Is the filing of a timely “notice of claim” with a municipal or school district employer where unlawful discrimination is alleged a condition precedent?

Is the filing of a timely “notice of claim” with a municipal or school district employer where unlawful discrimination is alleged a condition precedent?

Savvis v New York City Dept. of Educ., 2016 NY Slip Op 05751, Appellate Division, Second Department

Debra Savvis sued the New York City Department of Education to recover damages for alleged unlawful discrimination on the basis of sex and a hostile work environment in violation of New York State’s Executive Law §296. Supreme Court granted Department of Education's motion for summary judgment, dismissing the complaint on the ground that the Savvis had failed to serve a timely notice of claim.

Savvis appealed but the Appellate Division, in its August 10, 2016, decision,said that her action was barred by Education Law §3813(1), which required the filing of a notice of claim within three months after the accrual of a cause of action, which admittedly was not done in this instance.*

The court also rejected Savvis’ argument that she was relieved of the notice of claim requirement on the basis that her action was brought to vindicate a public interest, holding that “Supreme Court properly granted the City Education Department’s motion for summary judgment dismissing the complaint.”

However, in Carter v Syracuse City School District, a summary order by the United States Circuit Court of Appeals, 2nd Circuit, Docket 15-2395, dated August 8, 2016, noted that a decision by New York State’s Court of Appeals, Margerum v City of Buffalo, 24 NY3d 721, addressed one of the critical issues in Carter: was a notice of claim a condition precedent to filing a human rights action against a municipality?  

The Federal District Court had dismissed Carter's petition on a finding that Carter had failed to comply with the notice-or-claim provision in New York State’s Education Law §3813, which the District Court had held were conditions precedent to bringing any action against a school district or its officers pursuant to the State’s Human Rights Law. The issue, as perceived by the Circuit Court in issuing its summary order, was whether Carter was required to serve a timely notice of claim on the Syracuse City School District in first instance in view of Margerum. The Circuit Court remanded the action to the district court to reconsider this and a number of other issues.

In Margerum New York State’s Court of Appeals held that “a notice of claim need not be filed for a Human Rights Law claim against a municipality .…” Noting that “General Municipal Law §50-i (1) precludes commencement of an action against a city ‘for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city,’ unless a notice of claim has been served in compliance with §50-e,” the court explained that “human rights claims are not tort actions under §50-e and are not personal injury, wrongful death, or damage to personal property claims under §50-i,” concluding that “there is no notice of claim requirement here.”

In his concurring opinion, Justice Read noted that the Court of Appeals had held “that an employment discrimination claim brought against a county [sic] under the Human Rights Law is subject to County Law §52(1)'s notice-of-claim requirement,” citing Mills v County of Monroe, 89 AD2d 776, [affd. 24 NY3d 721], 59 NY2d 307. He then said that “There are certainly reasons why the legislature might nonetheless choose to treat civil rights actions differently, as this opinion suggests; however, it is hard to believe that the legislature ever intended to create a situation where an action brought against the County of Erie alleging violations of the Human Rights Law would require a notice of claim as a condition precedent to suit, while the same type of action brought against the City of Buffalo would not.”**

Justice Rivera, in a separate opinion, concurring in part and dissenting in part, said “The Court [of Appeals] has broadly interpreted the Human Rights Law consistent with the statutory mandate that ‘[t]he provisions of [the Human Rights Law] shall be construed liberally for the accomplishment of [its] purposes.’”

* There have been a number of decisions indicating that under certain circumstances a notice of claim is not required. Examples include:

1. New York State's Public Employment Relations Board, relying on the Court of Appeals ruling in Freudenthal v. Nassau County, 99 NY2d 285, held that claims filed with the NY State Division of Human Rights, a State administrative agency, do not require the filing of a Notice of Claim pursuant to Education Law §3813, concluded that such notice is not required with respect to improper practice charges filed with it.

2. The Commissioner of Education has held that §3813 does not apply to appeals brought under §310 of the Education Law, [Decisions of the Commissioner of Education, 12369].

3. In Mennella v Uniondale UFSD, 287 A.D.2d 636, the Appellate Division ruled that a petition filed with the Commissioner of Education may constitute the functional equivalent of a §3813(1) notice of claim.

4. In Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights."

** In Freudenthal v. Nassau County, 99 NY2d 285, footnote 5, the court said "... we conclude that Division proceedings are governed exclusively by the commencement procedures in Executive Law §297(5)." Thus it would appear that a timely filing with the Division controls with respect to the public entity named as a respondent in a human rights complaint submitted to it regardless of other provisions in law otherwise requiring the timely filing a notice of claim with such a public entity. 

The Carter decision is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/de194eaf-b3bd-4172-b6d7-0727fccccad6/9/doc/15-2395p_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/de194eaf-b3bd-4172-b6d7-0727fccccad6/9/hilite/

The Margerum decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_01378.htm

The Savvis decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05751.htm

Selected reports issued by the Office of the State Comptroller during the week ending August 13, 2016

Selected reports issued by the Office of the State Comptroller during the week ending August 13, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

New York State Comptroller Thomas P. DiNapoli announced his office completed the audits listed below: 

Office of Temporary and Disability Assistance ­- National Directory of New Hires Data Security

The office has taken actions to comply with the federal requirements for securing directory data. Auditors found that the office is fully compliant with 23 of the 32 requirements and partially compliant with seven requirements. Two requirements were not applicable due to current practices at the office and modifications of federal reporting requirements. 
Office of Temporary and Disability Assistance: National Directory of New Hires Data Security
(2016-S-27) 

Queens County District Attorney’s Office - Oversight of Persons Convicted of Driving While Intoxicated  
Although 9,604 offenders overseen by the office received court orders to install Ignition Interlock Devices (IIDs), only 1,952 offenders (20.3 percent) did. By borough, IID installation rates ranged from 9 percent in Brooklyn to 30 percent in Staten Island. Generally, offenders who did not install IIDs signed court affidavits stating that they would not drive a motor vehicle during the period of conditional discharge unless it had an IID. Auditors also found material noncompliance with the office’s protocols to minimize the risk that offenders would drive vehicles without IIDs. 

Queens County District Attorney’s Office: Oversight of Persons Convicted of Driving While Intoxicated (2015-N-2) 

NYS Department of Education - Compliance With the Reimbursable Cost Manual Report 2015-S-96 

Costs submitted by the Early Education Center on its Consolidated Fiscal Report (CFR) were properly calculated, adequately documented and allowable under SED’s guidelines for the fiscal year ended June 30, 2014.
State Education Department (SED): Early Education Center, Compliance with the Reimbursable Cost Manual (2015-S-96)  


NYS Department of Education - The Alcott School; Compliance With the Reimbursable Cost Manual
For the year ended June 30, 2014, auditors identified $55,969 in ineligible costs that Alcott reported on its CFR. The ineligible costs included: $52,442 in personal service costs, which consisted of $49,874 in unsupported staff time, and $2,568 in employee compensation that was reported as more than one full-time equivalent on the CFR; and $3,527 in other than personal service costs, which consisted of $1,889 in inadequately documented expenses, $1,252 in working capital interest, and $386 in food and other non-reimbursable costs.
State Education Department: The Alcott School, Compliance with the Reimbursable Cost Manual (2015-S-97) 


Metropolitan College of New York; Higher Education Services Corporation; State Education Department - Audit of the State Financial Aid Program at Metropolitan College of New York, Report 2015-T-7 
Auditors determined that the procedures used by Metropolitan officials to certify students for state financial aid substantially complied with the governing law and regulations. However, Metropolitan was overpaid $20,944 because school officials incorrectly certified some students as eligible for financial aid.

Tuition Assistance Program: State Financial Aid Program at Metropolitan College of New York

(2015-T-7) 


Inappropriate Medicaid Payments

New York state’s Medicaid system made as much as $12.1 million in inappropriate payments during 2015, including $2.3 million for dead patients and millions more for recipients who had been dropped from long term care coverage, according to an audit released August 9, 2016 by State Comptroller Thomas P. DiNapoli. By the end of audit fieldwork, about $2.1 million of the overpayments were recovered.

The Comptroller said: “My auditors continue to find glitches in the Department of Health’s payment control systems that allow wasteful payments to be made,” DiNapoli said. “The department agreed with most of our recommendations and is working to fix the problems we have uncovered. It should recover up to $10 million that should not have been spent.”

New York’s Medicaid program, administered by the state Department of Health (DOH), is a federal, state, and locally funded program that provides a wide range of medical services to those who are economically disadvantaged or have special health care needs.

DOH’s eMedNY computer system processes Medicaid claims submitted by providers for services rendered to Medicaid-eligible recipients and generates payments to reimburse the providers for their claims.

DiNapoli’s office audits Medicaid payments on a routine basis to make sure claims are being paid appropriately and to determine if improvements are needed and whether money should be recovered because of errors, abuse or fraud. In 2015, DiNapoli’s auditors questioned $223 million in payments.

Managed Long-Term Care (MLTC) plans provide services to recipients who have a long-lasting health problem or disability. Medicaid pays MLTC plans a monthly payment for every recipient enrolled in an MLTC plan. According to the department’s MLTC contract, DOH has the right to recover capitation payments made to plans for recipients who it is later determined were inappropriately enrolled because of death, incarceration, or relocation out of the plan’s service area. From Feb. 1, 2015 to Sept. 30, 2015, Medicaid made 1,745 capitation payments totaling more than $7.1 million for 1,324 recipients who were retroactively disenrolled from a plan by DOH or local Departments of Social Services.

With the enactment of the federal Patient Protection and Affordable Care Act (PPACA) in 2010, the state developed New York State of Health (NYSOH) as a new online marketplace for individuals to obtain health insurance coverage, including Medicaid. The PPACA requires NYSOH to verify an applicant’s identifying information when determining Medicaid eligibility and enrollment. Once individuals are enrolled in Medicaid, NYSOH is required to periodically verify recipients are alive to ensure active coverage is appropriate.

DiNapoli’s auditors determined NYSOH enrolled 119 deceased individuals into the Medicaid program, and NYSOH did not automatically terminate 1,177 enrollees who apparently died after enrollment. Medicaid overpaid 4,892 claims totaling $2,282,626 on behalf of 966 enrolled recipients. At the end of our fieldwork, 766 of the 1,296 deceased enrollees still had active Medicaid coverage through NYSOH. 

DOH subsequently completed its review of the 766 enrollees, concluded that 4 individuals were alive and took the necessary steps to close the accounts of the remaining 762 enrollees.

DiNapoli’s auditors also found:

1. $1,052,058 in overpayments for claims billed with incorrect information pertaining to other health insurance coverage that recipients had;

2. $813,412 in overpayments for low-birth weight  newborn claims that were submitted with incorrect birth weights;

3. $708,016 in overpayments for inpatient claims that were billed at a higher level of care than what was actually provided; and

4. $77,861 in improper payments for duplicate billings and claims for clinic, transportation, durable medical equipment, and eye care services.

Auditors also identified providers in the Medicaid program who were charged with or found guilty of crimes that violate health care programs’ laws or regulations. DOH terminated 26 of those providers, but the status of five other providers was still under review at the time fieldwork was completed. 

DiNapoli made 11 recommendations to DOH to recover the remaining inappropriate Medicaid payments and improve claims processing controls. 

DOH generally agreed with the audit recommendations and indicated that certain actions have been and will be taken to address them. The agency’s complete response is included in the final audit.

Read the reportor go to: http://www.osc.state.ny.us/audits/allaudits/093016/15s16.pdf

Duties and responsibilities of members of Taylor Law “union negotiating committees” and "management teams”

Duties and responsibilities of members of Taylor Law “union negotiating committees” and "management teams”

Matter of Jeffersonville-Youngsville CSD, Decision U-6341

Matter of the Town of  Dresden, Decision U-7383

Matter of Nassau County Community College, 24 PERB 4583

Copaigue Union Free School District, 23 PERB 3046

Village of Port Chester, Decisions U-7856; U-7941

The summaries of the several PERB rulings set out below serve as a reminder of the major duties and responsibilities of members of the negotiating body representing union members and the negotiating team representing the employer in collective bargaining pursuant to Article 14 of the Civil Service Law, the Taylor Law, during the ratification process of the proposed collective bargaining agreement as well as the duties imposed on the “legislative body” that may be involved in the ratification process.

Matter of Jeffersonville-Youngsville CSD, PERB U-6341

The Jeffersonville-Youngsville Central School District negotiating team consisted of the Superintendent and three School Board members.

The District’s and the Union’s negotiating teams had agreed to all terms of a proposed agreement except the "2nd year salary offer." After obtaining authority to place an additional $2,000 "on the table" from the seven member School Board during the final day of negotiations, the Superintendent offered, and the Union accepted, a settlement which provided for more than the additional $2,000 authorized by the Board.

Although the Union's member ratified the agreement, the full School Board did not, with two to the three Board members of the District's negotiating team voting against the "ratification." When the Superintendent declined to execute a "memorandum agreement," the Union filed an unfair labor practice claim with PERB. 

Ultimately PERB directed the Superintendent to sign the memorandum agreement with the Union and, if requested, to sign "a formal ... contract" reflecting the salary agreements reached with the Union in the course of collective bargaining.

PERB explained that a School Board may not deprive the District's negotiating team of the power vested in it to negotiate a collective bargaining agreement. The School Board, as the "legislative body" has a different role (see Civil Service Law §201). PERB also commented that the School Board did not advise the Union of any "restrictions" on the District's team, "even if it had the authority to do so."

PERB also indicated that with respect to the two team/Board Members who voted against ratification, "each member of a negotiating team is obligated to support every part of an agreement unless the other party has been advised that he (or she) dissented from the part of the agreement which he subsequently opposed" in the course of negotiations.”

N.B. Unresolved, however, is the question of "legislative action ... providing the additional funds" by the School Board. Under the Taylor Law, any provision of an agreement that requires action by a legislative body, such as the allocation of funds, is not to take effect until the legislative body concerned acts to provide the required monies.* When the full Board votes on this matter, presumably all three "team/Board members" will be required to vote in favor of the allocation of required funds consistent with their "team position." This illustrates another of the difficulties that must be considered when a member of the "legislative body" is also designated to serve as a negotiating team member.

Matter of the Town of Dresden

In another case in which PERB distinguish the different roles administrators and legislators have in Taylor Law negotiations is Matter of the Town of Dresden, Case U-7383.

In this instance the Town Supervisor refused to sign the negotiated agreement contending that he lacked authority to reach a final agreement without the prior approval of the Town Board. The Union filed an improper practice charge with PERB.

PERB said that the Taylor Law contemplates negotiations will be an executive rather than a legislative process. Any resulting agreement is between the employer's administrative body and the Union and is binding on the parties. Those provisions requiring approval by the legislature, typically appropriations and related actions are not enforceable until the necessary legislative action is taken as earlier noted. 


Matter of Nassau County Community College

Another element to consider regarding the ratification of a collective bargaining agreement negotiated pursuant to the Taylor Law concerns the duty of negotiators to recommend ratification of a proposed agreement.

In Matter of Nassau County Community College, 24 PERB 4583, PERB sustained its Administrative Law Judges ruling that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support." As a remedy, it ordered the union to execute a collective bargaining agreement embodying the agreements reached by the parties and reflected in a memorandum of understanding if requested to do so by the employer.


Matter of Copaigue Union Free School District

In a situation similar to the one the served of the genesis of Matter of Nassau Community College, in the course of the process of ratifying the proposed collective bargaining agreement between the Copaigue Union Free School District and a collective bargaining unit of employees in the District, the Union's chief negotiator, at the beginning of a unit member meeting to vote on the ratification of a proposed agreement, announced that the Union’s four person negotiating committee was deadlocked, 2 to 2, with respect to approving the ratification of the tentative agreement. The union members then voted and the proposed agreement was rejected.

Copaigue filed an unfair labor practice charge with PERB alleging that the Union’s chief negotiator’s statement violated §209-a.2(b) of the Taylor Law. PERB’s Administrative Law Judge agreed, holding that the disclosure of the split in the views of the team members concerning the acceptance or rejection of the tentative agreement by the chief negotiator was, at best, the expression of a "neutral position on the part of the negotiating team in contravention of its duty under the [Taylor Law] to affirmatively support ratification."

PERB affirmed the ALJ’s ruling, noting that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support."

Village of Port Chester

Alleged misunderstanding of the terms and conditions set out in a collective bargaining agreement by a party does not permit that party to repudiate the collective bargaining agreement or apply its interpretation of its terms and conditions..

As PERB ruled in Village of Port Chester, Cases U-7856; U-7941, an agreement ratified by the Village's Trustees cannot be thereafter repudiated by the Village on the grounds that it was not given a thorough explanation of the provisions in the agreement prior to its being ratified nor may it impose its understanding of the contents of the agreement upon the union as the ratification process is of no consequence with respect to the validity of the agreement.

* Civil Service Law §204-a. Agreements between public employers and employee organizations.
1. Any written agreement between a public employer and  an employee organization determining the terms and conditions of  employment of public employees shall contain the following notice in  type not smaller than the largest type used elsewhere in such agreement:  "It is agreed by and between the parties that any provision of this  agreement requiring legislative action to permit its implementation by  amendment of law or by providing the additional funds therefor, shall  not become effective until the appropriate legislative body has given  approval."