Reimbursement of improperly withheld GML §207-c benefits

Reimbursement of improperly withheld GML §207-c benefits

Baker v Clinton County, 2015 NY Slip Op 08898, Appellate Division, Third Department

Craig Baker, a correction officer with the Clinton County Sheriff's office allegedly injured at work on August 8, 2013, was placed on leave, filed a workers' compensation claim and began receiving benefits pursuant to General Municipal Law §207-c. On November 5, 2013, Baker's doctor cleared him to return to work in a light-duty capacity.

The Sheriff, however, did not allow Baker to return to work and on November 25, 2015 served him with disciplinary charges pursuant to Civil Service Law §75. The charges and specifications included allegations that Baker “had falsely reported his injuries.” Baker was suspended without pay as authorized by CSL §75 and a disciplinary hearing was held in January 2014.  Restored to the payroll on January 28, 2014, Baker was subsequently again removed from the payroll on February 12, 2014.

In March 2014, Baker filed a combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment challenging the Sheriff's determination to terminate his General Municipal Law §207-c benefits during the pendency of the disciplinary hearing.* In its answer Clinton County argued that, among other things, Baker had forfeited his claim to recover §207-c benefits under the doctrine of "unclean hands."

Supreme Court granted Baker’s petition and directed Clinton County to pay Baker the §207-c benefits it had withheld from him. The County appealed.

The Appellate Division said that General Municipal Law §207-c provides that when a correction officer suffers a disabling injury in the line of duty, that officer is entitled to continue to receive his or her full salary during the pendency of the disability. The receipt of such benefits, said the court, "constitutes a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated."

The court explained that although a municipality may discipline an officer even if that officer is receiving General Municipal Law §207-c benefits, the statutory benefit may not be withheld without a pretermination evidentiary hearing. Further, where, as is here the case, there was no negotiated §207-c administrative procedure in place, the municipality may, but is not obligated to, use the procedures set forth in Civil Service Law §75 as a means to discontinuing the statutory benefit. Thus, said the Appellate Division, “The pertinent question is whether the officer is afforded the requisite due process.”

There was no dispute that Baker’s §207-c benefits had been suspended prior to the conclusion of the disciplinary hearing. Accordingly the Appellate Division ruled that Supreme Court had properly granted Baker’s petition and directed the Sheriff to restore the unlawfully withheld benefits to Baker.

The Appellate Division disagreed with the Sheriff’s argument that Supreme Court had "misappl[ied]" the unclean hands doctrine and should have dismissed Baker’s petition “based on his misconduct.” Citing National Distillers & Chem. Corp. v Seyopp Corp., 17 NY2d 12, the court explained that the unclean hands doctrine applies where "the [petitioner] is guilty of immoral, unconscionable conduct and even then only when the conduct relied on is directly related to the subject matter in litigation."

In this action, said the court, the subject matter of the proceeding was whether the County  provided Baker the process to which he was entitled prior to terminating his statutory benefits, not whether he was entitled to §207-c benefits. It noted that Baker had only contended that he was entitled to §207-c benefits during the pendency of the disciplinary hearing. Where, as here, there is a finding that an individual is terminated for misconduct, there is no legal authority to recoup the payments made to the individual prior to such a finding of misconduct.

The Appellate Division said that it did not believe that Baker was perpetuating any fraud or committing a wrongdoing by asserting his right to notice and an opportunity to be heard prior to the termination of his §207-c and that it agreed with Supreme Court that the unclean hands doctrine did not apply in this instance.

Turning to the Sheriff’s removing Baker the payroll when he was served with the §75 notice of disciplinary charges on November 25, 2013, restoring him to the payroll on January 28, 2014, then removed him again on February 12, 2014, the court noted that Baker had asked that the disciplinary hearing, initially scheduled for December 6, 2013 within the notice of disciplinary charges, be adjourn. Baker, in turn, agreed that he would be suspended without pay for up to 30 days as authorized by CSL §75[3] and further, until the hearing resumed in January 2014.

In response to the Sheriff’s contention that Supreme Court awarded excessive damages the Appellate Division said that “§207-c benefits are not wages”**and Baker did not concede or otherwise relinquish his benefit rights pursuant to §207-c. According, said the court, “we discern no error in Supreme Court's determination that reimbursement of the improperly withheld benefits was just and proper relief.”

* On April 24, 2014, the Hearing Officer issued his determination recommending that Baker be terminated based on his finding that petitioner had engaged in the misconduct as alleged and on May 2, 2014, the appointing authority terminated Baker from his employment as a correction officer.

** §207-c [“Payment of salary, wages, medical and hospital expenses”] provides that any eligible individual injured in the performance of his or her duties or who is taken sick as a result of the performance of his or her duties so as to necessitate medical or other lawful remedial treatment “shall be paid by the municipality by which he [or she] is employed the full amount of his [or her] regular salary or wages until his [or her] disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08898.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 §§207-a/207-c and other laws, rules, regulations and court decisions addressing disability and similar leaves absence. For more information click on http://booklocker.com/3916.html

____________________  

Selected Reports issued by the Office of the State Comptroller during the week ending December 4, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending December 4, 2015

Click on text highlighted in color to access the full report

Connect with Comptroller DiNapoli on Facebook
Visit and like  the Comptroller’s Facebook page for updates, photos, event listings and more from this office. The Comptroller always encourage engagement and feedback, so feel free to comment, like, and share hsi page with your family and friends.

https://www.facebook.com/nyscomptroller

State Comptroller DiNapoli positions New York Employee Retirement System investments for a “low carbon future”

New York State Comptroller Thomas P. DiNapoli announced an investment strategy that will raise the New York Common Retirement Fund’s (Fund) commitment to sustainable investments to $5 billion. The cornerstone of DiNapoli’s plan is the creation of a $2 billion index that will exclude or reduce investments in companies that are large contributors to carbon emissions like the coal mining industry, and increase the Fund’s investments in companies that are lower emitters. DiNapoli announced the new low emission index in Paris, where he is participating in an investors’ panel as part of the United Nations Climate Change Conference.

http://www.osc.state.ny.us/press/releases/dec15/120415.htm?utm_source=weeklynews20151206&utm_medium=email&utm_campaign=120415release

State Comptroller notes that limited regulation of adult day care programs poses potential risks to vulnerable adults
Many social adult day services programs (SADS) in New York operate without regulations or licenses, leaving disabled adults or seniors at potential risk, according to an Audit released by State Comptroller Thomas P. DiNapoli. The audit is the first in a series looking at issues affecting the elderly in New York.  

http://www.osc.state.ny.us/press/releases/dec15/120215.htm?utm_source=weeklynews20151206&utm_medium=email&utm_campaign=120215release

The dismissal of a probationary employee will not survive judicial review if the court finds that it was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law

The dismissal of a probationary employee will not survive judicial review if the court finds that it was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law

Rieser v New York City Dept. of Educ., 2015 NY Slip Op 08119, Appellate Division, First Department

Michael Rieser, a probationary teacher employed by the New York City Department of Education [DOE], received an unsatisfactory performance rating and ultimately DOE terminated him from his position. Rieser than filed a CPLR Article 78 petition seeking a court order annulling DOE’s decision to discontinue his employment by DOE and to expunge the unsatisfactory rating of Rieser’s performance as a probationary teacher. Supreme Court granted Rieser’s petition and DOE appealed.

The Appellate Division unanimously reversed the Supreme Court’s ruling on the law and the facts and dismissed Rieser’s Article 78 petition.

The court explained that Rieser failed to show that DOE's determination to discontinue his probationary employment was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law.

As to the unsatisfactory performance rating given Rieser, the Appellate Division said that he failed to show that the unsatisfactory rating was arbitrary and capricious.

The court noted that Rieser’s performance rating was “rationally supported by, among other things, witness statements and the principal's letter describing his investigation and finding that [Rieser] had used corporal punishment on a special education student” and there was no indication that the principal or DOE made their decisions in bad faith.

Another issue raised by Rieser concerned the composition of the Chancellor's Committee that reviewed his performance rating. However the court said that Rieser did not raise this issue at his administrative hearing and thus it was not preserved for the purposes of appeal. In any event, said the Appellate Division, “a substantial [due process] right of Rieser was not violated, since the Committee ruled unanimously in his favor.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08119.htm

State Comptroller has launched a new Academy For Local Government Officials

State Comptroller has launched a new Academy For Local Government Officials

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli has launched a new Academy for New York State Local Officials that will provide an enhanced training program to help local administrators and employees become more effective in the day-to-day operations of their government.

The Academy, operated by the Comptroller’s Division of Local Government and School Accountability, increases the number of classroom training sessions and web-based seminars offered on a wide range of topics, including governmental accounting, fiscal responsibilities, board oversight, cybersecurity and policy development.

The Academy provides in-person and online training opportunities, including accounting schools, regional seminars and monthly webinars. There are also interactive training segments aimed at newly elected local officials, such as supervisors, clerks, board members, highway superintendents, attorneys and other fiscal personnel. These sessions will help individuals learn more about open meetings laws, conflicts of interest, financial reporting and requirements of the Freedom of Information Law.

The Comptroller’s office also regularly produces technical advisory bulletins and publications that address a variety of topics that are vital to understanding and managing local governments’ interests.

In 2014, more than 10,000 local officials received training through the Comptroller’s efforts.

To find out more about the Academy for New York State Local Officials, call 1-866-321-8503 or visit: http://www.osc.state.ny.us/localgov/academy/index.htmThe website has a full course catalogue and course calendar, and allows local government officials to choose their courses based on their position or topics of interest.

Employee challenging an unsatisfactory performance rating has the burden of showing that the rating was arbitrary, capricious, made in bad faith, or issued in violation of lawful procedure

Employee challenging an unsatisfactory performance rating has the burden of showing that the rating was arbitrary, capricious, made in bad faith, or issued in violation of lawful procedure

Vyas v City of New York, 2015 NY Slip Op 08360, Appellate Division, First Department

Nayana Vyas, a probationary teacher employed by New York City Department of Education [DOE], filed an Article 78 petition seeking the annulment of DOE’s denial of her appeals of her unsatisfactory ratings [U-ratings] for the 2009-2010 and 2010-2011 school years. In lieu of answering Vyas' petition, DOE made a cross motion, to dismis her petition for failure to state a cause of action. Supreme Court granted DOE motion and Vyas appealed.

With respect to the 2009-2010 U-rating, the court said here the Vyas’ primary complaint was that her evaluation based on assignments to teach science classes, which were outside her area of certification (mathematics). Citing 8 NYCRR §30-1.9[c], the Appellate Division said that DOE was permitted to assign Vyas to teach science classes notwithstanding that her certification was in mathematics, explaining that “Rules of the Board of Regents that prohibits assigning a teacher ‘to devote a substantial portion of [her] time in a tenure area other than that in which [she] has acquired tenure or is in probationary status, without [her] prior written consent’ [is not] applicable to city school districts located within cities having a population in excess of 400,000 inhabitants" such as DOE.

Accordingly, the Appellate Division ruled that DOE was entitled to make the teaching assignment challenged by Vyas and DOE’s evaluation of Vyas based on her performance in that assignment “does not give rise to an inference that the resulting U-ratings were arbitrary, capricious, or made in bad faith, nor were the U-ratings issued in violation of lawful procedure.”

In addition, the court noted that because Vyas was a probationary teacher she could have been discharged at any time, for any lawful reason or no reason at all and “bad faith cannot be inferred from the fact that the U-rating was issued after the school principal insisted that [Vyas] sign an agreement consenting to an additional year of probation to avoid being discharged.”

Turning to Vyas’ challenge to her U-rating for the 2010-2011 school year, the Appellate Division said Vyas contended that it was given in retaliation for her having filed a complaint with the State Department of Education against the principal who issued her U-rating for the previous year, when she was teaching at a different school.” 

However, the court decided that this allegation failed to state a cause of action for annulment of the rating because Vyas’ “imputation of a retaliatory motive for the U-rating is entirely speculative” and the specific facts alleged do not give rise to a fair inference that the U-rating was improperly motivated.

Further, said the Appellate Division, Vyas admitted that she was assigned to teach within her area of certification during the 2010-2011 school year and she did not make any allegation of “procedural irregularities that might have undermined the integrity or fairness of the rating process for that year.”

Finding that Vyas had not pleaded any specific facts giving rise to a fair inference that the U-ratings were arbitrary, capricious, made in bad faith, or issued in violation of lawful procedure, the Appellate Division held that Supreme Court properly granted the cross motion and dismissed the petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08360.htm

Follow-up - OGS successfully auctioned two seized luxury cars

Follow-up - OGS successfully auctioned two seized luxury cars

Source: Office of General Services

On November 27, 2015 NYPPL posted an item captioned “Another ‘Black Friday’ opportunity – New York State to auction two seized luxury cars at December 1, 2015 vehicle and equipment auction in Albany.”

The Office of General Services reports that both luxury cars were successfully auctioned on Tuesday, December 1, 2015.

The high bid for the Audi was $40,000, and the high bid for the Mercedes-Benz was $113,000.

The initial item is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2015/11/another-black-friday-opportunity-new.html

Terminating an employee while he or she is on Workers’ Compensation Leave pursuant to Civil Service Law §71

Terminating an employee while he or she is on Workers’ Compensation Leave pursuant to Civil Service Law §71

Still v City of Middletown, 2015 NY Slip Op 08741, Appellate Division, Second Department

After Terri Still had been absent from her position on Workers’ Compensation Law pursuant to §71 of the Civil Service Law for one than one year,* her employer, the City of Middletown, advised her that she would be terminated from her position.**

Prior to the effective date of Still’s termination, however, the City scheduled a meeting with Still and gave her an opportunity to present any evidence as to why the City should not proceed with the termination of her employment. Still failed to show that she was medically fit to return to work, with or without a reasonable accommodation, and she was terminated.

Still then initiated an Article 78 action challenging her termination. Supreme Court, Orange County, denied her petition, in effect dismissed the proceeding, and Still appealed the court’s ruling.

The Appellate Division sustained the Supreme Court’s determination, explaining that the standard of judicial review in this instance was whether the appointing authority’s action was arbitrary and capricious, an abuse of discretion, in violation of lawful procedure, or affected by an error of law.  

Under the circumstances, said the court, "the City's decision to terminate [Still’s] employment was not arbitrary or capricious, an abuse of discretion, in violation of lawful procedure, or affected by an error of law."

N. B. An individual unable to perform the duties of his or her position due to an injury or disease that is not “job related” and which did not result in a permanent disability is entitled to be placed on leave without pay pursuant to §72 of the Civil Service Law -- Leave  for  Ordinary  Disability -- for at least one year. Such an individual may be  terminated from his or her position pursuant to §73 of the Civil Service Law after one year of such leave at the discretion of the appointing authority.

* An employee sustaining a disability resulting from an assault suffered in the course of his or her employment is entitled to a leave of absence for at least two years unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

** Termination from Workers’ Compensation Leave pursuant to CSL §71 is not pejorative in nature and the individual may, within one year after the termination of his or her disability, file an application with the civil service department or municipal commission having jurisdiction for reinstatement to his or her former position and is to be reinstated if then found qualified to resume the duties of his or her former position. If the position, or a similar position, is not available, the name of the individual is to be placed on a preferred list in accordance with §80 or §80-A of the Civil Service Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08741.htm

 ___________________________

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions addressing disability and similar leaves absence. For more information click on http://booklocker.com/3916.html

___________________________

 

Teacher seeking unemployment insurance benefits between school years found ineligible to receive benefits because she had a reasonable assurance of continued employment

Teacher seeking unemployment insurance benefits between school years found ineligible to receive benefits because she had a reasonable assurance of continued employment
Matter of Vazquez (Commissioner of Labor), 2015 NY Slip Op 08234, Appellate Division, Third Department

Ana M. Vazquez worked as a substitute teacher for the New York City Department of Education (DOE) during the 2013-2014 academic school year. Prior to the close of the academic school year DOE notified Vazquez, in writing, that it anticipated the same need for substitute teachers going forward into the 2014-2015 academic school year and that the terms and conditions of her employment would remain substantially the same.

Vazquez, after confirming that she received this letter, applied for unemployment insurance benefits. The Department of Labor found that she was ineligible to receive such benefits because she had received a reasonable assurance of continued employment during the 2014-2015 academic year. This determination of ineligibility was sustained by an Administrative Law Judge [ALJ]  following a hearing and later by the Unemployment Insurance Appeal Board. Vazquez appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling, noting that Labor Law §590(10), bars professionals who are employed by educational institutions from receiving unemployment insurance benefits during the period between two successive academic periods if they have received a reasonable assurance of continued employment*.

The court said that in the course of the administrative hearing before the ALJ DOE’s representative stated that Vazquez had worked 169 out of a total of 180 days during the 2013-2014 academic school year at a rate of $154.97 per day and indicated that Vazquez’s per diem rate would be $158.09 during the 2014-2015 academic school year. DOE’s representative also indicated that he anticipated that Vazquez would receive the same amount of work during the 2014-2015 academic school year because the DOE was not under any budgetary constraints.

The Appellate Division concluded that DOE correspondence to Vazquez advising her of the continued need for substitute teachers during the 2014-2015 academic year on substantially the same economic terms and conditions that were offered the year before constituted “substantial evidence” supporting the Board's conclusion that Vazquez had received a reasonable assurance of continued employment and was, therefore, ineligible to receive unemployment insurance benefits between the two school years.

* "A reasonable assurance of continued employment" has been interpreted to have been satisfied by  a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant would receive at least 90% of the earnings received during the first academic period during the second academic year.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08234.htm

Navigating the Digital Age, The Definitive Cybersecurity Guide for Directors and Officers

Navigating the Digital Age, The Definitive Cybersecurity Guide for Directors and Officers
A publication of Palo Alto Networks, Inc. and the New York Stock Exchange

Palo Alto Networks Inc. CEO Mark McLaughlin, noting that “Frequent headlines announcing the latest cyber breach of a major company, government agency, or organization are the norm today, begging the questions of why and will it ever end?”, asks "Prevention: Can it be done?"

In 46 essays by experts in the field, this 355 page handbook covers many of the security issues facing the public and private sectors and provides “practical, actionable and expert advice on best practices for compliance, implementation, breach prevention and immediate response tactics.”

Palo Alto Networks, Inc. has made this publication available without charge through its website. To download a copy, go to:

http://connect.paloaltonetworks.com/cyberhandbook

Commissioner of Education lacks jurisdiction to review if reports of alleged child abuse by school administrators are made consistent with the Social Services Law

Commissioner of Education lacks jurisdiction to review if reports of alleged child abuse by school administrators are made consistent with the Social Services Law

Appeal of M.I.B., on behalf of his son, from actions of the Board of Education of the Tuxedo Union Free School District regarding reports of child abuse. Decisions of the Commissioner of Education, Decision No. 16,847

In this appeal M.I.B. challenged Tuxedo Union Free School District’s [Tuxedo] staff members filing, on at least three separate occasions, reports of suspected child abuse involving M.I.B.’s family with New York State Department of Social Services' Child Protective Services [CPS].

M.I.B. said that while he understood a school district had a duty to report any such abuse to CPS, the filing of “incorrect complaints on a regular basis” violated the law and asked the Commissioner, among other things, to investigate and take “appropriate action” against Tuxedo’s employees. 

The Commissioner noted that Tuxedo’s director of student services and human resources had earlier addressed the M.I.B.’s concerns that were set out in a letter to Tuxedo and explained that all professional staff members of the school “are mandated reporters of suspected child abuse to CPS,” and outlined the procedures followed in making such reports.  The director also stated, among other things, that it had been found that proper procedures had been followed regarding M.I.B.’s complaints. 

M.I.B. contended that Tuxedo was “harassing” his family by “repeatedly filing incorrect reports of [c]hild abuse” to CPS and alleged that between in an eight month period had filed three reports, all of which were dismissed by CPS as unfounded. 

After addressing two procedural matters the Commissioner ruled that the appeal must be dismissed for lack of jurisdiction. 

The Commissioner explained that the provisions of Article 6 of Title 6 of the Social Services Law (§§411-428) set forth the scheme for mandatory reporting by school officials of suspected cases of child abuse or maltreatment. 

In this instance, said the Commissioner, CPS investigated the reports about which M.I.B. complained and found them to be unfounded.  Therefore, the relief M.I.B. requests would be based on a finding that Tuxedo engaged in misconduct by making the reports to CPS.  

However, the Commissioner said that she has “no authority to review whether such reports are appropriately made in accordance with the Social Services Law” Further, said the Commissioner, she does not have jurisdiction to request that school officials stop filing reports of suspected abuse to CPS or that school officials contact the parents prior to doing so, opining that to do so “would undermine the legislative purpose in requiring that such reports be made by school officials.”

Thus, said the Commissioner, M.I.B.’s appeal must be dismissed for lack of jurisdiction. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16847

Arbitrator directs the reinstatement of employees laid off in violation of the “meet and confer” provision mandated by the collective bargaining agreement

Arbitrator directs the reinstatement of employees laid off in violation of the “meet and confer” provision mandated by the collective bargaining agreement

Matter of Certain Controversies Between Social Serv. Empls. Union, Local 371 v City of New York, 2015 NY Slip Op 08658, Appellate Division, First Department

Underlying this case is an arbitration award that ordered the City of New York[City] to reinstate laid-off employees with back pay.

The arbitrator found that the City had failed to comply with the "meet-and-confer" requirement of the relevant collective bargaining agreement [CBA]. This provision required that,  prior to any layoffs, the City meet and confer with the designated representatives of the appropriate employee organization or organizations, here Social Service Employees Union, Local 371 [Union], with the objective of considering feasible alternatives to all or part of the projected layoffs.

The Union filed a petition pursuant to CPLR Article 75 seeking to confirm the arbitration award compelling the City to reinstate the employees to there former positions with back salary and benefits. The City, on the other hand, filed a petition seeking to vacate the award. Supreme Court confirmed the award, and the City appeal from that order to the Appellate Division. The Appellate Division found that the arbitration award “merely compels the City to follow the procedure delineated in the citywide collective bargaining agreement” and was therefore properly confirmed the Supreme Court.

The court explained that the citywide CBA outlined various requirements the City must meet before laying off employees including providing the appropriate union or unions with notice of layoffs "not less than thirty days (30) before the effective dates of projected layoffs" and then the "designated representatives of the City” were to “meet and confer with the designated representatives of the appropriate union” to consider "feasible alternatives to all or part of such scheduled layoffs."

The Appellate Division said that this mandatory "meet-and-confer" provision was not a mere formality but set out a non-exhaustive list of potential "feasible alternatives" including:

"i. the transfer of employees to other agencies with retraining, if necessary, consistent with Civil Service law but without regard to the Civil Service title,

"ii. the use of Federal and State funds whenever possible to retain or re-employ employees scheduled for layoff,

"iii. the elimination or reduction of the amount of work contracted out to independent contractors, and

"iv. encouragement of early retirement and the expediting of the processing of retirement applications."

Significantly, the citywide CBA provides for dispute resolution by “final and binding” arbitration, whereby the arbitrator may direct "such relief as the arbitrator deems necessary and proper,” subject to "certain limitations and any applicable limitations of law."

Although it was conceded that City gave proper notice to the Union about the layoffs, the Unioncommenced arbitration in the City's Office of Collective Bargaining, alleging that the City terminated certain employees without satisfying the citywide CBA's meet-and-confer requirement. Although there actually was a meeting, the Appellate Division said that crux of the disagreement was that at the “meet and confer” meeting the City [1] did not offer any alternatives for the 18 employees to be laid off, [2] there were no discussions about other alternatives to layoffs, and [3] the Unionwas not asked to submit proposals to avoid the layoffs.

The arbitrator analyzed the record of the meeting and determined that meeting did not satisfy the meet-and-confer requirement, because "feasible alternatives" to layoffs were not properly discussed. As a remedy, the arbitrator ordered the reinstatement of the laid off employees to their former position with full back pay.

The Appellate Division said that it was “well settled” that courts review arbitration awards with a high level of deference and will not vacate and arbitration award unless it finds that "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further, said the court, an arbitrator's award will not be vacated when there is "some basis in the record for each of the arbitrator's findings," citing Branciforte v Levey, 222 AD2d 276.

The Appellate Division found that the arbitrator's determination had a basis in the record and that the arbitrator noted that some the employees received layoff letters the day after the meeting. This “suggested that the City had already made up its mind about the layoffs before the meeting.” The court concluded that “this evidence constitutes a rational basis for the arbitrator's determination that the ... meeting did not fulfill the meet-and-confer requirement.”

The City’s argued that “the remedy of reinstatement with back pay violated a strong public policy by infringing upon the ‘managerial prerogative’ reserved to the City and Administrative Code of the City of NY §12-307(b), which ‘specifically and clearly removes from collective bargaining considerations the right of the public employer to retire its employees from duty because of lack of work or for other legitimate reason.”

The Appellate Division said essentially City contended that the directive to reinstate the employees that had been laid off infringed on the discretion of the City to make firing decisions. The directive, said the court, “does no such thing.” In the works of the court, “Nothing in the arbitrator's award precludes the City from following the citywide CBA procedure to which it agreed and ultimately laying off the [employees]. There is no managerial prerogative to violate the contract. As a proper meet-and-confer must precede any layoff, the arbitrator's remedy simply restored the status quo pending a proper meet-and-confer.”

Thus, the court concluded that the arbitrator's award "merely returned [the employees laid off] to the status they would have occupied had they not been wrongfully dismissed." By ordering the reinstatement of the employees that had been laid off the arbitrator made it possible for the contract to be executed as intended.

Accordingly, said the Appellate Division, “the judgment of the Supreme Court … confirming the arbitration award … should be affirmed, without costs.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08658.htm

Another "Black Friday" opportunity – New York State to auction two seized luxury cars at December 1, 2015 vehicle and equipment auction in Albany

Another "Black Friday" opportunity – New York State to auction two seized luxury cars at December 1, 2015 vehicle and equipment auction in Albany
Source: NYS Office of General Services

The New York State Office of General Services has added a 2013 Mercedes-Benz G63 AMG and a 2012 Audi A7 Prestige Quattro to the list of items the public can bid on at a surplus vehicle, highway equipment, and miscellaneous property auction scheduled to start at 9:30 a.m. Tuesday, December 1 at the Harriman State Office Building Campus in Albany. Items being sold will be available for inspection starting at 8:30 a.m. on the day of the auction.

The Mercedes, with approximately 721 miles on its odometer, and the Audi, with approximately 14,426 miles on it, were seized by the Attorney General’s Office in 2013 following an investigation into a $3.2 million Medicaid fraud case in Brooklyn. Proceeds from the sale of the two cars will be transferred to the Attorney General’s Medicaid Fraud Unit.

This isn’t the first time OGS has sold seized items. In the summer of 2014, several pieces of men’s jewelry, including a Rolex watch, were sold on the NYSStore.com eBay site after they were confiscated from a suspected drug trafficker on Staten Island. Later that year, a 1971 Camaro that was reported stolen in 1976 and was seized by New York Statewas among vehicles sold at a state surplus vehicle auction in Poughkeepsie.

For a listing of New York Stateauctions to be held in the future, go to: https://www.nysstore.com/. For information on specific items and terms of sale, email state.surplus@ogs.ny.gov, or call (518) 457-6335.

Handbooks focusing on New York State and Municipal Public Personnel Law

Handbooks focusing on New York State and Municipal Public Personnel Law

The Discipline Book- A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions addressing disability and similar leaves absence. For more information click on http://booklocker.com/3916.html

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

Summaries of recent 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. 


OATH Administrative Law Judge denies employer’s motion to strike the testimony of two witnesses called by the accused

NYC Department of Corrections v Williams, OATH Index No. 2223/15

In this hearing conducted pursuant to Civil Service Law §75, OATH Administrative Law Judge John B. Spooner denied a motion made by counsel for the NYC Department of Corrections to strike the testimony of two of the employees witnesses on the grounds that there was an indication of collusion.

The attorney said that the two witnesses worked in the same facility and were supervised by the employee and were jointly interviewed by the employee's counsel.

The employee’s counsel, on the other hand, described the pre-trial meeting as consisting of a five-minute conversation in which counsel informed the witnesses about why they were present and asked them to simply testify as to what they remembered about the incident.

Under the circumstances, Judge Spooner explained, there was virtually no possibility that the witnesses would alter their testimony to match one another as they testified about different stages of the charged incident. Further, said Judge Spooner, the witnesses’ working relationship with the employee who was the target of the disciplinary action, while a proper issue to consider when assessing credibility, did not warrant precluding their testimony entirely.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2223.pdf

Computer specialist charged with misconduct, including answering his phone “in a robotic voice” 

OATH Index No. 2231/15

OATH Administrative Law Judge Ingrid M. Addison found that Ronald Dillon,* a computer specialist assigned to the IT Help Desk, answered the phone in a robotic voice on two occasions, created and abandoned service desk requests, failed to timely resolve tickets, misdirected callers, inaccurately re-classified a ticket and failed to respond to supervisor inquiries.

Dillon was also alleged to have” force-closed the employer’s acceptable use policy” on many occasions, thereby circumventing the acceptance of the agreement.

Judge Addison found the Department's proposed penalty, termination of Dillion’s employment, to be excessive and she recommended a thirty day suspension without pay.

Posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2231.pdf 

* See, also, Dep’t of Health & Mental Hygiene v. Dillon, OATH Index No. 108/14, posted on the Internet at http://archive.citylaw.org/oath/11_Cases/14-108.pdf, involving similar charges of misconduct filed against Dillon.

An employee who refused to report to her new work location found guilty of being absent without leave [AWOL]

OATH Index No. 1512/15

A New York City Sanitation Enforcement Agent (SEA) was charged with being AWOL when she refused to report to a new work location. The Department introduced a plan to reassign SEAs as an anti-corruption effort. SEAs were required to list three different work locations on a form or they could request an interview for personal hardship consideration.

The SEA, who was assigned in Brooklyn, did neither. When she was ordered to report to her new location in the Bronxshe refused to do so. At hearing the SEA argued that her seniority status entitled her to the work assignment she wanted in Brooklyn.

OATH Administrative Law Judge Susan J. Pogoda disagreed and sustained the AWOL charge filed against the employee. The assignment of personnel is within the employer's discretion and the SEA did not show that the transfer would present an imminent threat to her health or to her safety.

Taking into consideration the SEA's prior disciplinary record, Judge Pogoda recommended termination of her employment with the Department.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1512.pdf

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/books/7401.html

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If §75 charges of misconduct "would, if proved in a court of law constitute a crime,” the 18-month statute of limitations for bringing such charges does not apply

If §75 charges of misconduct "would, if proved in a court of law constitute a crime,” the 18-month statute of limitations for bringing such charges does not apply
Hanlon v New York State Police, 2015 NY Slip Op 08315, Appellate Division, Fourth Department

Christian Hanlon was served with disciplinary charges pursuant to Civil Service Law §75. Found guilty following an administrative disciplinary hearing held pursuant to Civil Service Law §75, the appointing authority imposed the penalty of dismissal of Hanlon’s  employment as a State Trooper.

Hanlon then commenced a CPLR Article 78 proceeding seeking a court order annulling  the determination finding him guilty of the disciplinary charges and terminating his employment, contending that “certain charges were time-barred pursuant to Civil Service Law §75(4).”

The Appellate Division disagreed, explaining that while a §75 disciplinary action must be commenced within 18 months of the occurrence of the "alleged incompetency or misconduct complained of," if the misconduct charged "would, if proved in a court of appropriate jurisdiction, constitute a crime," the 18-month limitation does not apply.*

Here, said the court, the charges alleged conduct that would, if proved in a court of law, constitute the crime of official misconduct and thus they are not time-barred.**

The court also found that appointing authority’s determination was supported by substantial evidence and the penalty imposed by the appointing authority, dismissal, was not shocking to one's sense of fairness.

* In the case of a state employee who is designated managerial or confidential pursuant to Article 14 of Civil Service Law charges of incompetency or misconduct must be brought within one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, unless the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.

** §195.00 of the Penal Law provides that "a public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit: [1] He [or she] commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions, knowing that such act is unauthorized; or [2] He [or she] knowingly refrains from performing a duty which is imposed upon him [or her] by law or is clearly inherent in the nature of [his or her] office. Official misconduct is a class A misdemeanor."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08315.htm

________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

________________

Taxpayers born before July 1, 1945 may be required to take distributions from their IRA and similar plans no later than December 31, 2015 to avoid penalties

Taxpayers born before July 1, 1945may be required to take distributions from their IRA and similar plans no later than December 31, 2015 to avoid penalties

The Internal Revenue Service has posted a reminder indicating that taxpayers born before July 1, 1945 generally must receive payments from their IRA and similar deferred compensation plans at least equal to their “required minimum distribution" (RMD) from IRAs and workplace retirement plans by Dec. 31, 2015. Failure to do so may have tax consequences.

Employees of public schools and certain tax-exempt organizations participating in a §403(b) plan, for example employees of the State University of New York, the community colleges and the Board of Higher Education of the City of New York participating in a “Special Annuity Plan” pursuant to Article 8-C of the Education Law, having accruals before 1987 should check with their employer, plan administrator or provider to see how to treat these accruals.

The IRS advisory is posted on the Internet at:

https://www.irs.gov/uac/Newsroom/Tax-Preparedness-Series:-Most-Retirees-Need-to-Take-Required-Retirement-Plan-Distributions-by-Dec.-31

Appeal to the Commissioner of Education dismissed for a number of procedural omissions

Appeal to the Commissioner of Education dismissed for a number of procedural omissions
Appeal of Michael Nelson, regarding a district policy and application for the removal of the Board of Education of the Cherry Valley - Springfield Central School District, Decisions of the Commissioner of Education, Decision No. 16,845

In this appeal to the Commissioner of Education Michael Nelson alleged that Cherry Valley - Springfield Central School District [1] permitted the district’s superintendent to use a district vehicle for personal use in violation of district policy; [2] failed to hold the superintendent accountable for his alleged violation of district policy; and [3] failed to properly investigate the matter. 

Nelson also asked the Commissioner to order the school district “to reimburse taxpayers for the reasonable expense resulting from the superintendent’s alleged improper use of a district vehicle;” investigate the alleged unauthorized use of district property; and order “the removal of members of the board.”

The Commissioner did not address the merit of Nelson’s appeal, ruling that the appeal “must be dismissed and the application denied” for a number of procedural reasons, including the following:

1. Nelson sought to bring this proceeding on behalf of other taxpayers but an appeal may only be maintained on behalf of a class only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class and the petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class. The Commissioner found that Nelson’s “pleadings are entirely devoid of any allegations addressing these criteria” and denied class status.

2. An appeal to the Commissioner must be dismissed and the application denied for failure to join necessary parties, i.e. a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.” In this instance, said the Commissioner, Nelson did not serve the individual board members he sought to have removed from office nor did he serve the superintendent, thus he failed to join necessary parties. The record indicates that Nelson served only the district, by personally serving its clerk.  There is no indication that any individual board members or the superintendent were served with a copy of the notice of petition and petition.  

3. The Commissioner said Nelson’s appeal must also be dismissed with respect to his demand that the Commissioner investigate the alleged unauthorized use of district property as appeal to the Commissioner is appellate in nature and does not provide for investigations.

4. As to Nelson’s seeking an award of monetary damages, costs or reimbursement of expenses in prosecuting his appeal, the Commissioner said that she “has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume55/d16845