Refusing to accept the resignation submitted by an employee

Refusing to accept the resignation submitted by an employee

Decisions of the Commissioner of Education, Decision No. 17,007

In this appeal to the Commissioner of Education, the petitioner [Petitioner] challenged a school district’s rejection of his resignation from his probationary appointment and its subsequent terminating him from his position instead. He asked the Commissioner to direct the district to either [1] rescind his appointment as a probationary employee or, in the alternative, [2] to accept Petitioner’s previously tendered letter of resignation.

The Commissioner said that as a general rule, "... a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.”

Addressing the merits of Petitioner’s appeal the Commissioner said that “In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.”

Here, said the Commissioner, Petitioner failed to allege that his termination from his probationary appointment was for an unconstitutional reason or in violation of any statute. Accordingly, the Commissioner ruled that Petitioner “failed to meet his burden” and dismissed his appeal. Thus, in this instance, the school district’s records would record Petitioner’s separation from employment as a “probationary termination” rather than a “resignation” from his position. 

Technically, in this instance the school district elected to ignore Petitioner's resignation rather than refuse it as an appointing authority may not “refuse to accept” a resignation tendered by an officer or an employee and the resignation becomes operative upon its delivery to the appointing authority. Indeed, the officer or employee usually may not withdraw or rescind his or her resignation once it has been delivered to the appointing authority without the approval of the appointing authority. 

Although an appointing authority may acknowledge the "receipt" of a resignation received from an officer or an employee or report that an individual's resignation has been accepted, all that is required for a resignation to become operative is its delivery to the appointing authority. In other words, the approval or acceptance of the resignation is not required for the resignation to take effect  unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a collective bargaining agreement (see Hazelton v Connelly, 25 NYS2d 74).

As an example of a situation where the acceptance of a resignation is mandated by statute, §2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

In contrast to "refusing to accept a resignation," an appointing authority may elect to disregard the resignation submitted by the individual under certain circumstances.

For example, 4 NYCRR 5.3(b), which applies to employees of the State as the employer  provides that in the event “… charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation."

Another example: §1133.1 of the State Education Law provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made."

Presumably an appointing authority could elect to disregard an employee's “retirement” from his or her position under similar circumstances [See Mari v.Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61].

________________________

The Discipline Book - A 458 page guide to discipline and other personnel transactions involving the removal of a public officer or employee from his or her position in the public service. For more information click on http://booklocker.com/books/5215.html

________________________

 

Teacher fined $10,000 after subjecting student to corporal punishment

Teacher fined $10,000 after subjecting student to corporal punishment

2016 NY Slip Op 08301, Appellate Division, First Department

The Appellate Division dismissed a petition to vacate an Education §3020-a disciplinary arbitration award finding that a special education teacher [Educator] inflicted corporal punishment on a special education student. The court then sustained the penalty imposed: a $10,000 fine, indicating that the penalty “does not shock our sense of fairness.”

The court found that the hearing officer’s determination:

1. Did not violate the Educator's due process rights as she was provided with notice, an appropriate hearing, and the opportunity to present evidence and cross-examine witnesses; and

2. Was supported by adequate evidence, was rational, and was not arbitrary and capricious.

As to the penalty imposed on  Educator, §3020-a(4)(a) of the Education Law, which applies to members of the teaching and supervisory staff of a school district, a board of cooperative educational services or a county vocational education and extension board, regardless of title, as described in subdivision (d) of §35 of the Civil Service Law, provides, in pertinent part, that “[i]n those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal"

______________

Challenging Adverse Personnel Decisions - A 752-page e-book focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://nypplarchives.blogspot.com/

______________

Redacting certain content in a public record when responding to a Freedom of Information request

Redacting certain content in a public record when responding to a Freedom of Information request

Laveck v Village Bd. of Trustees of the Vil. of Lansing, 2016 NY Slip Op 08150, Appellate Division, Third Department

Responding to a Freedom of Information [FOIL] request, the Village of Lansing redacted certain information, including names and addresses of individuals contained in the record, contending that such redaction was necessary "to protect information that would, if disclosed, result in an unwarranted invasion of personal privacy and could, if disclosed, endanger the life and safety of persons."

The Appellate Division, explaining that under FOIL, "[a]ll government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)," said that these exemptions are construed narrowly and the burden rests on "the public agency to demonstrate that 'the material requested falls squarely within the ambit of one of the statutory exemptions,'" and must provide a “'particularized and specific justification' for not disclosing requested documents."*

As to the personal privacy exemption, the Appellate Division said that the Village “failed to demonstrate that the redacted information fell into any of the categories of information that the Legislature has specifically determined would qualify as an unwarranted invasion of personal privacy if disclosed.” In the absence of such evidence, the court said it was necessary to evaluate whether disclosure would constitute an unwarranted invasion of personal privacy "by balancing the privacy interests at stake against the public interest in disclosure of the information."

Here, said the court, the Village “failed to establish that disclosure of the … names, home addresses or other personal identifying information would constitute an unwarranted invasion of personal privacy.”

Further, said the Appellate Division, the Village did not demonstrate that disclosure of the redacted information "could endanger the lives or safety" of the individuals listed in the documents.

The Village, having failed to establish the applicability of a statutory exemption, was held to have “improperly redacted the names, addresses and other identifying information” in the records and was directed to respond to the FOIL request “with unredacted copies of the requested documents, in electronic form if possible.”

The release of some public records pursuant to a FOIL regquest, however, may be  limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, submitting a formal FOIL request is not a condition precedent to obtaining public records where access is not barred by statute. Submitting a formal FOIL request becomes necessary only in the event the custodian of the public record[s] sought declines to simply provide the information or record requested. In such cases the individual or organization must file a formal FOIL request in order to obtain the desired record or information. 

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

In some instances, however, a statutory exception may have “sublimated” as the Appellate Division observed in DeFreitas v New York State Police Crime Lab.,2016 NY Slip Op 05676, quoting Matter of Lesher v Hynes, 19 NY3d 57. In DeFreitas the court said “the exception in Public Officers Law §87(2)(e)(i) [interfere with law enforcement investigations or judicial proceedings] no longer applies [after the individual’s] criminal proceedings and judicial review have concluded.”

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 17, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 17, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

Waterville Central School District praised in State Comptroller's audit 

 Waterville Central School District, located in Oneida County, is conducting necessary background checks and fingerprinting of employees prior to allowing them to work with students, according to an audit released by New York State Comptroller Thomas P. DiNapoli.

 

 DiNapoli calls for state procurement reform 

On December 13, 2016 New York State Comptroller Thomas P. DiNapoli proposed changes to New York state’s procurement practices in the wake of criminal charges and allegations of corruption in the awarding of contracts for state economic development projects.

“The alleged contracting and kickback schemes uncovered by federal and state prosecutors show lax oversight over economic development spending,” DiNapoli said. “The state funneled taxpayer money to quasi-government organizations, avoiding scrutiny and sidestepping usual procurement practices. This created an environment ripe for self-dealing and abuse. New York State must take credible steps to reestablish the public’s faith in government and address the broader problems.”

By state law, the Comptroller’s office is responsible for reviewing and approving state agency contracts above $50,000 and certain contracts over $1 million for state public authorities. The Comptroller’s independent oversight helps ensure that the process is fair and gets the best value for taxpayer dollars. In 2015, the Comptroller’s office reviewed 21,381 contract transactions totaling $169.2 billion.

In recent years, executive and legislative actions have eroded the Comptroller’s contract oversight. In 2011, this oversight was eliminated for construction and construction-related services contracts, among other purchases, issued by the State University of New York (SUNY) and City University of New York (CUNY). In 2012, the Comptroller’s oversight of Office of General Services (OGS) centralized contracts was removed.

In 2015, state agencies issued over $6.8 billion in contracts without Comptroller review.

DiNapoli’s comprehensive package of reforms increases independent oversight of contracts, prohibits the state from using state-affiliated not-for-profits to do state business, makes procurement requirements uniform, and toughens ethics and transparency rules. Specific proposals include:

• Restore the Comptroller’s independent oversight for SUNY, CUNY and OGS centralized contracts. Recent allegations show widespread weaknesses in SUNY’s procurement process and lax oversight of its affiliated not-for-profits. Restoring systemic checks and balances taken away from the Comptroller can help prevent future abuses and ensure that everyone is following the same rules.

 

• Prohibit the use of not-for-profits to bypass procurement laws and transparency. All contracts for state spending should either be held directly by a state agency or public authority and subject to independent oversight. SUNY’s affiliated not-for-profits had lax oversight and poor processes in place that appear to have been manipulated in multiple ways, allowing a non-competitive contracting process to occur and business to be directed to preferred contractors. These entities should not be used for state business or to bypass the routine and well-tested rules and regulations that state agencies follow.

• Require state public authorities to follow the same procurement requirements as state agencies. The procurement rules and approval process are not the same for every entity entrusted with taxpayer funds. Public authorities can adopt their own internal guidelines and do not have to follow state agency requirements clearly set out in law. Having everyone follow uniform requirements helps give assurance of competition, fairness and best value for taxpayers.

• Review contracts over $1 million for the Research Foundation of SUNY.Currently, the Research Foundation is not required to have any independent review of its contracts, which DiNapoli would change. He proposes that his office review contracts over $1 million funded with state dollars.

• Create tougher ethics requirements and penalties for those who abuse the procurement process. DiNapoli would strengthen disclosure of conflicts for employees of state agencies or public authorities, as well as board members and others, engaged in the process. He also wants to prohibit vendors who have violated procurement law from getting state business and create a code of ethics for vendors doing business with the state.

• Increase transparency. To assure a level playing field for all potential vendors, DiNapoli would require state agencies, public authorities and their affiliates to publish in the State Contract Reporter all potential business opportunities, including notice of single or sole-source procurements.

In early November, 2016, DiNapoli took administrative actions related to the bid-rigging and fraud scandal. He put the Empire State Development Corp. (ESD) on notice that any SUNY Polytechnic Institute contracts transferred or assigned to ESD must be submitted to his office for review. He made a series of recommendations to improve the payment process for economic development projects to help prevent against fraud and address the long delays that have occurred with payments made by ESD for projects. He lowered the threshold requirements for review of contracts from $250,000 to $50,000 for SUNY Poly’s contracts and put public authorities on notice of his plan to watch them closely.

As government contracting has grown in size, scope and complexity, the Comptroller’s oversight, which was established more than 100 years ago, has become more important than ever. While DiNapoli’s office legally has 90 days to review contracts, on the average the decision to approve or reject a proposed contract is issued within nine days. The Comptroller's office is also committed to a high level of transparency and releases a monthly press release disclosing major state contracts and spending approved by his office. It also issues a detailed annual report, “State Contracts by the Numbers,” to inform the public and policymakers of actions taken.

Read DiNapoli’s letter to executive and lawmakers, or go to: http://www.osc.state.ny.us/reports/economic/cuomo_procurement_legislation.pdf

Read the bill memo, or go to: http://www.osc.state.ny.us/legislation/2015-16/oscb_nyspia_memo.pdf

Read the legislation, or go to: http://www.osc.state.ny.us/legislation/2015-16/oscb_nyspia.pdf

Read “State Contracts by the Numbers,” or go to: http://www.osc.state.ny.us/reports/economic/state_contracts_2016.pdf  

Daughter sentenced for stealing her deceased father's retirement benefits 

New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced that Renee Kanas, a resident of Tamarac, Florida, was sentenced in Albany County Supreme Court to 6 months incarceration and 5 years of probation for stealing over $148,000 in New York state pension benefits.  Kanas pleaded guilty to Grand Larceny in the Third Degree, a class D felony, in June 2016.  

Kanas had concealed her father’s death in March 2010 from the New York State and Local Employees Retirement System, and continued to collect his pension benefits for over four years.  Kanas was sentenced for stealing pension benefits intended for her father, Jacob Yudenfreund, from March 2010 through January 2015.  In total, Kanas stole $148,092.24 by accessing a joint bank account she held with her deceased father, liquidating all but $1,207.55 from the account. During this time period, Kanas lived off of the stolen money and, among other things, took multiple cruises, including to the Caribbean.

In May 2016, Kanas was arrested on a warrant by the city of Tamarac Road Patrol and Broward County Sherriff’s in Florida.  After being brought to Albany County, New York to face these charges, in June 2016, Kanas pleaded guilty before Honorable Thomas A. Breslin in Albany Supreme Court. Today, she was sentenced to 6 months incarceration and 5 years of probation, $45,000 in restitution to New York State, and signed a confession of judgment for the remaining amount stolen of $103,092.24.

The investigation was conducted by the New York State Comptroller’s Division of Investigations and the Attorney General. This case is the latest joint investigation under the Operation Integrity partnership of the Attorney General and Comptroller, which to date has resulted in dozens of convictions and more than $11 million in restitution.  Attorney General Schneiderman and Comptroller DiNapoli thank the city of Tamarac Road Patrol and Broward County Sheriff’s in Florida for their assistance.

The Comptroller’s investigation was conducted by the Comptroller’s Division of Investigations, working with the New York State and Local Retirement System. 

The Attorney General’s investigation was conducted by Investigator Mark Spencer, Investigator Casey Quinlan and Deputy Chief Antoine Karam. Forensic accounting was performed by Associate Forensic Auditor Meaghan Scovello. The Investigations Bureau is led by Chief Dominick Zarrella. The Forensic Audit Section is led by Chief Auditor Edward J. Keegan.

This case was prosecuted by Assistant Attorney General Philip V. Apruzzese of the Criminal Enforcement and Financial Crimes Bureau.  The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chief Stephanie Swenton. 

Audits and Reports
 

Office for People With Developmental Disabilities: The Association of Neurologically Impaired Brain Injured Children, Inc. Compliance With the Consolidated Fiscal Reporting and Claiming Manual (2013-S-60)

Auditors examined whether the costs claimed by the Association for Neurologically Impaired Brain Injured Children Inc. were valid and consistent with contract terms and were properly allocated among the various programs funded by New York City, New York state, and other sources. For the three fiscal years ended June 30, 2013, auditors identified $493,172 in claimed costs that did not comply with state requirements and recommend such costs be disallowed. Among the ineligible charges identified were: $208,063 in facility-related costs for shared space, $152,500 for unallowable payments for lobbyist services; and $48,802 for unsupported and duplicate payments to a contractor.

Department of Health (DOH): Facility Structure, Safety, and Health Code Waivers (Follow-Up) (2016-F-11)
An initial audit issued in June 2015 found DOH’s waiver practices did not effectively ensure that safety and structural risks related to physical plant standards at health care facilities were appropriately addressed. In a follow-up report, auditors determined DOH officials have made significant progress in addressing the problems identified in the initial audit. The initial report’s four recommendations were all implemented.

Department of Health: Medicaid Overpayments for Certain Medicare Part C Claims (Follow-Up) (2016-F-18)

An initial audit report released in January 2015 identified 5,571 Medicare Part C claims that either had unreasonably high patient cost-sharing amounts or indicated UnitedHealthcare did not cover the service. Auditors reviewed 125 Medicaid claims totaling $151,069 and found Medicaid overpaid 54 claims (43.2 percent) by $61,711. In a follow-up, auditors determined DOH officials have made progress implementing the recommendations made in the initial audit, which included recovering overpayments and instructing providers to bill Medicare Part C claims in accordance with the existing requirements.

 

Department of Health: Improper Payments to a Physical Therapist (Follow-Up) (2016-F-7)
An initial audit issued in December 2014 found that Medicaid overpaid a physical therapist $146,225 for 3,837 claims that were submitted to the Medicaid program with incorrect Medicare payment information. In addition, the audit questioned the propriety of 5,634 claims totaling $158,990 because the therapist submitted claims using his National Provider Identifier for services that were rendered by other clinicians. 

In a follow-up report, auditors found DOH officials made some progress implementing the recommendations made in the initial audit report. Those efforts included certain steps to recover $116,298 in overpayments. However, at the time auditors completed follow-up fieldwork, none of the overpayments were actually recovered and additional actions were still needed.

 

Department of Motor Vehicles (DMV): Traffic Ticket Surcharges (Follow-Up) (2016-F-12)
An initial audit report issued in August 2015 concluded that, on an overall basis, the DMV consistently accounted for and reported all traffic ticket surcharge revenue. However, auditors identified certain areas where the DMV could make greater use of the data it maintains to better manage and improve its operations. In a follow-up report, auditors found DMV officials have made progress in implementing the recommendations identified in the initial report. However, additional improvements are still needed.

 

For access to state and local government spending and more than 50,000 state contracts, visit www.openbooknewyork.com. The easy-to-use website was created by DiNapoli to promote openness in government and provide taxpayers with better access to the financial workings of government.

New York State Department of Civil Service - Policy Bulletin #16-01

New York State Department of Civil Service - Policy Bulletin #16-01

Separations and Leaves

N.B. The Rules of the New York State Civil Service Commission and the Regulations of the President of the Civil Service Commission, except as otherwise specified in any particular rule, apply to positions and employments in the classified service of the State of New York as the employer and positions and employments in the classified service of public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions and county personnel officers have adopted similar provisions addressing separations and leaves of employees in the classified service of such jurisdictions.

Leaves of Absence Without Pay

THIS POLICY BULLETIN REPLACES POLICY BULLETIN #98-02, issued December 29, 1998.

This policy bulletin is intended to be a guide to agencies on the topic of leaves of absence without pay.

Leaves of Absence Generally

The purpose of any leave of absence without pay is to provide employees with their appropriate tenure protection, promotion rights, and layoff rights based upon the employee's status in that position. Employees may not have multiple simultaneous leaves from the same item/position. However, to completely preserve their rights, employees may be on leave from different positions in the same title, in the same or different jurisdictional classes.

Some types of leaves are termed "mandatory." Other leaves are termed "discretionary."

Mandatory leaves must be granted as required by Civil Service Law or rule or negotiated agreement, or Federal law, or State policy.

Discretionary leaves may be granted in accordance with the provisions set out in 4 NYCRR 5.2.

Usually a mandatory leave is granted when a permanent employee:

1. Is promoted or transferred to a position in which the employee must serve a probationary period:

   (a) In the competitive class is appointed in contingent permanent, temporary or provisional status to a position in the employee's agency.

   (b) In the non-competitive or labor class is appointed in contingent permanent status to a position in the employee's agency.

2. Is absent for a reason specified in the Family & Medical Leave Act.

3. Is absent for reasons specified in the Military Law. [An employee ordered to military service may be entitled to Military Leave with Pay for limited periods.] 

4, Is unable to perform the duties of the employee's position due to disability. [See Civil Service  Law §71, Workers' Compensation Leave and Civil Service Law §§72 and 73, Leave for ordinary disability. Such leaves are without pay although the employee may use accrued leave credits in order to remain of the payroll until such leave credits are exhausted.]

When an employee must be granted a leave in a situation governed both by a Civil Service Law, or rule and a negotiated agreement, and the identified limitations or length of leave required are different, the employee must be given the leave terms which provide the employee with the most protection,

[N.B. 4 NYCRR 26.3, "Rules applicable to employees in negotiating units," provides that "The provisions of these attendance rules, insofar as they apply to employees in the negotiating units established pursuant to Article 14 of the Civil Service Law [the Taylor Law], shall be continued; provided, however, that during periods of time when there is in effect an agreement between the State and an employee organization reached pursuant to the provisions of said Article 14, the provisions of such agreement and the provisions of such rules shall both be applicable. In the event the provisions of the agreement are different from the provisions of the attendance rules, the provisions of the agreement shall be controlling"(emphasis supplied). 4 NYCRR 29.1 and 29.2 address Leaves Without Pay for officers and employees designated Managerial or Confidential within the meaning of the Taylor Law and, presumably, officers and employees not so designated and not in a collective bargaining unit for the purposes of the Taylor Law. See  Attendance for Managerial/Confidential Employees in New York State Departments and Institutions.] 

Usually a discretionary leave is granted when a permanent employee who is not eligible for a mandatory leave:

1. Requests a leave because the employee accepted an appointment to a position in a different jurisdictional class.

2. Requests a leave because the employee accepted an appointment in another agency in temporary or provisional status.

3. Requests a leave for educational, parenting, or other personal reasons.

Basic Principles of Discretionary Leaves

A leave is discretionary if it is not mandatory.

4 NYCRR 5.2 permits an appointing authority to grant a discretionary leave for two years. At the end of this initial two years permission to extend such leave must be granted by the Civil Service Commission.

In some cases the courts have viewed a discretionary leave as being essentially a "contract" between an employee and his/her appointing authority. For the specified period the employee is entitled to be absent and, at the end of that period, to return. The terms of these contracts may only be changed by mutual consent, with the exception that employees on discretionary leave to serve in another position in the State service must be restored upon request.

A leave of absence does not prohibit the agency from dealing with the position in the normal course of business, e.g., filling the position, abolishing the position or assigning the position to a different location.

Employees may not be on mandatory leave and discretionary leave simultaneously from the same position.

Where an extension or further extension is not granted, the employee must return to the former position (i.e., title and status) and serve for six months before the agency may grant them a "new" discretionary leave, which does not require Commission approval.

Rights to Return to a “Hold Item”

Although for the sake of record-keeping a position (called a "hold item") is always identified, and usually the employee returns to it, management's right to assign and reassign staff among available positions overrides any right to a specific position, or even a location. The employee has the right to return to a position in their former title, jurisdictional class and appointment status.

When restoration to a hold occurs the agency designates the specific position. Agencies may change designated hold items and may reassign hold items to different locations at any time. However, some negotiated agreements may provide rights and limitations when employees return (for example see CSEA, I.S.U. Article 12). Further, agencies may not arbitrarily or capriciously reassign employees, nor do so punitively.

An employee who refuses to return to a hold item which was moved to a different geographic location (i.e., different county) is considered to have declined a reassignment, and is eligible for reemployment list status, but the employee is not eligible for bumping or retreat.

An employee granted a mandatory leave while serving probation may request restoration to a hold item prior to end of the leave, and the agency must restore the employee. This right to return is only provided under rule and contract to an employee granted mandatory leave while serving probation (4 NYCRR 4.5).

An employee who has been temporarily or provisionally appointed to another competitive class position, within the same agency, must be restored upon request (4 NYCRR 4.10).

A contingent permanent employee who is affected by the return of a prior permanent incumbent must be offered restoration with permanent status to the hold item required for this purpose by 4 NYCRR  4.11 and 4 NYCRR 4.12 provided the employee was originally appointed to the hold item in permanent status. If however, the employee was originally appointed to the hold item in contingent permanent status, and the agency made subsequent contingent permanent appointments to the same position, a comparison of the seniority dates (seniority dates are determined in accord with §80, or §80-a of the Civil Service Law) of all the contingent permanent appointees is required. Only if the returning former contingent permanent employee is the most senior may the employee return. If the one prior permanent incumbent has already returned, the contingent permanent employee may not return, regardless of seniority.

A contingent permanent employee who has completed probation may not voluntarily return to a hold item in the absence of a return of incumbent. Complete policy information regarding contingent permanent appointments and leaves can be found at SPMM 1810.

Appointments to Positions in the Non-competitive Class

A non-competitive phi designation on an employee's current position or the position to which the employee is appointed has no effect on the leave policies herein. See Advisory Memorandum #02-03 for more information.

Non-competitive class employees appointed pursuant to Civil Service Law §55-b/c must be given a leave when appointed to ANY OTHER §55-b/c position. See Advisory Memorandum #02-03 and Policy Bulletin #11-01 for more information.

Appointments to Positions in the Exempt Class

Exempt class employees may be granted a discretionary leave of absence. However, the employee should be informed that the leave does not give the employee the right to return or to hold the position for any period of time. The exempt class employee continues to serve at will, albeit while on leave.

Pending Commission Review

Newly classified positions are competitive class positions until the Commission and Governor act to place them in another jurisdictional class (with the exception of titles the Commission has designated that "all" positions in the title are in a particular jurisdictional class, and, therefore a newly classified position is immediately placed in that jurisdictional class). After the Commission acts, the position is considered "pending non-competitive," "pending exempt," or "pending labor" as a shorthand way of keeping track of the status. But, in fact, the jurisdictional class does not change from competitive until the entire administrative process is complete and the resolution is filed with the Department of State. Therefore, a permanent competitive class employee appointed to such a pending position, or an incumbent whose position has been reclassified to a pending position, should be considered as having received an appointment to a competitive class position for the purposes of leave rights under the provisions of 4 NYCRR 10.

When an exempt class position becomes vacant it is reviewed by the Commission. During the review period, only appointments in temporary status are permitted. A permanent competitive class or non-competitive class employee appointed on a temporary basis to such a position is not covered by 4 NYCRR 4.10 or negotiated agreements and therefore any leave granted must be discretionary.

Summary of Mandatory Leaves of Absence by Type of Appointment

Depending upon the type of appointment that a permanent employee receives, various negotiated agreements and the Civil Service rules may require a leave of absence be provided from the current position. The following tables summarize this department's interpretations of the various rules, laws and negotiated agreements which mandate a leave of absence be provided when certain appointments occur. The compilation of the tables is intended to provide a complete catalog of the conditions under which mandatory leaves are provided. It is recognized that there is an overlap between the various authorities under which leaves are mandated. Where such overlaps occur, the leave which provides the greatest benefit to the employee, either in terms of duration or limitations, should be applied.

The rules refer to specific sections of the Classified Service Rules. The negotiated agreements can be found on the GOER website at  https://www.goer.ny.gov/Labor_Relations/Contracts/.

Promotion is defined as:

The appointment of a permanent competitive, non-competitive or labor class employee to a competitive class position via appointment from a promotion or transition list; OR

The appointment of a permanent non-competitive or labor class employee to a higher grade position in the same jurisdictional classification.

---

The Department of Civil Service may update the tables on the online version of this Memorandum to reflect changes resulting from future negotiations or reinterpretation. When updated, the previous tables will be chronicled in the Staffing Division policy files.

The online version of this Policy Bulletin, including the tables, is posted on the Internet at: 
https://www.cs.ny.gov/ssd/Manuals/SPMM/2200SeparationsLeaves/Policy%20Bulletin%2016-01.htm

A school district’s decision to abolish a position and have a BOCES assume performing the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2).

A school district’s decision to abolish a position in the classified service and have a BOCES assume performing  the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2).

However, said the Appellate Division, petitioner’s “data management services” job duties in the position abolished by the school district were assumed by existing staff members of BOCES. Thus, said the court, petitioner failed to establish a clear right to the relief sought because she was not a "necessary employee" within the meaning of §70.2.

The court noted §70(2) provides, in relevant part that "Upon the transfer of a function . . . from one department or agency of the state to another department or agency of the state, . . . provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred."Accordingly, said the Appellate Division, "[a]n employee is eligible for a a transfer pursuant to Civil Service Law §70(2) only if he or she is a 'necessary ... employee' - i.e., if the agency or the department to which his or her duties are being transferred does not have sufficient staff at the time of the transfer to perform the duties being transferred.

N.B. Had the "transfer of function" involved duties performed by an employee in the unclassified service, the provisions of Education Law §3014-a would control. §3014-a addresses the rights of educators in the event a BOCES takes over a program formerly operated by a school district or by a county vocational education and extension board.

Decision cited as 2016 NY Slip Op 08139, Appellate Division, Third Department

Substantiated, nonpretextual complaints of petitioner's subordinates comprise a legitimate, nondiscriminatory, nonretaliatory reason for terminating supervisor

Substantiated, nonpretextual complaints of petitioner's subordinates comprise a legitimate, nondiscriminatory, nonretaliatory reason for terminating supervisor

The termination of petitioner's employment did not violate a constitutional or statutory provision or a policy established by decisional law where employer's investigation reveled that the petitioner “favored employees of his own national origin, including his brother-in-law, giving them more favorable schedules and faster promotions, and discriminated against women and persons not of his own national origin.”

Reported as 2016 NY Slip Op 08010, Appellate Division, First Department

_____________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

_____________________  

Evaluating claims seeking to recover damages for alleged defamation and maintaining a hostile work environment

Evaluating claims seeking to recover damages for alleged defamation and maintaining a hostile work environment

In this action to recover damages for defamation and a hostile work environment in violation of Executive Law §296, the plaintiff, Pall, appealed an order of the Supreme Court granting the Roosevelt Union Free School District’s motion to dismiss her complaint.

The Appellate Division affirmed the Supreme Court’s ruling, explaining:

1. "To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se."

2. "Since falsity is a necessary element of a defamation cause of action and only facts' are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.'" and

3. "The dispositive inquiry . . . is whether a reasonable [reader] could have concluded that [the statement was] conveying facts about the [Pall]."

The Appellate Division ruled that “accepting the allegations in the complaint as true, affording [Pall] the benefit of every favorable inference, and considering the evidentiary material submitted by the parties,” Pall did not have a cause of action to recover damages for defamation as the context of the alleged statement was such that a reasonable reader would have concluded that he or she was reading an opinion, and not a fact, about Pall.

Addressing Pall’s claims of the existence of “a hostile work environment in violation of Executive Law §296,” the court held that her allegations “fell short of alleging that the workplace was " permeated with discriminatory intimidation, ridicule, and insult . . . that [was] sufficiently severe or pervasive to alter the conditions of . . . employment and create an abusive working environment.'"

Pall v Roosevelt Union Free Sch. Dist., 2016 NY Slip Op 07937, Appellate Division, Second Department

Rights of employees transferred to another jurisdiction pursuant to §70(2) of the Civil Service Law.

Rights of employees transferred to another jurisdiction pursuant to §70(2) of the Civil Service Law.

The Village of East Syracuse dissolved its police department and police officers who were formerly employed by the Village were transferred to the Town of DeWitt Police Department and placed at a salary step that was at a lower seniority level than warranted by those police officers length of service with the Village. Supreme Court concluded that the Town of DeWitthad acted arbitrarily and capriciously and directed it to award each former Village police officer seniority credit for each year of service as a Village police officer.

The Appellate Division agreed, explaining that Supreme Court had properly concluded that §70(2) of the Civil Service Law “requires [the Town] to award [the former Village police officers] full seniority credit for the time that they served as police officers in the Village.” In pertinent part, said the court, the statute mandates that "[o]fficers and employees transferred to another governmental jurisdiction pursuant to the provisions of this subdivision shall be entitled to full seniority credit for all purposes for service rendered prior to such transfer in the governmental jurisdiction from which transfer is made."

[See Civil Service Law §45 with respect to the status of employees upon acquisition of a private institution or enterprise by a New York governmental entity.] 

Barhite v Town of DeWitt, 2016 NY Slip Op 07782, Appellate Division, Fourth Department

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 10, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 10, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

State Comptroller’s auditors find flaws allowed $16.6 million in inappropriate payments to home health care providers

The New York State Department of Health (DOH) erroneously made $16.6 million in Medicaid payments to 95 home health providers over a 3 1/2-year period, largely because the agency mistakenly paid for more days of care than what was provided, according to an audit released by New York State Comptroller Thomas P. DiNapoli.

“Home health care providers fill a great need by allowing patients to stay in their homes and avoid costly placement in hospitals or rehabilitation centers,” DiNapoli said. “However, my auditors found numerous instances where the state Department of Health’s eMedNY billing system paid providers for weeks of service, when only days of care had been given.”

In 2012, as part of its Medicaid redesign program, DOH implemented an Episodic Payment System (EPS) to reimburse certified home health agencies (CHHA) for health care services provided to Medicaid recipients in their homes. CHHAs provide various services including long-term nursing services, home health aide services, physical therapy, social work and nutrition services.

The payment system is based on 60-day episodes of care. CHHAs can be paid for a full episode or may receive pro-rated payments based on the number of days of care on the claim.

For the period May 1, 2012 through Dec. 31, 2015, DiNapoli’s auditors identified about $16.6 million in improper Medicaid payments to 95 CHHAs. About 93 percent ($15.4 million) of the overpayments went to 20 CHHAs.

Auditors found $8.2 million in overpayments to CHHAs for recipients who were transferred into Managed Long Term Care (MLTC) during a 60-day episode of care. The CHHAs should have received pro-rated payments for the partial episodes of care. For example, one CHHA received a full payment of $11,607 for a recipient who received home health services for only four days, leading to an overpayment of $10,833.

 
Approximately $7.1 million in overpayments were made to CHHAs that improperly billed multiple episodes for the same recipient within 60 days of the recipient’s original episode start date.

Another $1.3 million in overpayments went to CHHAs that improperly received full 60-day payments for recipients who subsequently obtained services from a different CHHA within an episode of care. For example, a CHHA was paid $10,979 (a full 60-day payment) for ten days of services. Five days later, the recipient then received services from a different CHHA, which received $4,202 for 56 days of services. The first CHHA should only have received a pro-rated payment amount of $1,830 for the 10 days.

DiNapoli’s auditors determined DOH has not established eMedNY system controls to prevent the improper payments they identified. The issues found by auditors were raised by DOH employees during the construction of the EPS. However, insufficient resources and the EPS billing configuration prevented the development of effective eMedNY system controls to prevent the overpayments, according to DOH officials.

DiNapoli recommended DOH:

• Review the $16.6 million in improper payments made to CHHAs and recover overpayments, as appropriate, and ensure prompt attention is paid to those providers that received the largest dollar amounts of overpayments; and

• Develop and implement mechanisms to identify and recover overpayments when CHHAs do not bill according to DOH guidelines.

DOH officials concurred with the audit recommendations and indicated actions will be taken to address them. Their full response is included in the complete audit.

Read the report, or go to: http://www.osc.state.ny.us/audits/allaudits/093017/16s4.pdf

Municipal Audit Reports

Bradford Volunteer Fire Company, Inc. – Apparent Misappropriation of Funds (Steuben County)

After a referral from Steuben County District Attorney Brooks Baker, auditors found that controls were not adequate to ensure that financial activity was properly recorded and reported and that moneys were safeguarded. As a result, it appears the treasurer was able to misappropriate approximately $8,500 from January 1, 2014 through May 31, 2015. In addition, there was a shortage of $490 in bell jar proceeds that were controlled by the president without detection by company officials.

Town of Conesville – Long-Term Planning (Schoharie County)

Town officials have allocated sufficient resources to properly maintain the town’s roads. However, they have not allocated sufficient resources for future highway equipment needs. The capital plan should incorporate the board’s decisions about when equipment should be replaced and whether to accumulate funds for replacement in reserves or take advantage of current low interest rates to finance acquisitions.

New York State Department of Labor (NYSDOL) – Unemployment Insurance Payments to County Jail Inmates (2015M-278)

NYSDOL does not have the necessary information to monitor county jail inmate populations effectively for inappropriate unemployment insurance benefit payments. Auditors found inmate data used was incomplete 28 percent of the time for county jail inmates outside of New York City and 55 percent of the time for city inmates. In addition, NYSDOL did not receive data from each county in each biweekly data file. Finally, while NYSDOL performs a data match on a biweekly basis for county jail inmates outside of New York City, payments of benefits are made weekly, allowing inappropriate payments to occur prior to the match.

Painted Post Fire Department – Cash Receipts and Disbursements (Steuben County)

The board should improve its oversight of the department’s fiscal activities and the safeguarding of its resources. The bylaws do not adequately segregate the treasurer’s duties. They require the treasurer to receive all department moneys, pay all bills and report the department’s financial status at regular department meetings; however, they do not provide for mitigating controls such as someone other than the treasurer reviewing and reconciling the bank accounts.

Sachem Public Library – Claims Processing (Suffolk County)

The board, as a whole, did not audit any claims during the audit period. Instead, each quarter, it designated a single trustee to audit all claims, after which the board, as a whole, reviewed and approved the abstracts by resolution. Any board member other than the trustee designated as claims auditor could request to review individual claims if there were questions about an unfamiliar vendors or unusual claim amounts on the abstracts; however, this did not often occur. A review of 30 claims totaling $147,624 disclosed that the designated trustee did not perform a thorough audit of claims. As a result, eight claims totaling $1,791 did not contain sufficient supporting documentation.

Ulster County – Property Tax Exemptions (2016M-333)

The department’s procedures for prorating property tax exemptions on transfers of property, correcting property tax exemption errors and inputting tax exemption income limits were effective.

A procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

A procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

In this appeal L.B. requested the Commissioner remove certain school personnel.  The removal of respondent’s board president, Superintendent Kelly, and Principal Sykes.  However, said the Commissioner, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such. The Commissioner explained that joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Here the record indicated that the petition was personally served on the district clerk, the School Superintendent and a School Principal Sykes but the board president was neither named in the caption nor was he served with a copy of the petition or a notice of petition.  As L.B. request to remove the board president was dismissed “for failure to join him as a necessary party.”

Another procedural defect noted by the Commissioner: L.B.’s demands to remove school officers failed to comply with §277.1 of the Commissioner’s regulations. 

§277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for the respondent’s removal from his or her office.

L.B., however, failed to comply with the notice requirements set out in §277.1(b) but, instead, used the notice prescribed under §279.3 for a petition seeking review by a State Review Officer of the determination of an impartial hearing officer concerning the identification, evaluation, program or placement of a student with a disability pursuant to Education Law, Article 89 and Part 200 of the Commissioner’s regulations. 

The Commissioner explained that a notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent.

To the extent that L.B. sought the removal of the School Principal, the Commissioner does not have jurisdiction to remove a School Principal. Education Law §306 authorizes the Commissioner to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officers.

However, Education Law §2(13) defines “school officer” by specifically identifying a number of positions and including any “other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.” 

School Principals, said the Commissioner, are district employees and not school officers subject to removal under §306 and thus the Commissioner of Education lacks jurisdiction to remove a School Principal.

As to L.B.’s requests that the Commissioner initiate an investigation concerning aspects of the appeal, the Commissioner explained that such an appeal does not provide for investigations.

Appeal of L.B., Decisions of the Commissioner of Education, Decision #16,998