Arbitrator rules that retired employees entitled to certain benefits available to active employee as though their service “was not interrupted”

Arbitrator rules that retired employees entitled to certain benefits available to active employee as though their service “was not interrupted”
Matter of Port Auth. of N.Y. & N.J. v Port Auth. Police Lieutenants Benevolent Assn., 2015 NY Slip Op 00459, Appellate Division, First Department [See, also, Matter of Port Auth. of N.Y. & N.J. v Port Auth. Police Sergeants Benevolent Assn., 2015 NY Slip Op 00460 and Matter of Port Auth. of N.Y. & N.J. v Port Auth. Police Sergeants Benevolent Assn. 2015 NY Slip Op 00326 handed down on the same day by the the First Department]

Supreme Court confirmed an arbitration award that held that the Port Authority of New York and New Jersey violated the parties' governing collective bargaining agreement when the Authority discontinued “free "E-Z Pass" privileges for retired police lieutenants.

The Appellate Division unanimously affirmed the lower court’s ruling, explaining that the relevant “Memorandum of Agreement” [MOA] expressly incorporated the terms of a 1973 Port Authority Administrative Instruction, PAI 40-1.01, that provides that retired employees "receive the same allowance to which they would be entitled if their Port Authority service was not interrupted."

The court held that this language vests retired members of the Authority with a lifetime interest in the EZ-Pass privileges they enjoyed while employed did not exceed the arbitrator's authority since it is not "completely irrational."

The court also commented that Supreme Court stated in its ruling that the arbitrator noted that "it will take a new Collective Bargaining Agreement and MOA to end free passes for [the Authority's] members, past and present."

The Appellate Division observed that the court's remark regarding "a new collective bargaining agreement" is dictum and that the statement of the arbitrator, that the court paraphrased, was also dictum. 

"Dictum" is Latin for "remark," and is used to describe a comment by a judge or other tribunal in a decision or ruling that is not required to reach the decision and which does not have the full force of a precedent.

New York State's Public Administration Traineeship Transition Program (PATT)

New York State's Public Administration Traineeship Transition Program (PATT)

Source: NYS Department of Civil Service’s Division of Staffing Services General Information Bulletin, #15-01

The New York State Department of Civil Service’s Division of Staffing Services has issued a General Information Bulletin, Bulletin #15-01. The Bulletin describes the Public Administration Traineeship Transition Program (PATT) and provides information addressing appointments from PATT eligible list #00-271, including:

Minimum Qualifications for appointment from the PATT List;

How a PATT Appointment could affect a candidate's eligibility for other appointments from the list;

Advanced Placement from PATT Lists;

Transfers and other PATT Appointments; and

Foreign Degrees and Coursework 

The text of Bulletin 15-01 is posted on the Internet at:

http://www.cs.ny.gov/ssd/pdf/GIB15-01.pdf

Elements considered by courts in evaluating the results of an arbitration

Elements considered by courts in evaluating the results of an arbitration

2015 NY Slip Op 00444, Appellate Division, First Department

In response to a challenge to an arbitration award where the penalty imposed was termination, Supreme Court denied the Article 75 petition seeking to vacate and arbitration award

The Appellate Division affirmed the Supreme Court’s ruling, noting the following elements concerning the arbitration:

1. The selection of the Hearing Officer comported with the law, in this instance Education Law §3020-a[3][b][ii]).

2. The record showed that the individual “had an adequate opportunity to prepare for the hearing” in that he was sent the notice of charges and specifications approximately a month before the hearing and had “retained counsel over a week before the hearing.”

3. The specifications sufficiently apprised the individual of the charges against him, including the bases for the charges and listed specific dates that corresponded to numerous observation reports and letters in the individual’s personnel file.

4. The individual was able to mount a defense, called witnesses and his counsel had the opportunity to examine or cross-examine every witness.

5. There was no basis to disturb the Hearing Officer's credibility findings in favor of the Department of Education's witnesses

6. The Hearing Officer's determination was in accord with due process, rational, and supported by adequate evidence

________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

____________

 

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 16, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 16, 2015

Click on text highlighted in color  to access the full report
New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of the:

Clark Mills Fire District,

Village of Clinton,

Elba Fire Department,

Village of Ellenville,

Village of Harriman,

Hughsonville Fire Company,

Village of Livonia,

Plattekill #1 Fire District, and the

Town of Schroeppel.

Journalists who cover the law may apply for Loyola Law School’s four-day Civil Justice Fellowship Program

Journalists who cover the law may apply for Loyola Law School’s four-day Civil Justice Fellowship Program

The Civil Justice Program at Loyola Law School, Los Angeles will host its 10th-annual Journalist Law School from Wednesday, May 27 through Saturday, May 30, 2015 on its Frank Gehry-designed campus in downtown Los Angeles. 

There is no cost to journalists to attend the Fellowship program. Instruction, lodging and most meals are included. The Journalist Law School will also cover half of travel expenses up to $300. Fellows will be housed at the nearby Hilton Checkers Los Angeles.  

The Fellowship program condenses core law-school subjects and break-out topics into a long weekend filled with courses taught by Loyola Law School faculty, practicing attorneys and judges. Journalists with at least three years of experience who cover the law in some fashion are encouraged to apply. Journalist fellows, who are competitively selected, receive a certificate of completion at the end of the four-day program. JLS alumni include almost 350 reporters, editors and producers from a wide range of local, national and international news organizations.

The application deadline is Monday, Feb. 16. The application and details are available at www.journalistlawschool.org.

Questions about the program may be directed to Brian Costello, Esq.at brian.costello@lls.edu or 213-736-1444.

Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding

Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding
Rea v City of Kingston, 2014 NY Slip Op 09079, Appellate Division, Third Department

Supreme Court, Ulster County, directed the City of Kingston to reinstate Christopher Rea to his position as Assistant Fire Chief for respondent City of Kingston with an award of retroactive back pay. The City appealed.

As indicated in a prior decision in this matter (Matter of Rea v City of Kingston, 110 AD3d 1227 [2013]), Rea was promoted from Assistant Fire Chief to Fire Chief of the City of Kingston Fire Department in January 2012. His appointment was rescinded and he was suspended without pay pending disciplinary charges. Disciplinary charges were eventually served on Rea alleging multiple specifications of misconduct, most of which pertained to time and leave issues, in August 2012.

The Appellate Division held that, consistent with the provisions of Civil Service Law §75(3),* Rea was "presumptively entitled to receive his regular compensation as Assistant Fire Chief" pending resolution of the disciplinary charges lodged against him” but that "the issue of compensation [could not] be definitively resolved on [the existing] record as [the City] contend[ed] that some [of the] delays [incurred] were either attributable solely to [Rea] or reflect[ed] periods waived by{REA]" and the matter was remitted the matter to Supreme Court "for further development of the record as to the issue of retroactive pay."

Supreme Court directed that the City conduct the disciplinary hearing within 30 days of the court's order to that effect and, notwithstanding certain unresolved factual issues, ordered the City to reinstate Rea to his position as Assistant Fire Chief with full pay and benefits, and without any offset, retroactive to March 10, 2012. Supreme Court also directed that, to the extent that City wished to pursue its claim for an offset, it could do so in the context of a separate action for recoupment.

In response the City’s appeal, the Appellate Division reversed so much the Supreme Court’s order that awarded Rea immediate back pay and benefits retroactive to March 10, 2012 and directed that City pursue any claim for an offset in a separate action, explaining that because the issue of retroactive pay could be resolved independently of Rea's disciplinary proceeding, "it should not serve as a basis for any further delay in holding the [subject] disciplinary hearing".

The decision also noted that Counsel for the City, in the course of oral argument, stated that the underlying disciplinary hearing was completed and that “the appointing authority, in turn, found [Rea] guilty of numerous specifications of misconduct and recommended that he be terminated from his employment.” Absent an appeal from this adverse disciplinary determination, presumably the only unresolved issue is the amount of back pay and benefits due Rea.

* Civil Service Law §75(3) provides for suspension pending determination of disciplinary charges and, in pertinent part, provides that “Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days.”

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2014/2014_09079.htm

The two-prong test used by the court to determine "whether a grievance is arbitrable"

The two-prong test used by the court to determine "whether a grievance is arbitrable"

In the Matter of arbitration between County of Herkimer v Civil Serv. Employees Assn., Inc., 2015 NY Slip Op 00125, Appellate Division, Fourth Department

A probation officer employed by Herkimer County, John Hight, applied for a promotion to the position of probation supervisor. The position of probation officer was included in the relevant collective bargaining agreement (CBA) but the position of probation supervisor was not so included. Herkimer promoted another, less senior, employee, although Hight scored higher on the promotional examination than the employee selected for the promotion.

CSEA filed a grievance objecting the promotion of the less senior employee selected. Herkimer denied the grievance on the ground that the position to which Hight sought to be promoted “was not encompassed by the CBA” and CSEA demanded that the matter be submitted to arbitration.

Herkimer then filed a petition pursuant to CPLR Article 75 seeking a court order staying arbitration. Supreme Court granted Herkimer’s petition and denied CSEA’s motion to compel arbitration. CSEA appealed.

The Appellate Division said that resolution of the issue before it was governed by two-prong test set by the Court of Appeals to be used to determine "whether a grievance is arbitrable" in Matter of City of Johnstown [Johnstown Police Benevolent Assn., 99 NY2d 273.*

The first prong of the test, frequently referred to as "the may-they-arbitrate' prong," concerns whether there is any statutory, constitutional or public policy prohibition against the arbitration of the grievance. If the court determines that arbitration is not so prohibited, it then applies the second prong of the test: does the CBA indicate that the parties have agreed to arbitrate the dispute at issue," -- the so-called “did-they-agree-to-arbitrate' prong."

As Herkimer did not contend that there was any statutory, constitutional or public policy prohibition against the arbitration of the grievance at issue, the Appellate Division said that it was concerned only with the application of the second prong of the Johnstown test.

The Appellate Division held that Supreme Court erred in concluding that the parties did not agree to arbitrate the subject matter giving rise to the grievance, explaining that "Where, as here, there is a broad arbitration clause and a reasonable relationship' between the subject matter of the dispute and the general subject matter of the parties' collective bargaining agreement, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them."

Finding that such a reasonable relationship exists between the subject matter of the grievance, i.e., promotion procedures, and the general subject matter of the CBA, the Appellate Division ruled that "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

Should the arbitrator determine that the parties agreed to arbitrate the subject matter giving rise to the grievance, he or she will then proceed to consider the merits of the contentions of the parties.

* See also and in the Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00125.htm

Additional Staffing changes announced by New York State’s Governor Andrew M. Cuomo

Additional staffing changes announced by New York State’s Governor Andrew M. Cuomo

Source: Office of the Governor

The Governor will nominate the following eight individuals for appointments requiring Senate confirmation:  

William Thompson to serve as Chair of the New York State Housing Finance Agency (HFA) and the State of New York Mortgage Agency (SONYMA). Mr. Thompson served as New York City Comptroller from 2002 to 2009. He then ran for Mayor of New York City in both 2009 and again in 2013. From 2010 to 2012, he chaired the Battery Park City Authority and, also in 2010, he joined Siebert Brandford Shank, the nation’s MWBE municipal bond underwriting firm, which he left when he ran for Mayor in 2013 but returned following the elections. He has a bachelor’s degree from Tufts University. 

 Dennis Rosen, Esq., to serve as Medicaid Inspector General. Mr. Rosen is currently Chairman of the New York State Liquor Authority, a position he has held since 2009. Prior to that, he was an Assistant Attorney General in the Real Estate Financing Bureau (1982-1983) and the Consumer Frauds Bureau (1983-2009) of the NYS Attorney General’s Office. Previously, he was an attorney with the NYC Legal Aid Society’s Juvenile Rights and Criminal Defense divisions. Mr. Rosen has a B.A. from Brooklyn College and a J.D. from Harvard Law School. 

Howard Zucker, Esq. to serve as Commissioner of the State Department of Health. Previously, he served as Acting Commissioner of the Department of Health as well as First Deputy Commissioner. Prior to that, he was a professor of Clinical Anesthesiology at Albert Einstein College of Medicine of Yeshiva University and a pediatric cardiac anesthesiologist at Montefiore Medical Center in the Bronx. He was also an adjunct professor at Georgetown University Law School, where he taught biosecurity law. His public policy experience began as a White House Fellow under then-Health and Human Services Secretary Tommy Thompson. He then became the Deputy Assistant Secretary of Health where he developed the nation's Medical Reserve Corps. Dr. Zucker has also served as an Assistant Director-General of the World Health Organization and as an Institute of Politics Fellow at Harvard Kennedy School. He is a pediatrician, anesthesiologist, intensive care specialist and pediatric cardiologist trained at Johns Hopkins, University of Pennsylvania and Harvard, respectively and has held faculty appointments at Yale, Columbia and NIH. Dr. Zucker has a B.S. from McGill University, an M.D. from George Washington University, a J.D. from Fordham University Law School, an LL.M from Columbia Law School, and a postgraduate diploma in global health policy from the London School of Hygiene and Tropical Medicine.


John Melville to serve as Commissioner of New York State Division of Homeland Security and Emergency Services. He is currently serving as Acting Commissioner. Mr. Melville previously served as Chief Investigator at the Orange County District Attorney’s Office from 2012 to 2014. Prior to that, he spent 31 years a sworn member of The New York State Police, holding a number of positions including most recently Deputy Superintendent of Field Commander and Superintendent. Mr. Melville has a B.S. from SUNY Cortland and an M.S. in Criminal Justice from SUNY Albany.


Roberto Velez, Esq. to serve as Commissioner of the Office of Children and Family Services. He is currently serving as Acting Commissioner. Mr. Velez previously served as Vice President for Corporate Compliance and Counsel for Acacia Network, Inc. and was a key legal advisor to the Acacia Board of Directors. Prior to that, he was the Chief Judge to the New York City Office of Administrative Trials and Hearings and held several leadership positions at the New York City Departments of Probation and Juvenile Justice. Mr. Velez has a B.A. from Columbia College and a J.D. from New York University School of Law.


Anthony J. Picente, Jr. to serve as a Trustee of the New York Power Authority (NYPA). Mr. Picente currently serves as Oneida County Executive, a position he was unanimously appointed to in 2006, was elected to a full four-year term in 2007 and was re-elected in 2011. He was named Regional Director of the Empire State Development Corporation in 2001 and, two years later, he was promoted to Vice President of ESDC, a position he held until 2006. Mr. Picente has an Associate’s degree from Mohawk Valley Community College and a bachelor’s degree from Utica College.


Floyd Flake to serve as a member of the Public Service Commission. Rev. Flake is the senior pastor of The Greater Allen African Methodist Episcopal Cathedral of New York in Jamaica, Queens. A former Senior fellow at the Manhattan Institute for Policy Research, he was President of Wilberforce University, his alma mater, from 2002 to 2008. In 1986, he was elected to the U.S. House of Representatives where he served the 6th Congressional District in Queens until 1997 when he resigned in order to return to full-time ministry at his church. Rev. Flake earned a Doctor of Ministry Degree from the United Theological Seminary and holds a B.A. from Wilberforce University.


Bethaida Gonzalez to serve as a member of the Board of the State of New York Mortgage Agency (SONYMA). Ms. Gonzalez is the Dean of University College at Syracuse University, a position she has held since 2007, and has held a number of positions at the University since 1984. She has a B.S. from State University of New York at Binghamton and a Certificate in Public Administration and M.A. from Syracuse University’s Maxwell School of Citizenship and Public Affairs.
The Governor made the following four appointments to the Executive Chamber:


Adam Spence has been appointed Assistant Secretary for Economic Development and Innovation, responsible for the implementation of Governor Cuomo’s economic development efforts through the State’s economic development agencies as well as the coordination and promotion of innovation acceleration across state government. Prior to joining the Executive Chamber, Mr. Spence served as Senior Vice President for START-UP NY in Empire State Development. Prior to joining ESD, Mr. Spence was a Managing Director and Co-Head of Sponsor Finance at American Capital, Ltd. Early in his career, Mr. Spence was with was with Lend Lease Real Estate Investments and Berkshire Capital Corporation. Mr. Spence received an A.B. in History from Harvard College.


Tamara Dews has been appointed Senior Policy Advisor for Economic Development. Ms. Dews previously worked in the Executive Chamber with the Lieutenant Governor’s Office and the Office for People with Developmental Disabilities (OPWDD) as the Acting Director for the MWBE Program Unit and Project Manager for the agency’s Front Door Initiative. Prior to joining New York State government through the Empire State Fellows program, Ms. Dews was a Manager in the Business & Legal Affairs division of Sony Music Entertainment. Tamara is currently completing her Executive M.B.A. at NYU Stern. In addition, she holds an Intellectual Property Law Certification from NYU’s School of Professional & Continuing Studies and a B.A. in History and Politics from Mount Holyoke College.


Kara Allen has been appointed to the role of Assistant Secretary for Energy. Ms. Allen previously served as Executive Director of the Sustainable Energy and Environment Coalition, a caucus of 57 members in the U.S. House of Representatives led by Reps. Paul Tonko (NY-20), Steve Israel (NY-03), and Gerry Connolly (VA-11). Prior to that, she was the Assistant Director of Federal Affairs for Vanderbilt University, and the energy and environmental aide to Rep. Jim Cooper (TN-05.) Ms. Allen received her M.S. from Johns Hopkins University and B.S. from Vanderbilt University.


Peter Walke has been appointed Assistant Secretary for the Environment. Prior to joining state government through the Empire Fellowship program, he served for nine years as an intelligence officer in the U.S. Navy from 2004-2013. Peter deployed twice in support of operations in Iraq and Afghanistan. He has a B.A. in Political Science from Williams College and a M.A. in Applied Geography from the University of Colorado at Colorado Springs.
The Governor made the following 13 appointments to State agencies: 

Empire State Development

Lourdes Zapata has been appointed Executive Director of the Division of Minority and Women’s Business Development, having previously served as Senior Vice President of Community & Economic Development for the South Bronx Overall Economic Development Corporation. Prior to that, she was Director of the Department of Planning & Development for the City of Newburgh, NY. Ms. Zapata has a B.A. from Hood College and an M.P.A. from New York University’s Robert F. Wagner Graduate School of Public Service.

Nicole Stent, has been appointed Deputy Director of Minority- and Women-Owned Business Enterprises, having previously served as District Manager of Bronx Community Board 8 and was Director of the NYC Health & Hospitals Corporation, Division of Corporate Planning, Community Health & Intergovernmental Affairs. She has a B.A. from Dartmouth College and a J.D. from Howard University School of Law.


Carey Gabay, Esq., has been appointed First Deputy Counsel, having previously served as Assistant Counsel to the Governor since 2011, a banking and finance associate at Jones Day from 2007 to 2009, and a structure products associate at Schulte Roth & Zabel LLP from 2002 to 2007. Mr. Gabay has a B.A. from Harvard College and a J.D. from Harvard Law School.


Jackie Snyder has been appointed Special Advisor for Infrastructure, having previously served as Executive Director of the Public Design Commission of the City of New York from 2004 to 2014, an advisor to the Deputy Mayor for Administration under Mayor Bloomberg and was the Acting President of the Mayor’s Fund to Advance New York City from 2002 to 2003. Ms. Snyder has a B.A. from Brown University. 

Linda Sun has been appointed Global New York Trade Manager, handling global business development, and will continue to serve in her role as Asian Outreach Director for the Office of the Governor. Ms. Sun previously served as Queens Regional Representative, Director of Operations for Congresswoman Grace Meng's 2012 congressional campaign, Chief of Staff to New York State Assemblymember Grace Meng, and Campaign Manager for Grace Meng for New York State Assembly. She has a B.A. from Barnard College, Columbia University and a M.A. from Teachers College of Columbia University. 


Office of Children and Family Services

Suzanne Miles, Esq., has been appointed Deputy Commissioner for Legal Affairs and General Counsel, having previously served as Senior Associate Counsel of Strategic Initiatives at the New York City Department of Education. Prior to that, she was an Associate at Baker Botts, LLP and LeBoeuf, Lamb, Greene & MacRae, LLP. Ms. Miles has a B.A. from SUNY Buffalo and a J.D. from Fordham University School of Law, and served as a judicial clerk to the Honorable Eric L. Clay of the United States Court of Appeals for the Sixth Circuit.


New York State Office of Homes and Community Renewal

Catie Marshall has been appointed Deputy Commissioner for Policy and Communications, having previously served as Vice President of Communications at the New York City Housing Development Corporation and Assistant Commissioner of the New York City Department of Housing Preservation and Development from 2008 to 2014. In addition to her extensive experience in city and state government, she has worked in the private and not-for-profit sectors creating and implementing internal and external communications programs and plans. Ms. Marshall has an A.B. in Biology from Brown University.


Office of Temporary and Disability Assistance

Sharon Devine has been appointed Executive Deputy Commissioner, having previously served as the Deputy Commissioner for Administration, and most recently the President for the Office of Professional Services at New York State Homes and Community Renewal. Ms. Devine has a B.A. from University of California and an M.P.A. from Atlanta University.


Division of Homeland Security and Emergency Services

Kevin Wisely has been appointed Deputy Director Office of Emergency Management for Field Operations, having previously served as Onondaga County Department of Emergency Management Commissioner and has 30 years of emergency services experience. Mr. Wisely has a B.S. from Oswego State University and a M.B.A. from Lemoyne College. He is currently enrolled in the in the Associate of Applied Science Emergency Management degree program at Fredrick Community College. 

Frank Hoare, Esq., has been appointed General Counsel, having previously served as Deputy Attorney General for Regional Affairs and Deputy Counsel to the Attorney General. He has a B.A. from SUNY Albany and a J.D. from Albany Law School of Union University. 

Thruway Authority

Matthew Howard has been appointed Chief Financial Officer, having previously served as Secretary to the State Assembly Ways and Means Committee. He has a B.S. from Springfield College and an M.P.A. from Cornell University.


Environmental Facilities Corporation

Suzanne Beddoe, Esq., has been appointed Senior Vice President and General Counsel, having previously served as Executive Director and then Commissioner of the New York City Office of Administrative Trials and Hearings since 2008. She has a B.A. and M.A. from Yale University and a J.D. from Columbia University School of Law. 

Department of Labor

Melissa R. Quesada, Esq., has been appointed Director of Outreach, Governor’s Unemployment Strike Force, having previously served as a Special Associate for the New York City Law Department. She has a B.A. from Binghamton University and a J.D. from Hofstra University School of Law.

Accessing personal social medial during working hours

Accessing personal social medial during working hours

Matter of Brookville Ctr. for Children's Servs., Inc.--Commissioner of Labor), 2014 NY Slip Op 08703, Appellate Division, Third Department

An employee [Claimant] was terminated when ran foul of the employer's written policy prohibiting employees from posting on social media "during work hours, unless for specific and approved business purposes."

The Unemployment Insurance Appeal Board thereafter determined that the Claimant was entitled to receive unemployment insurance benefits because, in its view, she had not lost her job due to disqualifying misconduct. The employer appeal the Board’s ruling.

The Appellate Division said that the question of whether a claimant engaged in actions sufficient to disqualify him or her from receiving unemployment insurance benefits is a factual one for the Board to resolve, "and its determination will not be disturbed if supported by substantial evidence."

Explaining that “not every discharge for cause rises to the level of misconduct”, which is defined as "a willful and wanton disregard of the employer's interest, the court noted that Claimant did not dispute that she was aware of the employer's policy on social media usage and that she nevertheless posted an item during work hours. The Appellate Division also noted that the record showed that this misconduct was an isolated incident and that Claimant, who had worked for the employer for more than six years, had a clean disciplinary record prior to her termination.

The court ruled that “Substantial evidence thus supports the determination of the Board that [Claimant’s] behavior, while reflective of a momentary lapse in judgment, did not rise to the level of disqualifying misconduct.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08703.htm

Staffing changes announced by New York State’s Governor Andrew M. Cuomo

Staffing changes announced by New York State’s Governor Andrew M. Cuomo

Source: Office of the Governor

Bill Mulrow has been appointed Secretary to the Governor. He succeeds Lawrence Schwartz, who departs the administration for the private sector.

Mr. Mulrow has more than 30 years of experience in business, government and politics. He has extensive experience in both the private and public sectors, having served in several positions in the financial sector as well as having served in a broad array of federal, state and local government and political positions. Most recently Mr. Mulrow was a Senior Managing Director at Blackstone, the world's largest alternative asset manager. In addition to his business career, Mr. Mulrow has served in numerous public positions throughout his career, including as Governor Cuomo's appointee as the Chairman of the New York State Housing Finance Agency and the State of New York Mortgage Agency. Previously, he served as a Commissioner of the Special Commission on Judicial Compensation, Director of the Federal Home Loan Bank of New York, Director of the Municipal Assistance Corporation for the City of New York, Director of the United Nations Development Corporation, Chairman of the Westchester County Industrial Development Agency, and Chairman of the New York City Rent Guidelines Board. He was Vice Chair of the New York State Democratic Party, Senior Advisor to the Mario Cuomo reelection campaign (1990), and Deputy Campaign Manager for Barney Frank's initial run for Congress (1980). Mr. Mulrow has also served in a number of academic posts including the Board of Advisors for the Taubman Center for State and Local Government at the Harvard Kennedy School. He has been awarded several civic and community awards including the Humanitarian Award of the North American Boards of Rabbis and the Roy Wilkins Humanitarian Award of the New York State NAACP. He is a graduate of the John F. Kennedy School of Government at Harvard University and of Yale College where he graduated Cum Laude and was a Rhodes Scholar finalist.

Patricia Gatling, Esq., has been appointed Deputy Secretary for Civil Rights. Ms. Gatling joins the administration from the New York City Commission on Human Rights where she served as Commissioner and Chair since 2002. While in that role, she was also an agency consultant at the Fulton County District Attorney’s Office, Executive Producer of Fighting for Justice: New York Voices of the Civil Rights Movement, and a senior trainer at John Jay College of Criminal Justice. Previously, Ms. Gatling served as First Assistant District Attorney at the Kings County District Attorney’s Office and as Special Assistant Attorney General at the Office to Investigate Corruption in the New York City Criminal Justice System. Ms. Gatling is a member of the Board of Trustees for the New York Lawyers’ Fund for Client Protection. She has a B.A. from The Johns Hopkins University and a J.D. from the University of Maryland School of Law.

Linda Lacewell, Esq., has been appointed Counselor to the Governor. She will design the first statewide system for ethics, risk and compliance in agencies and authorities. Ms. Lacewell was formerly Special Counsel to the Governor. She was the architect of OpenNY, a state-of-the-art open data initiative. Ms. Lacewell was formerly Special Counsel to Attorney General Cuomo, where she oversaw the public pension fund pay-to-play investigation and the out-of-network health insurance investigation, both of which led to nationwide systemic reform. She spent nine years as an Assistant U.S. Attorney for the Eastern District of New York, including two years on the Enron Task Force, and received the Henry L. Stimson Medal and the Attorney General’s Award for Exceptional Service. She earned her Bachelor of Arts degree from New College of the University of South Florida and her Juris Doctor with honors from the University of Miami School of Law. She clerked for a United States District Judge for the Southern District of Florida. She is an Adjunct Professor of Law at New York University School of Law, teaching Ethics in Government, and was formerly an Adjunct Professor of Law at Fordham University School of Law, teaching International Criminal Law.

Alphonso B. David, Esq., will be appointed Counsel on April 1 – he will succeed Seth Agata, who will serve as Counsel to the Governor until that time. Mr. David is an attorney, law professor and policy advisor with significant legal and management experience in the public, private, and not-for-profit sectors. In January 2011, Mr. David was appointed by Governor Cuomo to serve as Deputy Secretary and Counsel for Civil Rights, the first position of its kind in New York State. In this role, he is responsible for a full range of legal, policy, legislative, and operational matters affecting civil rights and labor state-wide. Prior to joining the Governor’s Office, Mr. David served as Special Deputy Attorney General for Civil Rights for the Office of the New York State Attorney General, where he managed strategic planning, case development and policy analysis and supervised Assistant Attorneys General on investigations and litigation ranging from employment discrimination to immigration fraud. He also served previously as Deputy Commissioner and Special Counselor at the New York State Division of Human Rights, a litigation associate at the law firm Blank Rome LLP, and a staff attorney at the Lambda Legal Defense and Educational Fund. At Lambda, Mr. David litigated precedent-setting civil rights cases across the country affecting lesbian, gay, bisexual and transgender individuals and those living with HIV including marriage, parenting rights, and access to health care. He also currently serves as an Adjunct Professor of Law at Benjamin N. Cardozo School of Law, where he teaches a course on Constitutional Law. Mr. David is a graduate of the University of Maryland and Temple University School of Law and served as a judicial clerk to the Honorable Clifford Scott Green in the United States District Court for the Eastern District of Pennsylvania. 

Mary Beth Labate has been appointed Budget Director for the New York State Division of the Budget (DOB). Since 2012, Ms. Labate has served as First Deputy Budget Director for DOB, where she plays a central role in developing a financial plan for the State that furthers the Governor’s fiscally responsible vision and negotiating with the New York State legislature on a variety of budget and policy-related issues. Ms. Labate has been directly involved in a number of the administration’s key fiscal accomplishments, including maintaining State spending to two percent, reforming the Medicaid program to dramatically limit growth, and the developing and advocating for $60 billion in federal aid in response to Superstorm Sandy. Prior to her role as First Deputy Budget Director, Ms. Labate also led a number of units and sections within DOB responsible for economic development, public authorities, welfare and labor. She has also held positions within the New York State Department of Parks, Recreation and Historic Preservation and New York State Homes and Community Renewal. She received a B.A. from the University of Notre Dame and an M.A. in Public Administration from the Rockefeller School of Public Affairs at SUNY Albany.

Melissa DeRosa has been appointed Director of Communications and Strategic Advisor to the Governor. Since April 2013, Ms. DeRosa has served as Communications Director, managing overall communications and press for the Executive Chamber and over 50 state agencies. She will continue to retain the Communications portfolio and play an expanded role in the administration’s strategic approach to enacting policy. Before joining the Governor’s office, Ms. DeRosa worked in the Attorney General's Office as Deputy Chief of Staff and as Acting Chief of Staff. Ms. DeRosa led the office's effort to negotiate and pass the country’s most aggressive prescription drug reform package, I-STOP (Internet System for Tracking Over-Prescribing Act). Prior to working for the Attorney General, Ms. DeRosa served as New York State Director of Organizing for America, President Obama's national political action organization. Before joining OFA, Ms. DeRosa served as the Director of Communications and Legislation for Cordo and Company, an Albany based government affairs firm. She was also the Campaign Manager for Tracey Brooks for Congress, Deputy Press Secretary to Congresswoman Nydia Velazquez, and Deputy Press Secretary for the successful NY State Transportation Bond Act Campaign Vote Yes in 2005. She holds a Bachelor’s Degree in Industrial and Labor Relations and a Master’s Degree in Public Administration, both from Cornell University. She has served on the executive board of the Women’s Leadership Forum Network of the Democratic National Committee.

Rick Cotton, Esq., has been appointed Special Counsel for Interagency Initiatives. Mr. Cotton joins the administration following 25 years at NBC Universal, where he held a number of positions beginning in 1989, including 20 years as EVP and General Counsel and four years in London as President and Managing Director of CNBC Europe. He also served as Executive Secretary to the Department at the U.S. Department of Health, Education and Welfare under Secretary Joseph A. Califano, Jr. and Special Assistant for Renewable Energy to Deputy Secretary of Energy John Sawhill at the U.S. Department of Energy. Mr. Cotton received an A.B. from Harvard College and a J.D. from Yale Law School, and served as a law clerk to Justice William J. Brennan, Jr. on the U.S. Supreme Court.

Donald Carey will be nominated to serve as a member of the Board of Trustees of the State University of New York (SUNY). This appointment requires Senate confirmation. Mr. Carey is Senior Vice President at Fidelity National Financial and an Associate Partner at A.E. Smith Associates. A leader in the public finance sector for 29 years, he was the founder of DCC Consulting LLC, a part of the Public Finance Leadership team at Goldman Sachs, and Managing Director at Credit Suisse First Boston.

Bob Megna has been appointed as Acting Executive Director of the New York State Thruway Authority. This appointment requires Senate confirmation. Mr. Megna has served as Budget Director for the New York State Division of the Budget since 2009, where he was responsible for the overall development and management of the State’s fiscal policy, including the oversight of the State’s $145 million annual budget. Under Mr. Megna’s tenure in that role, New York State has achieved its highest financial ratings in 40 years from the three major credit rating agencies. He has also led multiple governmental boards within the administration, including the Financial Restructuring Board – which focuses on increasing government efficiency and decreasing costs through consolidation and shared services – the New York Racing Association and the Public Authorities Control Board. Mr. Megna was formerly the Commissioner of the New York State Department of Taxation and Finance, he spent ten years as the Director of the Revenue and Economics Unit within the State’s Division of the Budget. He received a B.A. in Economics and an M.P.A. from Fordham University, as well as a Diploma and M. Sc. In Economics from the London School of Economics and Political Science.

John P.L. Kelly has been appointed Press Secretary. Mr. Kelly joins the administration from the consulting firm SKD Knickerbocker in New York City, where he has served as Senior Vice President since 2012. Previously, Mr. Kelly served for nearly a decade in various senior roles in government, including as the top communications official at the New York City Department of Health, as Associate Commissioner, and the Port Authority of New York & New Jersey, as Acting Chief of Public Affairs. Mr. Kelly spent more than six years as a spokesman for the New York City Police Department. In addition to his service in government, Mr. Kelly was a desk editor for the New York Daily News Express, a columnist for CourtTV.com and a copywriter for a global financial institution. He is a graduate of Iona College and resides in the Bronx.

Beth DeFalco has been appointed Deputy Director of Communications for Transportation. Most recently she served as Communications Director for U.S. Senator Cory Booker. Before that she spent 15 years in journalism, working for nearly a decade at The Associated Press before joining the New York Post to cover politics in 2012. She has also worked as a reporter for The Arizona Republic and The Denver Post, where she was a member of the Pulitzer-prize winning news team that covered the Columbine High School shootings. Ms. DeFalco has a B.S. in journalism and a minor in philosophy from the University of Colorado at Boulder.

Frank Sobrino has been appointed Deputy Director of Communications for New York City. Mr. Sobrino is currently serving as Director of Communications in the office of State Senator Jose Peralta. A former reporter at El Diario-La Prensa, Mr. Sobrino previously served as State Comptroller H. Carl McCall’s New York City Press Secretary. He has a B.A. from Saint Bonaventure University and an M.P.A. from New York University’s Robert F. Wagner Graduate School of Public Service.

Andrew S. Kennedy has been appointed Deputy Director of State Operations for Policy. Previously, Mr. Kennedy served as the Governor’s Assistant Secretary for Economic Development, coordinating the development and management of the State’s economic development and housing efforts. Prior to joining the Governor’s staff, Mr. Kennedy worked for more than a decade at the New York State Division of Budget and for the New York State Assembly, where he developed a detailed understanding of New York’s fiscal and economic development policies and programs. Mr. Kennedy holds a master’s degree in Public Administration from the Nelson A. Rockefeller College of Public Affairs and Policy and a bachelor’s degree from Siena College in Political Science.

Matthew J. Millea has been appointed Deputy Director of Operations for Administration. Mr. Millea joins the administration from the New York Department of State, where he most recently served as Deputy Secretary of State for Planning and Development. Prior to that, he was Deputy County Executive for Physical Services for Onondaga County Executive Joanie Mahoney. He was Executive Vice President followed by Acting President at the New York State Environmental Facilities Corporation from 2006 to 2010 and was Director of Environmental Programs in the Office of the Governor of New York from 2001 to 2006. Mr. Millea has a B.A. from Siena College and an M.P.A. from Columbia University’s School of International and Public Affairs.

Joseph Rabito has been appointed Deputy Director of State Operations for Programs. In February 2011, Governor Cuomo appointed Mr. Rabito as Executive Deputy Commissioner at the New York State Office of General Services (OGS). Before joining OGS, Mr. Rabito held the titles of Deputy Commissioner at New York State Homes and Community Renewal (HCR) and President of the New York State Housing Trust Fund Corporation. Prior to his appointment at HCR, Mr. Rabito served as Commissioner of Development & Planning for the City of Albany, and in the federal government for then Secretary Andrew Cuomo at the U.S. Department of Housing and Urban Development.

Tracie M. Gardner has been appointed Assistant Secretary of Health. Ms. Gardner previously served as Co-Director of Policy for the Legal Action Center where she conducted and coordinated the Center's New York State public policy advocacy in the areas of substance use disorders, criminal justice and HIV/AIDS. She has worked on a wide array of city, state and federal health and social service policy issues since 1989. Ms. Gardner received a B.A. from Mount Holyoke College.

Kamilah Smith has been appointed Assistant Secretary of Homeland Security. Ms. Smith previously served as an Attorney Advisor at the Federal Emergency Management Agency since 2011, and was an Associate at the law firm Katten Muchin Rosenman LLP in Los Angeles, CA from 2007 to 2011. She received a B.A. from Clark Atlanta University and a J.D. from Boalt Hall at the University of California, Berkeley.

Kisha Santiago-Martinez has been appointed Assistant Secretary for Housing. She previously served as Assistant Commissioner at New York State Homes and Community Renewal, managing the Budget Service Unit and establishing the Office of Budget and Operational Strategic Management. Prior to joining state government through the Empire Fellowship program, she served as Vice President and Senior Project Manager at Rosenberg Housing Group. She received a bachelor’s degree and a master’s degree in Regional and Urban Planning from University at Albany.

John Maggiore has been appointed Director of Policy. Mr. Maggiore previously served as chief of staff to Lieutenant Governor Robert Duffy and, in 2011, as Governor Cuomo's Director of Regional Affairs. Previously, he served as Policy Advisor to Attorney General Cuomo, Assistant to HUD Secretary Cuomo, Director of Communications to Buffalo State College President Muriel Howard and Chief of Staff to Assemblymember Sam Hoyt. In 2005, he ran the Erie County Stabilization Project for the Buffalo Niagara Partnership. Mr. Maggiore began his professional career as confidential assistant to Governor Mario Cuomo. He is a native of Buffalo, with a B.A. from Connecticut College, M.A. from Rutgers University and M.P.A. from the Harvard Kennedy School.

Katie Codey will serve as Deputy Director of Policy. Ms. Codey has been serving as Policy Advisor to the Governor since 2013. Previously, she was a Senior Policy Analyst for the New York City Council, where she managed the Speaker’s economic development, workforce development and transportation policy portfolio. Ms. Codey also served as a law clerk to U.S. District Court Judge Jose L. Linares in New Jersey. Ms. Codey earned an M.P.A. from the University of Georgia, a J.D. from Brooklyn Law School, and a B.A. from Dartmouth College.

Leslea Snyder has been appointed Deputy Director of Legislative Affairs. Ms. Snyder previously served as a Senior Manager of Public Policy & Government Affairs at Actavis, Plc and a Senior Manager for Public Policy & Government Affairs at Forest Laboratories. In 2009, she was elected a Trustee and Deputy Mayor of her hometown, The Village of Port Jerfferson in Suffolk County. She was also Assistant Director of the New York State Senate Higher Education Committee under Senator Kenneth LaValle before joining the Regional Community Outreach organization of the New York State Senate’s Long Island Delegation.

Terence O’Leary has been appointed Deputy Secretary for Public Safety. Mr. O’Leary served as Director of the Bureau of Narcotic Enforcement within the New York State Department of Health from 2011 through December, 2014. He served as a New York County Assistant District Attorney assigned to the Office of the Special Narcotics Prosecutor from 2001 to 2011. He was named Senior Investigative Counsel in 2009. He has a B.A. from Loyola University Maryland and a J.D. from Seton Hall University School of Law.

R. Nadine Fontaine, Esq., has been appointed Assistant Counsel to the Governor with a focus on Human Services. Ms. Fontaine joins the administration from Epiq Systems, Inc., where she most recently served as a Director. She was previously an associate at Cooper, Liebowitz, Royster & Wright, followed by Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, and then Kaye Scholer, LLP. Ms. Fontaine earned a B.A. degree from Stony Brook University and a J.D. from Pace University School of Law.

Julia Pinover Kupiec, Esq., has been appointed Assistant Counsel to the Governor with a focus on Housing. Ms. Pinover-Kupiec previously Disability Rights Advocates, where she most recently founded, developed the practice, and was in charge of all operations at Disability Rights Advocates New York. She joined the organization in 2005 as a summer associate, then became a David Boies Fellowship attorney, was then promoted to staff attorney and then to senior staff attorney. She received a B.A. from Dartmouth College, a J.D. from Georgetown University and an LL.M. from New York University.

Angela Sherrer, Esq., has been appointed Assistant Counsel to the Governor with a focus on Public Safety. Ms. Sherrer recently served as an attorney in the Office of Intelligence at the U.S. Department of Justice, National Security Division since 2010. She also served as an Assistant U.S. Attorney in Florida, Associate Council at the New York State Division of Human Rights, and an Assistant District Attorney for the New York County District Attorney’s Office. She received a B.A. from Wellesley College and a J.D. from Georgetown University Law Center.

Anna Adams-Sarthou has been appointed Deputy Press Secretary. Ms. Adams-Sarthou previously served as Regional Director of External Affairs at AT&T in New York City and was Deputy Chief of Staff & Director of Communications for State Senator Michael Gianaris. She held a number of positions in Governor David Paterson’s press office, culminating in Acting Press Secretary for the final months of his administration. Ms. Adams-Sarthou has a B.S. from New York University.

Sandy Castor has been appointed Program Associate for Transportation. Ms. Castor joins the administration from the District Department of Transportation in Washington, D.C. where she served as Director of Government and Legislative Affairs. In her role as she successfully lobbied the District's Legislators and secured $1.12B in funding for the District’s major Capital improvement projects. Previously she served as a Special Assistant to former Mayor of Washington, D.C., Adrian M. Fenty. She is also the Founder of Castor Consulting, a a political and government relations firm. She attended Carnegie Mellon University and has a B.S. from Fordham University as well as Certificates in Financial Planning and Program Management for Transit Professionals from Rutgers University.

The Governor will nominate the following six individuals for appointments, which appointments require confirmation by the New York State Senate: 

Howard Zemsky to serve as President and CEO of Empire State Development Corporation (ESDC) and Commissioner of Economic Development. Mr. Zemsky has co-chaired the Western New York Regional Economic Development Council during the past four years and has worked closely on the Governor’s Buffalo Billion initiative. His company, Larkin Development Group, is redeveloping the historic Larkin District in Buffalo. Zemsky has a bachelor’s degree from Michigan State University and an M.B.A from the University of Rochester.

Kenneth Adams to serve as Commissioner of the New York State Department of Taxation and Finance. Mr. Adams previously served as President, CEO & Commissioner of Empire State Development since 2011 and was President & CEO of The Business Council of New York State, from 2006 to 2011. Prior to leading the Business Council, he was President of the Brooklyn Chamber of Commerce and was the founding Executive Director of New York Cares. 

Carol Robles-Román, Esq., to serve on the Board of Trustees of the State University of New York (SUNY). Ms. Robles-Romàn is the President and CEO of Legal Momentum -The Women's Legal and Defense and Education Fund, the oldest national nonprofit legal organization dedicated to advancing the rights of women and girls. She previously served as Deputy Mayor for Legal Affairs and Counsel to Mayor Michael Bloomberg. She has a B.A. from Fordham University and a J.D. from New York University School of Law. 

Joanie Mahoney, Esq., to serve as Chair of the Board of the State Thruway Authority. Ms. Mahoney is the first woman to serve as Onondaga County Executive, to which she was elected in 2007. She previously worked for five years as a criminal prosecutor in the District Attorney’s Office before being elected Councilor-at-Large in the City of Syracuse, where she served a four-year term. Ms. Mahoney graduated from Syracuse University’s School of Management and has a J.D. from Syracuse University College of Law.

Thomas Hoover to serve as Chairman of the State Athletic Commission. Mr. Hoover is a former professional basketball player, having played for the New York Knicks and the St. Louis Hawks from 1963 to 1967. He then played with the Denver Rockets, Houston Mavericks, Minnesota Pipers and New York Nets. Since his basketball career, Mr. Hoover ran an unemployment program for teenagers and ran the Adopt-A-School program in New York City. 

Hilda Rosario Escher to serve as member of the Board of the Urban Development Corporation. She currently serves as President and CEO of Ibero-American Action League, where she has held a number of positions since joining the organization in 1979. She previously served as District Director of Bershire Farms Services for Youth and was Director of Residential Services at Continuing Developmental Services, all of which are based in Rochester. Ms. Escher has a B.S. from the University of Puerto Rico and received her certification on Non Profit Leadership from Roberts Wesleyan College.