Disclosure of confidential information

Disclosure of confidential information
OATH Index No. 984/15.

Administrative Law Judge John B. Spooner sustained charges that agency attorney had disclosed confidential information through emails to a private attorney representing an inmate in a lawsuit against the City in violation of Department rules and state and city laws.

ALJ Spooner found mitigation in the attorney’s long unblemished service record, his forthrightness when confronted with the emails, his acknowledgment that he made a mistake, his expression of remorse and previously served 30-day pre-hearing suspension.

Posted on the Internet at:http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-984.pdf[Modified on penalty: Commissioner imposed the penalty of termination of employment, finding the attorney had breached the attorney-client privilege and his disclosures rendered him a security risk to the Department.]

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Definition of full day worked for certain employees who contract for other than a 5-day standard work week [I.D. No. AAC-24-15-00004-P] amending 2 NYCRR 315.3(b)(4)(ii)

Definition of full day worked for certain employees who contract for other than a 5-day standard work week [I.D. No. AAC-24-15-00004-P] amending 2 NYCRR 315.3(b)(4)(ii)

Source: New York State Register, June 17, 2015

The purpose of the amendment of 2 NYCRR 315.3(b)(4)(ii), show below in italics, is to define full day worked for certain employees who contract for other than a 5 day standard work week. This is a “Consensus Rule Making Determination” for the sole purpose of defining a full day worked for certain full time employees. This amendment relates to the definition of a full day worked for certain full time employees and it has been determined that no person is likely to object to the adoption of the rule as written.

(ii) A full day worked shall be any day on which the employee performs paid service for at least the standard number of hours required for the position in which such service is rendered. In no event shall less than six hours be considered to be a full day.

For full time employees performing services pursuant to a collective bargaining agreement or contract that provides for other than a five day standard work week paid at straight time, an employer may report them at full time per their payroll cycle, provided the cumulative number of hours equal at least 120 hours a month. A full day worked for such employees shall be a minimum of six hours of accumulated time worked and paid at the straight time rate. The minimum number of hours which shall be reported as days worked, for the purpose of reporting preliminary credit, for a full year of service credit for such employees is 1,560 hours.

Public comment will be received until: 45 days after publication of this notice – June 17, 2015. Views or arguments may be submitted to:

Jamie Elacqua, Office of the State Comptroller, 110 State Street, Albany, NY 12236, (518) 473-4146, 

Email: jelacqua@osc.state.ny.us

Termination a reasonable disciplinary penalty under the circumstances

Termination a reasonable disciplinary penalty under the circumstances
2015 NY Slip Op 04923, Appellate Division, First Department

Holding that substantial evidence supported the determination that the police officer “disobeyed a lawful order of her supervisor and engaged in conduct prejudicial to the good order, efficiency or discipline of the police department,” the Appellate Division said imposing the penalty of dismissal from the police force is not so disproportionate as to shock the conscience, citing Matter of Kelly v Safir, 96 NY2d 32.

The court said that the record showed that the officer “failed to obey two orders directing her to go out on assignment and then, by her actions, challenged and threatened her supervisor.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04923.htm

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An administrative agency found to have acted in a manner inconsistent with its own rules and regulations will be deemed to have acted arbitrarily

An administrative agency found to have acted in a manner inconsistent with its own rules and regulations will be deemed to have acted arbitrarily

Matter of Mid Island Therapy Associations., LLC v New York State Educ. Dept., 2015 NY Slip Op 04707, Appellate Division, Third Department

Supreme Court dismissed Mid Island Therapy Association's [Mid Island] Article3 78 application to review a determination of the New York State Education Department’s, [DOE] setting Mid Island’s payment “reconciliation rates” for special education itinerant teacher services to preschool children with disabilities for certain school years. Such payments were to be made pursuant to contracts with the New York City Department of Education (NYCDOE) and the Counties of Westchester, Nassau and Suffolk.

A percentage of the municipalities' payments to Mid Island are reimbursed by DOE based on rates that DOE sets in accordance with its regulations. Where the reconciliation rate differs from the prospective rate that was initially used, a service provider such as Mid Island must pay back funds if it was overpaid and, in the alternative, it receives additional reimbursement if underpaid. This rate is to be calculated after a provider supplies DOE with an independently audited Consolidated Fiscal Report (CFR) and supporting independently audited financial statements.

Mid Island had been paid prospective rates of $49 and $50 per service unit, respectively, for the periods in question and its subsequent CFR and financial data reportedly resulted in reconciliation rates of $50 per service unit for each of the relevant years. DOE calculated the respective reconciliation rates as $49 and $47 per service unit, the key reason for the difference in rates being that DOE used total service units reported by the municipalities.

Mid Island disputed these rates and started the process of reconciling the discrepancies between service units that it had reported and those reported by the municipalities and ultimately challenged the reconciliation rates for the 2008-2009 and 2009-2010 school years, as well as the prospective rate for 2010-2011 and ultimately Supreme Court dismissed its Article 78 petition.

Mid Island appealed, contending that DOE “failed to follow its own regulations and otherwise acted arbitrarily," primarily by relying upon unaudited information from the municipalities, disregarding Mid Island's audited CFR and financial data, and refusing to consider Mid Island's explanation for the discrepancies between its audited information and the municipalities' data.”

The Appellate Division said that a court's review of an administrative agency's determination is limited to "ascertain[ing] whether there is a rational basis for the action in question or whether it is arbitrary and capricious," citing Gilman v New York State Div. of Housing and Community Renewal, 99 NY2d 144. The court also noted that it had “previously recognized that [DOE] has "broad discretion in setting the reconciliation rate."

However, said the Appellate Division, an agency determination arrived at in a manner inconsistent with its own regulations is not supported by a rational basis and although "an agency's interpretation of its own regulation is entitled to deference [citations omitted] courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language."

Here, said the court, DOE’s regulations define the reconciliation rate as "a tuition rate that has been calculated using actual program and financial data with the applicable reimbursement methodology applied” [and] the tuition rate "shall be based on financial reports, as prescribed by the commissioner, supported by financial statements certified by a licensed or certified public accountant independent of the program's operation" [and] the "[CFR] certified by a licensed or certified public accountant independent of the program's operation."

The Appellate Division said that the intent of the regulations, “consistent with common sense and good government,” is to gather and use correct data and the regulations provide no authority for DOE relying solely on unaudited information from municipalities. Where a service provider that has adhered to the regulations and provided a CFR and financial statement, both audited, it should be afforded a reasonable opportunity to explain and/or reconcile its information with the unaudited information of a municipality.  DOE, said the court, cannot simply reject audited information by reason of the existence of less reliable information without some articulable rational basis.

Noting that Mid Island “provided independently audited data in compliance with the regulations, the court said that:

1. Information supplied by the municipalities, and particularly NYCDOE, varied from Mid Island’s data;

2. NYCDOE had a history of supplying information that was not correct citing Matter of Mid. Is. Therapy Assoc., LLC v New York State Dept. of Educ., 99 AD3d at 1083 in which it was reporting that the State Comptroller upheld Mid Island's tuition rates for 2007-2008 based on 87,907 service units where NYCDOE had reported 100,669 service units; and

3. DOE made “little effort” to verify the municipalities' information but nonetheless accepted the municipalities' information and disregarded Mid Island’s data.

This, said the Appellate Division, was not an agency simply weighing and choosing between relatively equivalent but conflicting data, “particularly in light of the regulatory primacy for independently audited information,” with which Mid Island had complied, and the lack of regulatory authority for wholesale reliance on other information.

Under all the circumstances the Appellate Division concluded that DOE acted arbitrarily and inconsistent with its own regulations and, accordingly, its determination regarding the 2008-2009 and 2009-2010 reconciliation rates must be annulled.

Further, said the court, the 2010-2011 prospective rate must be annulled as it was based on the 2009-2010 reconciliation rate annulled herein

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04707.htm

Termination for lack of the proper teaching certificate not a disciplinary action requiring “notice and hearing”

Termination for lack of the proper teaching certificate not a disciplinary action requiring “notice and hearing”

2015 NY Slip Op 04732, Appellate Division, First Department

The Appellate Division rejected a teacher’s attempt to have the court annul the Department of Education of the City of New York's (DOE) decision to terminate his employment.

The teacher’s employment had been terminated because of his “failing to maintain minimum qualifications” – his teaching certificate.  The Appellate Division ruled that the teacher had not been terminated for disciplinary reasons* and thus he was not entitled to a hearing pursuant to Education Law §3020-a, citing Matter of NYS Office of Children and Family Services v Lanterman.

In Lanterman, 62 AD3d 1118, affirmed 14 NY3d 275, [Ciparick, J., dissenting] the decision explains that an employee terminated after losing the license required to perform the duties of the position was not entitled to a pre-termination disciplinary hearing because “whether a teacher has the statutorily required qualifications for the position is not a disciplinary matter subject to that provision.”

Rather, said the court, "certification is a statutory prerequisite that an individual is required to have to qualify for a teaching position in the public school system; it has nothing to do with discipline and, as such, is not an issue that is subject to arbitration under [the cited] provision of the [collective bargaining agreement].”

In Lanterman  two state employees had challenged their dismissal because they lacked the credentials required for their jobs. The workers had demanded that the question of whether their dismissals were disciplinary actions should be submitted to arbitration. Here the Court of Appeals, citing Matter of Felix v New York City Dept. of Citywide Admin. Servs. 3 NY3d 498, indicated that dismissals based of the lack of "credentials required for [the] job" clearly were not disciplinary actions and “the [Lanterman plaintiffs'] assertion that they were does not have a relationship with their collective bargaining agreement sufficient to justify arbitration of the issue.”

* The court, noting that DOE’s decision to terminate the individual was based on his lack of a proper teaching certificate was not arbitrary and capricious, observed that the teacher had failed to show that when DOE terminated his employment that he had been “retroactively certified.” This suggests that the employer should make some minimum inquiry concerning the employee's possession of a valid license, certification or other instrument required by statute to lawfully perform the duties of the position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04732.htm

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The date on which an administrative agency's decision became final and binding on the individual triggers the running of the statute of limitations for challenging the determination

The date on which an administrative agency's decision became final and binding on the individual triggers the running of the statute of limitations for challenging the determination

School Adm'rs Assn. of N.Y. State v New York State Dept. of Civ. Serv., 124 AD3d 1174

One of the issues considered by the Appellate Division in this action concerned the timeliness of the challenge to the administrative decision made by the New York State Department of Civil Service [Department], which provided the court with an opportunity to review the question of the triggering of the running of the statute of limitations in terms of the timeliness of challenging an administrative agency’s “final decision.”

The court said that the parties had agree that for the purposes of  prosecuting this combined CPLR Article 78 proceeding and action for declaratory judgment, the four-month statute of limitations set forth in CPLR §217(1) controlled. In addressing this issue the Appellate Division explained:

1. 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."

2. Such determination, in turn, "becomes 'final and binding' when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies, whereby:

a.       The agency must have reached a definitive position on the issue that 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." and

 b.      In the context of quasi-legislative determinations such as the one at issue here, actual notice of the challenged determination is not required in order to start the statute of limitations clock; 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.

A May 15, 2012 policy memorandum promulgated by the Department that “redefined the class of employees” eligible to participate in “health insurance buyout programs” offered by the New York State Health Insurance Program [NYSHIP] participating agencies stated that the policy was "effective immediately." While the May 15, 2012 memorandum contained a "grandfather clause" that, in effect, afforded a limited grace period to certain participating agencies with an existing buyout program in place, the Appellate Division said that “the presence of such clause did not render the decision of the Department of Civil Service as to employee eligibility any less final” nor did it render the injury allegedly suffered by individuals subject to its provisions any less concrete.

The Appellate Division concluded that the policy memorandum constituted a "definitive position" on the issue of buyout program eligibility which the Department could not be "significantly ameliorated by further administrative action."

As to the actual date upon which the four-month statute of limitations commenced to run, the court agreed with the Department that the "readily ascertainable" requirement is styled as a constructive notice standard, there by obviating the need for an actual delivery of an “in-hand notice” of the underlying determination to individuals affected by the change.

The Department described its procedure in disseminating its May 15, 2012 policy memorandum as including mailing copies of the policy to the chief executive officers of all NYSHIP participating agencies, as well as to any individual who had requested a copy via the participating agency; posting the memorandum on a website for health benefit administrators and discussing the memorandum at the participating agency regional meetings hosted by the Department of Civil Service in October 2012.

Under these circumstances, said the Appellate Division, it was of the view that a petitioners' claims accrued, and the statute of limitations began to run, upon the effective date of the policy memorandum -- May 15, 2012.

The decision is posted on the Internet at: 

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