Selected reports issued by the Office of the State Comptroller during the week ending April 2, 2016

Selected reports issued by the Office of the State Comptroller during the week ending April 2, 2016

Click on text highlighted incolor to access the entire report 

Fairport Industrial Development Agency- Unauthorized Practices for Economic Development Agencies

Officials with the Village of Fairport Industrial Development Agency made a series of financial and accounting transactions outside their legal authority, including granting $1 million worth of inappropriate gifts and commercial loans, according to an audit released by State Comptroller Thomas P. DiNapoli. An audit of the Fairport Urban Renewal Agency was also released citing similar issues.

http://www.osc.state.ny.us/press/releases/mar16/033116a.htm?utm_source=weekly+news&utm_medium=email&utm_term=ida+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Niagara Frontier Transportation Authority – Improvements Recommended

Almost 20 percent of the Niagara Frontier Transportation Authority’s assets are not in a state of good repair and it is unclear how the authority prioritizes capital improvements, according to an audit released by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/apr16/040116.htm?utm_source=weekly+news&utm_medium=email&utm_term=public+authorities&utm_content=20160403&utm_campaign=fiscal+oversight 

State Departments and Authorities

Department of Health- Early Assessment of the Encounter Intake System

Managed Care Organizations (MCOs) are contractually required to submit encounter transactions to inform DOH about each medical service provided to their enrolled recipients. Auditors found most Medicaid MCOs (42 of 52) were not ready to submit Medicaid encounter data to the new Encounter Intake System (EIS) by the Sept. 2015 implementation date. In response to the audit, DOH officials provided additional guidance to these plans and subsequently reported that the number of Medicaid MCOs ready to submit encounter transactions to the EIS improved from 10 to 43 by Nov. 20, 2015.

http://osc.state.ny.us/audits/allaudits/093016/15s41.pdf

Department of Health– Oversight of the Early Intervention Program’s State Fiscal Agent
DOH generally provides effective oversight of the SFA that helps ensure early intervention (EI) claims are paid in a timely manner and the SFA fulfills contract deliverables related to customer service and data and reporting. Program claims are paid more quickly now than at the onset of the SFA, and DOH is working to resolve older unpaid claims.

http://osc.state.ny.us/audits/allaudits/093016/15s22.pdf

Office of Temporary and Disability Assistance – Wage Subsidy and Transitional Employment Programs

OTDA provided adequate support and guidance to contractors to assist them in reporting Wage Subsidy Program and Transitional Employment program performance outcomes and preparing vouchers for wage subsidies and achieving milestones. However, OTDA’s system for tracking and monitoring milestones and goal attainment is outdated.

http://osc.state.ny.us/audits/allaudits/093016/15s58.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Department of Health- Eye Care Provider and Family Inappropriately Enroll as Recipients and Overcharge for Vision Services

http://osc.state.ny.us/audits/allaudits/093016/13s1.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Metropolitan Transportation Authority - Forensic Audit of Select Payroll and Overtime Practices and Related Transactions

http://osc.state.ny.us/audits/allaudits/093016/15f14.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Department of Motor Vehicles - Internal Control System Components

http://osc.state.ny.us/audits/allaudits/093016/15s66.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Public Service Commission - Pipeline Safety Oversight

http://osc.state.ny.us/audits/allaudits/093016/15s31.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

State Education Department - Compliance With the Reimbursable Cost Manual

http://osc.state.ny.us/audits/allaudits/093016/15s45.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Department of Transportation - Performance Based Bus Safety Program

http://osc.state.ny.us/audits/allaudits/093016/15s71.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Municipal Audits

Town of Ashford - Water District

http://www.osc.state.ny.us/localgov/audits/specialdists/2016/ashfordwater.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Town of Busti - Taxpayer Equity

http://www.osc.state.ny.us/localgov/audits/towns/2016/busti.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Genesee County - Purchasing

http://www.osc.state.ny.us/localgov/audits/counties/2016/genesee.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Nanticoke Volunteer Fire Department - Misappropriation of Funds

http://www.osc.state.ny.us/localgov/audits/firedists/2016/nanticoke.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Oswego County - Transfer Station Cash Receipts

http://www.osc.state.ny.us/localgov/audits/counties/2016/oswego.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

School Audits

Alexandria Central School District - Financial Condition

http://www.osc.state.ny.us/localgov/audits/firedists/2016/nanticoke.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Lyons Central School District - Multiyear Planning

http://www.osc.state.ny.us/localgov/audits/schools/2016/lyons.pdf?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Pearl River Union Free School District - Competitive Procurement

http://www.osc.state.ny.us/localgov/audits/schools/2016/pearlriver.pdf?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Valhalla Union Free School District - Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2016/valhalla.pdf?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Key elements in the proposed 2016-2017 New York State Budget

Key elements in the proposed 2016-2017 New York State Budget

Source: Office of the Governor

Key elements in the proposed 2016-2017 New York State Budget

1· Raising the minimum wage to $15 an hour in every region of the state

2· Enacting the longest and most comprehensive paid family leave policy in the nation

3· Holding the growth in state spending to two percent for the sixth consecutive year

4· Cutting the personal income tax, saving middle class New York taxpayers nearly $6.6 billion in the first four years, with annual savings reaching $4.2 billion by 2025

5· Providing $24.8 billion in School Aid – the highest in state history – and ending the Gap Elimination Adjustment

6· Investing $55 billion in the largest state transportation plan ever approved – including $27 billion for the DOT and Thruway and $27 billion for the MTA

A comprehensive summary of the proposed budget is posted on the Internet at:

https://www.governor.ny.gov/news/governor-cuomo-and-legislative-leaders-announce-agreement-2016-2017-state-budget

Basics in processing claims of unlawful discrimination and, or, unlawful retaliation

Basics in processing claims of unlawful discrimination and, or, unlawful retaliation

Russo v New York State Div. of Human Rights, 2016 NY Slip Op 01951, Appellate Division, Fourth Department

In its decision in the Russo case the Appellate Division set out the basics in processing claims of unlawful discrimination and, or, unlawful retaliation as follows:

Unlawful discrimination

"To establish a prima facie case of employment discrimination, petitioner [is] required to demonstrate that [he or] she [is] a member of a protected class, that she [or he] was qualified for [his or] her position, that she [or he] was terminated from employment or suffered another adverse employment action, and that the termination or other adverse action occurred under circumstances giving rise to an inference of discriminatory motive.

If the court deems that a prima facie case has been made, "The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision.

If the employer is able to satisfy this requirement, "In order to nevertheless succeed on her [or his] claim, [petitioner] must prove that the legitimate reasons proffered by the [employer] were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason."

Unlawful retaliation

"In order to make out a claim for unlawful retaliation under state or federal law, a [petitioner] must show that (1) [he or] she [had] engaged in protected activity, (2) her [or his] employer was aware that [he or] she participated in such activity, (3) she [or he]  suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action'  

Again, once that showing is made, "the burden then shifts to [the employer] to present legitimate, independent and nondiscriminatory reasons to support [its] actions.

“Then, if [the employer] meet[s] this burden, [petitioner] has the obligation to show that the reasons put forth by [the employer] were merely a pretext."

Arthea Russo filed a complaint with the New York State Division of Human Rights [SDHR] alleging that she had suffered adverse employment action while employed by the City of Jamestown Police Department [Department] because of her gender. Adopting the findings of the Administrative Law Judge [ALJ] who conducted the public hearing, SDHR dismissed her complaint alleging unlawful discrimination and retaliation. Russo then initiated an Article 78 action seeking a court order annulling SDHR’s dismissal of her complaint.

The Appellate Division said its review of SDHR’s determination is limited to the issue whether it is supported by substantial evidence, explaining that "[c]ourts may not weigh the evidence or reject [SDHR's] determination where the evidence is conflicting and room for choice exists. Thus, when a rational basis for the conclusion adopted by [SDHR] is found, the judicial function is exhausted."

The court found that in this instance there was substantial evidence to support SDHR’s determination that Russo was not discriminated against by the Department because of her gender.

Although agreeing with SDHR's determination that most of the employment actions at issue were not adverse because they did not constitute "materially adverse change[s] in the terms and conditions of [Russo’s] employment," the Appellate Division concluded that the three-day suspension imposed on Russo did, in fact, constitute an adverse employment action.

Notwithstanding this conclusion, the court explained that “[e]ven assuming, arguendo, that the imposition of the adverse employment action occurred under circumstances giving rise to an inference of discrimination, [it] nevertheless [concluded] that [Russo’s] employer … presented a legitimate, independent and nondiscriminatory reason to support its employment decision.”

Further, the court noted that there was substantial evidence in the record to establish that Russo, in her role as a court security supervisor, subjected one or more persons “to heightened security measures on a regular basis either for personal reasons or for no legitimate reason” and that she caused her male subordinate to do the same. In addition, the court said that there was substantial evidence to establish that Russo engaged in an excessive use of her personal cell phone and in excessive socializing while on duty.

The Appellate Division also found that Russo could not establish disparate treatment nor could she establish that she was subjected to unlawful retaliation.

Finally the court opined that “Even assuming, arguendo, that [Russo] met her initial burden [of demonstrating unlawful acts of discrimination], we nevertheless conclude that the [Department] presented a legitimate, independent and nondiscriminatory reason for issuing a counseling memorandum on sexual harassment based on evidence that [Russo]  had been sharing sexually explicit material that she had on her cell phone” and Russo “failed to establish that the reason for the memorandum was pretextual.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01951.htm

If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally

If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally

Nassau County Sheriff's Correction Officers Benevolent Assn., Inc. v Nassau County, 2016 NY Slip Op 02096, Appellate Division, Second Department

The Nassau County Sheriff's Correction Officers Benevolent Assn., Inc. [Association] brought a CPLR Article 78 action seeking a review the hearing officer’s decision  confirming a determination of the Nassau County Sheriff's Department [Department] to discontinue the General Municipal Law §207-c benefits being paid to Correction Officer John Thomas. Supreme Court dismissed the Association’s petition and the Appellate Division affirmed the lower court’s decision.

Thomas sustained a back injury in the course of performing his duties as a correction officer. He was absent from work due to his work-related injury and received benefits pursuant to GML §207-c. He subsequently returned to work in a restricted/light-duty capacity, “with no inmate contact and no carrying of a weapon.”*

In June 2009, a doctor appointed by Nassau County [County] determined that, as a result of his back injury, Thomas was no longer fit for any duty, making him again eligible to receive benefits pursuant to GML § 207-c. A subsequent evaluation by a County-appointed doctor in September 2009 reached the same conclusion. In February 2010, Thomas was examined by a County-appointed doctor who determined that he was now fit to return to work in a light/restricted-duty capacity.

The Sheriff's Department informed Thomas of the County’s physician’s determination and of his right to request a hearing to challenge the determination as provided for in the collective bargaining agreement [CBA] between the County and the Association. Thomas elected to submit the matter to a hearing whereby hearing officer would determine whether Thomas was capable of returning to work on restricted/light-duty assignment as of February 2010.** Although Thomas contended that the burden of proof was on the County to show that he was capable of returning to work in a restricted/light-duty capacity, the hearing officer disagreed, ruling that Thomas had the burden of proof to show that he was not fit to return to work in a light/restricted-duty basis.

At the administrative hearing that followed Thomas was represented by an attorney and submitted evidence, including the opinion of his personal physician, to contest the County’s medical examiner's conclusion that Thomas was capable of returning to restricted/light-duty work. The hearing officer weighed the conflicting medical opinions and concluded that Thomas was capable of returning to restricted/light-duty work.

The Association, contending that the hearing officer's determination was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion," filed an Article 78 petition arguing that Thomas was denied due process when the hearing officer placed the burden of proof on him to show that he was not capable of returning to work in a restricted/light-duty capacity.

The Supreme Court agreed with the hearing officer's conclusion that Thomas bore the burden of proof at the hearing, and denied the petition and dismissed the proceeding.

The Appellate Division commenced its review of the Association’s appeal of the lower court’s decision by noting that Thomas’ right to receive payments pursuant to GML §207-c "constitutes a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated, 'and a due process hearing is triggered when an officer on §207-c status submits evidence from his treating physician supporting the officer's claim of continued total disability'."

However, said the court, §207-c provides no definitive procedure to be followed, so the hearing procedure to be provided may be the subject of collective bargaining. As the parties in the instant proceeding had not “collectively bargained for a procedure to be followed when an officer contests a light-duty determination,” the Appellate Division ruled that the County was free to fashion a hearing remedy so long as its procedure provided Thomas with administrative due process.

The Appellate Division, citing Kigin v State of NY Workers’ Compensation Board, 24 NY3d 459, said: "Generally, procedural due process principles require an opportunity for a meaningful hearing prior to the deprivation of a significant property interest. The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner."

Under the circumstances, said the court, Thomas was afforded administrative due process. In the words of the Appellate Division, “[r]equiring him to come forward with some evidence at the hearing to support his claim of ‘continued total disability’ did not deprive him of such right. Indeed, an officer's right to a due process hearing under the Fourteenth Amendment is not triggered until he or she submits such evidence.”

Accordingly, the Appellate Division ruled that Supreme Court had properly denied the Association’s petition and dismissed the Association's appeal.

* In 2003, Thomas was called to active military duty, where he was also given restricted duties because of his back injury. Upon his return from active military duty in 2008, Thomas again returned to his work as a correction officer in a restricted/light-duty capacity.

** Such determinations are made based on the medical condition of the individual at the time the challenged medical examination was administered rather than his or her medical condition at the time of hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02096.htm

_____________________

The Disability Benefits E-book: - This 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://booklocker.com/3916.html

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Omitting examples of the specific “out-of-title” duties the employee alleges he or she was assigned in his or her out-of-title work grievance is a fatal flaw

Omitting examples of the specific “out-of-title” duties the employee alleges he or she was assigned in his or her out-of-title work grievance is a fatal flaw
New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 2016 NY Slip Op 02280, Court of Appeals

Thomas Tierney was employed by the Office of Mental Health [OMH] as a Safety and Security Officer 2 [SSO2], a Salary Grade [SG] 15 position. When the Chief Safety and Security Officer [CSSO] of the Hudson River facility, position allocated to SG 20, transferred to another facility in June 2011, Tierney was advised that he would be serving as the Acting CSSO. He served in that capacity until Hudson River closed in January 2012.

In August 2011, Tierney filed an out-of-title work grievance with OMH in accordance with the three step review process set out in the relevant collective bargaining agreement seeking compensation at the SG 20 level for the out of title duties he alleged he was performing as Acting CSSO.

OMH granted Tierney’s grievance but noted that under the terms of the controlling collective bargaining agreement "[o]nly the Director of the Governor's Office of Employee Relations [GOER] has the authority to issue monetary awards" in the event an out-of-title grievance is sustained by the appointing authority.

Step 3 of the grievance procedure set out in the collective bargaining permited GOER to seek an opinion from the Civil Service Department’s Division of Classification and Compensation [DCC] as to whether the grieved duties substantially differed from those appropriate to the title “to which the employee is certified.” 

DCC undertook its own comparison of the duties and responsibilities of CSSOs and SSO2s* and determined that the duties Tierney described in the grievance he filed did not constitute “out-of-title” duties but, rather, were consistent with the duties of a SSO2.

GOER adopted the findings of DCC and denied the grievance. Tierney appealed GOER’s decision.

In his Article 78 petition Tierney alleged that, in addition to the duties he included in the grievance form he had submitted to OMH, he had performed the out-of-title duties DCC had listed as examples of out-of-title work in its decision. The Court of Appeals said that “[a]s those additional duties were not included in the grievance form and apparently were not considered by OMH, they were not considered by either Supreme Court or by the Appellate Division.”

Sustaining the decisions of DCC and GOER, the court said that “judicial review of administrative determinations is confined to the facts and record adduced before the agency." In the words of the Court of Appeals, “[t]he motion court concluded that GOER's determination that [Tierney’s] responsibilities as an acting CSSO were substantially similar to the job description of a SSO2 was not arbitrary and capricious.” A divided Appellate Division had affirmed GOER’s determination (see 126 AD3d 1267 [3d Dept 2015]) and the Court of Appeals affirmed the Appellate Division's decision.

Citing Nehorayoff v Mills, 95 NY2d 671, the Court of Appeals explained that where the administrative determination "is supported by a rational basis, and is neither arbitrary nor capricious, it will not be disturbed."

Noting that Civil Service Law §61(2) bars the assignment of an employee to "perform the duties of any position unless he [or she] has been duly appointed, promoted, transferred or reinstated to such position" other than when those duties are performed on a temporary emergency basis, the court said that there was evidence in the record to support the determination that Tierney was performing duties as the Acting CSSO that were “consistent with, and a natural extension of, his title as a SSO2."

Finding that the combination of out-of-title work and the work being performed for an extended period of time was not present, the Court of Appeals held that the conclusion reached by DCC and adopted by GOER was neither arbitrary nor capricious simply because it differed from OMH's conclusion.

Accordingly, said the court, “GOER's determination that Tierney was performing duties consistent with his position as a SSO2 and was not performing the key distinctive duties of the CSSO position [was] rationally based.”

A number of court decisions addressing out-of-title work and position classification grievance determinations are summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2011/04/out-of-title-work-and-position.html

* DCC also described some of the duties that are assigned to CSSOs and that would have been out-of-title for a SSO2 but such duties were not included in Tierney's grievance,

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02280.htm

Agency shop fee statutes affecting public employees

Agency shop fee statutes affecting public employees

Friedrichs v. California Teachers Assoc., No. 14–915

On March 29, 2016, the Supreme Court issued its decision in Friedrichs v. California Teachers Assoc., 578 U.S. ___(2016).

At issue in this case was whether public-sector “agency shop” arrangements violate the First Amendment by requiring public employees to subsidizing speech not related to collective bargaining by public-sector unions unless the member elects to “opt-out.”

The Court said "The Judgment is affirmed by an equally divided Court."

The decision results in the Ninth Circuit Court of Appeals’ ruling standing, thereby permitting the California Teachers Association to continue its “agency shop” arrangement. Accordingly, a member of the negotiating unit must “affirmatively object” to “subsidizing nonchargable speech” by a public union and thereby receive a refund for the relevant portion of the agency shop fee attributed to supporting such “nonchargable speech.”

The decision is posted on the Internet at:

http://lawprofessors.typepad.com/files/friedrichs.pdf