Courts do not have discretion to hear an untimely Article 75 action challenging an administrative determination

Courts do not have discretion to hear an untimely Article 75 action challenging an administrative determination

2015 NY Slip Op 05406, Appellate Division, First Department

Supreme Court denied a petition seeking to vacate an arbitration award upholding an administrative determination made after a hearing conducted pursuant to a collective bargaining agreement between the Employee's union and the employer terminating the employee from her position and confirmed the arbitration award, unanimously affirmed, without costs.

The Appellate Division held that Supreme Court properly held this special proceeding, commenced pursuant to CPLR Article 78, was in the nature of a CPLR article 75 proceeding challenging the award rendered by the arbitrator pursuant to the grievance procedures set forth in the collective bargaining agreement with Petitioner's union.

Accordingly, Supreme Court had properly dismissed the petition on the ground that it was untimely filed pursuant to the applicable 90-day statute of limitations set out in CPLR §7511[a]), based on Petitioner's admission that she received formal notice of the arbitration award on July 6, 2012.

The fact that Petitioner's pro sestatus in this action, said the Appellate Division, is not a basis to reach the merits of her claim.

An individual who is acting as his or her own attorney in a court action is said to be acting “pro se.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05406.htm

Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

2015 NY Slip Op 05384, Appellate Division, Fourth Department

A part-time school guidance counselor [Counselor] alleged that the School District [District] had discriminated against her on the basis of "sex/pregnancy" when it declined to renew her employment contract shortly after learning that she was pregnant.

Counselor was employed as a part-time counselor for the District for the 2011-2012 school year and the District invited her to apply for a position for the following school year. Counselor did apply for continued employment with the District and also requested a "pregnancy/disability leave" from the end of August 2012 through January, 2013. Counselor said that she was then notified that she would not be hired because of her anticipated absence.

Counselor filed a complaint with the State Division of Human Rights [SDHR] alleging the District had unlawfully discriminated against her on the basis of "sex/pregnancy." SDHR found “no probable cause” and dismissed Counselor’s complaint without a hearing.

Counselor commenced a CPLR Article 78 proceeding seeking to annul SDHR finding that there was no probable cause to believe that the District had unlawfully discriminated against her. Supreme Court granted Counselor’s petition and remitted the matter to SDHR for a hearing. The Appellate Division affirmed the lower court’s ruling.

The court said that "Where, as here, a determination of no probable cause is rendered [by SDHR] without holding a public hearing pursuant to Executive Law §297(4)(a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis." However, explained the Appellate Division, “[t]he complainant's factual showing must be accepted as true on a probable cause determination.” Although the court’s “standard of review” is highly deferential to SDHR’s determination, in this instance the Appellate Division agreed with Supreme Court that SDHR’s determination "was not rationally based upon the evidence presented."

Executive Law §296 prohibits an employer from refusing to hire or employ an individual based on the individual's gender. Rejecting the District’s argument that it decided not to rehire Counselor because of her unavailability and its concern for continuity of counseling services for its students, the Appellate Division, noting that Counselor would be unavailable to work because of her pregnancy, said “we conclude that discrimination could be inferred from the record before us.”

The court observed that the District had relied on Roslyn Union Free Sch. Dist. v State Div. of Human Rights, 72 AD2d 808, in support of its argument that it did not unlawfully discriminate against Counselor. However, said the Appellate Division, “to the extent that Roslyn holds that a decision not to hire an individual because the individual is pregnant is not a form of discrimination,” it declined to follow it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05384.htm

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Source: Federal, State and Local Government Newsletter [IRS]

Webinar to be held on July 30, 2015; 2 p.m. (Eastern)

Topics to be addressed:

Determining when accumulated sick and vacation pay are subject to federal employment taxes

Determining when taxation can be deferred to a later year

Defining an elective employee contribution

Defining a non-elective employer contribution

Click here to Register for this event.

NOTE: You will use the same link to attend the event.

If you have any questions or comments, click her to send us an e-mail.

Fair Chance Hiring Application Revisions and Statewide Employment Application

Fair Chance Hiring Application Revisions and Statewide Employment Application

NYS Department of Civil Service General Information Bulletin No. 15-02

Scott DeFruscio, New York State Department of Civil Service Director of Staffing Services, announced the publication of NYS Department of Civil Service General Information Bulletin No. 15-02 addressing the Department’s Fair Chance Hiring Application Revisions and Statewide Employment Application

The Bulletin is posted on the Internet at:

http://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB15-02.cfm

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 11, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 11, 2015

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

Department of Agriculture and Markets - Food Safety Monitoring

An audit report issued in January 2014 found the department was unable to meet the demands of its inspection frequency schedule, and identified instances of both existing and new establishments preparing food prior to obtaining the required inspection. In addition, the department’s staff of 82 inspectors was below recommended staffing levels. In a follow-up, auditors found department officials made significant progress in addressing the problems identified in the initial audit. Of the three prior audit recommendations, two were implemented and one was partially implemented. http://osc.state.ny.us/audits/allaudits/093015/15f10.pdf

Division of the Budget - Quality of Internal Control Certifications

In 2012, auditors conducted a series of audits at 12 state agencies focusing specifically on their 2011-2012 Internal Control Certifications submitted to the Division of the Budget (DOB). Auditors examined whether these agencies submitted their certifications on time, answered all the questions with the appropriate level of detail, and maintained documentation supporting the answers given. The initial audit reports concluded that improvements were needed to the quality of Internal Control Certifications at 10 of the 12 agencies. In a follow-up report, auditors found agency officials made significant progress in addressing the problems identified. http://osc.state.ny.us/audits/allaudits/093015/15f7.pdf

Department of Health -Overpayments of Hospitals’ Claims for Lengthy Acute Care Admissions
An initial audit report issued in July 2013 identified $7.8 million in Medicaid overpayments. The overpayments occurred primarily because hospitals billed Medicaid for higher (and more costly) levels of acute care when, in fact, patients received lower-cost non-acute care. In a follow-up, auditors found DOH officials recovered the overpayments identified in the initial report, notified hospitals of the correct way to bill inpatient claims, and modified its contractor’s sampling plan to select and review similar claims at high risk of overpayment. http://osc.state.ny.us/audits/allaudits/093015/15f12.pdf

Roswell Park Cancer Institute - Security Over Electronic Protected Health Information

The institute has taken many steps to safeguard its electronic protected health information (ePHI) and meet security requirements. In addition, auditors found the institute has adequate protection policies in place and a plan to make mandatory notifications when ePHI is lost or stolen. However, auditors identified some improvement opportunities. http://osc.state.ny.us/audits/allaudits/093015/14s67.pdf

State Universityof New York - Selected Procurement and Contracting Practices

SUNY officials have generally established good internal controls over procurement and have effectively communicated these procedures to the campuses. Tests at seven campuses and system administration, however, found they don’t consistently follow some of these procurement policies. For example, of 924 procurements reviewed, 97 inthe $500 to $250,000 range and totaling more than $1.1 million lacked required documentation to demonstrate that the price was reasonable. Auditors also identified some campus practices that go beyond SUNY’s requirements to manage cost and could serve as best practice examples if more widely shared among the campuses. http://osc.state.ny.us/audits/allaudits/093015/14s19.pdf

A limitation on an arbitrator’s discretion to fashion a remedy must be contained, either explicitly or incorporated by reference, in the arbitration clause

A limitation on an arbitrator’s discretion to fashion a remedy must be contained, either explicitly or incorporated by reference, in the arbitration clause
Matter of Town of Scriba (Teamsters Local 317), 2015 NY Slip Op 05316, Appellate Division, Fourth Department

Teamsters Local 317 (Union) appealed from an order and judgment of Supreme Court granting the application of the Town of Scriba [Scriba] to vacate an arbitration award. 

The stipulated issue submitted to the arbitrator asked "[w]as the suspension and termination of the [g]rievant, … for just cause? If not, what shall be the remedy?"

Among other things, the arbitrator had determined that, although maintaining a commercial driver's license (CDL) was a minimum standard for employment, the terms of the collective bargaining agreement (CBA) did not mandate the employee's discharge from employment upon forfeiture of his CDL and, thus, Scriba did not have just cause to terminate the grievant.

The arbitrator fashioned a remedy whereby the grievant would be suspended without pay, and Scriba could terminate his employment only if he did not regain a valid CDL on or before a particular date.

Scriba appealed to the Supreme Court seeking an order vacating the arbitration award on the ground that the award exceeded the scope of the arbitrator's power.  Union filed a cross petition seeking to confirm the award pursuant to CPLR 7510. Supreme Court granted the Scriba’s motion to vacate the arbitration award.

Union appealed the Supreme Court’s decision and the Appellate Division agreed with the Union that Supreme Court erred in vacating the arbitration award, concluding that the arbitration award should have been confirmed.

The court said that it agreed with Union that the arbitrator did not exceed a specifically enumerated limitation on his authority, explaining that "It is well established that an arbitrator has broad discretion to determine a dispute and fix a remedy and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself."

The Appellate Division said that the relevant part of the collective bargaining agreement [CBA] stated only that "[i]f the dispute [regarding a grievance] cannot be satisfactorily resolved, the issue may be submitted to final and binding arbitration."  The court concluded that the CBA provided no "specifically enumerated limitation on the arbitrator's power" and that "the remedy sought was expressed in open-ended terms that certainly did not limit the arbitrator's power to grant any specific relief."

 

The court also agree with the Union that the award was not irrational, explaining that "An award is irrational if there is no proof whatever to justify the award” and so long as an arbitrator offers “even a barely colorable justification for the outcome reached” the arbitration award must be upheld.

Here, said the Appellate Division, “the language of the CBA is ‘reasonably susceptible of the construction given it by the arbitrator’ and the arbitrator offered a ‘colorable justification for the outcome reached.'”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05316.htm

Placement on involuntary leave as the result of disability not work-related under color of Civil Service Law §72.5

Placement on involuntary leave as the result of disability not work-related under color of Civil Service Law §72.5

2015 NY Slip Op 05318, Appellate Division, Fourth Department

In August 2011, a firefighter [Firefighter] was removed from active duty because of an on-the-job hypoglycemic incident caused by his diabetes. Although Firefighter, his union, and the City's Fire Department subsequently engaged in negotiations regarding Firefighter's status, Firefighter was not formally notified that he had been placed on an immediate involuntary leave of absence pursuant to Civil Service Law §72.5 until April 2012.*

Firefighter challenged the decision. Ultimately a hearing officer determined that Firefighter had been properly placed on immediate involuntary leave, but additionally determined that he should be allowed to return to work and granted Firefighter some remedial relief.

In September 2013 the Fire Department Chief, reviewed the Hearing Officer's determination and decided that Firefighter should remain on involuntary leave, with no remedial relief. Firefighter appealed that determination to the County Department of Personnel, which affirmed the Fire Chief’s decision.

Firefighter filed a CPLR Article 78 petition in Supreme Court seeking to annul the determination that he was unfit for active duty as a firefighter because of his inability to manage his diabetic symptoms. Supreme Court transferred the matter to the Appellate Division pursuant to CPLR 7804 (g).

The Appellate Division agreed with Firefighter that the Fire Department did not strictly comply with the procedural requirements of the Civil Service Law, concluding that the procedural protections contained in Civil Service Law §72.1 apply to proceedings brought pursuant Civil Service Law §72.5 based on the language in §72.1 that the provisions of notice and hearing therein apply to employees "placed on leave of absence pursuant to this section" (emphasis in the opinion), "which includes Civil Service Law §72.5."

The court explained that these procedures are necessary "to afford tenured civil servant employees... procedural protections prior to involuntary separation from service," citing Sheeran v NYS Department of Transportation, 18 NY3d 61. The Appellate Division said that "[b]ecause of the significant due process implications of the statute, strict compliance with its procedures is required."**

Here it was undisputed that Fire Department did not strictly comply with the procedures set out in §72 for placing petitioner on immediate involuntary leave inasmuch as it was not until April 2012 that Firefighter was provided with "[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that [Firefighter was] not fit to perform the duties of" his position. Although the parties had engaged in negotiations during the period before the Fire Department provided Firefighter with written notice, the Department conceded that at no time did Firefighter waive his rights under section §72.

The absence of strict compliance with these procedural requirements renders Firefighter’s alleged leave a nullity prior to September 30, 2013, when the Fire Chief issued his final determination after reviewing the Hearing Officer's decision. Accordingly, said the Appellate Division Firefighter is entitled to back pay and the restoration of benefits from August 26, 2011 until September 30, 2013.

However, said the court, it concluded that the determination that Firefighter was unfit for active duty is supported by substantial evidence that Firefighter “was rendered unfit to serve as an active duty firefighter because of his inability to manage his diabetic symptoms.

However, the Appellate Division said that as the Fire Department had “violated lawful procedure after initially determining that [Firefighter] was unfit for active duty in August 2011,” it said that Firefighter was entitled to a hearing, should he request one, to determine his current fitness to be reinstated, provided that his application for reinstatement is made within one year of our decision herein”, explaining that while  Firefighter “is not within the one-year time period for seeking reinstatement … [Fire Department is] estopped from asserting that [Firefighter] is time-barred from seeking such relief because the delay was caused by [Fire Department’s] failure to comply with the procedures.”

* An individual unable to perform the duties of his or her position as the result of an occupational injury or disease is placed on Workers' Compensation Leave pursuant to Civil Service Law §71.

** Termination of an employee placed on leave pursuant to Civil Service Law §72 is effected pursuant to Civil Service Law §73 as a matter of the exercise of discretion by the appointing authority.

N.B. An employee terminated from a “§72” leave pursuant to Civil Service Law §73 “may, within one year after the termination of such disability, [emphasis supplied],  make application to the civil service department or municipal commission having jurisdiction over the position last held by such employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission” rather within one year of the effective date of the employee’s termination from a §72 leave pursuant to §73. The same is true with respect to an employee terminated from service while on §71 Workers' Compensation Leave.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05318.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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Employee terminated after being found guilty of inflicting corporal punishment on pupils

Employee terminated after being found guilty of inflicting corporal punishment on pupils

2015 NY Slip Op 05787, Appellate Division, First Department

The New York City Chancellor of Education's Regulation A-420 prohibits inflicting corporal punishment on a student. Corporal punishment is defined as "any act of physical force upon a pupil for the purpose of punishing the pupil."

An individual [Petitioner] employed by the New York City Board of Education was charged with, and found guilty of, inflicting corporal punishment on  pupils by the arbitrator and the penalty imposed was termination from service.

Petitioner challenged the arbitration award and Supreme Court vacated the penalty imposed and remanded the matter “for determination of a lesser penalty.”

The Appellate Division unanimously reversed the Supreme Court’s decision, on the law, and entered a judgment confirming the award.

The court said that the “penalty of termination does not shock our sense of fairness,” noting that Petitioner had committed four separate acts of corporal punishment, in violation of Chancellor's Regulation A-420, three of these acts having occurred after he  had been formally warned that any recurrence of his misconduct would result in further disciplinary action and he had been referred to a mandatory training workshop on "appropriate behavior intervention strategies." The court also that the pupils who suffered the corporal punishment were “non-verbal autistic children, incapable of protecting themselves or reporting what happened to them.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05787.htm

Resigning from one’s position for “good cause” is critical to the individual’s eligibility for unemployment insurance benefits

Resigning from one’s position for “good cause” is critical to the individual’s eligibility for unemployment insurance benefits

2015 NY Slip Op 05542, Appellate Division, Third Department

An applicant for Unemployment Insurance Benefits [Claimant] resigned from her position as the circulation coordinator at a public library after seven years of service. She was denied benefits and an administrative law judge [ALJ] sustained the administrative ruling following a hearing.

Claimant appealed and the Unemployment Insurance Appeal Board reversed the ALJ’s determination and found that Claimant was, indeed, entitled to receive benefits. The employer appealed the Board’s decision.

The Appellate Division said that "'Whether a claimant has good cause to leave his or her employment is a factual determination to be made by the Board, and its decision will not be disturbed when supported by substantial evidence.'"

Here, said the court, Claimant testified to an ongoing conflict with the technology coordinator at the library, which testimony was supported by another employee. When Claimant brought these facts, along with other facts regarding the technology coordinator actions, to her supervisor’s attention, the supervisor offered no assistance to Claimant. Claimant then sought assistance from management, but was told that she would not receive assistance without the support of her supervisor.

Deferring to the Board's credibility determinations regarding the testimony of the witnesses at its hearing, the Appellate Division explained that there was substantial evidence for the Board's findings that Claimant's employer failed to take “even minimal steps to confirm or refute the alleged report that the technology coordinator had been inappropriately monitoring” Claimant's whereabouts and activities during Claimant's breaks.

The court said that it found no reason to disturb the Board's determination that such inaction by the employer provided good cause for claimant to leave her employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05542.htm

Membership in the New York State Employees’ Retirement System is critical to an employee’s earning member service credit

Membership in the New York State Employees’ Retirement System is critical to an employee’s earning member service credit

2015 NY Slip Op 05532, Appellate Division, Third Department

Retirement and Social Security Law §102 (e) provides that “In the event that a disability retiree is restored to active service of an employer, at a salary less than his [or her] final salary but equal to or in excess of the current minimum salary for the position from which he [or she] was last retired for disability, such person, if he [or she] so elects, shall again become a member of the retirement system and his [or her] retirement allowance shall cease. He [or she] thereafter shall contribute to the retirement system in the same manner as and at the same rate that he [or she] paid prior to his [or her] disability retirement. The total service credit, to which he [or she] was entitled at the time of such retirement, again shall be credited to him [or her]. Upon his [or her] subsequent retirement, he [or she] shall be credited, in addition, with all member service earned by him subsequent to his [or her] last restoration to membership.*

A member of the New York State Employees’ Retirement System [NYSERS] employed by a State agency retired due to illness in 1980 and was receiving an ordinary disability retirement allowance. In 1985 the individual’s [Retiree] health improved and she was reemployed by her former agency. However, upon returning to employment Retiree did not rejoin the Retirement System** and continued to receive her disability pension benefit as authorized Retirement and Social Security Law §102(e) in addition to her receiving her salary.

In 1995 Retiree asked NYSERS to provide her with her service credit in the System and she was informed that she had accumulated 10 years, 7 months and 15 days of service credit between 1969 and 1980. In addition, Retiree was expressly told that she was not "receiv[ing] service credit for time worked after retirement while [she was] also receiving pension benefits."

In 2006 Retiree wrote to NYSERS inquiring as to whether she had in fact applied to be "restored to membership" in the System and, further, whether it was possible to retroactively obtain service credit for her postretirement work.

After being advised that she could not simultaneously collect her disability pension benefit and be an active member of NYSERS earning service credit., the matter proceeded to an administrative hearing. The Hearing Officer found, among other things, that Retiree was not entitled to additional service credit. The Comptroller adopted the Hearing Officer's findings in this regard and Retiree initiated a CPLR Article 78 proceeding challenging the Comptroller's determination.

The Appellate Division sustained the Comptroller decision, noting that “the Comptroller “is charged with the responsibility of determining service credits for retirement purposes and his determination will be upheld if rational and supported by substantial evidence."

Retiree, said the court, as the party seeking additional service credit bore the burden of demonstrating her entitlement to such credit.” In this instance the court said that §102 governs postretirement employment by disability pensioners and dictates, based upon the disability retiree's final salary following his or her return to active service, whether membership in the Retirement System is mandatory or optional. The evidence presented at the hearing showed that Retiree's salary upon returning to active service did not make membership in the System mandatory and while Retiree explored the possibility of becoming, once again, a member of the System, she never actually exercised her option to do so.

In the words of the Appellate Division: “Absent membership in [NYSERS] following her return to service in 1985, and in light of her continued receipt of disability pension benefits, [Retiree] simply was not entitled to earn additional service credit."

The decision also notes that despite Retiree’s arguments to the contrary, “the Comptroller was not under an affirmative duty to either apprise [Retiree] of all available options relating to her retirement benefits or ensure that she selected the most advantageous benefit.”

Accordingly, the Appellate Division found that the Comptroller's determination denying Retiree additional service credit was supported by substantial evidence and dismissed her appeal.

* In contrast, §102 d of the Retirement and Social Security Law provides as follows: In the event that a disability beneficiary is restored to active service of an employer, at a salary equal to or in excess of his [or her] final salary, his retirement allowance shall cease. Such person thereupon again shall become a member of the retirement system. He thereafter shall contribute to the retirement system in the same manner as and at the same rate that he [or she] paid prior to his [or her] disability retirement. The total service credit, to which he [or she] was entitled at the time of such retirement, again shall be credited to him [or her]. Upon his subsequent retirement, he [or she] shall be credited, in addition, with all member service earned by him subsequent to his [or her] last restoration to membership.

**  An individual’s membership in NYSERS ceases upon his or her retirement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05532.htm