Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

OATH Index No. 2088/15

A community liaison worker at Bellevue Hospital was charged with violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments.

OATH Administrative Law Judge Kara J. Miller sustained the charges. Evidence showed that the employee had violated patient escort procedures on three occasions by leaving patients unescorted at locations outside the facility; violated the hospital's lateness policy and in one instance, falsified her time sheet to indicate she had arrived to work on time.

ALJ Miller recommended termination of employment.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2088.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/7401.html

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The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence

The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence
Close v Nitido, 2016 NY Slip Op 00407, Appellate Division, Third Department

Eric M. Close’s father, William Close [Decedent], died in January 2012. Decedent's mother, Peggy Eythe, was listed as his primary beneficiary on the last designation of beneficiary form filed with the New York State Employees' Retirement System, [ERS] dated November 17, 2011. On a previous designation of beneficiary form, dated July 26, 2010, Close was listed as Decedent's primary beneficiary. After Decedent's death and upon being informed that he was no longer a primary beneficiary of Decedent's death benefits, Close filed an application for Decedent’s death benefits with ERS and requested an investigation and a hearing into whether Eythe submitted a fraudulent designation of beneficiary form.

ERS informed Close that its records indicated that Decedent had submitted a notarized change of beneficiary form and that payment would be made in accordance with the last valid designation.

At the administrative hearing Close indicated that “despite his knowledge that Decedent had been diagnosed with stage four cancer, [he] had not visited Decedent — who lived in the same state and sometimes the same city — for approximately five months leading up to Decedent's death. Among the reasons given by Close “for his lack of consistent contact with Decedent prior to Decedent's death” was that he was busy "trying to inherit [an] apartment" from his recently deceased grandmother.

In contrast, as the Appellate Division’s decision notes, Eythe, the primary beneficiary of the 2011 designation of beneficiary form filed with ERS, had moved in with Decedent to help care for him. Further, although Close’s handwriting expert opined that the signature on the 2011 designation of beneficiary form was forged, Decedent’s attorney testified to the contrary, stating that he had witnessed Decedent sign the 2011 change of beneficiary form and that he then notarized that form for the Decedent.

The Hearing Officer found that Close's testimony and the testimony of his witnesses were less credible than the witnesses called by ERS and determined that Close had failed to meet his burden of establishing that the 2011 designation was invalid. The Comptroller accepted in its entirety the Hearing Officer's determination and, as a result, denied Close's application for designation as the beneficiary of Decedent’s death benefits.

Close initiated Article 78 proceeding challenging Comptroller's determination and Supreme Court, finding there was an issue of substantial evidence present, transferred the action to the Appellate Division.

Initially Appellate Division explained that [1] the Comptroller has exclusive authority to determine the validity of beneficiary designations on applications for death benefits, and each such  determination must be supported by substantial evidence and [2] an individual challenging the Comptroller's determination had the burden of proving that the beneficiary designation accepted by the Comptroller was invalid.

Given the eyewitness testimony regarding validity of Decedent's signature on the 2011 designation form, the Appellate Division said that there was “compelling evidence” explaining Decedent's motivation for changing his beneficiary from Close to Eythe and, giving due deference to the Comptroller’s credibility determinations, found that substantial evidence supported the Comptroller decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00407.htm

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony was unsupported by reliable documentary evidence

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony unsupported by reliable documentary evidence

OATH Index No. 195/16

The Department of Environmental Protection charged the employee, a city research scientist, with failing to perform the duties of his job satisfactorily. The Department presented the testimony of employee's supervisors, as well as employee's work performance evaluations.

The employee testified that after filing an Equal Employment and Opportunity complaint against one of his supervisors, he had been treated unfairly and his supervisors rated his work performance as unsatisfactory.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the testimony of the supervisors was unsupported by reliable documentary evidence and thus was not objective proof that employee was unable to meet the minimally acceptable threshold requirements with respect to performing the duties of his position satisfactorily.

Judge Zorgniotti recommended that the charges be dismissed.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-195.pdf

Where disclosure is not barred by statute, claims of “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information

Where disclosure is not barred by statute, claims of  “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information
Sell v New York City Dept. of Educ., 2016 NY Slip Op 00425, Appellate Division, First Department

Peter Sell sought the records of an investigation by the New York City Department of Education [DOE] Office of Special Investigations [OSI] into a complaint he filed alleging that school administrators had improperly influenced the re-scoring of a Regents Examination with the intent of improving the number of students who passed "with distinction." DOE denied Sell’s request, citing the statutory exemptions from disclosure of unwarranted invasion of privacy and inter- or intra-agency materials set out in Public Officers Law §87[2][b], [g].

Supreme Court ordered the records in question produced for an in camera* inspection by the court and subsequently directed DOE to disclose the investigative file concerning “Office of Special Investigation Case 08-4247” except for certain pages, with any Social Security numbers redacted from such files. The DOE appealed the court’s ruling.

The Appellate Division unanimously sustained the Supreme Court’s decision after excepting from disclosure certain additional pages or portions of pages it identified in its decision, explaining that the lower court had “properly directed the disclosure of some portions of these records, notwithstanding  OSI's finding the complaint “unsubstantiated."

As DOE had conceded that none of the statutorily enumerated categories of "unwarranted invasion of personal privacy" were relevant in this action, the Appellate Division said it must determine, "by balancing the privacy interests at stake against the public interest in disclosure of the information," whether any invasion of privacy is unwarranted.

The court said that it found that “there is significant public interest in the proper academic assessment of public school students and therefore in the requested materials, which may shed light on the adequacy of OSI's investigation into the allegedly improperly influenced assessment in this case.” Further, the Appellate Division said the DOE had failed to establish that this significant public interest is outweighed by the privacy interests of those involved. 

Contrary to DOE's argument, the court found that there was no indication in the record that any interviewees were promised confidentiality, explicitly or implicitly. Rather, said the court “all contact information other than the interviewees' names and official titles (such as identification numbers, home addresses, phone numbers, and dates of birth) should be redacted,” noting that Sell had specifically clarified in his administrative appeal that he did not seek that information.

As to the statutory exemption for inter- or intra-agency materials, the Appellate Division found the Supreme Court had erred in directing disclosure of certain pages or portions of pages as they were not "factual tabulations or data" or "final agency policy or determinations." Such pages or portions of such pages set out witness statements, email correspondence, and other materials consisting of "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" rather than "factual account[s] of the witness's observations."

However, observed the court, a page in which a nonparty FOIL requester, Michael Thomas, discussed certain sensitive matters was not covered by the personal privacy exemption to FOIL because Thomas "consent[ed] in writing to disclosure" by waiving, in an affidavit, any right to confidentiality in any of the records sought. Further, said the Appellate Division, “the remaining records at issue largely relate to [Sell], who expressly waived his right to confidentiality in those records in writing.”

Regarding the remaining materials at issue, the Appellate Division said that Supreme Court had “correctly found that [DOE] failed to meet [its] burden of articulating a ‘particularized and specific justification' for withholding them or redacting them as sought” because there is no blanket exemption for handwritten reports of witness interviews, citing Ingram v Axelrod, 90 AD2d 568.

It should be noted that the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to provide the information requested.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

In addition, the Freedom of Information Law is not a bar an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to Article 14 of the Civil Service Law obtaining the name or home address of any officer, employee or retiree of a public employer, “if such name or home address is otherwise available."

* A judicial review of material alleged to be confidential or sensitive information to determine whether it should be part of the record to be made public.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00425.htm

From the Blogs

From the Blogs

NYMUNIBLOGhas posted a new item, “Impacts of Federal Laws on Municipalities’ Daily Operations” by Joseph V. Frateschi, Esq.

NYMUNIBLOG previously discussed the impacts of federal laws and the United States Constitution upon the daily operations of local municipalities in such articles as “Concern Over Drones: Air Rights, Privacy, Health and Safety are Among the Issues” and “Lesson Learned in Arizona Sign Code Case – Municipal Ordinances Should be Content Neutral.”

You may view its latest post at
http://nymuniblog.com/impacts-of-federal-laws-upon-municipalities-daily-operations/

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism

Triborough Bridge and Tunnel Authority v Beverly, OATH Index No. 2238/15

The Triborough Bridge and Tunnel Authority filed disciplinary charges pursuant to §75 of the Civil Service Law against Bruce Beverly, a Bridge and Tunnel Officer, alleging incompetency due to his excessive absenteeism from work. In rebuttal, Beverly alleged that his absences were caused by a long-term disability and sought a one-year leave of absence for ordinary disability pursuant to §72 of the Civil Service Law.

ALJ Alessandra F. Zorgniotti found that Beverly, who had an absenteeism rate of 100% in 2015 and 54% in 2014, was excessively absent and ruled that even if an employee’s  absences are caused by a disability, an employer may discipline the employee for incompetence pursuant to §75 of the Civil Service Law when the absences are excessive and have a burdensome effect on the employer. .

In addition, Judge Zorgniotti ruled that Beverly was not entitled to a one-year leave pursuant to §72 of the Civil Service Law as there was insufficient proof that “he is currently unfit to perform his duties due to a disability.”

In support of her decision, Judge Zorgniotti cited the following decisions:

1. Brockman v. Skidmore, 39 N.Y.2d 1045 rev’g 43 A.D. 2d 572, in which the Court of Appeals reversed a finding that a government agency must treat an employee’s time–and-leave violations pursuant to CSL §72 rather than as a disciplinary matter under CSL §75 when there is evidence of a disability;

2. Garayua v. Board of Education, 248 A.D.2d 714, where the court rejected an assistant custodian’s claim that her physical incapacity and “nonwillful absenteeism” entitled her to leave pursuant to §72, rather than subjecting her to disciplinary action pursuant to §75; and

3. Romano v. Town Board of Colonie, 200 A.D.2d 934, holding that an agency may terminate an employee for excessive absence regardless of whether valid reasons existed for the absences or whether they were authorized, concluding that even if an employee’s absences are caused by a physical or mental disability, the employer may discipline and, if appropriate, terminate the employee for incompetence pursuant to CSL §75 when the absences are excessive and they have a burdensome effect upon the employer.

Considering Beverly’s “egregiously poor attendance over the past two years,” the ALJ recommended that he be terminated from employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2238.pdf

________________________

The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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Selected Reports issued by the Office of the State Comptroller during the week ending January 23, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending January 23, 2016

Click on text highlighted in color to access the full report

Non-profit organization executive convicted of theft of public monies

Comptroller Thomas P. DiNapoli, Attorney General Eric T. Schneiderman and New York City Department of Investigation (NYC DOI) Commissioner Mark Peters announced that Dorothy Ogundu, a nonprofit executive convicted for pocketing taxpayer dollars intended for public services and capital improvements in New York City, was sentenced to one to three years in state prison. A multi-agency investigation, including NYC DOI and two federal agencies, exposed the theft of approximately $300,000 in public funds provided by New York state, the New York City Council, and federal earmark grants. On October 22, 2015, a jury convicted Dorothy Ogundu on 29 counts, including Grand Larceny in the Second Degree.

http://www.osc.state.ny.us/press/releases/jan16/012216.htm?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012216release

Retiree alleged to have fraudulently obtained retirement benefits

Noting that the charge contained in the Indictment is merely an accusation and the defendant is presumed innocent unless and until proven guilty, Thomas P. DiNapoli, New York State Comptroller, Preet Bharara, United States Attorney for the Southern District of New York, and Diego Rodriguez, the Assistant Director-in-Charge of the New York Field Office of the Federal Bureau of Investigation (FBI) announced the indictment of Michael J. Vatter, the Chief of the Newburgh Fire Department, charging him with fraudulently obtaining approximately $95,000 in pension benefits by failing to report his return to work in the public sector to the New York State and Local Police and Fire Retirement System. Under New York State law, a public sector retiree who is receiving a pension and who returns to public service cannot receive both pension payments and a public sector paycheck. The law permits public sector retirees to earn up to $30,000 per year from public sector employment before their pension benefits are cut off for that year.

www.osc.state.ny.us/press/releases/jan16/012016a.htm?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012016arelease

New Tax Cap Calculations

Property tax levy growth for school districts will be capped at 0.12 percent above current levels for the 2016-17 fiscal year, according to data released by State Comptroller Thomas P. DiNapoli. The latest calculation affects the tax cap calculations for 677 school districts as well as 10 cities, including the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers.

http://www.osc.state.ny.us/press/releases/jan16/012016.htm?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012016release

Municipal Audits published

Gloversville Housing Authority – Selected Financial Operations

http://www.osc.state.ny.us/localgov/audits/publicauth/2016/gloversvillehousing.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116release

Mechanicville Housing Authority – Tenant Rents

http://www.osc.state.ny.us/localgov/audits/publicauth/2016/mechanicvillehousing.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116release

Village of Old Brookville – Cash Receipts

http://www.osc.state.ny.us/localgov/audits/villages/2016/oldbrookville.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116release

Town of Pamela – Financial Management

http://www.osc.state.ny.us/localgov/audits/towns/2016/pamelia.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116release

Tompkins County Public Library – Financial Management

http://www.osc.state.ny.us/localgov/audits/libraries/2016/tompkinsco.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116release

School Audits published

East Greenbush Central School District– Claims processing

http://www.osc.state.ny.us/localgov/audits/schools/2016/eastgreenbush.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

East Rockaway Union Free School District– Purchasing

http://www.osc.state.ny.us/localgov/audits/schools/2016/eastrockaway.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Honeoye Central School District – Payroll

http://www.osc.state.ny.us/localgov/audits/schools/2016/honeoye.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Jefferson Central School District – Fund balances

http://www.osc.state.ny.us/localgov/audits/schools/2016/jefferson.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Keene Central School District – Claims Processing

http://www.osc.state.ny.us/localgov/audits/schools/2016/keene.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Lansing Central School District – Financial Management

http://www.osc.state.ny.us/localgov/audits/schools/2016/lansing.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Otego-Unadilla Central School District – Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2016/otegounadilla.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Royalton-Hartland Central School District – Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2016/royaltonhartland.pdf?utm_source=weeklynews20160124&utm_medium=email&utm_campaign=012116arelease

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education

Appeal of Ling Ling Chou from a disciplinary proceeding brought pursuant to Education Law §3020. Decisions of the Commissioner of Education, Decision No. 16,861

Carmen Fariña, Chancellor of the New York City Department of Education, implemented the arbitrator’s decision to suspend Ling Ling Chou from her position as principal of P.S. 184M without pay.  The Commissioner, in dismissing the appeal, addressed a number of issues, including the following:

Opening the arbitration hearing to the public:

With regard to the conduct of the hearing, Ms. Chou claimed that the hearing officer erred in closing the hearing after she had elected to have a public hearing, pursuant to Education Law §3020-a(3)(c)(i)(C). 

The Commissioner noted that in his decision, the hearing officer explained that the hearing was subsequently closed to the public, in part, due to “potential and actual” violations of the federal Family Educational Rights and Privacy Act.  She then said the “Even if I were to determine that closure of the hearing to the public was not proper, under these circumstances, Ms. Chou has alleged no harm or prejudice resulting therefrom and, in any case, such error would not be a basis for overturning the suspension imposed upon Ms. Chou.”  

Refusal to hear “pertinent testimony”

Ms. Chou alleged that the arbitrator refused to hear “pertinent witness testimony. However, in  an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. 

Here, said the Commissioner, Ms. Chou asserted her claim in a conclusory fashion and did not set forth what, if any, “pertinent witness testimony” was precluded nor did she establish how such testimony would have impacted her case.  Other than her conclusory assertion, Ms. Chou, the Commissioner said that she failed to set forth facts or citations in the record on which to establish her claim.  Consequently, the Commissioner ruled that Ms. Chou failed to meet her burden of proof in this regard.

Failure to follow the §3020-a disciplinary process

Ms. Chou, said the Commissioner, contended that the New York City Department of Education “inexcusably did not follow the process defined in §3020-a(4)(D)(i-a)(A) for bringing charges of incompetence based solely on a pattern of ineffectiveness. Instead, a full disciplinary hearing was implemented by [the Department] without giving petitioner an opportunity to develop a correction plan for alleged inefficiencies, as statutorily required.” 

The Commissioner explained that Education Law §3020-a(3)(D)(i-a)(A) was the statutory provision relating to expedited hearings on charges of incompetence based solely on a pattern of ineffectiveness that existed prior to July 1, 2015, not Education Law §3020-a(4)(D)(i-a)(A) as erroneously cited by Ms. Chou.  That former provision was deleted by section three of Subpart G of Part EE of Chapter 56 of the Laws of 2015, though it was in effect at the time of petitioner’s hearing.  

In any event, to the extent that Ms. Chou argued that she was entitled to an expedited hearing because she was charged with incompetence based solely on a pattern of ineffectiveness, the Commissioner decided that the record did not support any such claim. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16861 

____________________

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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The test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position

The test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position

Cook v New York State Comptroller, 2016 NY Slip Op 00236, Appellate Division, Third Department

Brent J. Cook Jr., a police lieutenant employed by the Nassau County Police Department as an administrative supervisor, was injured in a motor vehicle accident while on duty. When Cook returned to work on or about March 30, 2010, he was placed on restricted-duty status, i.e., he "was no longer allowed to perform patrol function[s]" and instead was limited to working in a clerical capacity.

In February 2011, Cook applied for accidental disability retirement benefits alleging that he was permanently incapacitated from the performance of his duties due to certain neck and back injuries sustained in the accident.

The NYS Employees’ Retirement System rejected Cook’s application and he requested a hearing and redetermination. The Hearing Officer found that Cook failed to establish that he was permanently incapacitated from the performance of his duties and upheld the denial of his application for benefits. The State Comptroller, in turn, adopted the Hearing Officer's findings and recommendation and Cook sued challenging the Comptroller’s decision.

Citing 2 NYCRR 364.3[a], the Appellate Division noted that “Where, as here, the applicant ‘has been assigned to light, limited or restricted duties for less than two years prior to the date [upon which the] application for disability retirement benefits was filed with [respondent,] . . . the issue of permanent incapacity [shall be determined] on the basis of the duties and job requirements of such previous full duty assignment.’”

Cook had testified, without contradiction, that he never returned to full-duty status as a lieutenant during the less than one year that elapsed between the date of his return to work and the date upon which he applied for accidental disability retirement benefits. The Department’s Chief of Patrol for the Department confirmed that the full duties of the position entailed performing patrol functions, which included, among other things, entering and exiting a patrol vehicle, responding to an emergency, making an arrest and engaging in heavy lifting.

Significantly, said the court, “Although numerous individuals offered various estimates as to what percentage of [Cook’s] actual duties were administrative versus patrol in nature, the fact remains that petitioner's full duties entailed performing patrol functions — tasks that he was not allowed to resume after he returned to work on restricted-duty status.”

Although it is true that the State Comptroller “is vested with the exclusive authority to weigh [conflicting medical] evidence and credit the opinion of one medical expert over another" here the Appellate Division ruled that Comptroller’s expert opinion upon which he relied, “misses the mark.”

The court explained that “The dispositive inquiry for purposes of determining disability is not whether [Cook] is capable of indefinitely performing the clerical tasks assigned to him while on restricted duty but, rather, whether he is capable of performing the full duties of a police lieutenant.” The court then said that “the record as a whole clearly establishes that [Cook] is incapable of returning to full-duty status,” and concluded that the Comptroller’s determination “cannot be said to be supported by substantial evidence.”

The Appellate Division annulled the Comptroller’s determination and remanded the matter “for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00236.htm

_______________ 

The Disability Benefits E-book: - This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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Reliance on case law relating to a provision of a law alleged to be analogous may be misplaced where the issue under consideration is governed by a different statute

Reliance on case law relating to a provision of a law alleged to be analogous may be misplaced where the issue under consideration is governed by a different statute

Gandin v Unified Ct. Sys. of State of N.Y., 2016 NY Slip Op 00186, Appellate Division, Second Department

David Gandin commenced employment as a confidential law secretary to an Acting Justice of the Supreme Court, at a salary grade of JG-531. He resigned from that position in 2008, at which time his salary grade was JG-531, with his rate of pay reflecting annual salary increments based upon his two years of service.

More than four years later Gandin returned to the employ of the New York State Unified Court System [UCS] and was appointed as a principal law clerk at a hiring rate salary grade of JG-531. Gandin then requested salary increment credit for the annual salary increments he had earned during his two years of prior service. In a letter dated July 22, 2013, Gandin was advised that his request had been denied by UCS and the Office of Court Administration [OCA].

Gandin sued USC and OCA and Supreme Court granted petition and annulled the UCS and OCA determination and directed that Gandin be paid a salary reflecting a credit for previously earned annual salary increments, and back pay and benefits retroactive to January 2, 2013.

The Appellate Division explained that although "An administrative agency's interpretation of the statute it is charged with implementing is entitled to varying degrees of judicial deference depending upon the extent to which the interpretation relies upon the special competence the agency is presumed to have developed in its administration of the statute" when the interpretation of a statute is one of " pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency' and the legal interpretation is ultimately the court's responsibility." Further, said the court, “in attempting to effectuate the intent of the Legislature, ‘the best evidence . . . is the plain language of the statute.’"

Turning to the relevant statute, Judiciary Law §37(7), the court noted that §37(7), in pertinent part, provides that "Appointments, transfers and reinstatements to similar grade positions. If an employee is transferred to a similar position, or is appointed or reinstated to a position in the same salary grade . . . [a]n employee so appointed, transferred or reinstated shall be eligible to receive the increments in the schedule established for the new position based upon the number of [the employee's] years of service in the new position and in [the employee's] former position" (emphasis supplied by the Appellate Division).

§37, said the court, does not require that an employee have continuous or uninterrupted employment with the State in order to obtain such salary increment credit and “a fair reading of the language of Judiciary Law §37(7) leads to the conclusion that the [Gandin] was eligible to receive the appropriate salary increment credit when he was appointed to a position in the same salary grade as that which he held when he was previously employed by UCS.

UCS and OCA had contend that a similar, but not identical, provision set out in Civil Service Law §131(4) had been interpreted to require "continuous service" in order for an employee to be eligible for a salary increment credit.

The Appellate Division agreed with the Supreme Court’s rejection of that argument, holding that UCS/OCA’s reliance on case law relating to what was claimed to be an analogous provision in the Civil Service Law was misplaced as “this matter was governed by the Judiciary Law” and dismissed the appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00186.htm

____________________

 

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 

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Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees

Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees
Matter of Barron (State of N.Y. Off. of Mental Health), 2016 NY Slip Op 00234, Appellate Division, Third Department

A licensed master social worker, [Employee] at a state psychiatric center was served with a notice of discipline charging her with misconduct and proposing a penalty of termination based upon her unauthorized contact with a prison inmate confined at a state correctional facility while she was out on workers' compensation leave. The State Office of Mental Health alleged that Employee visited and exchanged correspondence with the inmate on numerous occasions in violation of the Department’s anti-fraternization policy.

The Department suspended the employee without pay pending the disposition of the notice of discipline on the basis that her continued presence at her work location represented "a potential danger to persons or property or would severely interfere with operations." Prior to the disciplinary arbitration hearing the Department and Employee entered into a stipulation that set out certain actions by Employee set out in Charge [1] and that the Department would withdraw portions of one of the charges served on her set out in Charge [2].

Following the hearing, the arbitrator found Employee guilty of Charges 1 and 2 and concluding that termination of employment was the appropriate penalty. Employee filed an Article 75 petition seeking a court order vacating the arbitration award and reinstatement to her position. Supreme Court denied her petition and Employee appealed the Supreme Court decision.

The Appellate Division dismissed Employee’s appeal, explaining:

1. Where, as here, "the parties agree to submit their dispute to an arbitrator, courts generally play a limited role," citing New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321;

2. Vacating an arbitration award is only appropriate where it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power and, further, “Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact;"

3. Although the parties' prehearing stipulation limited the scope of the conduct charged with respect to certain events, it did not preclude the use of evidence related to the withdrawn portion of the charges for other purposes, such as impeachment;

4. Even if admission of a letter alleged not admissible as evidence at the hearing amounted to an erroneous evidentiary ruling, it would not justify vacating the award; and

5. Notwithstanding Employee’s “misguided belief that she was not subject to the Department’s anti-fraternization policy during the time that she was out on workers' compensation leave” pursuant to Civil Service Law §71, during which time she admittedly had engaged in extensive contacts with the inmate, she remained an employee of the Department while absent on workers’ compensation leave and thus subject to the policies and standards applicable to all employees.

Point 5. above suggests that an employee is subject to his or her employer’s rules, regulations and policies while absent on any authorized leave and, perhaps, when such absence is “unauthorized” as well.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00234.htm

Administrative Appointments Announced on January 15, 2015

Administrative Appointments Announced on January 15, 2015

Source: Office of the Governor

Kevin John Bishop, Esq.has been named assistant counsel to the Governor. Mr. Bishop previously worked as an associate at Condon & Forsyth, LLP for six years, where he oversaw commercial litigation, including federal and state practice, for major corporations. Additionally, during that time, Mr. Bishop worked in a secondment with British Airways, PLC, where he advised company leadership on all aspects of corporate governance, oversaw regulatory compliance, negotiated and drafted contracts, and coordinated litigation strategy. Prior to that, Mr. Bishop was an assistant university counsel at the University of North Carolinaat Chapel Hilland an associate at McDermott Will & Emery, LLP. Mr. Bishop holds a J.D. from the University of North Carolinaat Chapel Hill, an M.P.P. from Duke University, and a B.S. and M.S. from Boston University.

David Perino, Esq. has been appointed assistant counsel to the Governor with a focus on legislative matters. Prior to this role, Mr. Perino served as special counsel at the New York State Legislative Bill Drafting Commission. Before that, he was a special prosecutor for the City of Watervliet. Mr. Perino was also assistant corporation counsel for the City of Cohoes Corporation Counsel’s Office and performed assigned counsel work for the New York State Appellate Division – Third Department. He holds a J.D. from Albany Law School of Union University and a B.S. in Chemical Engineering from Carnegie Mellon University.

Terrance Pratt, Esq. has been named assistant counsel to the Governor with a focus on education. Mr. Pratt previously served as assistant director for government relations with the New York State Council of School Superintendents. Mr. Pratt has also worked as an associate attorney at Malkin & Ross, providing legal services to a diverse client group on a wide range of critical policy issues. Prior to that, Mr. Pratt served as counsel to former New York State Assemblyman Pete Grannis and the Assembly Insurance Committee. In 2007, Mr. Pratt served as an assistant counsel at the New York State Department of Environmental Conservation. Mr. Pratt holds a J.D. from Albany Law Schooland a B.A. from Monmouth University.

Rosemary J. Powers has been appointed deputy director of state operations for programs. Ms. Powers previously served as chief operating officer of the New York State Department of Transportation where she was responsible for regional office functions, all statewide business service initiatives and the Office of Right of Way. Ms. Powers has held a variety of positions in state and local government, including deputy chief of staff in the Office of Massachusetts Governor Deval Patrick. In this position, Ms. Powers was a lead strategist for Governor Patrick, providing advice and counsel to him and many other senior members of the Patrick Administration. Achievements included enactment of the Transportation Finance Reform bill, groundbreaking legislation related to controlling the cost of health care and proposals to address youth and gun violence. Prior to that, Ms. Powers served as both chief of staff at the Massachusetts Department of Environmental Protection and as government affairs director for the Department of Conservation and Recreation. Ms. Powers received her B.A. from Suffolk Universityand an M.P.A. from Harvard’s John F. Kennedy School of Government.

Brenda Torres has been appointed assistant secretary for the environment. Ms. Torres most recently served as director of the Northeast Regional Office in the Unites States for the Puerto Rico Federal Affairs Administration. In that role, Ms. Torres managed and coordinated community service programs for more than 3 million people living in the Tri-State region; and represented the Commonwealth of Puerto Rico before federal, state and local governments on issues related to infrastructure, health care, and economic development. Ms. Torres has also served as a consultant for El Puente where she helped develop two major sustainability initiatives. Prior to that, Ms. Torres was the executive director of Santa Clara Valley Audubon Society in California, and the San Juan Bay National Estuary Program in Puerto Rico. Ms. Torres is a LEED AP and holds a masters in environmental management from Yale University. She has also completed a certificate executive program for nonprofit leaders at Stanford University’s Graduate School of Business and finished her B.S. in Environmental Sciences at the University of Puerto Rico.

Andrew Ball has been appointed director of scheduling for Governor Cuomo. Previously, Mr. Ball served as confidential assistant to the Governor where he coordinated many aspects of the Governor’s travel and schedule, including helping manage advance and logistical operations for public events statewide. Mr. Ball joined the Cuomo administration in 2011 as special assistant for legislative and intergovernmental affairs, where he served as a liaison between local elected officials and the administration, including addressing constituent issues and facilitating coordination between legislative members and state agencies. A Long Island native, Mr. Ball graduated from Syracuse Universityin 2010.

Reid Sims has been appointed deputy director of Executive Chamber operations. Mr. Sims previously served as an operations coordinator for the New York State Executive Chamber, where he oversaw advance and event operations for the Governor. Mr. Sims previously worked on Governor Cuomo’s 2010 gubernatorial campaign. Mr. Sims holds a B.A. in political science from the City University of New York.

Camille Joseph Varlack, Esq. has been appointed deputy director for ethics, risk and compliance in the Executive Chamber. Until recently, Ms. Varlack was special counsel to the superintendent of the Department of Financial Services for ethics, risk and compliance. In her new role, Ms. Varlack will coordinate the Governor's statewide ethics, risk and compliance program across agencies and authorities, working with the state's chief risk officer. She will continue to directly advise the superintendent of the Department of Financial Services. Ms. Varlack previously served as a principal law clerk for the New York State Supreme Court and assistant vice president and counsel at AXA Financial, Inc. Ms. Varlack has also served as an assistant district attorney for the Kings County District Attorney’s Office, legal assistant in the law department of News Corporation and an investigative assistant for the New York State Attorney General. Ms. Varlack holds a B.A. from the State University of New York at Buffaloand a J.D. from Brooklyn Law School.

Kevin Amien Younis has been appointed chief operating officer for Empire State Development. Mr. Younis has worked for ESD for the past nine years – serving in a variety of high-level positions, including executive vice president of public policy, planning and incentives; senior vice president for government affairs and regional president; vice president for intergovernmental and legislative affairs; and director of state legislative affairs. Prior to that, Mr. Younis was policy director for the Civil Service Employees Association and chief of staff to former New York State Assemblyman David Koon. Mr. Younis holds a certificate in trade union management and leadership from Harvard University, an M.P.A. from Nelson A. Rockefeller College of Public Affairs and Policy and B.A. from SUNY Cortland.

Maria Lehman has been appointed chief operating officer for the New York State Thruway Authority where she is currently the interim director of maintenance and operations. While at the Thruway, Ms. Lehman served as the program manager for New York Stateon the Peace Bridge, and the project director for risk management and project controls on the new New York Bridgeover the Hudson. Before working in state government, Ms. Lehman was the vice president and corporate business sector lead for transportation at Bergmann Associates, and the corporate director for quality assurance at URS Corporation. She has also served as the commissioner of public works for Erie County, New York. Ms. Lehman holds a B.S. in civil engineering from SUNY Buffalo and is a licensed professional engineer in several states.

Lindsey Boylan has been appointed chief of staff at the Empire State Development, after previously serving as the vice president of business development. Prior to her time at ESD, Ms. Boylan was the vice president of RBC Capital Markets. She has also held a number of roles at the Bryant Park Corporation, including director of business affairs, associate director of operations and operations manager. Ms. Boylan has also served as a project manager for Alex Garvin & Associates, a planning and consulting firm. Ms. Boylan holds an M.B.A from Columbia Universityand a B.A. in Political Science from Wellesley College.

Richard J. Zahnleuter, Esq. has been appointed general counsel at the New York State Department of Health, where he recently served as acting general counsel. Mr. Zahnleuter has held multiple roles at the Department of Health over the past 15 years, including director of the Bureau of Litigation and associate counsel for the Bureau of Professional Medical Conduct. Mr. Zahnleuter was a trial attorney in the private sector between 1989 and 1999, served as deputy special counsel to Governor Mario Cuomo for four years, and was an attorney with the Department of Health from 1981 to 1985. Mr Zahnleuter holds a J.D. from Albany Law Schooland a B.S. in Biology from SUNY College of Environmental Science and Forestry at Syracuse University.

Karen M. Hunter has been appointed Chief of Staff at the New York State Thruway Authority, after previously serving as interim executive director. Prior to that, Ms. Hunter served as Director of Financial Administration at New York State Homes and Community Renewal. In that role, Ms. Hunter oversaw banking, investment and payment processes, contracting and purchasing functions, federal and state reporting requirements, and regulatory compliance. Before that, Ms. Hunter worked as upstate regional director for the Housing Finance Agency and was an associate budget examiner for the New York State Division of the Budget. Ms. Hunter has an M.B.A. from SUNY Albany, and holds a B.A. from University of Illinoisat Urbana-Champaign.

Stephanie Davis has been appointed deputy commissioner of policy and communications at the Division of Homes and Community Renewal. Since 2003, Ms. Davis has worked at Excellus BlueCross BlueShield where she held positions as the regional vice president of communications for the Utica Region and the director of communications for the Southern Tier. From 1992 to 2003, she held multiple roles working for the New York State Senate. She is former chair of the Greater Utica Chamber of Commerce Government Affairs and Economic Development Council and holds a B.A. in Political Science from Union College.

Janet Ho has been appointed deputy commissioner at the New York State Department of Motor Vehicles. Ms. Ho most recently served as the assistant secretary for transportation for Governor Cuomo. Prior to her time at the Executive Chamber, Ms. Ho worked for the New York State Senate Finance Committee as a deputy director of budget studies concentrating primarily in the areas of transportation, environment, economic development, energy and housing. Before that, she was a senior legislative budget analyst for the New York State Assembly Waysand Means Committee. She holds an MPA from John Jay College of Criminal Justice, a B.A. in Psychology, as well as a B.A. in Criminology, Law and Society, from U.C. Irvine.

Maria Knirk, Esq. has been appointed deputy commissioner of the New York State Department of Agriculture and Markets, where she has held multiple titles, including special assistant for federal policy and assistant commissioner. Prior to working in New York Stategovernment, Ms. Knirk was a regulatory policy analyst at the Delaware Department of Agriculture. Ms. Knirk has previously served as a law clerk for Varnum Attorneys at Law, and an adjunct instructor at Southwestern Michigan College. She holds a B.A. in communications, a B.B.A. and an M.B.A. from Ferris State University. She also holds a J.D. from Michigan State University College of Law.

Raymond LaMarco has been appointed assistant commissioner for administrative services at the New York State Department of Transportation. Mr. LaMarco has more than 33 years of experience working in New York Stategovernment. He has held multiple positions at the Department of Transportation, including director of human resources management and employee relations. He has previously held positions as the Director of Labor Relations at the NYS Office of Children and Family Services and Director of Human Resources Management at the NYS Office of Alcohol and Substance Abuse. He holds a B.S. in organizational management from Nyack College, an A.A.S. degree in construction technology from Herkimer Community College and an occupational health and safety certification from Cornell University.

Thomas A. Pohl, Esq. has been appointed deputy counsel for the New York State Office of General Services. Mr. Pohl has been with OGS for more than 40 years, previously serving as an associate attorney for Legal Services. In this role, Mr. Pohl worked with senior staff on New York State’s real property issues, including the development of public policy and management of litigation and defense. Prior to that, Mr. Pohl served as a senior attorney for Realty in the OGS Division of Land Utilization, chief of the OGS Bureau of Land Disposition, and attorney in the OGS Bureau of Land Disposition. Mr. Pohl holds a J.D. from Albany Law Schooland a B.A. from Siena College.

Patrick Meredith has been appointed assistant commissioner for regional operations at the Department of Transportation, Western New York. Mr. Meredith has nearly two decades of experience in the public sector, overseeing the management and construction of capital improvement projects including roads, parks, storm water and sewer systems. Mr. Meredith previously served as commissioner of public works for the Town of Irondequoit, and before that, as deputy commissioner for the Town. Previously, Mr. Meredith owned his own construction company and served as assistant engineer for the Town of Penfield. Mr. Meredith holds an A.O.S. from Alfred State College, State University of New York.

John J. McCarthy has been appointed special advisor for agency operations and initiatives at the Metropolitan Transportation Authority, where he previously served as deputy press secretary. Most recently, Mr. McCarthy was a senior advisor at Everytown for Gun Safety. Prior to that, he served as deputy commissioner for public information at the New York City Police Department. Mr. McCarthy has also held positions under Mayor Bloomberg, including senior advisor for public safety and deputy press secretary. Mr. McCarthy has previously worked for a number of government agencies including, the Port Authority of New York and New Jersey, the New York State Office of Homeland Security and the United States General Services Administration. He holds a J.D. and a B.A. from Fordham University.

John McKay has been appointed executive officer of corporate communications, branding and marketing at the Metropolitan Transit Authority. Mr. McKay most recently served as the director of communications for the New York City Comptroller’s Office. Prior to that, he was the vice president of corporate communications at NBC Universal. Mr. McKay has held a number of roles at Sony Music Entertainment/SONY BMG, including vice president of Communications, vice president of media relations, senior director of communications and director of editorial services. Mr. McKay holds a B.A. in East Asian studies with a minor in religious studies from Pennsylvania State University.

Kelli Owens has been appointed legislative coordinator at the New York State Office of Child and Family Services. Ms. Owens has more than two decades of experience in both the public and private sector. She previously served as vice president for external affairs at Planned Parenthood Advocates of New York, where she was the principal in-house lobbyist. Prior to that, Ms. Owens worked as the government relations and public policy director for the YWCAs of the northeast region, supervising legislative and media affairs for New York, Connecticut, Massachusetts, and New Jersey. Ms. Owens holds a B.A. in Political Science from Utica College of Syracuse University.