A party challenging a rule or regulation adopted by a State agency has the heavy burden of showing that the regulation was unreasonable and unsupported by any evidence

A party challenging a rule or regulation adopted by a State agency has the heavy burden of showing that the regulation was unreasonable and unsupported by any evidence

New York State Corr. Officers and Police Benevolent Assn., Inc. v New York State Off. of Mental Health, 2016 NY Slip Op 02696, Appellate Division, Third Department

The New YorkState Correctional Officers and Police Benevolent Association, Inc. [NYSCOPBA], representing certain personnel at psychiatric centers operated by Office of Mental Health [OMH], brought an Article 78 action challenging an OMH emergency regulation* that required personnel employed at psychiatric centers operated by OMH and psychiatric facilities licensed under the Mental Hygiene Law who had not been vaccinated against influenza to wear face masks in areas where patients might be present during influenza season. NYSCOPBA contended that the emergency regulation was arbitrary and capricious. Supreme Court dismissed the petition and NYSCOPBA appealed.

In its appeal NYSCOPBA argued that the mandatory mask-wearing requirement was arbitrary and capricious because it fails to take into account the special circumstances present in psychiatric facilities. NYSCOPBA theory: the job responsibilities of the affected personnel included “such functions as assisting psychiatric patients in their treatment and rehabilitation, maintaining their safety and security and modeling appropriate behavior, and that the mask-wearing requirement interferes with their ability to communicate with patients, act as effective role models and otherwise perform their job responsibilities.”

In support of the challenged regulation, OMH submitted, among other things, the affidavit of Lloyd Sederer, Chief Medical Officer for OMH. Sederer said that in promulgating the emergency regulation OMH was "following the lead" of the New York State Department of Health [DOH] which had earlier promulgated a rule** addressing the use of masks to prevent influenza transmission in health care facilities. Sederer said that OMH relied upon the knowledge and expertise of DOH clinicians in deciding to adopt a similar regulation.

In addition to relying upon the expertise of DOH, OMH said that it had also considered research and recommendations from various authorities such as the Centers for Disease Control and the Food and Drug Administration concerning the use of face masks to control the spread of disease. 

OMH also noted its experience in treating the mentally ill indicated that individuals with chronic and serious mental illness suffer higher rates of chronic physical illness than other persons and that recent influenza seasons had been more severe than in the past. Thus OMH determined that the adoption of an emergency regulation, and ultimately a final regulation, in an effort to control influenza transmission was imperative to safeguard the health, safety and welfare of patients.

The Appellate Division said that "[OMH] is entitled to a high degree of judicial deference, especially when act[ing] in the area of its particular expertise,” and decided that NYSCOPBA had failed to meet its heavy burden of showing that the regulation was unreasonable and unsupported by any evidence.

In the words of the Appellate Division, “[t]aken as a whole, the record demonstrates that OMH did not disregard the special circumstances present in psychiatric facilities, but instead weighed these circumstances carefully and reached the reasonable conclusion that any disadvantages associated with mask-wearing in psychiatric facilities were outweighed by the substantial advantages they offered in preventing or reducing the transmission of influenza.”

As NYSCOPBA did not meet its burden of demonstrating that OMH acted arbitrarily, capriciously or unreasonably in promulgating the challenged regulation, the Appellate Division dismissed its appeal.

* The Appellate Division ruled that NYSCOPBA’s petition was not rendered moot by the expiration of the emergency regulation after 90 days. OMH subsequently adopted a permanent regulation that incorporated the mandatory mask-wearing requirement into its Rules concerning preventing influenza transmission [see 14 NYCRR 509].

** In Matter of Spence v Shah, 136 AD3d 1242, the Appellate Division determined that the DOH regulation was not arbitrary, capricious, irrational or contrary to law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02696.htm

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Stapleton v Ponte, 2016 NY Slip Op 02658, Appellate Division, Second Department

The Commissioner of the New York City Department of Correction, adopting and rejecting parts of the recommendation of an Administrative Law Judge [ALJ] following a hearing conducted pursuant to Civil Service Law §75, found Kadar Stapleton guilty of using excessive force upon an inmate and terminated his employment.

Supreme Court denied Stapleton’s CPLR Article 78 petition challenging the Commissioner’s determination and he appealed.

There was but one issue Stapleton raised in his appeal for the Appellate Division to consider: Did the Administrative Law Judge have the lawful authority and jurisdiction to conduct his §75 disciplinary hearing and “make findings and a recommendation?”

The Appellate Division, noting that Civil Service Law §75 governed the disciplinary proceeding at issue in this case, explained that §75 requires that "[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose."

Further, said the court, the failure to designate a hearing officer for a disciplinary hearing in writing, as required by Civil Service Law §75(2), “is a jurisdictional defect that renders the hearing officer's determination null and void.”

In this instance, however, the Appellate Division found that Supreme Court had correctly determined that the ALJ had been properly designated to conduct Stapleton’s §75 disciplinary hearing and to make findings of fact. Further, were the ALJ to find Stapleton guilty of one or more of the charges filed against him, the ALJ was properly authorized to make a recommendation as to the penalty to be imposed.

As the Appellate Division found that Supreme Court properly denied Stapleton’s petition and dismissed the Article 78 proceeding, the court dismissed his appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02658.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

______________________ 

A public benefit corporation may not establish an alternate civil service system unless such action is authorized by law

A public benefit corporation may not establish an alternate civil service system unless such action is authorized by law

Civil Serv. Empls. Assn., Inc. v Westchester County Health Care Corp., 2016 NY Slip Op 02649, Appellate Division, Second Department

In Collins v Manhattan & Bronx Surface Tr. Operating Auth., 62 NY2d 361, the Court of Appeals held that “public benefit corporation was not subject to constitutional provisions regarding civil service appointment.” As a general rule, unless the law specifically makes the Civil Service Law applicable to the employees of a public benefit corporation, such persons are not subject to its provi­sions. 

For example, although Section 8087 of the Unconsolidated Laws provides that the employees of the New York City Off-track Betting Corporation are subject to the Civil Service Law and "other laws applicable to civil service personnel," statutes creating other OTBs do not include such a provision. Accordingly, New York courts have ruled that employees of such other OTBs are not in the public service for the purposes of the Civil Service Law.

In 1997 Article 10-C of the New York Health Care Corporations of the Public Authorities Law was amended by adding §§3300 – 3321 to create the Westchester County Health Care Corporation (WCHCC), a “public benefit corporation."* Significantly, §3304.4 provides that WCHCC shall be subject to the civil service law while §3305.12 grants WCHCC the authority “to appoint such officers, employees and agents as the corporation may require for the performance of its duties and to fix and determine their qualifications, duties, and compensation subject to the provisions of the civil service law and any applicable collective bargaining agreement, and to retain or employ counsel, auditors, engineers and private consultants on a contract basis or otherwise for rendering professional, management or technical services and advice.”

In 2013 WCHCC’s Board of Directors, WCHCC's governing body, adopted Resolution No. 29-2013 directing WCHCC's management to "take all steps and provide the resources necessary to establish, administer, and maintain its own civil service system." 

In response to this action by WCHCC the Civil Service Employees Association, Inc. and a number of other employee organizations [CSEA] initiated an Article 78 action contending that the Board acted in violation of the Act directing the establishment of its own civil service system when it approved the Resolution.

Supreme Court agreed, annulling the Resolution and WCHCC appealed.

The Appellate Division said that the standard of review in this proceeding pursuant to CPLR Article 78 is whether “the resolution under review was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.” In considering questions of statutory interpretation the Appellate Division explained that a court's "primary consideration is to ascertain and give effect to the intention of the Legislature" as "[T]he statutory text provides the clearest indication of legislative intent, and should be construed to give effect to its plain meaning."

In this Article 78 action the court ruled that CSEA met its burden of proving that WCHCC's adoption of the Resolution No. 29-2013 was affected by “an error of law” as the statute creating it did not explicitly nor implicitly transferred to the WCHCC and its Board of Directors the authority to self-administer its own civil service system.

Accordingly, the Appellate Division ruled that the Supreme Court properly annulled the Resolution.

* The significant provisions of §3304 addressing the transfer of certain officers and employees of Westchester County to WCHCC provide that [1] such officers and employees shall become officers and employees of WCHCC with equivalent offices, positions and employment and shall be deemed public officers or public employees for all purposes; [2] the provisions of §70 shall apply to such transfers as appropriate; [3] individuals holding a temporary or provisional appointment so transferred shall be subject to the same right of removal, examination or termination as though such transfer had not been made consistent with the provisions of the applicable collective bargaining agreement [CBA]; [4] WCHCC shall recognize the existing certified or recognized employee organizations for those persons who become WCHCC employees and be bound by the relevant provisions of CBAs with respect to existing terms and conditions of employment which CBAs shall remain in effect until altered by the terms of a successor contract; [5] successor employees to the positions held by such employees shall, consistent with the provisions of Article Fourteen of the Civil Service Law, be included in the same unit as their predecessors; [6] the salary or compensation of any such officer or employee, after such transfer, shall be paid by WCHCC and WCHCC shall acknowledge and give credit for all leave balances held by such officers and employees on the date of transfer; and [7] WCHCC shall be subject to the civil service law

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02649.htm
[Motion for leave to appeal denied with one hundred dollars costs and necessary reproduction disbursements.]

Selected reports issued by the Office of the State Comptroller during the week ending April 9, 2016

Selected reports issued by the Office of the State Comptroller during the week ending April 9, 2016

Click on text highlighted incolor to access the entire report

State Comptroller’s auditors stop $25 million in suspicious tax refunds
State Comptroller Thomas P. DiNapoli announced his office stopped $25 million in questionable or fraudulent personal income tax refunds from being paid so far in 2016.

http://www.osc.state.ny.us/press/releases/apr16/040716.htm?utm_source=weekly+news&utm_medium=email&utm_term=tax+refunds&utm_content=20160410&utm_campaign=fiscal+oversight

Franklin Central School District saves $256,000 in health care costs
Franklin Central School District officials saved more than $800,000 in health insurance costs by switching carriers and offering employees a buyout incentive, according to an auditreleased by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/apr16/040616.htm?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20160410&utm_campaign=fiscal+oversight

State Comptroller and the Attorney General announce $10.75 million oil spill settlement reached with Exxon Mobil

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced a $10.75 million settlement with Exxon Mobil Corporation and ExxonMobil Oil Corporation, individually and as successors-in-interest to Mobil Oil Corporation and Mobil Corporation, to reimburse the New York Environmental Protection and Spill Compensation Fund (Oil Spill Fund) for oil spill cleanup and petroleum contamination removal costs at eight locations across the state. The settlement reimburses the Oil Spill Fund for all of its costs with interest for the eight sites. http://www.osc.state.ny.us/press/releases/apr16/040716a.htm?utm_source=weekly+news&utm_medium=email&utm_term=corporate+governance&utm_content=20160410&utm_campaign=pension+fund

School audits completed:

Canajoharie Central School District, Financial Condition and Extra-Classroom Activity Fund

Delaware-Chenango-Madison-Otsego BOCES, Procurement of School Food

East Moriches Union Free School District - Review of the District’s budget for the 2016-17 fiscal year

Fishers Island Union Free School District - Five Point Plan

Franklin-Essex-Hamilton BOCES - Payroll

Indian Lake Central School District - Claims Auditing

Liberty Central School District - Financial Operations

Longwood Central School District - Purchasing

Minerva Central School District - Payroll

Newark Valley Central School District - Financial Management

Questar III BOCES - Purchasing

Custodian of a public record may decline to release pre-decision materials prepared to assist in final decision making being sought pursuant to a Freedom of Information request

Custodian of a public record may decline to release pre-decision materials prepared to assist in final decision making being sought pursuant to a Freedom of Information request

Thomas v New York City Dept. of Educ., Decided on March 31, 2016, Appellate Division, First Department

Supreme Court denied the Article 78 petition filed by Michael P. Thomas seeking the disclosure of certain records pursuant to Public Officers Law §87, New York State’s Freedom of Information Law [FOIL].

Thomas has submitted a FOIL request to the New York City Department of Education [DOE] in order to obtain records* pertaining to the Department’s investigation of his allegations that certain students improperly received mathematics credits or diplomas.

Citing Public Officers Law §87(2)(g), the Appellate Division sustained the Supreme Court’s ruling. The court said that DOE had acted properly in finding that the intra-agency documents at issue were exempt from disclosure as “the documents constituted, among other things, pre-decisional materials prepared to assist DOE in making its final decision."

Public Officers Law §87(2)(g) provides that an agency, in accordance with its published rules, shall make available for public inspection and copying all records, “except that such agency may deny access to records or portions thereof that are inter-agency or intra-agency materials which are not:

“i. statistical or factual tabulations or data;

“ii. instructions to staff that affect the public;

“iii. final agency policy or determinations;

“iv. external audits, including but not limited to audits performed by the comptroller and the federal government.”

* The release of some public records may be 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 “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. 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.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_02520.htm

Disability discrimination complaint dismissed upon showing that no reasonable accommodation was available

Disability discrimination complaint dismissed upon showing that no reasonable accommodation was available

Whitfield v New York State Div. of Human Rights, 2016 NY Slip Op 02535, Appellate Division, First Department

The New York State Division of Human Rights (DHR), adopting the recommended order of an Administrative Law Judge (ALJ), dismissed the disability discrimination complaint Wade Whitfield filed against the New York City Department of Education (DOE). Whitfield appealed.

In considering Whitfield’s appeal of DHR’s determination the Appellate Division said that substantial evidence supported DHR's determination that Whitfield did not suffer from a disability for purposes of his claim under the New York State Human Rights Law. The decision indicates that:

1. Whitfield had been employed as a paraprofessional by DOE. His duties involved his lifting students weighing more that 40 pounds. 

2. An orthopedist who examined Whitfield had opined that the most he could lift was 40 pounds.

3. At his hearing DHR hearing Whitfield testified that most students in the school district where he was employed weighed more than 40 pounds. 

4. DOE witnesses at the DHR hearing had testified testified that, due to the fact that all students in District 75 were disabled, there were no District 75 paraprofessional positions that did not require the incumbent to have the ability to lift more than 40 pounds.

The ALJ credited this testimony and the Appellate Division said that those factual determinations are entitled to "substantial deference." In addition, the court said that given Whitfield's “medically prescribed weight limitations,” DHR properly determined that there was no "reasonable accommodation that would have enabled [Whitfield] to perform the essential functions of his … position."

The court, dismissing Whitfield’s appeal, noted that the record showed that DOE did attempt to accommodate Whitfield by encouraging him to apply for an extension of his leave of absence from his position as [1] his medical limitations would have qualified him for an extended leave of absence, and [2] his application would have been approved had he applied. 

The Appellate Division observed that Whitfield “inexplicably refused to apply for an extended leave of absence, however, despite being repeatedly urged to do so by the principal and other DOE representatives.”

Whitfield had also filed disability discrimination claims pursuant to the Americans with Disabilities Act (ADA). The Appellate Division dismissed this branch of Whitfield’s appeal as well, explaining ADAclaims are governed by the same legal standards' as disability discrimination claims under the State HRL."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02535.htm

A tenured employee who resigns from his or her position and is subsequently reemployed by his or her former employer in the same title is not automatically entitled to tenure in the position

A tenured employee who resigns from his or her position and is subsequently reemployed by his or her former employer in the same title is not automatically entitled to tenure in the position
Springer v Board of Educ. of the City Sch. Dist. of the City of N.Y., 27 NY3d 102

In January 2011 Grant Springer, a tenured teacher then employed by the New York City School District [NYCSD], resigned from his position. In October 2011 Springer applied for and was employed to teach at another NYCSD school. During the 2011-2012 school year, a new principal was appointed at the school at which Springer was employed, Tyee Chin.

In April 2012, Chin informed Springer that he did not believed Springer had tenure in his position. On the advice of his union representative, Springer submitted a form to withdraw his January 2011 resignation. NYCSD, however, told Springer that his request to withdraw his January 2011 resignation would not be processed “because it was submitted too late.”

In May 2012, Springer received a rating of "unsatisfactory" for the 2011-2012 school year and was terminated from his position effective June 22, 2012.

In October 2012, apparently without have earlier filed an administrative grievance challenging NYCSD's refusal to consider his request to withdraw his resignation or his termination, Springer initiated a CPLR Article 78 proceeding against NYCSD contending that “under paragraphs 28 and 29 of Chancellor's Regulation C-205, as well as the collective bargaining agreement between the Board and the teachers' union, he ‘was a tenured teacher upon his reappointment’ and, therefore, "[NYCSD’s] decision to terminate his employment without just cause and without following the [disciplinary] procedures" in Education Law §3020-a his termination was unlawful and "arbitrary and capricious, or an abuse of discretion." He asked the court to direct his reinstatement to his teaching position and to provide related relief.

NYCSD asked Supreme Court to dismiss Springer's petition, contending, among other things, that the petition failed to state a cause of action and that Springer failed to exhaust his administrative remedies. Supreme Court granted NYCSD’s motion and dismissed the proceeding, concluding that the petition was "premature for failure to exhaust administrative remedies." Springer then appealed the Supreme Court’s decision.

The Appellate Division unanimously affirmed the result of the Supreme Court's ruling, but on a different ground (see 121 AD3d 473}. The Appellate Division concluded that "[t]here is no question that [Springer] failed to comply with [Chancellor's Regulations] C-205(28) and C-205(29), which govern withdrawal of a resignation and restoration to tenure." Hence, when [Springer] was rehired by a principal, his tenure was not, ipso facto,* restored. That same panel of the Appellate Division then granted that portion of Springer’s  subsequent motion seeking leave to appeal to the Court of Appeals, certifying the following question of law: "Was the [Appellate Division] order . . . properly made?"

The Court of Appeals commenced its review of Springer's appeal by noting that the Chancellor has the authority to promulgate regulations "necessary or convenient" to the administration of the New York City public school system and cited paragraph 28 of Chancellor's Regulation C-205, entitled "Withdrawal of Resignation Generally." C-205 sets out the general procedure for withdrawing a resignation and Paragraph 29, entitled "Withdrawal of Resignation Within Five Years by Tenured Staff, describes the procedure for the withdrawal of resignation by tenured teachers to permit them to return to teaching with tenure.

C-205(29) provides, in relevant part, that "[A] non-supervisory pedagogical employee who had attained permanent tenure prior to the date of resignation shall, remain tenured and, upon written request, be permitted to withdraw such resignation subject only to medical examination and the approval of the Chancellor, provided that reinstatement is made on or before the opening of school in September next following five years after the effective date of resignation. If reinstatement is made after this date, a two year probationary period will be required."

In the words of the Court of Appeals, “C-205(29) provides that a tenured teacher who has resigned may avoid a probationary term in a new position by submitting a ‘written request’ to withdraw the prior resignation. That request will be ‘subject only to medical examination and the approval of the Chancellor,’ so long as reinstatement is made in accordance with the timing requirements set forth in the Regulation. The CBA between the Board and the teachers' union contains a parallel provision.”

Springer argued that his written applications for various teaching positions satisfied the “written request to withdraw his resignation” requirement. He also contended that when “the [New York City Board of Education, Board,] rehired him in October 2011,  within five years of his prior resignation, the Board effectively accepted the withdrawal of his resignation.” Thus, said Springer, “he was a tenured teacher at the time of his termination in June 2012 and that the Board violated his due process rights by failing to provide him with the procedural protections required by Education Law §3020-a.”

NYCSD, on the other hand, argued that Springer “ignores the important role of the written request for withdrawal, most notably the Chancellor's role in the process.” Implying that a written request does not result in a “fait accompi,”**insofar as regaining tenure is concerned, NYCSD said by submitting a written request, “the Chancellor is afforded the opportunity to assess the teacher's work history and competence and may reject a request to withdraw a resignation.” NYCSD also pointed out that the procedure permits important hiring information to be conveyed to a hiring principal, including the fact that the teacher would have full tenure rights in the teacher's new position or not, as the case might be.

The Court of Appeals concluded that “Because [Springer] did not withdraw his resignation through the mechanism of a written request, the requirements of C-205(29) were not met and [Springer] was not reinstated with tenure.” In the words of the court, “We hold that a tenured teacher who resigns, and later seeks to return as a tenured teacher, must strictly comply with the regulation and submit a written request to withdraw his or her prior resignation.”

Although Springer’s position was in the Unclassified Service,*** in the event a permanent employee in a position in the Classified Service**** of the State as the employer resigns from his or her position and subsequently wishes to withdraw his or her resignation he or she must obtain the approval of the appointing authority to do so. Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provide that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

Further, 4 NYCRR 5.4, Reinstatement following resignation provides, in pertinent part, that a former permanent State employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant. This rule, then further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.”

Many local Civil Service Commissions have adopted rules similar to 4 NYCRR 5.4.

* Latin: By the very nature of the action or the act.

** Fait accompli is a French phrase which means literally "an accomplished deed". It is commonly used to describe an action which is completed.

*** See, generally, Civil Service Law §35.

**** See, generally, Civil Service Law §§40-45

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02553.htm

Additional judicial scrutiny required in reviewing a compulsory arbitration proceeding

Additional judicial scrutiny required in reviewing a compulsory arbitration proceeding

Hamilton v Alley, 2016 NY Slip Op 01928, Appellate Division, Fourth Department

William E. Hamilton, a tenured administrator  employed by Jordan-Elbridge Central School District [District], was terminated from his position following a disciplinary hearing conducted pursuant to Education Law §3020-a(5). Hamilton initiated an Article 75 action challenging his dismissal by the District, seeking a court order directing his reinstatement to his former position with the District.*

With respect to Thomas’ contention that Supreme Court “failed to apply the correct standard of review,” the Appellate Division said that in its view the lower court “properly identified and applied the ‘additional layer of judicial scrutiny’ applicable to a compulsory arbitration proceeding,** and it recognized and appropriately decided the matter on the basis that the arbitrator's decision had evidentiary support and was not arbitrary and capricious.”

As the court held in City School District of New York v McGraham, 17 NY3d 917, such “additional layer of judicial scrutiny” involves the court finding that the award has “evidentiary support” and “neither being arbitrary nor capricious.”

Although the Appellate Division concluded that “there was no rational basis for the Hearing Officer to apply the crime exception with respect to amended charges Nos. 7 and 8” and modified the order accordingly, this did not affect the penalty imposed on Thomas, termination.

Although Thomas contended that the Hearing Officer had imposed an inappropriate penalty, termination,” the Appellate Division opined that "[i]n light of the litany of specifications proven against [Thomas], the penalty of dismissal does not shock the conscience."

* The Appellate Division noted that Supreme Court erred in determining that Thomas’ special proceeding was not timely commenced and that his supporting papers and amended petition were not timely served. However, said the court, in any event Supreme Court addressed the merits of Thomas’ amended petition.

** See Powell v Board of Educ. of Westbury Union Free School Dist., 91 AD3d 955, summarized at http://publicpersonnellaw.blogspot.com/2012/02/where-arbitration-is-statutorily.html

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01928.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

______________________

Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority

Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority

Pinheiro v. Civil Service Comm. for the Cnty. of Fresno, California Court of Appeal, Docket F070473

John Pinheiro was dismissed from his position as the County of Fresno’s labor relations manager. The County of Fresno Civil Service Commission sustained Pinheiro termination and he filed a “writ of mandate” seeking a court order vacating the Commission’s decision.

Pinheiro contended that his right to a fair trial* was violated because the Commission:

(1) relied on evidence obtained outside the Commission hearing;

(2) used law enforcement records as a factor in sustaining his termination;

(3) relied on acts of alleged misconduct more than three years old;

(4) relied on evidence that was not admitted and excluding evidence relevant to his defenses; and

(5) relied on evidence of contact with another individual prior to any directive prohibiting such contact.

The trial court sustained the Commission’s action. However, the California Court of Appeals vacated the lower court’s ruling, explaining that Pinheiro had not been given a fair trial because the Commission considered and relied on information taken outside the hearing in reaching its decision.

Citing La Prade v. Department of Water & Power, 27 Cal.2d 47, the court said “The decision … should be based on the record and not on off-the-record discussions from which the parties are excluded,” indicating that administrative tribunals exercising quasi-judicial powers which are required to make a determination after a hearing cannot act on their own information and nothing may be treated as evidence which has not been introduced as such, inasmuch “as a hearing requires that the party be apprised of the evidence against him in order that he [or she] may refute, test and explain it.”

As Pinheiro had no opportunity to refute or explain such information, the Court of Appeals reversed the trial court’s ruling and remanded the matter to the Commission for a new hearing as “Pinheiro was denied a fair hearing” by the Commission.

* The court said that the “fair trial” requirement of California’s Code of Civil Procedure §1094.5 is not synonymous with constitutional due process and does not mandate “a formal hearing under the due process clause,” [see Pomona College v. Superior Court, 45 Cal.App.4^th1716]. What is required, said the court is simply a “fair administrative hearing,” that affords the individual a reasonable opportunity to be heard.

The decision is posted on the Internet at:

http://cases.justia.com/california/court-of-appeal/2016-f070473.pdf?ts=1459283424

An individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision

An individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision

Thomas v New York City Dept. of Educ., 2016 NY Slip Op 02154, Appellate Division, First Department

Michael P. Thomas, then a public school teacher, employed by the Manhattan Center for Science and Mathematics (MCSM), filed allegations with the New York City Department of Education [DOE’ that the court characterized as involving “a misappropriation of federal funds received by MCSM under Title I, Part A of the Elementary and Secondary Education Action of 1965, reauthorized as the No Child Left Behind Act (NCLB) of 2001.”

DOE, following an administrative investigation, determined that Thomas’ allegations of misappropriation of Title I funds were unsubstantiated. Thomas then initiated the Article 78 action challenging DOE’s determination. Supreme Court dismissed Thomas’s petition; the Appellate Division affirmed Supreme Court’s decision.

The Appellate Division ruled that Thomas, although a member of MCSM's School Leadership Team lacks standing to challenge the results of DOE's investigation of his allegations he had brought pursuant to "No Child Left Behind Written Complaint and Appeal Procedures" adopted by the New York State Education Department.

The court explained that Thomas’ status as a complainant who initiated an administrative investigation did not give him standing to maintain “a private right of action to challenge the agency's determination” unless he could demonstrate that he had suffered an actual injury as a result of DOE’s decision. The court concluded that Thomas had failed to demonstrate that he had “suffered and actual injury” as a result of DOE’s administrative determination.

Another obstacle to Thomas' ability to maintain the action, said the Appellate Division, was that Thomas did not "fall within the zone of interests . . . sought to be promoted or protected" by Education Law §2590-h or the NCLB”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02154.htm

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