Failing to prove that the union breached its duty of fair representation in challenging an arbitration award is fatal to employee's appeal

Failing to prove that the union breached its duty of fair representation in challenging an arbitration award is fatal to employee's appeal

Henvill v Metropolitan Transp. Auth., 2017 NY Slip Op 01785, Appellate Division, First Department

Winston Henvill, an employee of the Metropolitan Transportation Authority [MTA],  filed a CPLR Article 75 petition seeking to vacate the arbitration award resulted in the terminated his employment with MTA upon his being found guilty of misconduct. 

Supreme Court dismissed Henvill's petition and the Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division initially explained that Henvill "failed to adequately plead a claim for breach of the duty of fair representation against the Metropolitan Transportation Authority Police Benevolent Association [PBA], his collective bargaining unit's representative, finding that none of the allegations in Henvill's complaint demonstrated that PBA's conduct, in representing Henvill at the arbitration hearing which resulted in his termination, was arbitrary, discriminatory or conducted in bad faith.

Thus, said the court, as Henvill failed to state an unfair representation claim against PBA, his claim against his employer, MTA, alleging a breach of the relevant collective bargaining agreement, must also fail.

The Appellate Division also noted that Henvill had failed to demonstrate the existence of any of the statutory grounds for vacating the arbitrator's award set out in Article 75 such as fraud, bias or the failure to follow proper procedure.  

In addition, the court rejected what it characterized as Henvill's major argument: the arbitrator's fact-finding was irrational and required vacatur in view of "the well-settled principle that courts in considering a petition to vacate a voluntary arbitration may not review the arbitrator's findings of fact."

Finally, said the court, "we perceive no reason to overturn the imposed penalty of termination."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01785.htm

 _______________________ 

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

_______________________ 

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 18, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 18, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Woman arrested for alleged theft of NYS Retirement benefits and welfare fraud

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a five-count indictment charging Tammy Banack, a resident of Kirkville, New York, with one count of Grand Larceny in the Second Degree, a class C felony, one count of Welfare Fraud in the Third Degree, a class D felony, two counts of Grand Larceny in the Third Degree, a class D felony, and one count of Offering a False Instrument for Filing in the First Degree, a class E felony.

http://www.osc.state.ny.us/press/releases/mar17/031317.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170319&utm_campaign=fiscal+oversight

Man alleged to have pocketed his deceased mother's retirement benefits

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one-count indictment charging Jimmie Buie, a resident of Brooklyn, with Grand Larceny in the Third Degree, a class D felony. Jimmie Buie is alleged to have stolen over $23,000 in pension benefits issued by the New York State and Local Employees Retirement System to his deceased mother, Sandra Buie, between May 2011 and December 2012.

http://www.osc.state.ny.us/press/releases/mar17/031617b.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170319&utm_campaign=fiscal+oversight

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued:

Office of Temporary and Disability Assistance - Wage Subsidy and Transitional Employment Programs

New York State Health Insurance Program - Long Island Bone and Joint, LLP waived Empire Plan members’ out-of-pocket costs resulting in overpayments on claims submitted by LI Bone and Joint.

State University of New York - State University of New York Upstate Medical University’s Billing Practices

Prohibiting a patron of a public library from access to the library for violation of the library's Code of Conduct

Prohibiting a patron of a public library from access to the library for violation of the library's Code of Conduct

R.T. v Freeport Memorial Library, Decision of the Commissioner of Education, Decision #17,060

The Freeport Memorial Library[Library] R.T.'s library use privileges were being suspended for a period of one year due to repeated violations of the Library’s Code of Conduct [Code] policy, contending that over a period of eight separate days, R.T. Had violated the Code by using his cellular telephone, speaking in an inappropriate manner to Library staff, and not vacating a computer when directed to at closing time. The letter also noted that R.T. had previously received a one-month suspension for Code violations and advised him that if he were to return to the Library prior to the conclusion of the one-year suspension, he will be deemed a trespasser and the police will be contacted. 

R.T. appealed the determination to Library’s board of trustees. The board dismissed his appeal, observing “that the use of a library 'is a privilege, not a right' and the Library’s board must consider the conduct of one individual in light of how it affects other Library patrons.”  The board's letter also noted that R.T. was “cited in approximately 17 different incidents reported in writing by approximately 12 separate members of the [Library’s] staff.” R.T. appealed the board's decision to the Commissioner, contending that the board's decision was “draconian” and that the allegations that he violated the Code are too vague “as a matter of fact, as a matter of law,” for him to properly respond to, and he specifically notes an alleged failure of the Library to provide him with a “bill of particulars.”

In his defense, R.T. offered alternative explanations for his conduct, such as, having “sensitive files” on the computer at closing time, that he used his cellphone but in areas designated for such use, or that certain Library staff have personal grievances against petitioner. He also argued that the suspension by the Library constitutes a violation of his rights under the United States and New York Constitutions including due process and equal protection.

In constructing her ruling, the Commissioner of Education Elia said that “Education Law §310 states in part that the Commissioner is 'authorized and required to examine and decide' a petition 'made in consequence of any action ... [b]y any trustees of any school library concerning such library, or the books therein, or the use of such books' (emphasis added in the opinion). Accordingly, the Commissioner ruled that R.T.'s appeal of the Library’s one-year suspension of his library use privileges is properly before her.

After dismissing R.T.'s appeal was moot, as the “penalty time” had passed, the Commissioner elected to address the merits of R.T.'s appeal regarding the penalty imposed by the board in view and R.T.'s complaint that “the Library’s determination to suspend his library use privileges for one year was excessive and constituted a penalty against petitioner beyond the scope of authority authorized by law.”

The Commissioner affirmed the board decision, finding that the suspension of R.T.’s library use privileges for various violations of the Library’s Code of Conduct was reasonable under the circumstances, noting that Education Law §262 states, in relevant part, that Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully violates such rules . . .  (emphasis added in the Commissioner's decision).

The Commissioner's decision concludes by observing that “On the facts of this case, I cannot find that the Library acted in an arbitrary and capricious manner in suspending petitioner’s library privileges. Petitioner engaged in disruptive behavior that violated the Library’s Code on several occasions, despite being put on notice from a prior suspension of privileges that he needed to cease his disruptive behavior.  …. I cannot find that a one-year suspension of library use privileges is excessive considering the numerous Code violations documented against petitioner, the responsibility that respondents have to the other patrons of the Library and to maintain a safe and orderly environment for the Library’s staff and the protection of its property, and that this one-year suspension was not petitioner’s first suspension from use of the Library.”

The decision is posted on the Internet at:  

http://www.counsel.nysed.gov/Decisions/volume56/d17060

___________________

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

___________________

Withdrawing a letter of resignation

Withdrawing a letter of resignation

Lust v State of New York, 2017 NY Slip Op 01742, Appellate Division, Third Department

Francis Lust visited his employer's Human Resources office and told a personnel associate of his intention to retire. The personnel associate said that a letter of resignation was required and, upon Lust's request, prepared a letter of resignation on his behalf stating that "This letter serves as my intent to resign for purposes of retirement on March 30, 2015 close of business."  Lust reviewed and signed the letter without making any changes. The Director of Human Resources and, by letter dated February 11, 2015, she informed petitioner that his resignation had been accepted.*

On February 16, 2015, Lust informed the Director that, "due to financial reasons, he would not be able to retire as intended and, therefore, his earlier letter of resignation was "no longer valid." Lust's letter seeking to withdraw his resignation was rejected and he was told that his last day of employment would be, and was, March 30, 2015.

Lust initiated a CPLR Article 78 proceeding asserting, among other things, that the denial of his request to rescind his letter of resignation was arbitrary and capricious, an abuse of discretion or affected by an error of law. Supreme Court dismissed the petition and Lust appealed.

The Appellate Division agreed with the Supreme Court decision, holding that Lust was required to obtain the consent of the appointing authority before he could withdraw his resignation. The court said that 4 NYCRR 5.3(c ) of the Rules for the Classified Service, provides that a resignation tendered by an employee of the State as the employer in the classified service "may not be withdrawn . . . after it is delivered to the appointing authority, without the consent of the appointing authority."**

In this instance the Appellate Division concluded that the appointing authority had lawfully delegated its power of appointment to the chief executive officer [CEO] of the facility, who, in turn, by letter lawfully authorized the Director of Personnel to be his designee on "all matters related to employee relations and concerns" with "full authority to make decisions regarding whether to accept a resignation and, likewise, whether to deny a request to rescind a resignation from any such employee of the facility.

Accordingly, said the court, Lust's delivery of his letter of resignation to the Director on constituted delivery to CEO and, thus, petitioner could not unilaterally withdraw his resignation.

Holding that the question of "Whether to permit the withdrawal of a delivered letter of resignation is a matter committed to the sound discretion of the appointing authority, and such a determination will be disturbed only if it constituted an abuse of discretion or was arbitrary and capricious," the Appellate Division dismissed Lust's appeal.

* Acceptance of a letter of resignation is not required for the resignation to be operative, all that is required is its timely delivery to the appointing authority or the appointing authority's designated representative.

** Many local civil service commissions have adopted a similar rule or regulation.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2017/2017_01742.htm

The Commissioner of Education does not have jurisdiction to consider claims that an employee organization breached its duties of fair representation

The Commissioner of Education does not have jurisdiction to consider claims that an employee organization breached its duties of fair representation

Decisions of the Commissioner of Education, Decision 17,054

Gloria J. Parker, a tenured teacher, filed an appeal with the Commissioner of Education challenging her placement on paid administrative leave by her employer, the Board of Education of the City School District of the City of Rochester. She also named as respondents in her appeal the Rochester Teachers Association (“RTA”) and New York State United Teachers (“NYSUT”).

With respect to RTA and NYSUT, Parker contended that both organizations “failed to provide her with adequate representation.”

RTA and NYSUT argued that in addition to Parker's failure to properly serve her complaint upon them, the Commissioner should dismiss both organizations from the action as “each is an unincorporated association over which the Commissioner of Education has no direct jurisdiction.”

Essentially RTA and NYSUT claim that the Commissioner of Education lacks jurisdiction over an employee organization or a labor organization.

The Commissioner agreed, explaining that Education Law §310 provides that “any person considering himself aggrieved by an action taken at a school district meeting, by the trustees of a school district or library, or by any other official act or decision of a school officer or authority may seek review of such action or decision in an appeal to the Commissioner of Education. Education Law.” In the words of the Commissioner, “§310 does not authorize the Commissioner to review actions taken by an organization such as the teachers' association."

Accordingly, the Commissioner dismissed Parker's claims with respect to RTA and NYSUT “for lack of jurisdiction,” noting that with respect to Parker's allegation concerning the adequacy of representation provided by RTA and, or, NYSUT, the Public Employment Relations Board [PERB] has exclusive jurisdiction over claims of improper employee organization practices, including allegations that the employee organization breached its duty of fair representation.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17054

Appellate Division finds penalty of dismissal imposed on educator shocking to its sense of fairness

Appellate Division finds penalty of dismissal imposed on educator shocking to its sense of fairness

Matter of Beatty v City of New York, 2017 NY Slip Op 01628, Appellate Division, First Department

The penalty of termination of employment was imposed upon Amira Beatty, a special education home instruction teacher having a 17-year unblemished record, by the New York City Department of Education [DOE] based upon the hearing officer's finding that she had submitted time sheets falsely stating that she had provided instruction to a disabled student and inaccurately indicating that she had reported to certain DOE schools and libraries over a two-month period.

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division ruled that "Notwithstanding Beatty's misconduct, under the circumstances presented here, the penalty of termination shocks our sense of fairness."

The court, quoting from Bolt v NYC Department of Education, 145 AD3d 450, explained that "[A] result is 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. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved."

At the time of the incident in question, said the court, Beatty was confronted with an extraordinary situation -- "Superstorm Sandy" impact on the City had displaced both Beatty and her student from their respective homes and had adversely affected  transportation in the City.

The genesis of this disciplinary action: Beatty had filled out the time sheets in question in advance of the dates to which those time sheets pertained. She did not, in fact, proceed to provide instruction to the disabled student on the days set forth in those time sheets in the aftermath of Hurricane Sandy and submitted the time sheets without correction on a subsequent date. However, the Appellate Division noted that because she had instructed other students on each of the dates in question, she would have received the same salary regardless of how many students she had instructed or how many hours she had spent with them, and thus derived no benefit from her misstatements on the time sheets.

The court characterized Beatty's misconduct as "more a matter of lax bookkeeping than implementation of any venal scheme" as there was no intent to defraud or theft of services on her part, and the harm to the public and to the DOE was mitigated.

At the hearing, Beatty admitted that she was guilty of submitting reports stating that she had provided instruction to the disabled student on certain dates when she had not done so and that she had reported to various schools and libraries on certain dates when she had not done so. Acknowledging that her misconduct warrants punishment as the disabled student was deprived of the services of a teacher for two months, Beatty did not seek to set aside the findings of misconduct contained in the hearing officer's opinion, but only to modify the penalty imposed on her.

Noting that Beatty had acknowledged her error in judgment and has pledged to change her practices and never to repeat the error, the Appellate Division found no evidence that "[Beatty] could not remedy her behavior." Accordingly, the court found that the penalty of termination was disproportionate to the level of Beatty's misconduct and exceeds the standards that society requires to be applied to this offense.

The court concluded that rather than constituting a case of extended, intentional and self-serving misconduct or repeated and continuous neglect of duty, "this was an isolated instance of neglect occurring under circumstances of extraordinary personal hardship and involving a teacher who had an otherwise unblemished and longstanding record." "Had Superstorm Sandy not upended her life," said the court, "there is no indication that [Beatty's] wrongdoing would have occurred. As it is highly unlikely that the extraordinary situation presented in this case will recur, the factors of general and specific deterrence do not come into play."

[N.B. Presiding Judge Friedman and Judge Andrias  dissented in a memorandum by Judge Andrias.]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01628.htm

___________________

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

___________________

State Department of Audit and Control holding more than $14 billion in unclaimed funds

State Department of Audit and Control holding more than $14 billion in unclaimed funds

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced that his office has over $14.5 billion in unclaimed funds and urged New Yorkers to see if any of it belongs to them. In State Fiscal Year 2015-16

DiNapoli’s office set a national record for the third consecutive year for the most unclaimed funds returned in one year totaling $452 million.

Individuals are not the only entities for whom the Comptroller is holding unclaimed funds pursuant to the Abandonded Property Law. The Comptroller is also holding monies that may be claimed by State and local governments such as:

Name	Address	Reported By
SCHOOL DISTRICT ACCOUNTS PAY	C/O SHENENDEHOWA CENTRAL SCH D 5 CHELSEA PL CLIFTON PARK NY 12065	SCHOLASTIC BOOK CLUBS INC
SCHOOL DISTRICT NORT	5355 W TAFT RD N SYRACUSE NY	NEW YORK TELEPHONE CO
SCHOOL DISTRICT OF ALBANY	ACADEMY PARK ELK STREET ATTN ACCTS PAYA BLE ALBANY NY 12207	CDW LLC
VILLAGE OF ALEXANDRIA BAY	P O BOX 367 WATERTOWN NY 13601	W B MASON CO INC
VILLAGE OF ALFRED	WATER DEPARTMENT 7 WEST UNIVERSITY STREE T ALFRED NY 14802	ALFRED UNIVERSITY
VILLAGE OF ALFRED POLICE DEPT	7 W UNIVERSITY ST ALFRED NY 14802	GALLS LLC
TOWN OF BATAVIA	8477 STRINGHAM DR BATAVIA NY 14020	NATIONAL GRID - NIAGARA MOHAWK POWER CORP
TOWN OF BEDFORD JUSTICE	161 BUXTON ROAD BEDFORD HILLS NY 10507	CITIBANK NA NATIONAL COMPLIANCE GRP
TOWN OF BETHEL NY	PO BOX 300 3454 RTE 55 WHITE LAKE NY 12786

CITY OF BUFFALO

CITY HALL ROOM 117 BUFFALO NY 14218

INTEGON INDEMNITY INSURANCE CO

CITY OF NEW YORK	C/O LEOPOLD GROSS & SOMMERS PC BROOKLYN NY 11241	STATE FARM FIRE & CASUALTY CO
CITY OF NEW YORK	CO RAYMOND ZAGAMI 624 6 STREET BROOKLYN NY 11215	CITIBANK NA NATIONAL COMPLIANCE GRP
CITY OF NEW YORK	COMMUNITY SCHOOL DISTRICT 17 19 DURYEA P L BROOKLYN NY 11226	YALE UNIVERSITY

UUP BENEFIT TRUST FUND

800 TROY-SCHENECTADY ROAD #3306628 LATHAM NY 12210

CIGNA HEALTH & LIFE INSURANCE CO

CSEA INC FINANCE DEPT	143 WASHINGTON AVE ALBANY NY 12210	OWEGO ASSOCIATES INC
CSEA LOCAL 350	75 VARICK STREET 7TH FLOOR NEW YORK NY 10013	AUTOMATIC DATA PROCESSING INC
CSEA LOCAL 430	45 MALL DR COMMACK NY 11725	DESMOND HOTEL

There are hundreds of other such governmental jurisdictions and employee organizations listed. Individuals and organizations can search the Comptroller's data base of unclaimed funds to see if the Comptroller is holding any of their property in the Abandoned Property Fund by clicking: https://ouf.osc.state.ny.us/ouf/?wicket-crypt=4mZX_EiLHOw

Blocking computer threats with innovative technologies

Blocking computer threats with innovative technologies

Source: The CEO's Guide to Data Security - An AT&T publication

The recently published fifth report in this series of AT&T's Cybersecurity Insights addresses Data Security and chapters focus on the following topics:

1. Blueprint for cybersecurity innovation;

2. Data;

3. Applications;

4. Connected devices;

5. Network; and

6. Data center and cloud

The publication is posted on the Internet at: https://www.business.att.com/cybersecurity/docs/vol5-datasecurity.pdf

The first four reports in AT&T's Cybersecurity Insights series are:

What Every CEO Needs to Know About Cybersecurity

The CEO's Guide to Securing the Internet of Things

The CEO's Guide to Cyberbreach Response

and

The CEO's Guide to Navigating the Threat Landscape

These four earlier reports are available on the Internet by clicking here

Disciplinary hearing postponed “without prejudice” pending successful completion of a probationary period with another agency

Disciplinary hearing postponed “without prejudice” pending successful completion of a  probationary period with another agency 
Click on text highlighted in color  to access the full text of the decision

The Administration for Children’s Services (“ACS”) brought disciplinary charges against one of its employees. Prior to the first scheduled conference at New York City Office of Administrative Trials and Hearings [OATH], the employee took leave from ACS and accepted a new position with another agency. The employee sought to adjourn the conference, but ACS moved to go forward with case.

OATH Administrative Law Judge John W. Burns removed the disciplinary matter from OATH’s calendar without prejudice because employee is on leave from ACS pending successful completion of probationary period of employment with her new agency. Should the employee return to ACS on or before the end of her probationary period at the other agency, ACS shall have the right to re-file the charges and move forward with the disciplinary proceeding at that time.

Admin. for Children’s Services v. M.S., OATH Index No. 2054/16, mem. dec. (Jan. 11, 2017).

________________________

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

________________________

 

An administrative disciplinary hearing, in whole or in part, may be closed to the public under certain, and limited, circumstances

An administrative disciplinary hearing,  in whole or in part, may be closed to the public under certain, and limited, circumstances 

2017 NY Slip Op 01473, Appellate Division, First Department

Although an administrative disciplinary hearing typically is open to the public, there are limited exceptions to this general rule as is demonstrated by this decision by the Appellate Division, First Department.

A New York City police officer was alleged to have engaged in sexual misconduct with a minor. In the course of the disciplinary hearing that followed, the Deputy Commissioner, as an  exercise of discretion, closed the hearing to the public during the minor's testifying concerning the police officer's alleged sexual misconduct.

The Appellate Division sustained the Deputy Commissioner's action in closing the hearing to the public while the minor testified "[g]iven the sensitive nature of the case and the victim's desire not to testify in front of her mother."

Noting that the Deputy Commissioner's findings of misconduct, sexual and otherwise, were supported "a preponderance of the credible evidence — namely, the forensic computer records, text messages, controlled calls, and [the police officer's] own statements upon his arrest — supported the minor victim's version of the events" the court, citing Tighe v Kelly, 305 AD2d 274, leave to appeal denied 100 NY2d 513, said that the penalty imposed on the police officer, termination, "does not shock the judicial conscience," given the findings that he had engaged in sexual misconduct with a minor.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_01473.htm

_______________________ 

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

_______________________ 

An administrative disciplinary hearing, in whole or in part, may be closed to the public under certain, and limited, circumstances

An administrative disciplinary hearing,  in whole or in part, may be closed to the public under certain, and limited, circumstances 

Although an administrative disciplinary hearing typically is open to the public, there are limited exceptions to this general rule as is demonstrated by this decision by the Appellate Division.

The provisions of a contract between the parties held to control the number of days of accumulated vacation leave credits to be paid the employee upon his or her separation from service

The provisions of a contract between the parties held to control the number of days of accumulated vacation leave credits to be paid the employee upon his or her separation from service  

Wilson v Poughkeepsie City School Dist., 2017 NY Slip Op 01404, Appellate Division, Second Department

Former Poughkeepsie School Superintendent Laval Wilson sued the Poughkeepsie City School District [Poughkeepsie] for breach of contract when it refused to pay him for certain accumulated vacation leave credits that Wilson alleged was due him when left the employ of the school district.

Paragraph 8(b) of Wilson's employment contract with Poughkeepsie permitted him to accumulate "up to a total of fifteen (15)" days of vacation leave. However, another provision in the contract provided that Wilson could "carry over ... 5 vacation days per year."

Although Poughkeepsie paid Wilson for his 15 accumulated vacation days when he left its employ, Wilson contended that he was also entitled to be paid for an additional 22 days of accumulated vacation credit attributed to his "carry over" of certain vacation days while employed by Poughkeepsie and thus he was due payment for a total of 37 accumulated vacation days at the rate of $920 per day. Accordingly, Wilson claimed that Poughkeepsie still owed him $20,240 ($920 x 22 days).

Poughkeepsie, on the other hand, argued that the contract provided that Wilson was entitled to a specified number of paid vacation days each year, which accrued on a monthly basis, and upon leaving employment with the school district after three years of employment, he would be paid for his accumulated vacation days not to exceed a total of fifteen days of vacation credit accruals.

The Appellate Division agreed with Poughkeepsie's interpretation of the contract between the parties, explaining that in its view:

1. Paragraph 8(b) of the contract between the parties set a 15 day limit on the amount of vacation credit Wilson could accumulate.

2. Although another clause in the contract specified that Wilson could "carry over"  a maximum number of vacation days - five days - per year, the 15-day limit in paragraph 8(b) did not include any reference to a particular time frame and thus barred Wilson from accumulating more than 15 paid vacation days during the entire course of his employment..

The Appellate Division said that a contract is to be construed in accordance with the parties' intent, which is "generally discerned from the four corners of the document itself." Here, said the court, the contract barred Wilson from accumulating more than 15 paid vacation days during the entire course of his employment and held that Wilson’s claim that he was entitled to be paid for a total of 37 vacation days when he left his position with Poughkeepsie “is utterly refuted by the unambiguous terms of the contract.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01404.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 18, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 18, 2017
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

New York's Drinking Water Infrastructure Needs Fixing

New York's water systems may require nearly $40 billion in repairs and improvements over the next two decades, according to a reportissued by State Comptroller Thomas P. DiNapoli.

DiNapoli Appoints Government Relations Staff

New York State Comptroller Thomas P. DiNapoli announced he has named Erin Stevens as deputy comptroller for Intergovernmental and Community Affairs, Christina Baal-Owens as director of Community Affairs, and Tad Mack as the regional director for the Finger Lakes.

DiNapoli to Audit Hempstead IDA, Valley Stream School District in Wake of Controversial Development Project

State Comptroller Thomas P. DiNapoli announced his office will audit the Hempstead Industrial Development Agency and Valley Stream Union Free School District 30. The audits will be conducted in response to multiple requests his office received related to approval of the Green Acres Mall project in Hempstead.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

Town of Colchester,

Town of Greene, Town of Kortright,

City of Poughkeepsie, and the

Summitville Fire Company.

Do Civil Service Rules need to be reformed?

Do Civil Service Rules need to be reformed?

Source: Today's Government News

In an article posted on the Internet by Today's Government News, Contributor Howard Risher observes that "The states with the highest levels of active disengagement -- workers who are so unhappy at work that they 'undermine what their engaged coworkers accomplish,'" as Gallup put it in a recent study -- "are Connecticut, Michigan, New Jersey, New York, Ohio and my home state of Pennsylvania."

Mr. Risher then asks: “Are Civil-Service Rules the Enemy of Employee Engagement?” noting that “At every level of government, problem employees receive far more attention than those who make significant contributions.”

Mr. Risher's article is posted on the Internet at:

http://www.governing.com/columns/smart-mgmt/col-civil-service-rules-public-employee-engagement.html?utm_term=Are%20Civil-Service%20Rules%20the%20Enemy%20of%20Employee%20Engagement&utm_campaign=Leaked%20Trump%20Order%20Targets%20Legal%20Immigrants%20Who%20Use%20Government%20Benefits&utm_content=email&utm_source=Act-On+Software&utm_medium=email

Executive Order threatens cuts to federal funding of any jurisdiction that refuses to hold individuals for possible deportation

Executive Order threatens cuts of federal funding of any jurisdiction that refuses to hold individuals for possible deportation

Source: Governing the States and Localities - Public Safety and Justice, February 10, 2017

"President Donald Trump signed an executive order on Jan. 25, 2017 promising to punish any 'sanctuary jurisdictions' that 'attempt to shield aliens from removal from the United States.' The order threatened cuts to federal funding and public shaming of 'any jurisdiction that ignored or otherwise failed to honor any detainers.'”

On the other hand, some involved in law enforcement who operate jails have liability concerns and many will not honor detaining orders without a warrant signed by a judge.

The Public Safety and Justicearticle is posted on the Internet at:

http://www.governing.com/topics/public-justice-safety/sl-sheriffs-trump-immigrants-deportation.html?utm_term=Sheriffs%20Still%20Searching%20for%20Clarity%20on%20Deportation&utm_campaign=A%20Bipartisan%20Model%20for%20Lowering%20Obamacare%20Premiums&utm_content=email&utm_source=Act-On+Software&utm_medium=email

The Executive Order, Enhancing Public Safety in the Interior of the United States, is posted on the Internet at:
https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united

Police detective who did not properly discharge his duties not entitled to a defense or indemnification by the employer in a lawsuit in which he or she is a defendant

Police detective who did not properly discharge his duties not entitled to a defense or indemnification by the employer in a lawsuit in which he or she is a defendant

2017 NY Slip Op 00649, Appellate Division, Second Department

General Municipal Law §50-l provides that "Notwithstanding the provisions of any other law, code or charter, the county of Nassau shall provide for the defense of any civil action or proceeding brought against a duly appointed police officer of the Nassau county police department and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment. Such proper discharge and scope shall be determined by a majority vote of a panel consisting of one member appointed by the Nassau county board of supervisors, one member appointed by the Nassau county executive, and the third member being the Nassau county police commissioner or a deputy police commissioner."

The Nassau County Police Officer Indemnification Board determined that a Nassau County Police Detective was not entitled to a defense or to indemnification pursuant to General Municipal Law §50-l in a federal action civil rights action in which he was named a defendant. Supreme Court sustained the Board’s decision and the Detective appealed.

The Board had determined that the Detective had failed to notify anyone that an individual who had been arrested and held in jail for four months before he was arraigned could not possibly have committed the robbery for which he was charged because he was incarcerated on the day of the robbery. This failure, said the Board, was not "committed while in the proper discharge of his duties."

The Appellate Division said that the Board’s decision was supported by the facts and was not arbitrary and capricious. Further, said the Appellate Division, a court "may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious."

Accordingly, the Appellate Division found that Supreme Court had properly denied the Detective’s petition and had properly dismissed the action the Detective had brought pursuant to CPLR Article 78.

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement

Matter of DeRosa and the Minisink Valley Central School District, et al, Decisions of the Commissioner of Education, Decision No. 17,028

Amanda DeRosa served full-time in her probationary appointment during the 2008–2009 and 2009–2010 school years, with the exception of the period of November 19, 2009 to January 5, 2010, during which she took unpaid maternity leave. 

The Minisink Valley Central School District [Minisink] abolished thirteen full-time positions in the elementary tenure area effective June 30, 2010 and Ms. DeRosa was notified that she would be placed on a "preferred eligibility list" [PEL] with the right to reinstatement to a position in the elementary tenure area. When Minisink recalled two other teachers on the PEL, Ms. Kristen Daly and Ms. Jeni Galligan, Ms. DeRosa claimed that at the time of the recall she had four full years of service in the system, more than Ms. Daly and Ms. Galligan and that,  in accordance with Education Law §§2510 and 3013, she should have been recalled from the PEL prior to either of those educators.

In contrast to Minisink's argument that "long-term substitute service in positions that do not ripen into probationary appointments is not counted towards seniority," the Commissioner of Education ruled that long-term substitute service should be so considered and that tenure area is irrelevant to the calculation of service for the purposes of determining an individual's ranking on a preferred list.

The Commissioner pointed out that paragraph (a) of Education Law §3013(3) addresses a teacher’s recall rights following a layoff and provides, in pertinent part that "If an office or position is abolished ...  the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list.... The persons on such preferred list shall be reinstated or appointed to such vacancies ... in the order of their length of service in the system...."

The Commissioner explained that for purposes of determining the recall rights of teachers on a PEL, length of service in the system is used, not length of service within a particular tenure area. Further, said the Commissioner, "Seniority under Education Law §2510(3), which is identical to §3013(3), has been interpreted as all service within the system, not just a particular tenure area" and it is well-settled that full-time regular substitute service counts for seniority purposes under Education Law §§2510(2). Rather, a teachers loses his or her seniority rights under Education Law §§2510(2) and 3013(2) when he or she severs, or is severed, for his or her employment with the employer, not at the result of "interrupted service" during an "uninterrupted" period of employment as the result of an authorized leave of absence without pay or for such other reason such as military leave as defined in New York State's Military Law.

The question presented in this appeal was whether the calculation of Ms. DeRosa's service in the system under Education Law §3013(3) includes long-term substitute service that did not lead to a probationary appointment in the same tenure area. This, said the Commissioner, appeared to be a question of first impression and neither party has cited to a prior decision that squarely addresses this issue nor could the Commissioner find one.

Although Minisink cited Matter of Kelley, 19 Ed Dept Rep 499, aff’d sub. nom.; Kelley v. Ambach, 83AD2d 733, as authority that substitute service not connected to a probationary appointment should not be counted towards seniority, the Commissioner noted that in Kelley an excessed assistant principal in a junior high school claimed entitlement to appointment from the a PEL to positions of assistant principal at a senior high school. As both of the senior high school positions were in a different tenure area, the Commissioner held that Minisink's "reliance on [Kelley was] misplaced," noting that Ms. DeRosa argued that she should have been recalled by Minisink to a vacant position that was in the same tenure area as the position from which she was excessed.

Accordingly, the question is whether long-term substitute service that did not lead to a probationary appointment would be creditable in determining seniority for the purposes of layoff under Education Law §3013(2) and for recall purposes under Education Law §3013(3). 

In the words of the Commissioner, "[Minisink] has not articulated any compelling policy reason why long-term substitute service that did not lead to a probationary appointment should not be counted for recall purposes when the law is clear that service in another tenure area may be counted [and] Education Law §3013(3) bases recall on length of service in the system, which would encompass full-time service as a professional educator as defined in 8 NYCRR §30-1.1(e) [and] no reason appears why full-time service as a regular substitute in a different tenure area should not be counted as part of service" at Minisink.

In consideration of the facts in this case, the Commissioner found:

1. "Where [a] petitioner is seeking reinstatement to a position in her [or his] original tenure area and [is] only claiming seniority credit for prior long-term substitute service, the petitioner is entitled to such credit for her [or his] service as a professional educator. 

2. "By analogy to the cases under Education Law §§2510(2) and 3013(2), this applies to long-term substitute service that did not immediately precede [a] petitioner’s probationary service and to interrupted service such as [Ms. DeRosa's]. 

3. There was "no basis in the statute, or as a matter of policy, for disregarding service as a professional educator in a long-term substitute position in determining total years of service in the [district] under Education Law §3013(3).

4. Ms. DeRosa's "did not sever service with the district; rather, her service was only interrupted by service in a different tenure area.

5. Ms. DeRosa had "served in a probationary appointment in the elementary tenure area until such position was abolished" and service during that probationary appointment "counted towards her seniority in the [district]."

Ms. DeRosa, at the time that her position was abolished, had four years of service in the elementary tenure area, less unpaid time taken during the 2009–2010 school year for maternity leave. In contrast, Ms. Daly had three years of service in the district and Ms. Galligan had three years of service, less some number of days of unpaid leave." Thus Ms. DeRosa had more seniority at Minisink than either Ms. Daly or Ms. Galligan."

Accordingly, the Commissioner ordered Minisink to reinstate Ms. DeRosa as elementary teacher, with back pay, seniority and benefits as of September 1, 2013, "less any compensation she may have received in the interim."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17028

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book focusing on the relevant laws, rules and regulations, and summarizing selected court and administrative decisions, involving layoff and reinstatement from a preferred list. For more information click on http://nylayoff.blogspot.com/

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An individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing

An individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing

Kennedy v United States, USCA, Federal Circuit, Docket 16-1512

Although a federal Claims Court held that individual’s disenrollment from a program was lawful and that his breach-of-contract claims for monetary relief lacked merit, the Federal Circuit Court of Appeals reversed.

The Circuit Court ruled that in view of the government’s concession that the individual’s due process rights were violated when he was dissuaded from attending his hearing, the Claims Court erred in concluding that individual’s disenrollment was inevitable.

The decision is posted on the Internet at:

http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-1512.Opinion.1-12-2017.1.PDF

Court of Appeals' decision addresses the serving of a late notice of claim on a public entity

Court of Appeals' decision addresses the serving of a late notice of claim on a public entity

Newcomb v Middle Country CSD, 2016 NY Slip Op 08581, Court of Appeals, December 22, 2016

The issue in this appeal is whether the Supreme Court and, on appeal, the Appellate Division, abused their discretion in denying the petitioner's motion for leave to serve a late notice of claim on the Middle Country Central School District. The Court of Appeals concluded that “it is an abuse of discretion as a matter of law when, as here, a court determines, in the absence of any record evidence to support such determination, that a respondent will be substantially prejudiced in its defense by a late notice of claim. Here, the lower courts also improperly placed the burden of proving substantial prejudice solely on petitioner.” 

Accordingly, the Court of Appeals reversed the lower courts’ rulings.

The court explained that “Pursuant to General Municipal Law §50-e(1)(a), a party seeking to sue a public corporation, which includes a school district, must serve a notice of claim on the prospective defendant "within ninety days after the claim arises." General Municipal Law §50-e(5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim. The statute requires the court to consider whether the public corporation "acquired actual knowledge of the essential facts constituting the claim within [90 days after the accrual of the claim] or within a reasonable time thereafter" (General Municipal Law §50-e[5]). Additionally, the statute requires the court to consider "all other relevant facts and circumstances" and provides a "nonexhaustive list of factors that the court should weigh" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 539 [2006]). One factor the court must consider is "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits" (General Municipal Law §50-e[5]).

However, the Court of Appeals observed that ”... a finding that a public corporation is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record.”

Decision highlights some essentials of the Freedom of Information Law

Decision highlights some essentials of the Freedom of Information Law

PBA of the New York State, Inc., v State of New York, 2016 NY Slip Op 08918, December 29, 2016

In this decision the Appellate Division addressed elements of the State’s Freedom of Information Law [FOIL] and explained:

"Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2)" (Matter of Aurigemma v New York State Dept. of Taxation & Fin., 128 AD3d 1235, 1236-1237 [2015] [internal quotation marks and citations omitted]; see Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 746 [2001]; Matter of Johnson v Annucci, 138 AD3d 1361, 1362 [2016], lv denied 27 NY3d 911 [2016]). "Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986] [citations omitted]; see Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, 657 [2012]; Matter of MacKenzie v Seiden, 106 AD3d 1140, 1141 [2013]). Notably, "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996]; accord Matter of Thomas v New York City Dept. of Educ., 103 AD3d 495, 498 [2013]; Matter of New York State Defenders Assn. v New York State Police, 87 AD3d 193, 196 [2011]), and the agency must "articulat[e] a particularized and specific justification for denying access" to the requested documents (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; accord Matter of West Harlem Bus. Group v Empire State Dev. Corp., 13 NY3d 882, 885 [2009]; Matter of Moody's Corp. & Subsidiaries v New York State Dept. of Taxation and Fin., 141 AD3d 997, 999 [2016]).

“Public Officers Law §87(2)(b) permits an agency to deny access to records, or portions thereof, if disclosure ‘would constitute an unwarranted invasion of personal privacy.’ The statute does not, however, categorically exempt such documents from disclosure. To the contrary, Public Officers Law §89 expressly permits an agency to delete ‘identifying details’ from records that it makes available to the public (Public Officers Law §89[2][a]), and provides that ‘disclosure shall not be construed to constitute an unwarranted invasion of personal privacy . . . when [such] identifying details are deleted’ (Public Officers Law § 89 [2] [c] [i]; see Matter of Scott, Sardano & Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d 294, 298 [1985]; Matter of New York Times Co. v New York State Dept. of Health, 243 AD2d 157, 159 [1998]).”

N.B. The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.