Findings of fact in support of the appointing authority’s decision to terminate an employee required to survive the employee’s judicial challenge seeking reinstatement to his or her former position.

Holding that Schoharie County failed to make any findings of fact in support of its decision terminating a County employee, the Appellate Division said it could not conduct a meaningful review of the County’s determination in response to the employee’s Article 78 challenge to the County’s action. The court explained that “[A]dministrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review” and remitted the matter to the County Board of Supervisors “for further proceedings not inconsistent with this Court's decision.”

Ethington v County of Schoharie, 2016 NY Slip Op 07908, Appellate Division, Third Department

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

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Eligibility for workers’ compensation benefits based on work-related stress

Eligibility for workers’ compensation benefits based on work-related stress

Matter of State Insurance Fund and Workers’ Compensation Board, 2016 NY Slip Op 07734, Appellate Division, Third Department

A supervisor [Claimant] filed for workers’ compensation benefits contending that she that had felt threatened as the result of a work-related incident involving one of her subordinates and that the incident had resulted in stress, panic attacks and digestive problems.* 

After a series of hearings and the submission of Claimant's medical records and the reports and deposition testimony of her treating physician, as well as an independent medical exam by the workers' compensation carrier's consultant, a Workers' Compensation Law Judge [WCLJ] ultimately issued a decision disallowing the claim on the grounds, among others, that Claimant did not experience work-related stress greater than what is experienced in a normal work environment, and that "the exacerbation of her mental health symptoms did not arise out of and in the course of the incident or its aftermath."

The Workers' Compensation Board affirmed the WCLJ’s findings and determination denying Claimant's allegations that she suffered a work-related injury or disease arising out of and in the course of her employment. Her claim denied  for workers' compensation benefits by the Board, Claimant then appealed the Board’s decision.

The Appellate Division affirmed the Board’s ruling, citing Matter of Lozowski v Wiz, 134 AD3d 1177. In Lozowski the court held that it was "well established that ‘mental injuries caused by work-related stress are compensable if the claimant can establish that the stress that caused the injury was greater than that which other similarly situated workers experienced in the normal work environment.’"

However, said the court, in resolving that factual question, the Board's determination will not be disturbed provided that it is supported by substantial evidence.

In this instance, although the medical evidence concluded, based upon Claimant's self reporting, that the incident caused or exacerbated her mental health problems, substantial evidence supports the Board's factual determination that the incident was not compensable on the ground that the work-related stress suffered by Claimant that led to her anxiety, PTSD and depression was not "greater than that which other similarly situated workers experienced in the normal work environment."

In contrast to Claimant’s description of the events constituting the incident, including Claimant’s testimony that her subordinate “swore at her during the encounter,” the WCLJ credited the evidence given by a coworker who testified that she had overheard "a work interaction" in which Claimant and the subordinate "disagreed" and that she had informed Claimant, after the incident, that the subordinate used profanity after Claimant walked away from the disagreement.

In addition the WCLJ discreded Claimant's account of the incident and her claim that this brief episode left her terrified based upon her testimonial demeanor as well as her inconsistent accounts and actions after the incident, including Claimant's return to her subordinate's work area shortly after the incident to speak with a coworker and her testimony that “the day after the incident, she had a meeting with the [subordinate]" and later reported that the matter was "settled" and that they were "moving forward with a good working relationship."

The Appellate Division, deferring to the Board's credibility determinations, found that the record as a whole supported its conclusion that this was, at most, "an isolated incident of insubordination" to which the employer appropriately responded, which was not so improper or extraordinary as to give rise to a viable claim for a work-related injury.

Finding “… no basis to disturb the Board's determination that Claimant's work-related stress did not exceed that which could be expected by a supervisor in a normal work environment,” the Appellate Division denied Claimant’s appeal.

* The Appellate Division’s decision notes that “After the incident, Claimant, who had a history of treatment for non-work-related anxiety, depression and posttraumatic stress disorder [PTSD], reportedly experienced increased symptoms of anxiety and depression, as well as panic attacks, insomnia and difficulty concentrating for which she sought treatment from her internal medicine physician.” 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07734.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 26, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 26, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

Pre-school education providers claimed over one million dollars of unallowed expenses
Aim High Children’s Services and the Hebrew Institute for the Deaf and Exceptional Children, two Brooklyn preschool special education providers, claimed nearly $1.4 million in taxpayer reimbursements for ineligible costs, according to audits released by New York State Comptroller Thomas P. DiNapoli.


Hiring and Budgeting problems at the Brentwood Union Free School District

A pattern of poor budgeting led the Brentwood Union Free School District to accumulate excessive fund balance as well as reserve funds that surpassed board-approved amounts and have gone unused, according to an audit released by New York State Comptroller Thomas P. DiNapoli.


Former TownClerk padded her pay with town funds

State Comptroller Thomas P. DiNapoli announced the arrest of Jordan Green after an investigation and audit found that she paid herself thousands of dollars in unauthorized payroll payments. Green also had the town pay back her loans from the state’s retirement system while employed as the clerk to the supervisor for the Town of Minerva. The arrest is the result of DiNapoli's partnership with the New York State Police and Essex County District Attorney Kristy Sprague. Details are posted on the Internet at:

http://www.osc.state.ny.us/press/releases/nov16/112316a.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20161127&utm_campaign=fiscal+oversight

School DistrictAudits

Bellmore-MerrickCentral High School District – Financial Condition

GouverneurCentral School District – Financial Management

IrvingtonUnion Free School District – Information Technology

NewarkCentral School District – Financial Condition and Claims Processing

Port Jervis City School District – Financial Condition

Tests applied by courts in determining if claims of unlawful discrimination and, or, retaliation can survive a motion for summary judgment

Tests applied by courts in determining if claims of unlawful discrimination and, or, retaliation can survive a motion for summary judgment

Langton v Warwick Val. Cent. Sch. Dist., 2016 NY Slip Op 07626, Appellate Division, Second Department

Patricia Langton sued the Warwick Valley Central School District to recover damages for alleged unlawful retaliation and employment discrimination on the basis of sex in violation of Executive Law §296.

Supreme Court granted the School District’s motion for summary judgment based on its finding that  the School District and its employees were not amenable to suit under Executive Law §296(3). Langon appealed the Supreme Court’s ruling.

On appeal the School District conceded that the basis for the Supreme Court's determination granting summary judgment was incorrect but, in the alternative, contended that the order granting summary judgment should nevertheless be affirmed, although on different grounds.

The Appellate Division agreed and dismissed Langon’s appeal, explaining it rulings as follows:

Regarding retaliation

The court explained that a plaintiff alleging unlawful retaliation under state or federal law must show that (1) he or she has engaged in protected activity, (2) the employer was aware that the plaintiff participated in such activity, (3) the plaintiff 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.

In order to establish its entitlement to summary judgment in a retaliation case, a defendant must [1] demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or, [2] having offered legitimate, nonretaliatory reasons in rebuttal to its  challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual.

The Appellate Division ruled that in this instance the School District met its initial burden of demonstrating that the Langon could not make out a prima facie case of retaliation by showing that the School District’s actions Langon challenged were not causally connected to any protected activity in which Langon had participated. Further, said the court, Langon “failed to submit sufficient evidence from which a causal connection could be found between any protected activity in which she engaged and any adverse employment action.”

Regarding allegation of unlawful employment discrimination

Addressing Langon’s allegation that the School District had engaged in unlawful  employment discrimination, the Appellate Division explained that "[a] plaintiff alleging discrimination in employment has the initial burden to establish . . . (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination."

If the plaintiff meets this “initial burden”, the employer must rebut the presumption of unlawful discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision.

Addressing the situation underlying Langon's appeal, the Appellate Division said that to prevail on a motion for summary judgment in a discriminatory employment action, the School District must [1] demonstrate either Langon had failed to establish every element of intentional unlawful discrimination, or, the School District, having offered legitimate, nondiscriminatory reasons for the challenged actions, [2] the absence of a triable issue of fact as to whether the explanations were pretextual.

Here, said the court, the School District met its prima facie burden by offering legitimate, nondiscriminatory reasons for its actions challenged by Langon and also by demonstrating the absence of material issues of fact as to whether its explanations were pretextual.

Accordingly, the Appellate Division held that Supreme Court properly granted the School District’s motion for summary judgment notwithstanding its being founded on a misperception of the relevant law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07626.htm

A police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e

A police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e

Diegelman v City of Buffalo, 2016 NY Slip Op 07817, Court of Appeals

General Municipal Law §205-e gives a “Right of action to certain injured or representatives of certain deceased police officers.”

In pertinent part, subdivision 1 of §205-e provides that “In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury, death or a disease which results in death, occurs directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments or of any and all their departments, divisions and bureaus, the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury or death … provided, however, that nothing in this section shall be deemed to expand or restrict any right afforded to or limitation imposed upon an employer, an employee or his or her representative by virtue of any provisions of the workers' compensation law.”

The question presented in this appeal:  Is a police officer who is entitled to receive benefits under General Municipal Law §207-c for a duty-related injury is barred from bringing a claim against his or her employer under General Municipal Law §205-e?

The Court of Appeal’s response: “We conclude that, where the municipal employer has elected not to provide coverage pursuant to the Workers' Compensation Law, a police officer who suffers a line-of-duty injury caused by the employer's statutory or regulatory violations may pursue a §205-e claim.”

James R. Diegelman, a City of Buffalo police officer from 1968 until 1995, was diagnosed with mesothelioma, a cancer caused by exposure to asbestos. The alleged genesis of Diegelman’s mesothelioma: exposure to asbestos during his employment at properties owned by the City and the Buffalo Board of Education and used by the Police Department.

The Court of Appeals noted that the City of Buffalo, like many other large municipalities, elected not to provide workers' compensation benefits to its police officers and contended that General Municipal Law §207-c "is essentially a super workers' compensation scheme for police officers" and, thus, “workers' compensation exclusivity rules should apply to police officers who receive section 207-c benefits, regardless of whether they are entitled to benefits under the Workers' Compensation Law.”

However, said the court, Workers’ Compensation Law and General Municipal Law §207-c  are independent of each other and, “contrary to the City's argument that §207-c is essentially a super workers' compensation scheme,” the Workers' Compensation Law "features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated in a General Municipal Law §207-c benefits universe."

The Court of Appeals explained that "the Legislature chose different eligibility standards — 'arising out of and in the course of employment' for workers' compensation benefits [in contrast to the] 'in the performance of his [or her] duties' [standard] for section 207-c benefits."

Under these differing standards, "police … officers may be eligible for Workers' Compensation benefits as a result of circumstances that might not entitle them to General Municipal Law §207-c benefits." Indeed, said the court, "[w]orkers' compensation benefits are intended to be dispensed regardless of fault, for any injury arising out of and in the course of one's employment . . .[,] [while] [s]ection 207-c benefits . . . are more expansive, but apply to a narrower class of work-related injury, relative to the performance of law enforcement duties." Further, as "the issue involving the entitlement to benefits in the General Municipal Law setting is not . . . the same one decided in a Workers' Compensation determination" a finding by the Workers' Compensation Board that an injury is work-related cannot be given collateral estoppel effect against a municipality that denies an application for §207-c benefits.

Rejecting the City's argument General Municipal Law §207-c benefits can be equated to workers' compensation benefits for purposes of interpreting language contained in General Municipal Law §205-e, the Court of Appeals observed that “[t]he language of §205-e prohibits only recipients of workers' compensation benefits from commencing suit against their employers; it does not, by its terms, bar the commencement of suits by recipients of section 207-c benefits— which we have repeatedly recognized to be separate and distinct from workers' compensation benefits.”

The court said that it concluded that “General Municipal Law §205-e, when construed ‘in an unforced and natural manner,’ cannot be read to bar suits by recipients of General Municipal Law §207-c benefits when those police officers are employed by municipalities that have elected not to provide workers' compensation coverage.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07817.htm

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The Disability Benefits E-book – 2016 Edition: This 814 page electronic book [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 concerning this e-book click on: http://section207.blogspot.com/

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Understanding the Cyber Threat

Understanding the Cyber Threat

Source: Governing Daily

Elected and appointed officials are aware that cyber threats are growing both more numerous and more sophisticated. But how should they engage on this issue in order to protect vital government services and sensitive citizen data?

This new policy guide, Understanding the Cyber Threat, offers advice from a wide range of experts -- legislative thought leaders, government chief information security officers and industry security professionals – on the important role elected and appointed officials must play in developing and overseeing cyber security initiatives. 

Click here to DOWNLOAD NOW

Disciplinary actions pursuant to Education Law §3020-a processed consistent with compulsory arbitration standards

Disciplinary actions pursuant to Education Law §3020-a processed consistent with compulsory arbitration standards

Powell v New York City Dept. of Educ, 2016 NY Slip Op 07656, Appellate Division, Second Department

Education Law §3020-a(5) provides for judicial review of an arbitrator's disciplinary determination, made in the course of a disciplinary arbitration as set out in CPLR 7511. The grounds for vacating an award pursuant to Article 75 include a finding of an arbitrator’s misconduct, his or her abuse of power or procedural irregularities.

However, where the  parties are subject to compulsory arbitration, review of the award by the courts must satisfy an additional layer of judicial scrutiny — the arbitration decision must have “evidentiary support,” may not be arbitrary and capricious and it must have been made by the arbitrator in accordance with administrative due process.

In an Article 75 proceeding seeking to vacate a disciplinary arbitration award made pursuant to Education Law §3020-a, Monique Powell challenged the arbitrator's sustaining certain charges of misconduct against her and terminating her employment. Supreme Court denied Powell’s petition.

In sustaining the Supreme Court’s ruling upholding the arbitrator’s determination, the Appellate Division, noting that Education Law §3020-a provides for compulsory arbitration, explained that Powell did not demonstrate any basis for vacating the arbitration award.

In other words, said the court, Powell did not demonstrate that the arbitration award was the result of the arbitrator’s misconduct, abuse of power, and procedural irregularities. Further, said the Appellate Division, the arbitration award satisfied the additional layer of judicial scrutiny required in situations involving compulsory arbitration as it had evidentiary support, was not arbitrary and capricious, and was in accord with administrative due process.

As to the penalty imposed, dismissal, in the words of the court, “the determination to terminate [Powell’s] employment did not shock the conscience, as the evidence adduced at the hearing demonstrated that [Powell] requested to be paid for work that she did not perform and attempted to conceal her misdeeds through intentional and deceptive conduct, which included enlisting a student and two business owners to write false letters on her behalf.”

The Appellate Division also noted that “despite the overwhelming evidence of misconduct,” Powell refused to accept responsibility for her actions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07656.htm

______________

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

______________

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 19, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 19, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

State Comptroller’s staff recognized for their role in fighting public corruption

Recently staff members of the Department of Audit and Control's Division of Investigations were recognized by the Inspector General for the U.S. Department of Education for their outstanding efforts in the audit and investigation of a special education provider whose director stole public funds at the expense of taxpayers and students. 

Deputy Comptroller Nelson Sheingold is pictured to the left of the Comptroller and the award recipients are pictured, left to right, in the back:

David DiNatale, State Program Examiner
Joseph Gillooly, State Program Examiner
Raymond Russell, Assistant Chief Investigator
Kenrick Sifontes, Audit Director
Sheila Jones, Audit Supervisor
Stacy Marano, Assistant Comptroller
Tania Zino, State Program Examiner
Hugh Zhang, State Program Examiner

Also receiving received awards but unable to be present:

Frank Patone, Audit Director
Stephen Lynch, Audit Manager

 

The commendation reads: "From the initial audit to the criminal conviction, staff members showed remarkable teamwork across divisions and with other agencies in the pursuit of protecting taxpayer money from fraud and abuse. Thanks to their close cooperation with federal and state authorities, this criminal was federally convicted and required to pay $2 million in restitution and $1.9 in forfeiture."

The State Comptroller encourage anyone with information on alleged public corruption activities to contact the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

New York StateComptroller Thomas P. DiNapoli announced the following audits have been issued:

State Education Department - Expenses submitted by Bornhava to the State Education Department

New York City Department of Finance - Reporting of Billboard Income

Westchester County Health Care Corporation - Contract Participation of Minority- and Women-Owned Business Enterprises

Workers' Compensation Board - Assessment of Costs to Administer the Workers’ Compensation Program for the Fiscal Year Ended March 31, 2014

Town of Burke - Fiscal Oversight

Town of Deerpark - Budget Review

City of Newburgh - Budget Review

Rockland County - Budget Review 


School Districtand BOCES audits

Arkport– Payroll

Erie 2- Chautauqua-Cattaraugus BOCES - Adult Education Program and Professional Services

Fabius-Pompey- Information Technology

Indian River - Financial Condition

Jamesville-Dewitt– Procurement

Rye Neck – Information Technology