Rules and regulations of the Department of Civil Service reviewed.in accordance with §207 of the State Administrative Procedure Act

Rules and regulations of the Department of Civil Service reviewed in accordance with §207 of the State Administrative Procedure Act

Source: The New York State Register


§207 of the State Administrative Procedures Act, in pertinent part, provides that any rule adopted on or after its effective ion for the rule, provided that at a minimum every rule shall be initially reviewed no later than in the fifth calendar year after the year in which the rule is adopted, and, thereafter, every rule shall be re-reviewed at five-year intervals.

The April 15, 2015 issue of the New York State Register reports the publication of the Five Year review of certain existing rules and regulations set out in 4 NYCRR and the conclusion of the forty-five (45) day public comment period. No public comments were received regarding any of the rules and regulations listed below during this forty-five day comment period.

The rules and regulations reviewed were found to “have functioned consistent with the purposes underlying their adoption and are continued without modification:”

Adopted in 2000

1. Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service). The resolution added a new subdivision (vii) to paragraph (2) of subsection (b) of Rule 4.5 to provide for a probationary term for the position of “Thruway Maintenance Worker” of not less than 26 weeks nor more than 52 weeks.

2. Amendments to Chapter IV of 4 NYCRR (Regulations of the State Civil Service Commission [Commission’s Regulations]) A new §55.5 codified the long-standing Civil Service Commission practice of granting prior approval for certain examination rating keys, according to the conditions and standards set forth within such section, upon the request of the Civil Service Department’s Director of Examinations or his or her designee. The existing §§55.5 and 55.6 were renumbered §§55.6 and 55.7, respectively.

Adopted in 2005

Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service). The resolution added a new paragraph (viii) to subdivision (1) of subsection (b) of Rule 4.5 to provide for a probationary term for the positions of “University Police Officer 1” and “University Police Officer 1 (Spanish Language)” of not less than 52 weeks nor more than 78 weeks.

Adopted in 2010

Amendment to Chapter V of Title 4 of NYCRR (Regulations of the Department of Civil Service [President’s Regulations]). The resolution added a new paragraph to Rule 72.1 designating the Authorities Budget Office as a separate unit for suspension, demotion or displacement within the Department of State.

Individual’s right to due process in a disciplinary hearing was not violated when the complaining witness was absent from the hearing due to intimidation and feared to testify

Individual’s right to due process in a disciplinary hearing was not violated when the complaining witness was absent from the hearing due to intimidation and feared to testify

2015 NY Slip Op 03075, Appellate Division, First Department

The Commissioner of the New York State Department of Health adopted an Administrative Law Judge's recommendation to sustain the three charges alleging patient abuse and/or neglect by a certified nurse's aide [Aide]. The Aide appealed the Commissioner's determination but the Appellate Division sustained the Commissioner’s finding that the Aide was guilty of these three charges alleged in the notice of discipline.

The Appellate Division said that there was no basis for disturbing the ALJ’s determination with respect to the credibility of witnesses, citing Berenhaus v Ward, 70 NY2d 436.

The court found that there was substantial evidence in the record to support the ALJ’s findings including:

1. Consistent testimony from several witnesses;

2. Photographs of the patient’s bruises; and

3. The facility's clinical records.

Further, the Appellate Division said that the Aide’s right to administrative due process was not violated as the result of the patient's absence at the hearing as the record supports the ALJ’s finding that the patient was intimidated and was afraid to testify.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03075.htm

General Municipal Law §207-c Hearing Officer entitled to weigh conflicting medical opinions and determine which expert’s testimony to credit.

General Municipal Law §207-c Hearing Officer entitled to weigh conflicting medical opinions and determine which expert’s testimony to credit.

2015 NY Slip Op 03214, Appellate Division, Third Department

A correction officer [CO] at a county correctional facility sustained a concussion when he hit his head on a wall while attempting to restrain an inmate. Treated for symptoms attributed to a mild traumatic brain injury and post-concussive disorder, he began receiving benefits pursuant to General Municipal Law §207-c.*

Subsequently the County Sheriff [Sheriff] offered CO the opportunity to return to work on light duty status where he would be assigned to “a sitting job with no inmate contact and no lifting, pushing or pulling any objects in excess of two pounds.” CO refused to accept the light duty assignment and the matter was submitted to an administrative hearing in accordance with the relevant procedures set out in the collective bargaining agreement applicable to CO.

The Hearing Officer's recommendation: CO should be returned to light duty. The Sheriff adopted the Hearing Officer’s recommendation and ordered CO to report as assigned.** CO appealed the Sheriff’s decision.

The question before the Appellate Division: Was the Sheriff's determination supported by substantial evidence?

The Sheriff’s expert, a neuropsychologist, conducted an independent medical examination of CO that included a number of neuropsychological tests, had opined that CO could return to work, testifying that in his opinion”

1. CO had exerted "suboptimal effort" during the testing, and that he found nothing that would prohibit CO  from returning to work based on cognitive and psychological issues; and

2. After a follow-up examination of CO, Sheriff’s expert again opined that CO could return to work.

In contrast, CO’s, also a neuropsychologist, testified that CO displayed deficits in visual and mental processing, planning, language comprehension, attention, concentration and memory and in her opinion CO “was not able to work in the proposed light duty position.”

The Appellate Division explained that while CO’s expert did not agree with the Sheriff’s expert, the Hearing Officer was entitled to weigh the conflicting medical opinions and determine which expert’s testimony to credit.

Although CO had argued that the Sheriff’s expert’s opinion was based on unreliable test results and should not have been credited, the Appellate Division said that the Sheriff’s expert did not indicate that the test results were unreliable, but that the test results showed that CO's claims were unreliable.

The court dismissed CO’s appeal, holding that where the appointing authority’s determination is supported by substantial evidence, as it was in this case, it will not be disturbed.

* §207-c of the General Municipal Law provides for the payment of salary, wages, medical and hospital expenses of police officers and other law enforcement personnel suffering injuries or illness incurred in the performance of duties.

** §207-c 3 of the General Municipal Law provides, in pertinent part that in the event the individual is not eligible for or is not granted such accidental disability retirement allowance or retirement for disability incurred in performance of duty allowance or similar accidental disability pension and, in the opinion of such health authorities or physician, is unable to perform his regular duties as a result of such injury or sickness but is able, in their opinion, “to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty if the same is available and offered to him, provided, however, that such light duty shall be consistent with his [or her] status as a policeman...” [emphasis supplied].  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03214.htm

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Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 18, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 18, 2015

Click on the URL links highlighted in color to access the full report

State Departments and Agencies:

State Department of Education – Whitestone School for Child Development

For the three fiscal years ended June 30, 2013, auditors identified $154,563 in reported costs that did not comply with SED requirements and recommended such costs be disallowed. These ineligible costs included $115,296 in personal services costs and $39,267 in other than personal service costs.

URL link: http://osc.state.ny.us/audits/allaudits/093015/14s38.pdf

Department of Motor Vehicles – Case Advance Accounts

DMV has designed effective internal controls over accounts to ensure that funds are properly accounted for and payments are only made for appropriate business purposes. Tests showed these controls have generally operated as intended. However, auditors also found that DMV’s three cash advance accounts are overfunded in comparison to their apparent business needs.

URL link: http://osc.state.ny.us/audits/allaudits/093015/14s65.pdf

Department of Transportation – Lease and Permit Revenues

An initial report, issued in March 2013, determined DOT was not collecting all unpaid lease and permit fees. At the time of the audit, DOT was owed $6 million in lease and permit revenues, including $2.4 million between two and six years past due and another $1.4 million at least six years past due. DOT needed to improve communications between and guidance given to the units that issue permits and that bill permit holders. In a follow-up report, auditors determined that DOT implemented each of the four recommendations from the initial report.

URL link:  http://osc.state.ny.us/audits/allaudits/093015/15f1.pdf

DeVry College– Tuition Assistance Program

DeVry was overpaid $758,293 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include 14 students who received awards but had not demonstrated their academic preparedness for TAP awards. Twelve of these students did not have certificates of graduation, or the recognized equivalent of such a certificate, from a U.S. high school. The two other students had completed online study from a private school located in another state. Additional incorrect certifications include four students who did not meet the full-time requirements and three students who were not in good academic standing.

URL link:  http://osc.state.ny.us/audits/allaudits/093015/14t2.pdf

City Universityof New York – Time and Attendance for Public Safety Staff

Inadequate internal controls over time and attendance for public safety officers were identified. The overtime process could result in the payment of unauthorized and excessive overtime cost

URL link:  http://osc.state.ny.us/audits/allaudits/093015/13s65%20.pdf

Municipalities:

Village of Endicott – Budget Review

The significant revenue and expenditure projections in the tentative budget for the general, electric, library and parking funds are reasonable. The water and sewer funds’ tentative budgets are not balanced and include deficits of $257,000 and $155,000. Village officials plan to raise water and sewer rates to make up the difference. The village’s tentative budget exceeds the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/villages/2015/endicott_br.pdf

Village of Hempstead– Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. However, based on the 2015-16 proposed budget, the village will have exhausted 91 percent of its taxing authority. The village’s ability to rely on real property taxes as an increased revenue source in the future is limited. The village’s preliminary budget complies with the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/villages/2015/hempstead_br.pdf

City of Lackawanna– Police and Fire Department Work Hours

Police department overtime costs and overtime hours have steadily increased over the last several years. In addition, fire department time and attendance records were not always accurately maintained.

URL link:  http://www.osc.state.ny.us/localgov/audits/cities/2015/lackawanna.pdf

Town of Willing – Justice CourtOperations

The prior town justice did not accurately record and report money to the Justice Court Fund in a timely manner. Additionally, the prior justice did not prepare monthly bank reconciliations, properly account for bail money held by the court or accurately report fines and surcharges to the Department of Motor Vehicles.

URL link:  http://www.osc.state.ny.us/localgov/audits/towns/2015/willingjc.pdf

Town of Wright – Financial Operations

The board did not properly manage the town’s general fund balance from 2011 through 2014. As a result, the board accumulated general fund balance while raising taxes. However, beginning with the 2015 budget, the board plans to reduce the general fund balance to benefit taxpayers.

URL link:  http://www.osc.state.ny.us/localgov/audits/towns/2015/wright.pdf

School Districts

Alfred-Amond CSD – Financial Software Access and Monitoring

Although a previous audit recommended that the district adopt policies and procedures that restrict users’ financial software application permissions to only those functions that are necessary for their job duties, the district did not act on this recommendation. As a result, auditors identified 24 user accounts that had inappropriate or unnecessary access rights or permissions. Auditors also confirmed that the former district treasurer attempted to manipulate her paid leave accruals by adding 60 unauthorized sick days valued at approximately $10,000. District officials notified auditors that they discovered through an informal review of leave records that the former treasurer attempted to manipulate her paid leave records. District officials corrected the leave records, and the former treasurer did not receive any undue benefit.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/alfredalmond.pdf

Beachon City School District – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/beacon_br.pdf

Clhaarlotte Valley CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/charlottevalley_br.pdf

Chenango Valley CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/chenangovalley_br.pdf

East Moriches UFSD – Budget Review

The significant revenue and expenditure projections in the tentative budget are reasonable, except for appropriations for tuition fees for high school students, charter school tuition fees and social security and Medicare taxes. In addition, revenues from tuition payments received from other districts may be overestimated. The district’s preliminary budget complies with the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/eastmoriches_br.pdf

Eldred CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. However, the district’s proposed budget for health insurance is $164,625 higher than supporting documentation for health insurance estimates. The district’s preliminary budget complies with the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/eldred_br.pdf

Favius-Pompey CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit. 

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/fabiuspompey_br.pdf

Green Tech High Charter School – Resident Tuition Billing

Auditors found $306,175 in school district billings were not paid in a timely manner because resident school districts denied payment due to lack of proof of residency or other enrollment issues.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/greentechcharter.pdf

Niagara-Wheatfild CSD – Financial Condition

A delay in state aid reimbursements for the Tuscarora Indian School has caused cash flow problems for the district. Without the aid, the district used general fund resources and cash flow borrowing to finance operations. The district has also issued a significant amount of short-term cash flow borrowing during the past three fiscal years.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/niagarawheatfield.pdf

Employees’ requests to switch from the State University’s Optional Retirement Program to the New York State and Local Employees’ Retirement System rejected

Employees’ requests to switch from the State University’s Optional Retirement Program to the New York State and Local Employees’ Retirement System rejected

2015 NY Slip Op 03216, Appellate Division, Third Department

The State Comptroller denied requests submitted by four employees employed by SUNY’s Stony Brook University Medical Center [SBUMC] currently enrolled in the State University’s Optional Retirement Program [ORP] seeking to be enrolled in the New York State and Local Employees' Retirement System [NYSLERS] retroactive to  their respective initial dates  of employment by SBUMC.

Upon learning that they had been eligible for enrollment in NYSLERS when they were initially appointed by SBUMC, the four individuals applied for enrollment in NYSLERS but their applications were denied. Following an administrative hearing the employees’ enrollment applications were again denied by a Hearing Officer. The Comptroller subsequently adopted the Hearing Officer's determinations and the employees appealed in an effort to have the Comptroller’s decision annulled.

The Appellate Division noted that Education Law §393(1)(a), in relevant part, provides that employees eligible to enroll in ORP "shall elect" to join either NYSLERS [sic] or ORP.*The court said in the event an employee fails to make an election, he or she "shall be deemed to have elected membership in NYSLERS [sic]," (See Education Law §393[1][b]).** Upon enrollment in ORP, an employee becomes "ineligible for membership" in NYSLERS (See Education Law §393[2]).

The court ruled that the Comptroller's determinations should be upheld because they were supported by substantial evidence. Further, said the Appellate Division, “Courts will not disturb the Comptroller's application and interpretation of relevant statutes unless it is irrational or contrary to the plain language of the statutes.”

According to the decision, the record before the Comptroller indicated that:

1. Two of the employees each testified that they met with a human resources representative of SBUMC who informed them that they could not enroll in NYSLERS, so they filled out forms electing ORP.

2. A third employee said that she received the same information, but did not check the box for ORP on the retirement program election form. Although she alleges that someone else must have checked the box, the individual acknowledged that she completed and signed a separate application to enroll in ORP.

3. The fourth employee  testified that he never enrolled in a retirement program and the enrollment form produced by SBUMC was forged. Despite this alleged forgery and not having enrolled in a retirement program, this individual was aware that he had a pension plan, which was ORP, and did not object or raise any questions about it for 25 years after his employment began.

The Comptroller determined, “through a reasonable application of these facts and the relevant statutes,” that the four employees were ineligible for enrollment in NYSLERS because they were enrolled in ORP. The employees, in contrast, had contended that they did not "elect" to join ORP "as opposed to NYSLERS — inasmuch as an election implies a voluntary choice, which was impossible here because they were misinformed and told that they had no options — so they should be deemed members of NYSLERS pursuant to Education Law §393(1)(b)."

The Appellate Division held that “As Education Law §393 does not define 'elect,'*** and it is reasonable to interpret that word to include the filing of an enrollment form for one particular retirement program regardless of the applicant's knowledge of other options, we will not disturb the Comptroller's interpretation.”

Finally, the court observed that the Comptroller is not estopped from denying enrollment in NYSLERS, as required by statute, after the employees  enrolled in ORP due to erroneous advice supplied by the individuals’ employer, citing Retirement and Social Security Law §45.

The Appellate Division then confirmed the Comptroller’s determinations and dismissed the petitions filed by the employees.

* §393(1)(g) of the Education Law provides that “No election by an eligible employee of the optional retirement program shall be effective unless it shall be accompanied by an appropriate application, where required, for the issuance of a contract or contracts under the program.” Another element to be considered is set out in §393(5)(d) which provides that “Anything in this subdivision five notwithstanding, service as an eligible employee for which a contribution is made to the optional retirement program shall neither entitle any eligible employee to join or rejoin the New York state teachers' retirement system nor be creditable in such system.”

** Presumably the four employees were ineligible to enroll in the New York State Teachers’ Retirement System at the time they were appointed by SBUMC as §393(1)(b) provides, in pertinent part, “In the event an eligible employee fails to make an election as provided in paragraph (a) of this subdivision, he [or she] shall be deemed to have elected membership in the New York state teachers' retirement system, or such public retirement system in this state in which his [or her] membership may be otherwise required in accordance with law….”

*** See “Retirement Program Election Form,” on Page 16 of the State University of New York’s handbook entitled Retirement Plans for New Faculty and Staff. 

The handbook is posted on the Internet at:

http://www.suny.edu/media/suny/content-assets/documents/benefits/retirement-systems/Retirement-Programs-Jan-2015.pdf

The Appellate Division’s decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03216.htm

Summaries of recent disciplinary decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent disciplinary decisions posted on the Internet by the New York CityOffice of Administrative Trials and Hearings [OATH]

Source: NYC Office of Administrative Trials and Hearings

Click on text highlighted in color to access the text of the decision.

Correction officer may not engaged in undue familiarity with an inmate

OATH Administrative Law Judge Kara J. Miller found that a correction officer had engaged in undue familiarity with an inmate by failing to notify the Department that her husband had been arrested and incarcerated on Rikers Island, by taking telephone calls from him on her post phone and cell phone while on duty, and by disclosing Department business to him during the calls. The officer also threatened and assaulted a woman who she believed was having an affair with her husband after he was released from jail. Termination of employment recommended.   Dep't of Correction v. Harris, OATH Index No. 2383/14

Removal of an individual’s name from a published OATH decision

OATH Administrative Law Judge Faye Lewis denied a correction officer's motion to remove his name from a published OATH decision. Reports and recommendations issued by OATH, an independent tribunal, are not "under the control" of the Department of Correction and thus do not fall within the confidentiality provisions of section 50-a of the Civil Rights Law.   Dep't of Correction v. Victor, OATH Index No. 388/15.

 Employee’s being provoked a mitigating factor in imposing disciplinary penalty

OATH Administrative Law Judge Kara J. Miller recommended dismissal of charges that a sewage treatment worker had left his assigned work location, threw a clipboard at a co-worker and neglected his duties. She sustained a charge that he had used threatening language towards the co-worker, but found he was provoked and recommended a reprimand as the penalty. ALJ Miller recommended dismissal of all charges brought against a second sewage treatment alleged to have challenged a co-worker to a fight and to have cursed the co-worker.   Dep't of Environmental Protection v. Butcher, OATH Index Nos. 297/15 & 299/15

Including inappropriate language in official correspondence

OATH Administrative Law Judge Faye Lewis found that a case worker had sent official correspondence to a client that contained insulting language and was insubordinate and discourteous to a supervisor by failing to complete an assignment and instead ripping up a document in protest, in view of co-workers.   Human Resources Admin. v. Lovell, OATH Index No. 2477/14 

Seeking indemnification for legal expenses pursuant to Public Officers Law §18

Seeking indemnification for legal expenses pursuant to Public Officers Law §18

Paul W. Mossman as Commissioner of Social Services of Columbia County v County of Columbia (Two Proceeding), 2015 NY Slip Op 03005, Appellate Division, Third Department

In Proceeding No. 1 pursuant to CPLR Article 78 Commissioner Mossman [Mossman], among other things, sought a court order annulling the County’s determination that he was not entitled to a legal defense pursuant to Public Officers Law §18 “in connection with a certain grand jury proceeding.”

In Proceeding No. 2 pursuant to CPLR Article 78 Mossman sought a court order directing the County “to provide such a legal defense in connection with a subsequent grand jury proceeding.”

In March 2013 the Columbia County District Attorney issued a subpoena demanding that Mossman appear before a grand jury with various documents related to the official actions of Columbia County Department of Social Services employees. Mossman thereafter sought to retain outside counsel and requested that the County indemnify him pursuant to Public Officers Law §18 and Columbia County Code §36-1. The County denied Mossman’s request stating that those provisions of law did not apply to "potential criminal matters."

Mossman challenged the County’s decision and a Supreme Court granted his petition in a December 2013 judgment.

In March 2014 the Columbia County District Attorney served a similar subpoena on Mossman and the County again denied Mossman request to be indemnified for his legal expenses. Mossman initiated an second CPLR Article 78 proceeding and Supreme Court, relying upon its rationale in Proceeding No. 1, issued a judgment in April 2014 granting Mossman‘s petition.

The County appealed both the December 2013 and April 2014 Supreme Court judgments. The Appellate Division, however, affirmed both Supreme Court rulings, explaining:

1. The County had adopted Public Officers Law §18, and was thus obliged to "provide for the defense of [an] employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his [or her] public employment or duties," citing Public Officers Law §18[3][a]). 

2.      As “a conflict of interest” prevented the Columbia County Attorney from representing Mossman, Mossman was entitled to representation "by private counsel of his choice."

  

3.      Mossman satisfied the notice requirements of Public Officers Law §18 and is an employee of the County, and the subpoenas clearly stem from actions undertaken in the course of his public duties.

The Appellate Division rejected the County’s argument that the grand jury proceeding did not constitute a "civil action or proceeding" for the purposes of Public Officers Law §18 as the County “failed to demonstrate" what was the objective of the grand jury proceeding and admitted that the District Attorney had not made his "intentions [known] in relation to the potential for criminal charges." The court also noted that although grand juries may indict a person for a criminal offense “they are also empowered to make presentments as to noncriminal misconduct or neglect by public officers and employees."*

The court said that because there was no indication that criminal charges are actually being contemplated, Supreme Court properly "reject[ed] [the County’s] claim that because the [g]rand [j]ury proceeding[s] could have resulted in criminal charges against [Mossman ], the proceeding[s] [were] not civil in nature" and that any other holding “would defeat the clear intent of the statute, which insulates public employees from litigation expenses arising out of their employment."**

* The Appellate Division said that the subpoenas served on Mossman sought information regarding "all of [Mossman] employees and subordinates." Contrary to the County’s contention, the Appellate Division said that the statutory power to report on the noncriminal misconduct of any public servant bears no connection to the separate constitutional right of a grand jury to investigate and indict public officers.

** Public Officers Law §19.2, which applies to employees of the State as the employer, provides, in pertinent part, "it shall be the duty of the   state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his  or  her  defense  of  a  criminal   proceeding in  a  state  or  federal court arising out of any act which   occurred while such employee was acting within the scope of  his  public   employment  or  duties  upon  his acquittal or upon the dismissal of the criminal charges against him or reasonable attorneys' fees  incurred  in   connection  with an appearance before a grand jury which returns no true   bill against the employee where such appearance was required as a result of any act which occurred while such  employee  was  acting within  the   scope  of  his public employment or duties unless such appearance occurs   in the normal course  of  the  public employment  or  duties  of  such   employee.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2015/2015_03005.htm

Asking an administrative body to reconsider its earlier decision does not revive an expired statute of limitation without a fresh examination of the matter based on newly presented evidence

Asking an administrative body to reconsider its earlier decision does not revive an expired statute of limitation without a fresh examination of the matter based on newly presented evidence

The Board of Education denied a teacher’s request for family health insurance benefits in May 2008, explaining that she was not eligible for coverage under the terms of the relevant collective bargaining agreement.

In May 2012, the teacher submitted another request for family health insurance benefits. This request was, again, denied by the School District in August 2012. In November 2012 the teacher commenced a CPLR Article 78 proceeding challenging the School District’s decision.

In its answer to the teacher's petition the School District contended that the proceeding was untimely, arguing that the second request for family health insurance benefits did not renew or revive the statute of limitations. Supreme Court disagreed, holding that the teacher’s Article 78 petition was timely and the School District appealed.

The Appellate Division, contrary to the Supreme Court's determination, ruled that the School District was correct.

The court explained that as a general rule, a proceeding pursuant to CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding on the petitioner and that the initial determination controls "unless the agency conducts a fresh and complete examination of the matter based on newly presented evidence.” The Appellate Division concluded that the August 2012 determination did not serve to revive the limitations period, as the School District adhered to its initial determination without a fresh examination based on newly presented evidence.

Accordingly, the Appellate Division ruled that “this proceeding is barred by the four-month statute of limitations set forth in CPLR 217(1).”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02977.htm

New York State Comptroller Thomas P. DiNapoli proposes legislation to assist State and local governments pay for retiree health care premiums

New York State Comptroller Thomas P. DiNapoli proposes legislation to assist State and local governments pay for retiree health care premiums

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli today announced legislation to create an optional investment pool to help the state and local governments fund retiree health insurance and other post employment benefits (OPEB). DiNapoli estimates the unfunded OPEB liability of New York state to be $68.2 billion and an additional $68.3 billion for local governments outside of New York City that have reported data.

When a public employee retires, the individual is often eligible for benefits including a pension and health insurance. While pension costs are pre-funded and invested to help pay for these future benefits, most governments, including New York state, do not set aside funds for retiree health insurance and instead fund it on a “pay-as-you-go” basis or out of pocket. The funding mechanism DiNapoli is proposing would give public employers another option to help fund these benefits for present day employees.

“New York is behind the eight ball on this issue. More than thirty states have already put rules in place that allow public employers to set aside money today to pay for these benefits,” DiNapoli said. “The numbers are daunting, but there is a real cost to doing nothing and leaving the bill for future generations of taxpayers to cover. The legislation would establish the legal structure for creating trusts that the state and local governments could use to start saving the funds needed to pay for these benefits. The responsible, good government thing to do is to start preparing for the future and plugging the hole before we reach a crisis moment.”

In state fiscal year (SFY) 2013-14, the state’s total unfunded OPEB liability is estimated at $54.3 billion for state agencies and $13.9 billion for the State University of New York (SUNY). Together, New York state and SUNY paid $1.5 billion for retiree health insurance in SFY 2013-14, which is half of what is needed to fully fund the OPEB liability. Costs for retiree health insurance are expected to grow as the workforce ages, people live longer and health care costs continue to increase. Current estimates project at least 6 percent annual increases for health insurance premiums – which means OPEB costs will double within 12 years.

If the state were to begin making regular annual contributions to a trust and earn a return on investments, it would potentially save billions of dollars in future OPEB cash payments.

The unfunded OPEB liability for the 837 of 2,293 local governments that reported it to DiNapoli’s office totaled $68.3 billion.

Moody’s Investors Service estimates the total national unfunded liability at $530 billion for states alone. New York is second to California in highest total OPEB liability, but it lags other states in starting to address this problem. Thirty-three states already have funding mechanisms to set aside funds to pay for OPEB costs.

DiNapoli’s proposal (Assembly 5525/Abbate) would:

1. Authorize the creation of irrevocable OPEB trusts, not part of the New York State Common Retirement Fund, so that New York state and its local governments can, at their option, help fund their OPEB liabilities;

2. Establish an OPEB investment fund in the sole custody of the State Comptroller for the investment of OPEB assets of the state and participating eligible local governments;

3. Designate the president of the Civil Service Commission as the trustee of the state’s OPEB trust and the governing boards as trustee for local governments; and

4. Allow school districts to transfer excess reserve balances to an OPEB trust once it is established.

Under DiNapoli’s proposal, there is no limit on how much or how little a government can deposit into the trust.

New York City, which has already begun funding its $89.5 Billion OPEB liabilities would be grandfathered in under its own statute. In 2006, the city established the Retiree Health Benefits Trust (RHBT), which currently has a balance of $2.4 billion. New York City Councilman Daniel Garodnick has proposed a City Charter amendment that would require the city to put at least 5 percent of its annual retiree health insurance expenses into a reserve fund under certain circumstances.

Since 2004, the Governmental Accounting Standards Board (GASB) has required state and some local governments to report their OPEB liabilities on their financial statements as obligations accrued during an employee’s entire period of service.

In 2015, GASB is finalizing additional accounting and financial reporting requirements, which will standardize how local governments report their OPEB liabilities.

DiNapoli notes that governments with no plan to deal with their large OPEB liabilities could see their bond ratings suffer and borrowing costs increase down the road.

Information concerning the proposed legislation is posted on the Internet at:

Memo

Bill Text

Status

An entity claiming that it is not subject to the State’s Freedom of Information Law has the burden to provide documentary evidence that conclusively establishes such a defense as a matter of law

An entity claiming that it is not subject to the State’s Freedom of Information Law has the burden to provide documentary evidence that conclusively establishes such a defense as a matter of law

Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 2015 NY Slip Op 02972, Appellate Division, Second Department

The Nassau County Community College Foundation [Foundation] denied Nassau Community College Federation of Teachers, Local 3150’s [Local 3150] request for certain information pursuant to the Freedom of Information Law [FOIL], Public Officers Law, Article 6. Foundation contended that it “is not a governmental agency and, therefore, is not subject to FOIL”.

In response to Local 3150’s Article 78 petition, Foundation moved to dismiss the petition insofar as it was  asserted against it. Supreme Court granted Foundation's motion but the Appellate Division reversed the lower court’s ruling and reinstated Local 3050’s petition insofar as asserted against the Foundation.

What is an “agency?” The Appellate Division said that an "agency" is "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature," citing Public Officers Law §86[3].

The court then noted that Nassau Community College [College] is a public college, chartered under Education Law Article 126, sponsored and partially funded by Nassau County, and Foundation is a not-for-profit corporation created in 1979 to support the College's mission.

The Appellate Division explained that FOIL "was enacted to promote open government and public accountability and imposes a broad duty on government to make its records available to the public" and all "public agencies" are subject to FOIL,” citing Perez v City University of New York, 5 NY3d 522.

As to Foundation’s motion to dismiss Local 3150’s petition with respect to it, the Appellate Division said that Foundation had the burden to provide documentary evidence that "utterly refute[d] [Local 3150’s] factual allegations, conclusively establishing a defense as a matter of law.

Foundation failed to meet this burden, said the court, as it did not establish that it lacks the attributes of a public entity. Accordingly, Foundation was deemed a public agency and Supreme Court should have denied Foundation’s motion to dismiss Local 3150’s petition insofar as asserted against it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02972.htm