed to customers.

Reducing the Cost of Hospital Services to County Inmates

Counties can improve their controls to better ensure that hospitals and providers are charging appropriate rates. In seven (Chautauqua, Clinton, Erie, Jefferson, Orleans, Oswego and Rensselaer) of the eight counties audited, county officials did not pay the appropriate Medicaid diagnostic related group rates on 75 percent of the inpatient hospital claims.

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