ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

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


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.


Municipal Audit Reports

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 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.

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.

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.

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.

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.

December 09, 2016

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


December 08, 2016

New Jersey court rejects civil service changes for public workers


New Jersey court rejects civil service changes for public workers
Source: Governing the States and Localities

“In a defeat for Gov. Christie’s administration, [a New Jersey] appeals court ruled on Thursday that he could not scrap exam requirements for hiring or promoting career public workers in state government.”

The Bergen Record, a newspaper, reported that “The court also ruled that the Legislature has a ‘legislative veto’ — the power to strike down any regulations adopted by the executive branch if they defy ‘legislative intent.’"

The text of the Governing the States and Localities article is posted on the Internet at:

The Bergen Record article concerning the decison is posted on the Internet at:


Invoking the attorney – client privilege


Invoking the attorney - client privilege

The primary issue in this appeal is whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client's demand for the disclosure of communications seeking or giving such advice.

Stock v Schnader Harrison Segal and Lewis LLP, 2016 NY Slip Op 05247, Appellate Division, First Department

Claiming absolute privileges and immunities as a defense in litigation


Claiming absolute privileges and immunities as a defense in litigation

The plaintiff in this Article 78 action, Crvelin, alleged that the Board of Education of City School District of City of Niagara Falls undertook an investigation and ultimately passed a resolution concluding that she had violated the residency policy and directed that the process to terminate Crvelin’s employment be commenced. Crvelin contended that the School District had defamed her and that as a result of the School District’s action she had suffered intentional infliction of emotional distress. 

In addition, Crvelin claimed that during the litigation of the proceeding, legal counsel for the School District made written statements in a memorandum of law submitted to the court that, according to Crvelin, were defamatory.

The School District, in its defense, claimed various absolute privileges and immunities.

Addressing the merits of plaintiff’s Article 78 complaint, the Appellate Division said:

1. “It is well settled that government officials are absolutely immune for discretionary acts carried out in the course of official duties and that immunity attaches ‘however erroneous or wrong [such conduct] may be, or however malicious even the motive which produced it.’”

2. “Statements made by government officials in the context of a quasi-judicial proceeding such as that at issue here are absolutely privileged and immunize the communicants from liability in a defamation action.” and

3. As the alleged defamatory statements made by the School District’s attorney were contained in a writing submitted to a court on behalf of the School District in the context of Crvelin's Article 78 proceeding “they are absolutely privileged.”

Crvelin v Board of Educ. of City Sch. Dist. of City of Niagara Falls, 2016 NY Slip Op 07783, Appellate Division, Fourth Department



December 07, 2016

The obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny."


The obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny."

Razzano v Remsenburg-Speonk Union Free Sch. Dist., 2016 NY Slip Op 07329, Appellate Division, Second Department

December 06, 2016

Insubordinate and discourteous conduct


Insubordinate and discourteous conduct

OATH Administrative Law Judge Astrid B. Gloade recommended a 25-day suspension without pay as penalty after a job opportunity specialist was found guilty of refusing to interview clients on a number of occasions, was insubordinate, was discourteous to his supervisors, and was absent without leave.

NYC Office of Administrative Trials and Hearings, OATH Index No. 2340/16
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December 05, 2016

Crediting allegations of sexual orientation-based discrimination in violation of the New York City Human Rights Law as suspension and demotion are, on their faces, adverse employment actions


Crediting allegations of sexual orientation-based discrimination in violation of the New York City Human Rights Law as suspension and demotion are, on their faces, adverse employment actions.

James v City of New York, 2016 NY Slip Op 07400, Appellate Division, First Department

December 03, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 1, 2016


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 1, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

Robert Schusteritsch impersonated his deceased brother to collect his brother’s State retirement benefits 

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced today the conviction and sentencing of Robert J. Schusteritsch, 71, a resident of the state of Florida, for the crimes of grand larceny in the second degree, a class C felony, and criminal impersonation in the second degree, a class A misdemeanor, in Albany County Court.

Schusteritsch’s conviction comes after a joint investigation by the Office of the Comptroller and the Attorney General’s Office, which revealed that Schusteritsch stole over $180,000 in pension benefits issued by the
New York State and Local Employees Retirement System to his deceased brother, Martin Petschauer, between July 2008 and September 2015.

According to the Comptroller and Attorney General’s offices, Petschauer was a New York State pensioner who retired as Chief of the Pooling and Audit Review Section of the New York Metro Milk Marketing Area in approximately 1986.  He passed away on July 9, 2008.  At the time of Petschauer’s death, his pension benefits were being direct deposited into a bank account held in a trust for the benefit of Petschauer; Schusteritsch was the sole trustee for his brother and had exclusive access to the bank account.  
 
When Petschauer died, Schusteritsch concealed his brother’s death from the bank and the Retirement System and kept the trust account open to maintain the direct deposits.  He then routinely accessed the pension deposits and spent the money for his own benefit.   All told, Schusteritsch stole over $180,000 in pension benefits until the Retirement System discovered Petschauer’s death in October 2015. Further, when the Retirement System learned of Petschauer’s death and stopped paying benefits into the trust account, Schusteritsch called the Retirement System’s call center on
November 2, 2015, pretended he was Petschauer, and asserted that he was not actually dead, in an effort to maintain eligibility for the pension benefits.

This past summer, Schusteritsch was arrested in his home state of Florida and transported to Albany County, where he was arraigned on an indictment charging him with the crimes of Grand Larceny in the Second Degree, a class C felony, and Criminal Impersonation in the Second Degree, a class A misdemeanor.   On September 16, 2016, Schusteritsch pleaded guilty before Hon. Peter A. Lynch, Albany County Court, to the entire indictment.
 
Schusteritsch was sentenced by the Hon. Peter A. Lynch to six months in jail and five years’ probation, and signed a confession of judgment in the amount of $180,140.45 in favor of the
New York State and Local Employees Retirement System on December 2, 12016

"Today’s sentencing of Mr. Schusteritsch proves once again that stealing from New York State's pension system is risky business," said State Comptroller DiNapoli. "My office will continue to thwart pension thieves and protect our New York State & Local Retirement System in partnership with Attorney General Schneiderman." 

“Those who illegally obtain pension funds intended for someone else do so at the expense of hardworking New Yorkers who rely on their pension for a secure retirement,” said Attorney General Schneiderman. “Comptroller DiNapoli and I will continue our joint efforts to root out pension system theft and hold those responsible accountable.”

The case is the latest joint investigation under the Operation Integrity partnership of the Comptroller and Attorney General, which to date has resulted in dozens of convictions and more than $11 million in restitution.

Comptroller DiNapoli and Attorney General Schneiderman thanked the Charlotte County Sheriff’s Office in Florida for their assistance.

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

The case was prosecuted by Assistant Attorney General Benjamin S. Clark 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.

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

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’s auditors identify Medicaid overpayments made to Medicare providers

New York State’s Medicaid system made approximately $6.8 million in inappropriate payments, including $3.5 million for separately billed medical services that should have been covered by managed care plans, according to an auditreleased by State Comptroller Thomas P. DiNapoli. By the end of audit fieldwork, about $2.4 million of the overpayments were recovered.  

Additionally, auditors identified 15 Medicaid providers who were charged with or found guilty of crimes that violated the laws or regulations of a health care program. In addition, auditors found three providers who were involved in civil settlements. They advised DOH officials of the 18 providers and DOH terminated 14 of them from the Medicaid program. Another was also terminated from the program following the audit, according to DOH.  

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.

New York’s Medicaid system is vast and complex with plenty of opportunity for waste and abuse,” DiNapoli said. “My auditors found several cases in which the Department of Health’s eMedNY system failed to catch millions in overpayments. To its credit, the Department is working to recoup these overpayments and make adjustments to its processing systems to prevent these problems from reoccurring.”

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 identified problems or irregularities with $223 million in payments.

DOH pays Medicaid providers through the fee-for-service method and the managed care plan method. Under the fee-for-service method, Medicaid pays health care providers directly for Medicaid-eligible services rendered to Medicaid recipients. Under the managed care plan method, Medicaid pays each managed care plan a monthly premium for each enrolled recipient and the plan arranges for the provision of services to its members. Plans typically have networks of participating health care providers that they reimburse directly for services provided to their enrollees. Generally, the costs of all services that plan enrollees require are covered by monthly premiums.

DOH uses eMedNY to make Medicaid payments to participating health care providers and managed care plans. The system is used to determine whether claims are eligible for reimbursement. For example, eMedNY will deny fee-for-service claims for services that are covered by a recipient’s managed care plan.

DiNapoli’s audit identified $3,521,562 in overpayments for 14,983 fee-for-service clinic claims that were inappropriate. The claims were processed on behalf of 3,504 recipients who were enrolled in a particular managed care plan. Auditors determined the services were covered by the plan and therefore, fee-for-service claims should not have been paid. A data entry error in eMedNY allowed clinic services for enrollees of this plan to be processed as fee-for-service. After being alerted to the issue, DOH immediately updated eMedNY to prevent future inappropriate payments.

DiNapoli’s auditors also found:

· $1,342,307 in overpayments for claims billed with incorrect information pertaining to other health insurance coverage that recipients had;

· $937,424 in overpayments for newborn claims that were submitted with incorrect birth weights;

· $389,813 in improper payments for inpatient, clinic, durable medical equipment, transportation, and eye care services;

· $333,504 in improper payments identified by the Centers for Medicare & Medicaid Services that DOH did not recover from providers;

· $260,330 in overpayments for inpatient claims that were billed at a higher level of care than what was actually provided; and

· $50,767 in improper payments for duplicate billings. 


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


Other audits and reports issued
Auditors identified $16,699 in costs charged to the preschool special education programs that did not comply with SED’s requirements for reimbursement. The non-reimbursable costs included $5,394 in ineligible property expenses, $3,609 in ineligible food costs, $2,337 in ineligible costs for consultant services, $2,309 in non-program-related costs, and $3,050 in other non-reimbursable costs.
For the fiscal year ended June 30, 2014, auditors identified $13,201 in costs that were charged to the preschool special education programs that did not comply with SED’s requirements for reimbursement. The ineligible costs included $7,042 in other than personal service costs and $6,159 in personal service costs. 

State Education Department: Susan E. Wagner Preschool, Compliance with the Reimbursable Cost Manual (2015-S-100)
For the three fiscal years ended June 30, 2014, auditors identified $140,902 in reported costs that did not comply with SED’s requirements for reimbursement, including $81,370 in real estate taxes, $39,709 in unsupported or ineligible compensation costs for six employees; $18,650 in inadequately documented consultant costs; and $1,173 in ineligible staff food costs.
Auditors examined 138,962 individual high-risk PTF Credit payments totaling more than $75.9 million. They identified 31,924 questionable payments totaling almost $8 million for follow-up evaluation and appropriate action, including: 25,567 payments totaling $5,480,752 due to calculation errors; 3,998 payments totaling $1,621,590 where either the homeowner or property was not eligible for the STAR property tax exemption; and 2,052 payments totaling $818,766 to deceased homeowners.

December 02, 2016

An Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division.


An Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division.

However, said the Appellate Division, “because the full record is now before this Court, this Court will retain jurisdiction to decide the proceeding on the merits in the interest of judicial economy.”

The Appellate Division then ruled that “Under the circumstances presented here, the penalty of dismissal from the petitioner's employment with the school district was not so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion,” explaining "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" and neither the Supreme Court nor the Appellate Division have any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed.

The test applied: Is the penalty imposed “shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals," the so-called Pell standard [Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222].

Reported: 2016 NY Slip Op 08083, Appellate Division, Second Department


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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
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Failure to obtain the consent of her employer's workers' compensation carrier to her settlement of a third-party action barred her from receiving further benefits.


Failure to obtain the consent of her employer's workers' compensation carrier to her settlement of a third-party action barred her from receiving further benefits.
 
Shiner v SUNY At Buffalo, 2016 NY Slip Op 07738, Appellate Division, Third Department

December 01, 2016

Bureau of Justice Statistic's Victimization Unit Chief receives Young Career Award


Bureau of Justice Statistic's Victimization Unit Chief receives Young Career Award

The Bureau of Justice Statistics' (BJS) Victimization Unit Chief Lynn Langton received the 2016 White-Collar Crime Research Consortium (WCCRC) Young Career Award at the American Society of Criminology Conference in New Orleans, Louisiana.
 
This award recognizes outstanding contributions to scholarship on white-collar crime by persons early in their professional career. Select members of the WCCRC, which was founded by and is partially maintained by the White Collar Crime Center, choose recipients based on a single work or for a series of contributions.

 

Making false statements to investigators concerning alleged misconduct


Making false statements to investigators concerning alleged misconduct

OATH Administrative Law Judge John B. Spooner recommended termination of employment of a child protective specialist found guilty of coercing a former agency client into housing a friend, mading false statements to investigators, and accessing confidential records without authorization.  

NYC Office of Administrative Trials and Hearings, OATH Index Nos. 1342/16 and  1904/16, [recommendations adopted by the appointing authority]. 

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November 30, 2016

Tests applied by the courts in determining if a demand to arbitrate a grievance pursuant to the terms of a collective bargaining agreement should be granted


Tests applied by the courts in determining if a demand to arbitrate a grievance pursuant to the terms of a collective bargaining agreement should be granted
Locust Valley Central School District v Benstock, 2016 NY Slip Op 07299, Appellate Division, Second Department [Matter #1]
Locust Valley Central School District v Locust Valley Teachers' Association 2016 NY Slip Op 07299, Appellate Division, Second Department [Matter #2]

The relevant collective bargaining agreement [CBA] between Locust Valley Teachers' Association [LVTA] and the Locust Valley Central School District [School District] provided that either party had the right to submit a grievance to arbitration in the event the grievance was not resolved by the School District. The CBA defined a "grievance" as "a claimed violation, misinterpretation or inequitable application [of a] provision of th[e] Agreement."

LVTA filed a grievance against the School District concerning the School Districts commencing a plenary action* against a teacher formerly employed by the School District. The former teacher was a member of the LVTA and presumably in the collective bargaining unit represented by LVTA.

In the plenary action, the School District sought, under a "faithless servant" theory,**the forfeiture of all compensation earned by the former teacher pursuant to the CBA during a period of time in which the teacher allegedly engaged in certain criminal conduct. That conduct ultimately resulted in the teacher's plea of guilty to several criminal charges.

In an action (Matter #1) and a related proceeding pursuant to CPLR article 75 to permanently stay arbitration of a grievance (Matter #2), the School District in Matter #2 appealed from an order of the Supreme Court which denied its petition seeking a stay of arbitration and granted LVTA’s motion to compel arbitration of the grievance.

The Appellate Division affirmed the Supreme Court’s ruling in Matter #2.

The court explained that the determination of whether a dispute between a public sector employer and employee is arbitrable is subject to a two-prong test.

The court must first if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. In the event it finds no such prohibition, the court must review the relevant collective bargaining agreement between the parties and determine if they, in fact, agreed to arbitrate the particular dispute.

Citing Board of Educ. of Watertown City School Dist. [Waterman Edu. Assn.], 93 NY2d 132, the Appellate Division said that in examining the collective bargaining agreement, must "merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [agreement]." If there is such a relationship, said the Appellate Division, "the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the . . . provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them."

In determining whether a matter is arbitrable, however, the court may not "consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute."

Finding that the School District had not identified any statutory, constitutional, or public policy prohibition against arbitrating the grievance, the Appellate Division affirmed the Supreme Court’s decision. In the words of the Appellate Division, the fact that “the grievance concerns the right of the School District to bring a plenary action seeking the equitable forfeiture of compensation paid to the teacher under the CBA establishes “a reasonable relationship between the grievance and the CBA.”

* A lawsuit where the merits are fully investigated and discussed and the decision is not based on another lawsuit.

** The "faithless servant doctrine" states that an individual owing a duty of fidelity to a principal and who is faithless in the performance of his or her services generally cannot recover his or her compensation or other consideration that would be otherwise available to that individual [Murray v Beard, 102 NY 505]. See, also, http://publicpersonnellaw.blogspot.com/2010/02/applying-faithless-servant-doctrine.html

The decisions in Matter #1 and Matter #2 are posted on the Internet at:

November 29, 2016

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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November 28, 2016

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:

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


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:


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


November 23, 2016

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:

November 22, 2016

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

______________________

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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November 21, 2016

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

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