Recent findings and recommendations of OATH Administrative Law Judges

Recent findings and recommendations of OATH Administrative Law Judges

Source: New York City Office of Administrative Trials and Hearings

[Click on text highlighted in color  to access the full text of the determination]

Failure to return lost property to patient

Health & Hospitals Corp. (Henry J. Carter Specialty Hospital) v. Savain, OATH Index No. 217/15

Employee, a hospital institutional aide, was charged with failing to follow protocol for returning found property and with being intoxicated while on duty. Employee took possession of a patient's clock radio that was left behind during a patient move. Employee testified that she placed the radio on her cart for safekeeping, with the intent of giving it to her supervisor at the end of her shift, but that she was confronted by the patient's son before she could do so and she returned it to him. 

ALJ Alessandra F. Zorgniotti recommended dismissal of the charge finding that Employer did not prove that Employee was on notice of a rule or policy mandating the immediate report of lost property to a supervisor. Employee's decision to wait until the end of her shift to bring the radio to housekeeping was not so unreasonable as to be considered negligence. 

As for the intoxication charge, the son's claim that he smelled alcohol on Employee's breath when he walked alongside her was contradicted by surveillance video which showed Employee left the room first and the son followed several paces behind and testimony from Employee's supervisor, who did not smell alcohol. 

Dismissal of the charges recommended. 

Unauthorized absences

Health & Hospitals Corp. (Dr. Susan Smith McKinney Nursing & Rehabilitation Ctr.) v. Ellis, OATH Index No. 1710/14

Employee, a service aide, was charged with five individual absences without authorization, a long-term period of absence without authorization and failing to adhere to two directives to resolve her employment status. 

The charges were established by documentary evidence and the testimony of Employer's witnesses. 

Employee had been previously disciplined for similar wrongdoing and was aware of Employer's policies and procedures. 

ALJ Kara J. Miller recommended termination of Employee's employment.  

Placement on involuntary leave pursuant to §72 of the Civil Service Law

Human Resources Admin. v. M.O., OATH Index No. 173/15

Employer sought to place employee, a clerical associate, on an involuntary leave of absence under §72 of the Civil Service Law, alleging that she is mentally unfit to perform the duties of her position. Employer had directed Employee to undergo psychiatric evaluation after Employee continually exhibited inappropriate, disruptive, and aggressive behavior at work. 

The evaluating psychiatrist offered testimony and a report declaring that Employee suffered from a severe functional psychiatric disorder and that her behavior was incompatible with her work duties. Employee maintained that she was fit to work, submitting a one-paragraph letter from her treating psychiatrist. 

Following a hearing, ALJ Astrid B. Gloade found Employer's proof more persuasive and she recommended that Employee be placed on §72 disability leave.  

To learn of the disposition of the OATH ALJ’s recommendations by the referring agency, please contact OATH's calendar unit at 1-844-628-4692.

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Determining when the statute of limitations commences to run with respect to a “quasi-legislative” administrative determination

Determining when the statute of limitations commences to run with respect to a “quasi-legislative” administrative determination
Matter of School Adm'rs Assn. of N.Y. State v New York State Dept. of Civ. Serv., 2015 NY Slip Op 00676, Appellate Division, Third Department

On May 15, 2012, the New York State Department of Civil Service's Employee Benefits Division issued policy memorandum indicating the circumstances under which an employee of an agency participating in the New York State Health Insurance Program [NYSHIP] may decline health insurance enrollment in NYSHIP in exchange for a cash payment or other benefit, which policy was to take effect immediately.. 

Insofar as was relevant in this action, the policy provided that such an employee could “opt out” of NYSHIP coverage in exchange for a monetary payment only if he or she had health insurance coverage available under another employer-sponsored group other than NYSHIP. Significantly, the policy precluded an employee's receiving an opt-out payment if he or she had health insurance coverage as the dependent of a spouse having health insurance through NYSHIP. 

The Brentwood Union Free School District [Brentwood] was a NYSHIP participating employer. Although not contractually obligated to do so, Brentwood had offered a buyout program for a number of years that enabled its employees to decline NYSHIP coverage in exchange for a monetary payment representing 50% of the premium that the District otherwise would have paid to NYSHIP to provide health insurance coverage for such employee. With the promulgation of the May 15, 2012 policy Brentwood would discontinue the “opt-out” payments to its employees having dependent health insurance coverage under his or her spouse’s health insurance coverage through NYSHIP.

On March 4, 2013, the School Administrator’s Association of New York State commenced a combined CPLR Article 78/action for declaratory judgment on behalf of a number of its members employed by Brentwood affected by the May 15, 2012 policy. The Association asked the court, among other things, to declare the policy null and void and to enjoin Brentwood “from discontinuing its past practice of offering the original NYSHIP buyout program.” 

As to the “past-practice” issue involving the Brentwood employees, Supreme Court found that this claim fell within the exclusive jurisdiction of the Public Employment Relations Board and, therefore, dismissed this element of the action “for lack of subject matter jurisdiction.”

As to the Article 78 action, Supreme Court found that the four-month statute of limitations began to run on the effective date of the policy — May 15, 2012 — and, accordingly, dismissed the Association’s proceeding/action as untimely, since it had been fiiled more than four months after the effective date of the policy. The Association appealed the Supreme Court’s ruling with respect to the timeliness of its Article 78 action.

The Appellate Division, noting that the Association had attempted to mitigate the impact of the policy by filing an improper practices charge against Brentwood with the Public Employment Relations Board alleging it had unilaterally altering its buyout program without engaging in collective bargaining, affirmed the Supreme Court’s determination, explaining that this effort did not affect the finality of the Department of Civil Service's determination.

The parties agree that this combined CPLR Article 78 proceeding and action for declaratory judgment was governed by a four-month statute of limitations. Accordingly, said the court, both the statute and case law make clear that the statute of limitations period for a CPLR Article 78 proceeding begins to run when "the determination to be reviewed becomes final and binding upon the petitioner." The Appellate Division said that the administrative action "becomes 'final and binding' when two requirements are met: 

1. Completeness (finality) of the determination; and 

2. Exhaustion of administrative remedies. 

This event is measured by the administrative agency having reached “a definitive position on the issue” that first, allegedly inflicts actual, concrete injury and second, the injury inflicted may not be “significantly ameliorated by further administrative action or by steps available to the complaining party."

In this instance, said the court, the quasi-legislative determinations such as the one at issue here does not require actual notice of the challenged determination but rather the statute of limitations begins to run once the administrative agency's "definitive position on the issue [becomes] readily ascertainable" to the complaining party. The Appellate Division said that the Department of Civil Service had satisfied this notice requirement by, among other things:

1. Mailing copies to the chief executive officers of all participating agencies;

2. Mailing copies to any individual who had requested a copy via the participating agency "Courtesy List;" 

3. Posting the memorandum on a website for health benefit administrators (to which union representatives could request access); and

4. Discussing the memorandum at the NYSHIP participating agency regional meetings hosted by the Department of Civil Service in October 2012.

Under these circumstances, said the court, “we are of the view that [the Association’s] claims accrued — and the statute of limitations began to run — upon the effective date of the policy, i.e., May 15, 2012.”

Further, observed the court, even it “were to defer the triggering of the statute of limitations until the October 2012 [NYSHIP ]regional meetings, the instant proceeding and action — commenced in March 2013 — still would be time-barred.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00676.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 31, 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 

Office of Children and Family Services; 

Department of Environmental Conservation; 

Department of Health; 

Metropolitan Transportation Authority; 

New York State Health Insurance Program; 

Office of Parks, Recreation and Historic Preservation (Administration of Concession Services at Riverbank State Park); 

Office of Parks, Recreation and Historic Preservation (Preservation of Safety Infrastructure – Follow-Up); 

Town of Goshen; 

Town of Hague; and 

Seaford Fire District.

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New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System reports 90 schoold districts experiencing fiscal stress

New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System reports 90 schoold districts experiencing fiscal stress

Source: Office of the State Comptroller

Ninety school districts, more than 13 percent of districts statewide, have been designated as fiscally stressed under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. DiNapoli’s office evaluated 672 school districts with fiscal years ending on June 30, 2014.

This is the second year DiNapoli’s office has assessed and scored the financial stability of school districts. The second round of scoring designated 10 school districts in “significant fiscal stress,” 27 in “moderate fiscal stress” and 53 as “susceptible to fiscal stress.” Last year, a total of 87 districts were listed in fiscal stress.

Using financial indicators that include year-end fund balance, short-term borrowing and patterns of operating deficits, the monitoring system creates an overall fiscal stress score which classifies whether a district is in “significant fiscal stress,” in “moderate fiscal stress,” is “susceptible to fiscal stress,” or has “no designation.”

The ten school districts that were classified in “significant stress” were: Wyandanch Union Free School District (Suffolk County); Niagara-Wheatfield Central School District (Niagara); East Ramapo Central School District (Rockland); Lawrence Union Free School District (Nassau); Watervliet City School District (Albany); Copiague Union Free School District (Suffolk); Lewiston-Porter Central School District (Niagara); West Seneca Central School District (Erie); Hempstead Union Free School District (Nassau); and the Peekskill City School District (Westchester).

The announcement did not include scores for the dependent school districts in the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers. Information for these districts will be incorporated into the scoring for their respective cities later this year

According to a research report issued January 29, 2015, concerning school districts with the fiscal stress scores, school districts found to be in fiscal stress share a number of common characteristics. Most are operating with low fund balance, a pattern of operating deficits and limited cash on hand. In addition, DiNapoli’s office found high-need urban/suburban school districts were four times more likely to be in fiscal stress than low-need districts.

The report also noted a number of significant improvements among certain school districts. For example, the Kiryas Joel Village Union Free School District in Orange County experienced a 50 percent decrease in its fiscal stress score. Eleven other districts saw a drop of 25 percentage points or more, including: the Elmira City School District (Chemung County), Gananda Central School District (Wayne), General Brown Central School District (Jefferson), Hudson City School District (Columbia), Maine-Endwell Central School District (Broome) and the Tupper Lake Central School District (Franklin).

DiNapoli’s report also highlighted:

1. Regions with the highest number of stressed school districts were Long Island (19 districts);the Capital District (12); Western New York (12); the Southern Tier (11) and Central New York (11);

2. More than 80 percent of school districts statewide were not in a fiscal stress category in either 2013 or 2014;

3. Four districts dissolved and two were newly created in 2014. These districts were not evaluated;

4. 5igh-need rural districts in fiscal stress increased by nearly 3 percentage points; and

5. Operating deficit was the indicator with the largest year-to-year change. This year, 28 percent of districts received a lower score on this indicator (showing less fiscal stress), while 19 percent scored higher (indicating increasing fiscal stress).

For a list of school districts in fiscal stress, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/schools/2015_SchoolStressList.pdf

For the complete list of school district fiscal stress scores, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/schools/2015_SchoolSummaryList.pdf

For a copy of the fiscal stress commonalities report, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/2015_SummaryResultsSchoolDistricts.pdf

Employee deemed to have voluntarily resigned from her position found eligible for unemployment insurance benefits under the circumstances

Employee deemed to have voluntarily resigned from her position found eligible for unemployment insurance benefits under the circumstances

Matter of Bowman (City of Niagara Falls--Commissioner of Labor), 2015 NY Slip Op 00425, Appellate Division, Third Department

An individual may have but one domicile at time, i.e., his or her permanent place of abode, which continues until he or she has acquired a new one and any party alleging a change in an individual’s domicile “has the burden to prove the change by clear and convincing evidence."

In contrast, an individual may have multiple places of residence simultaneously, i.e., two or more residences in the same or at different geographical locations -- an apartment in New York City, a cottage at Cape Cod, a flat in London, England -- in which he or she may, from time to time, live, but only one such residence is his or her domicile.

The City of Niagara Falls’ local law requiring its employees to be residents of the City. The local law defined residency as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any" (Local Law No. 3 [1996] of City of Niagara Falls).

Sandra M. Bowman, who had been employed by the City from 1986 to 2011, was terminated after being deemed to have voluntarily resigned from her position in the Community Development Department for allegedly violating the City's local law requiring its employees to be residents.

Bowman applied for unemployment insurance benefits and also initiated an Article 78 action in Supreme Court, Niagara County, seeking reinstatement to her former position with the City. Supreme Court granted her petition, ruling that the City acted arbitrarily and capriciously in finding that Bowman did not reside in the City.

Subsequently, an Unemployment Insuance Administrative Law Judge ( ALJ) concluded that Bowman did not voluntarily leave her employment without good cause nor did she commit disqualifying misconduct for purposes of receiving unemployment insurance benefits, noting that she had provided her driver's license, a lease agreement, a rent check, her vehicle and voter registration, as well as other documentation showing her address to be within the City, and found that she slept at that address. The ALJ ruled that because "claimant met multiple indicators to establish that her Niagara Falls residence was her actual principal residence under the law, . . . claimant did not violate the law; as established during the [CPLR] [a]rticle 78 proceeding, which resulted in the annulment of the claimant's termination." The Unemployment Insurance Appeal Board affirmed, adopting the ALJ's findings of fact and opinion.

Shortly thereafter the Appellate Division, Fourth Department reversed the Supreme Court judgment holding that “the evidence that petitioner produced "was not so overwhelming . . . under the extremely deferential standard applied in reviewing administrative determinations" to support Supreme Court’s granting Bowman’s petition.

Niagara Falls then appealed the Unemployment Insurance Board’s determination to the Appellate Division, Third Department, contending that the Board's determination lacked a rational basis because it improperly relied upon the subsequently-reversed judgment of Supreme Court in Niagara County.

The Third Department sustained the Board’s decision, explaining that the Fourth Department did not hold that the City had established that Bowman actually resided and normally slept at a residence outside the City but rather the Fourth Department concluded that, under the extremely deferential standard that was applicable upon review — whether the City's initial determination was arbitrary and capricious or an abuse of discretion, it could not conclude that there was "no rational basis" for that determination (see Matter of Bowman v City of Niagara Falls, 107 AD3d at 1418).

In addition, the Third Department rejected the City's claim that the Board heavily relied upon the decision of Supreme Court in making its determination. The court said that “a fair reading of the ALJ's decision demonstrates that the Board made its own factual findings” as to whether Bowman violated the City’s residency requirement, and substantial evidence supports the determination that Bowman “did not engage in disqualifying misconduct or voluntarily separate from her employment.”

The decision is posted on the Internet at:
www.nycourts.gov/reporter/3dseries/2015/2015_00425.htm
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United States Supreme Court distinguishes a law from a regulation for the purposes the federal whistle blower statute

United States Supreme Court distinguishes a law from a regulation for the purposes the federal whistle blower statute

Department of Homeland Security v MacLean, USSC #13-984

A federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain flights.

He was subsequently dismissed from his position for disclosing sensitive security information without authorization in violation of TSA regulations, which action was sustained by the Merit Systems Protection Board. The Board found that MacLean was not entitled to whistle blower protection for the disclosures he made, finding that such statements were specifically prohibited by TSA's regulation.

The TSA regulation at issue, 67 Fed. Reg. 8351, prohibited the unauthorized disclosure of “sensitive security information” which included "[s]pecific details of aviation security measures . . . [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations."

The USCA, Federal Circuit, vacated the Board’s determination.

The Supreme Court affirmed the Federal Circuit’s ruling, explaining that Congress had used phrase "specifically prohibited by law" rather than a more general phrase such as “law, rule or regulation” in creating exceptions to the protections of the federal whistle blower statute [5 U.S.C. 2302(b)(8)(A)].

TSA's regulations, said the court, do not qualify as "law" for the purposes of 5 USC 2302(b)(8)(A) and thus such regulations do not satisfy the requirement that the provision constitute an “exception prohibited by law.”

For the purposes of “Whistle Law” protection, New York courts have distinguished between disclosures concerning of matters of public interest, which are subject to such protection and disclosures concerning matters of a personal nature or personal interest, which disclosures are not protected by the State’s Whistle Blower laws [Civil Service Law §75-b and Labor Law §740.(2)] or New York City’s Administrative Code §12-113.

 

The MacLean decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/14pdf/13-894_e2qg.pdf

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