Challenging an employee's termination during his or her disciplinary probation period

Challenging an employee's termination during his or her disciplinary probation period

Woods v State Univ. of N.Y., 2017 NY Slip Op 03083, Appellate Division, Third Department

In 2013 a member of a collective bargaining unit [Employee] represented by the New York State Correctional Officers and Police Benevolent Association, Inc. [Union] was placed on disciplinary probation in the course of a disciplinary arbitration conducted pursuant to the relevant collective bargaining agreement.

In 2014 the employer, State University of New York [SUNY], summarily terminated Employee from his probationary employment following a negative performance evaluation. The Union commenced a proceeding seeking to compel arbitration of Employee's termination pursuant to CPLR §7503 or, alternatively, to vacate and annul SUNY's decision terminating Employee while he was serving the disciplinary probationary period pursuant to CPLR Article 78.

Supreme Court converted the proceeding to an application to confirm the 2013 arbitration award; the Appellate Division reversed and granted the Union's petition to compel arbitration (see 139 AD3d 1322). Ultimately the Court of Appeals reversed Appellate Division's order and remitted the matter to it "for consideration of the facts and issues raised but not determined on the appeal" (see 28 NY3d 1140).

Upon remand, the Appellate Division noted that the parties had agree, and it concurred, that Supreme Court erred in treating the petition as an application to confirm the 2013 award and in remitting the matter to the arbitrator for clarification. The Appellate Division explained that "[a]n arbitrator's authority extends to only those issues that are actually presented by the parties. Thus, an arbitrator may not reconsider an award — regardless of whether the request is couched as a clarification or a modification — if the matter was not previously raised in arbitration."

The Appellate Division's decision also noted that at the commencement of the 2013 arbitration the Union and SUNY stipulated to allow the arbitrator to decide whether Employee was guilty of the past misconduct as alleged and, if so, what the appropriate penalty should have been. Significantly, the arbitrator was not asked to interpret any term in the contract or make a ruling that would define or affect the employer/employee relationship going forward and neither party sought to modify, confirm or vacate the award after it was issued.

Although the Union sought an order by Supreme Court to compel SUNY to arbitrate the 2014 termination, the Appellate Division said that this was error and Supreme Court "should not have remitted the issue for resolution by the arbitrator who decided the 2013 disciplinary action."

Addressing the Union's allegation that SUNY acted in bad faith when it decided to terminate Employee, the Appellate Division said that "[a] probationary employee may challenge a termination only by demonstrating that the dismissal was in bad faith or done for an improper reason."* Further, said the court, "a probationary employee is not necessarily entitled to a hearing or even an explanation unless there is proof that the discharge was unconstitutional or violated the law." To successfully challenge a probationary termination, the individual is required to submit "proof sufficient to raise a question of fact as to whether the dismissal was due to causes unrelated to work performance and/or improperly motivated."

Here, said the court, SUNY's submissions, "which are not disputed," confirmed that Employee "was terminated for a valid reason, that is, poor work performance."

*N.B. The decision Taylor v Cass, 122 A.D.2d 885, illustrates another the critical element for an appointing authority to consider when terminating an individual serving a disciplinary probationary period. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after demonstrating that he had been improperly dismissed while serving his disciplinary probation period. The terms of his probation provided that Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months. Taylor, however, was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” The Appellate Division ruled that Taylor's termination from his probationary employee was improper because Taylor was not terminated for the sole reason specified in the agreement settling the disciplinary action: intoxication on the job.

The Woods decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03083.htm

The Taylor decision is posted on the Internet at:

https://www.leagle.com/decision/19861007122AD2d885_2320/MATTER%20OF%20TAYLOR%20v.%20CASS

_____________________

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 April 22, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 22, 2017

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Assistant Director Affiliated with Queens Pre-School Provider Pleads Guilty to Stealing $5 Million Intended for Special Needs Students

New York State Comptroller Thomas P. DiNapoli and Queens District Attorney Richard A. Brown announced that Rabbi Samuel Hiller, the former assistant director of Island Child Development Center, once one of New York City's largest providers of special education services to pre-schoolers with disabilities, pleaded guilty to stealing $5 million in city and state funding between 2005 and 2012—money that was intended for special needs students between ages three to five.

Volunteer Fire Company Treasurer alleged to have embezzled over $55,000 of the fire company's funds for personal use

On April 18, 2017, Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the arrest and arraignment of Gail E. Cesternino, for allegedly embezzling over $55,000 from the West Ghent Volunteer Fire Company. The indictment  charges Cesternino with Grand Larceny in the Second Degree and thirteen counts of Falsifying Business Records in the First Degree. It should be remembered that these charges against Cesternino are merely accusations and she is presumed innocent unless and until proven guilty in a court of law.

According to the Indictment and papers filed in court on April 18, 2017, Cesternino is alleged to have used her position as the Fire Company's Treasurer to regularly withdraw cash, issue herself checks and charge personal expenses on the Fire Company's credit card, including purchases for her personal sales business.

The indictment is the result of an investigation conducted by the State Comptroller's Office Division of Investigations and the Attorney General's Public Integrity Bureau.

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

The Comptroller's investigation was conducted by the Comptroller's Division of Investigations working with the Division of Local Government and School Accountability.

Assistant Attorney General Bridget Holohan Scally of the Attorney General's Public Integrity Bureau is prosecuting this case under the supervision of Public Integrity Bureau Chief Daniel Cort and Deputy Bureau Chief Stacy Aronowitz.

This matter was investigated by the State Comptroller's Division of Investigations, along with Mark Spencer of the Attorney General's Investigators Bureau, which is led by Deputy Chief Antoine Karam and Chief Dominick Zarrella. Legal Analyst Sara Pogorzelski worked on the matter as well.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Department of Audit and Control auditors halt payment of suspicious 2016 tax refunds

On April 17, 2017, State Comptroller Thomas P. DiNapoli announced that his office stopped $21.3 million in questionable or fraudulent personal income tax refunds from being paid so far in 2017.

DiNapoli’s office paid out 4.6 million state refunds totaling $4.4 billion to date. Another 471,000 refunds totaling $466 million are expected to be paid in the coming days.

The Comptroller said: “My auditors are committed to safeguarding the funds of honest New Yorkers ... [w]e’ll stay one step ahead of the schemes used by tax cheats, and look to ensure only legitimate refunds are paid.”

DiNapoli’s office audits New York state personal income tax refunds prior to payment. The Comptroller’s auditors work cooperatively with the Department of Taxation and Finance to stop questionable refunds and to ensure timely payment of legitimate refunds. DiNapoli’s auditors perform their review after the department completes its own tax return audit.

The majority of questionable refunds stopped were for returns filed by taxpayers who claimed refundable credits based on incorrect information such as fake or inflated dependents or understated income. Auditors also stopped over $2.2 million in refunds that were linked to unscrupulous tax preparers filing false returns. Other popular scams include using questionable social security numbers and intentionally misstating deductions. 

Municipal Audits released

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

Village of Endicott -- Budget Review

Village of Hempstead – Budget Review

Town of Hoosick -- Departmental Cash Collections and Sales Tax Allocation

Town of Lake Pleasant – Credit Cards  

Town of Newfane – Supervisor's Financial Records and the

Village of Sandy Creek – Cash Receipts and Disbursements

New York State Comptroller announced the release of the following State Audits

Office of Information Technology Services (OITS): Security and Effectiveness of Division of Criminal Justice Services' Core Systems (Follow-Up) (2016-F-28)

An initial audit issued in February found that OITS did not have established policies and procedures for backup of key division systems. In a follow-up, auditors found OITS officials have made some progress in correcting the problems identified in the initial report. However, improvements are still needed.

Dormitory Authority of the State of New York (DASNY): Monitoring of Prevailing Wage Compliance on Construction Contracts (2015-S-99)

DASNY has implemented appropriate controls to meet its specific prevailing wage responsibilities,. However, although DASNY project managers and field representatives visited construction projects, they did not routinely inspect the sites to ensure that prevailing wage rates were posted, as required.

Department of Corrections and Community Supervision (DOCCS): Inmate Sentence Calculation and Release Practices (2016-S-43)

Auditors found DOCCS has appropriate procedures in place to ensure that it accurately determines inmate release dates. Tests of sentencing calculations for a sample of 60 inmates found proper procedures were followed in all the cases selected, and the sentences were accurately calculated. However, DOCCS records showed that during the audit period five inmates were released between two weeks and 12 months early because department procedures were not followed.

New York City Department of Housing Preservation and Development (HPD): Administration of the Article 8-A Loan Program (Follow-Up) (2016-F-24)

An initial audit issued in September 2014, examined whether the loans awarded by HPD under the Article 8-A Loan Program were being used only for qualified projects and their intended purpose and whether loan recipients were complying with the requirements of their loans with respect to correcting violations and making other needed repairs. In a follow-up, auditors determined HPD officials made little progress addressing the problems identified in the initial audit report and additional actions are still needed.

State Education Department (SED): Spotted Zebra Learning Center, Inc., Compliance with the Reimbursable Cost Manual (2016-S-81)

During the 2013-14 school year, Spotted Zebra provided three SED-funded, rate-based preschool special education programs to 43 children from school districts located in Albany, Columbia, Rensselaer, and Saratoga counties. For the three years ended June 30, 2014, Spotted Zebra reported over $2.5 million in reimbursable costs for the rate-based preschool special education programs it operated. Auditors found that the personal service costs tested were in compliance with SED’s requirements. However, they identified $13,058 in other than personal service costs that Spotted Zebra that did not comply with SED’s prescribed requirements for reimbursement.

State Education Department: ACDS Inc., Compliance with the Reimbursable Cost Manual (2016-S-76)

During the 2013-14 school year, ACDS provided four SED-funded, rate-based preschool special education programs to 213 children from school districts located in Nassau, Queens, and Suffolk counties. For the fiscal year ended June 30, 2014, ACDS reported $4,752,257 in reimbursable costs for the rate-based preschool special education programs it operated. For the fiscal year ended June 30, 2014, the personal service costs claimed by ACDS that were tested were in compliance with SED’s requirements. However, auditors identified $30,104 in other than personal service costs that did not comply with SED’s prescribed requirements for reimbursement.

State Education Department: North Country Kids Inc., Compliance with the Reimbursable Cost Manual (2016-S-53)

North County provides preschool special education services to children with disabilities who are between three and five years of age. North Country is reimbursed for preschool special education services through rates set by SED. For the two fiscal years ended June 30, 2014, North Country reported $2.6 million in reimbursable for the rate-based preschool special education programs it operated. For the two years ended June 30, 2014, auditors identified $79,084 in ineligible costs that North Country reported for the programs. The ineligible costs included: $69,272 in other than personal service costs and $9,812 in personal service costs.

Second Circuit Court of Appeals precedent holds Title VII's prohibition of unlawful discrimination based on "sex" does not encompasses discrimination based on "sexual orientation"

Second Circuit Court of Appeals precedent holds Title VII's prohibition of unlawful discrimination based on "sex" does not encompasses discrimination based on "sexual orientation"

Zarda v Altitude Express, USCA, 2nd Circuit, Docket #15-3775;

Donald Zarda,* a skydiver, alleged that he was terminated from his job as a skydiving instructor because of his sexual orientation. He sued his former employer, Altitude Express, alleging that his termination was in violation of Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e et seq.,] and New York State's Human Right Law [Executive Law Article 15].

The United States District Court, Eastern District of New York, found a triable issue of fact with respect to Zarda's contention that Altitude was in of violation of New York law but granted summary judgment to Altitude with respect to Zarda's Title VII claim. The district court, citing Simonton v Runyon, 232 F.3d 33, observed that Second Circuit precedent holds that Title VII does not protect against discrimination based on sexual orientation. 

Considering Zarda's allegations that Altitude violated New York State's Civil Rights Law, the jury found for Altitude.

On appeal, Zarda asked the Circuit Court's three-judge panel to reconsider the Second Circuit's interpretation of Title VII and hold that Title VII’s prohibition on discrimination based on “sex” includes discrimination based on “sexual orientation.” 

The panel declined to do so, explaining that "a three-judge panel of this Court lacks the power to overturn Circuit precedent."

* Zarda died in a skydiving accident before the case went to trial and two executors of his estate replaced him as plaintiff.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/bea90438-1fa4-4076-a1ff-2065c27c670d/1/doc/15-3775_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/bea90438-1fa4-4076-a1ff-2065c27c670d/1/hilite/

Exceptions to providing public records pursuant to New York State's Freedom of Information Law [FOIL]

Exceptions to providing public records pursuant to New York State's Freedom of Information Law [FOIL]

New York Civ. Liberties Union v New York City Police Dept., 2017 NY Slip Op 02506, Appellate Division, First Department

The basic rule when seeking public records pursuant to a Freedom of Information Law [FOIL] request is that FOIL provides that all public documents are subject to disclosure. However, where access to the records sought is not barred by law in the first instance, the custodian of the record or records sought may elect to deny access to documents otherwise subject FOIL if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in FOIL.

In this action brought pursuant to FOIL Supreme Court granted the New York Civil Liberties Union's [NYCLU] petition compelling the New York City Police Department to disclose certain records concerning disciplinary actions taken against Department police officers.

The Appellate Division unanimously reversed the lower court's action, on the law, denying the Civil Union's petition and dismissing the action.

Noting that Public Officers Law §87(2)(a) provides that an agency "may deny access to records" that "are specifically exempted from disclosure by state . . . statute," the Appellate Division said that the NYPD disciplinary decisions sought by NYCLU fell within Civil Rights Law §50-a, which makes confidential police "personnel records used to evaluate performance toward continued employment or promotion."*

Although NYPD disciplinary trials are open to the public, the Appellate Division said that this "does not remove the resulting decisions from the protective cloak of Civil Rights Law §50-a." The court explained that "[w]hether the trials are public and whether the written disciplinary decisions arising therefrom are confidential are distinct questions governed by distinct statutes and regulations." In addition, said the court, "the disciplinary decisions include the disposition of the charges against the officer as well as the punishment imposed" [if the officer is found guilty of one or more of the disciplinary charges and specifications], "neither of which is disclosed at the public trial."

In Short v Board of Mgrs. of Nassau County Medical Center, 57 NY2d 399, the Court of Appeals ruled that where there is a "specific exemption from disclosure by State . . . statute," an agency is not required to disclose records with identifying details redacted.  Concluding that Short was the controlling precedent in this action, the Appellate Division held that in view of the provision set out in Civil Rights Law §50-a,  it could not order NYPD to disclose redacted versions of the disciplinary decisions sought by the NYCLU.

* The release of certain public records, such as those identified in Civil Rights Law §50-a, is limited by statute. Other examples of such limitations are set out in Education Law, §1127 - Confidentiality of records and §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. Submitting a "formal" 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 the 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.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02506.htm

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error

Hopton v Ponte, 2017 NY Slip Op 02649, Appellate Division, Second Department

New York City Correction Officer [Petitioner] was found guilty of violating certain Department of Correction rules and was terminated from her position. Contending that the administrative law judge (ALJ) that had presided at her Civil Service Law §75 disciplinary hearing did not have the authority and jurisdiction to conduct the hearing, Petitioner filed an Article 78 action with Supreme Court seeking to vacate the decision and have the court order the Department to reinstate her to her former position.

Supreme Court granted the Department's motion to her to dismiss Petitioner's claim "for failure to state a cause of action" and Petitioner appealed the court's ruling to the Appellate Division.

Civil Service Law §75, in relevant part, provides that "[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose." Explaining that "The failure to designate a hearing officer for a disciplinary hearing in writing, as required by Civil Service Law §75(2), is a jurisdictional defect that renders the hearing officer's determination null and void," the Appellate Division said that in this instance the ALJ had been properly designated to conduct Petitioner's disciplinary hearing and to make findings of fact and to recommend the penalty that should be imposed by the appointing authority.

The Appellate Division noted that in accordance with a written request sent to the Chief Administrative Law Judge of the New York City's Office of Administrative Trials and Hearings [OATH] by the then serving appointing authority, the Chief Administrative Law Judge had properly designated an OATH ALJ to conduct Petitioner's disciplinary hearing and to make findings of fact and a recommendation with respect to penalty that should be imposed in the event Petitionerwas found guilty of one or more of the disciplinary charges and specifications served upon her.

Accordingly, said the court,  Petitioner's allegations, even if accepted as true, failed to state a cause of action based on the ALJ's purported lack of jurisdiction over her  disciplinary hearing and dismissed her appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02649.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

_______________

Recent administrative appointments announced by New York State Governor Andrew M. Cuomo

Recent administrative appointments announced by New York State Governor Andrew M. Cuomo

Source: Office of the Governor

On Monday, April 17,  2017 Governor Andrew M. Cuomo announced the following appointments to his administration:

Melissa DeRosa has been appointed Secretary to the Governor
Since April 2013, Ms. DeRosa has served as Communications Director, Strategic Advisor, and most recently Chief of Staff to the Governor. During her tenure, Ms. DeRosa has managed overall communications and press for the Executive Chamber and over 50 state agencies, political affairs, labor relations, and the administration’s strategic approach to enacting policy. She spearheaded the Governor’s campaigns to raise the minimum wage to $15 an hour, enact the nation’s strongest paid family leave program, and most recently to establish the ‘Excelsior Scholarship’, making New York the first state in the country to provide free public college tuition for middle and low-income families.  Before joining the Governor’s office, Ms. DeRosa worked in the Attorney General’s Office as Deputy Chief of Staff and as Acting Chief of Staff. Ms. DeRosa led the office’s effort to negotiate and pass the country’s most aggressive prescription drug reform package, I-STOP (Internet System for Tracking Over-Prescribing Act). Prior to working for the Attorney General, Ms. DeRosa served as New York State Director of Organizing for America, President Obama’s national political action organization. Before joining OFA, Ms. DeRosa served as the Director of Communications and Legislation for Cordo and Company, an Albany based government affairs firm. She was also the Campaign Manager for Tracey Brooks for Congress, Deputy Press Secretary to Congresswoman Nydia Velazquez, and Deputy Press Secretary for the successful NY State Transportation Bond Act Campaign in 2005. She holds a Bachelor’s Degree in Industrial and Labor Relations and a Master’s Degree in Public Administration, both from Cornell University. She has served on the executive board of the Women’s Leadership Forum Network of the Democratic National Committee.

Ms. DeRosa, the first woman to ever serve in the role of Secretary to the Governor, succeeds Bill Mulrow who departs the administration for the private sector. 


Jill DesRosiers has been appointed Executive Deputy Secretary to the Governor.

Since 2012, Ms. DesRosiers has served as Deputy Secretary for Executive Operations and previously Director of Scheduling for the Governor. Ms. DesRosiers will oversee the offices of Intergovernmental Affairs, Scheduling and Operations, Regional and Constituency Affairs, Special Events and Appointments.  Ms. DesRosiers has held leadership positions in New York City and State level government for years. After getting a degree from the University of Pennsylvania in Systems Engineering, Ms. DesRosiers worked in senior positions for the New York City Council for 12 years under both Speakers Gifford Miller and Christine Quinn, where her responsibilities included community outreach and member services. She created CouncilStat, the first computerized tracking system for citywide constituent issues. She has also served as campaign manager, field director and GOTV director for over a dozen successful campaigns in New York State. 


Adam Zurofsky has been appointed Deputy Secretary for Energy and Financial Services.

Mr. Zurofksy comes to state service after serving as President & Founder of Touchstone Metrics, LLC, a business management consulting company in New York City. Prior, he was a Partner at Cahill Gordon & Reindell LLP, where he advised companies and boards on regulatory, governance and litigation matters. Mr. Zurofsky has taught as an Adjunct Professor and worked as a Program Leader and Fordham Law School and is a Board Member of the Brookings Institution, Governance Studies Leadership Council. He earned his J.D. from Harvard Law School, where he graduated cum laude and earned a B.A. in Political Science from Stanford University.

Michael Schmidt has been appointed Deputy Secretary for Economic Development.

Mr. Schmidt previously served on a team of policy advisors to Hillary Clinton at the Hillary for America campaign. In this role he led the development of Secretary Clinton’s economic agenda on a wide range of issues, including financial regulation, trade, infrastructure, housing, small business and economic development. Before joining the campaign, he worked in the Office of Domestic Finance at the U.S. Department of the Treasury where he supported the Obama Administration’s efforts to enhance the regulation of Wall Street after the 2008 financial crisis. Before working in government, Mr. Schmidt was a Senior Finance Analyst at the Yale Investments Office. He holds a J.D. and a B.A from Yale.

Ali Chaudhry has been appointed Deputy Secretary for Transportation.

Mr. Chaudhry previously served as Deputy Secretary for Economic Development. Before that, he was Assistant Counsel to Governor Cuomo for two years with a focus on transportation and economic development.  He provided counsel on priority capital projects including the LaGuardia Airport redevelopment, the new Tappan Zee Bridge, the Second Avenue Subway, the MTA Capital Plan, the DOT Capital Plan, the Empire Station Complex, the Broadband Initiative, and the expansion of the Javits Convention Center. Mr. Chaudhry has also served as counsel on various economic development projects across the State, as well as alternative project delivery procurement. Prior to joining the Executive Chamber, Mr. Chaudhry served as Assistant Counsel in the New York State Senate, where he was counsel to several legislative committees over the course of three years. Before joining public service, Mr. Chaudhry practiced civil litigation in the private sector, focusing on employment matters. 

Adam W. Silverman has been appointed Assistant Counsel to the Governor for Public Safety.

Most recently Mr. Silverman served as Special Counsel to the Commissioner for Ethics, Risk and Compliance at the New York State Department of Corrections and Community Supervision.  Prior, he was an Associate Attorney in the litigation department of an international law firm. There, he focused his practice on complex government and commercial matters for clients ranging in size from small business owners to Fortune 500 corporations. Mr. Silverman also served as an Assistant Attorney General in the Office of the New York State Attorney General, representing the State and its employees in both state and federal courts.  He holds a J.D. from Albany Law School and a B.A. in Psychology, with a minor in Criminal Justice, from The George Washington University.

Tanisha Edwards has been appointed Assistant Counsel to the Governor for Taxation and Finance.

Ms. Edwards has over ten years of legal experience working in government. Most recently, she served as Chief Counsel in the finance division of the New York City Council where she advised the Council Speaker, Finance Committee Chairperson, and City Council Members on legislation and legal and policy issues related to the budget of New York City. While serving as Chief Counsel to the Finance Division, she also served as Counsel to the Finance Committee.  Prior to working with the City Council, she served as the Legislative Counsel at the Office of the New York City Comptroller. She earned a J.D. from Rutgers University Law School and a B.A. in Psychology from Syracuse University.


Rajiv Shah has been appointed Assistant Secretary for the Environment
Ms. Shah previously served as Senior Policy Advisor for the Environment. Prior to joining the Executive Chamber, Mr. Shah joined the New York State Department of Environmental Conservation as an Empire State Fellow and served in dual roles as a Special Assistant to the Commissioner and Counsel to the Bureau of General Enforcement. Prior to working at DEC, Mr. Shah served as Assistant Attorney General in the New York State Office of the Attorney General. He also clerked for the Honorable Eileen Nadelson in the Kings County Civil Court and for the Honorable Laura Taylor Swain in the U.S. District Court of the Southern District. Mr. Shah earned his J.D. from Fordham University and a B.A. from the University of Pennsylvania.

Megan Baldwin has been appointed Assistant Secretary for Health.

Ms. Baldwin most recently held multiple roles within the New York State Senate Finance Committee, including Principal Analyst for the Republican Conference, where she led budget negotiations on behalf of the Senate Majority. She also served as a Senior Analyst and Associate Analyst for the Democratic Conference, where she provided Senate Majority Members with research and recommendations concerning budget proposals for DOH, OCFS and OTDA. She also has experience working in the Office of the New York State Comptroller. She received an M.B.A. from the Rochester Institute of Technology and a B.S. in Business Administration from SUNY College at Brockport.

Natacha Carbajal-Evangelista has been appointed Assistant Secretary for Labor and Workforce.

Ms. Carbajal-Evangelista most recently served as the Special Counsel for Ethics, Risk and Compliance to the Commissioner for the New York State Department of Labor. Prior to government service, Ms. Carbajal-Evangelista was a senior associate at Baker & Hostetler LLP. She also served as a Judicial Law Clerk for the United States Bankruptcy Courts of the Southern and Eastern Districts of New York. Ms. Carbajal-Evangelista has received several awards for her provision of pro bono legal services to victims of domestic violence including the 2015 John Geiger Award from Her Justice and the 2013 Champion of Justice Award from the Brooklyn Bar Association Volunteer Lawyers Project and T.D. Bank. She holds a B.S. from Cornell University's School of Industrial and Labor Relations and a J.D. from Fordham University.

Daniel Fuller has been appointed Assistant Secretary for Education.

Having previously served as Education Policy Advisor, earlier Mr. Fuller served as Vice President of Legislative Relations at Communities in Schools. He was also the Director of Public Policy at the Association for Supervision and Curriculum Development, and prior to that, was the Director of Federal Programs at the National School Boards Association. Mr. Fuller holds a B.A. in English from SUNY Plattsburgh.

Peter Olmsted has been appointed Assistant Secretary for Energy.

Mr. Olmsted served as Manager of Strategic Engagement at the New York State Department of Public Service. In this role he was responsible for carrying out work vital to Governor Cuomo’s Reforming the Energy Vision (REV) and the implementation of the Regional Greenhouse Gas Initiative. Prior to working at DPS, Mr. Olmstead was the East Coast Regional Director for Vote Solar. He also worked as an Energy Policy Fellow in the Majority Caucus of the Delaware State Senate. Mr. Olmstead received a Master of Energy & Environmental Policy from the University of Delaware and a B.A. from Skidmore College.

Abbey Fashouer has been appointed First Deputy Press Secretary.

Ms. Fashouer most recently served as Deputy Press Secretary. Prior to that, she served as Press Secretary for State Senator Jeff Klein. Ms. Fashouer also served as a Director at Mercury, LLC where she helped develop and execute public affairs campaigns for both public and private sector clients. Ms. Fashouer also has experience on state and local campaigns, serving as a field organizer for the Sweeney, Burzichelli, and Riley Campaign in New Jersey, as well as the Quinn for New York Mayoral Campaign. She holds a B.A. from SUNY Albany.

Robyn Ryan has been appointed Assistant Director of Operations for Special Projects.

Ms. Ryan is an accomplished project manager and writer who most recently served as Executive Services Counsel for the New York State Bar Association. Prior, she clerked for U.S. District Court Judge Peter J. Messitte, after working in private practice as a Litigation Associate at Steptoe & Johnson in Washington, DC. Ms. Ryan has years of experience in journalism, working as a staff reporter for the Times Herald Record, and as a freelance writer. She earned her J.D. from Georgetown University Law Center and her B.A. from Barnard College.

Andrew Ball has been appointed Assistant Secretary for Intergovernmental Affairs.
Previously Mr. Ball served as Director of Scheduling and Confidential Assistant to the Governor. Mr. Ball joined the Cuomo administration in 2011 as special assistant for legislative and intergovernmental affairs, where he served as a liaison between local elected officials and the administration, including addressing constituent issues and facilitating coordination between legislative members and state agencies. A Long Island native, Mr. Ball graduated from Syracuse University in 2010.

 

Chelsea Muller has been appointed Senior Program Manager.

Ms. Muller joins the Executive Chamber after working in the Governor’s Office of Storm Recovery as a Senior Program Manager. In this role, she helped launch the NY Rising Community Reconstruction Program and led community development and planning projects for the agency. Before joining state government, she was the Executive Director of Rebuilding Together NYC, a nonprofit organization dedicated to rebuilding the New York City community after Hurricane Sandy. Before that, she was an Anchor, Reporter and a Producer for KDRV-TV in Medford Oregon, and an Associate Producer for KVBC-TV in Las Vegas, NV. She holds a B.A. from the University of Nevada and a Public Relations Certification from the University of Washington, Seattle.

Casey Kuklick has been appointed Senior Policy Advisor for Energy.

Mr. Kuklick has worked in Governor Cuomo’s administration in the Office of Energy and Finance since 2014, most recently as a Policy Advisor and prior, as an Infrastructure and Urban Policy Analyst. Before joining state government, he was a Program Assistant for the Urban and Regional Policy Program for the German Marshall Fund of the United States. He has held roles in the Office of Manhattan Borough President Scott M. Stringer, U.S. Senator Charles E. Schumer and in the City of Philadelphia Mayor’s Office of Sustainability. He received an M.P.A in Urban Policy and Advanced Policy and Economic Analysis from Columbia University School of International and Public Affairs and a B.A. from Northwestern University.

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors

Armbruster v Cassano, 2017 NY Slip Op 02641, Appellate Division, Second Department

New York City Firefighter Daniel Armbruster had tested positive for cocaine during a random drug test administered by the New York City Fire Department, in contravention of the Department's "zero tolerance" drug policy. At his disciplinary hearing Armbruster admitted that he tested positive for cocaine but offered as his defense that "his ingestion of cocaine was unknowing" and he could not recall the circumstances of his cocaine use because "I was drinking excessively and I blacked out."

The Administrative Law Judge [ALJ] presiding at Armbruster's disciplinary hearing found him guilty of three charges of misconduct. As to the penalty to be imposed, the ALJ recommended that Armbruster be terminated from his employment as a New York City firefighter.

The Commissioner of the Fire Department adopted the ALJ's findings and the recommendation of the penalty to be imposed and dismissed Armbruster from his position. Armbruster then commenced a proceeding pursuant to CPLR Article 78 challenging the Commissioner's determination.

Among the issues considered by the Appellate Division in the course of Armbruster's appeal was the impact, if any, on Armbruster's right to due process in consideration of the following events alleged to have occurred in the course of Armbruster's disciplinary hearing:

1. The cumulative effect of the approximately three-year delay in conducting the administrative hearing;

2. The ALJ's rulings with respect to certain evidence presented in the course of the disciplinary hearing;

3. Armbruster's "brief exclusion from the hearing" during a pause in his testimony; and

4. The Fire Department counsel's isolated "disparaging commentary."

The Appellate Division concluded that "[t]he prejudice arising from these circumstances, where it arose at all, did not so permeate the underlying hearing as to render it unfair."

The court explained that a review of an administrative determination made after "a trial-type hearing directed by law" is limited to whether the administrative determination is supported by substantial evidence. In the event there is conflicting evidence or different inferences may be drawn from the evidence presented, the said court that "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]." Courts may not weigh the evidence or reject the choice made by such agency where the evidence is conflicting and room for choice exists.

The Appellate Division found that any credibility issues were resolved by the ALJ and that it found no basis upon which to disturb the ALJ's determination, which was supported by substantial evidence.

As to the penalty imposed by the Commissioner, dismissal, the court held that in view of Armbruster's "relatively brief tenure with the Fire Department at the time of his positive drug test," considered with the ALJ's finding that his testimony at the disciplinary hearing "lacked credibility" and the application of the Department's zero tolerance drug policy, the Appellate Division held that the imposition of the penalty of termination "was not so disproportionate to the offense committed as to be shocking to one's sense of fairness," notwithstanding evidence that Armbruster had previously sustained two employment-related injuries.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02641.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

_______________

Audits issued by the New York State Comptroller during the week ending April 15, 2017 Source: Office of the State Comptroller

Audits issued by the New York State Comptroller during the week ending April 15, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Audit finds major problems with City of Rochester School District's payments

The Rochester City School District's payroll processes are disorganized, highly decentralized and not administered uniformly, resulting in errors that are costing taxpayers, according to an auditreleased by State Comptroller Thomas P. DiNapoli.

Auditors also found numerous problems with how the district managed its purchases.

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

Town of Arietta – Budgeting

Buffalo Sewer Authority – Industrial Waste Section

Town of Cheektowaga – Credit Card Purchases

Town of Dover – Fire Protection and Ambulance Services

Village of Ellicottville – Procurement

Genesee County Soil and Water Conservation District – Cash Receipts and Disbursements

Village of Malverne – Procurement

Village of Pelham – Information Technology

Rochester Land Bank Corporation – Monitoring Subcontractor Performance

Schroon Lake Fire District – Cash Disbursements

Village of Speculator – Claims Auditing

and the

Village of Walton – Bio-Digester Capital Plan.

A disciplinary hearing officer may not consider disciplinary charges and specifications not preferred against an employee

A disciplinary hearing officer may not consider disciplinary charges and specifications not preferred against an employee
Nitti v County of Tioga, 2017 NY Slip Op 02868, Appellate Division, Third Department

The appointing authority brought disciplinary charges against an employee [Petitioner]  alleging that she, among other things, made three false statements to a subordinate employee and to the appointing authority about her friend's Medicaid application. 

After a Civil Service Law §75 hearing, a Hearing Officer found that the evidence supported the charges and specifications filed against Petitioner and recommended that she be terminated from employment.

A deputy of the appointing authority adopted the Hearing Officer's findings and recommendations and concluding that termination of Petitioner's employment was the appropriate penalty. Petitioner commenced [1] a proceeding pursuant to CPLR Article 78 contending that the Hearing Officer's findings were not supported by substantial evidence and [2] an action for declaratory judgment seeking, among other things, a court order annulling the deputy's determination.

Although Petitioner initially raised the issue of substantial evidence she subsequently abandoned that argument by failing to raise it in her brief presented to the Appellate Division. Instead Petitioner contended that the Hearing Officer violated her due process rights by finding her guilty of uncharged conduct, i.e., that she deliberately committed fraud by trying to obtain Medicaid benefits for her friend when she knew — and attempted to conceal — that the friend was not financially eligible for the benefits.

While the Appellate Division agreed that it is certainly true that a disciplinary hearing must be limited to the charges and specifications preferred against an employee, the court said that a review of the Hearing Officer's written recommendations revealed that, although he "note[d]" his belief that Petitioner's intent was to submit a fraudulent Medicaid application given her friend's "obvious lack of financial eligibility," the ultimate recommendations of guilt were limited solely to the evidence of Petitioner's charged misconduct.

Indeed, said the court, "the Hearing Officer made clear that his findings of guilt were based upon the evidence that Petitioner lied about who signed the Medicaid application and her 'false representations' to her subordinate and the Commissioner." Accordingly, the Appellate Division said that it could not agree with Petitioner that she was found guilty based upon conduct outside the scope set out in the notice of disciplinary charges served upon her.

Turning to the penalty imposed, termination from her employment, the court said that "in light of the responsibilities inherent in Petitioner's high-level position in which she supervised approximately 45 employees, '[w]e do not find that termination of Petitioner's employment is so disproportionate to the offense[s] as to be shocking to one's sense of fairness.'"

However, as Petitioner also had sought declaratory relief, the Appellate Division observed that such relief is not authorized "in a transferred proceeding pursuant to CPLR 7804(g) to the Appellate Division." There, ruled the Appellate Division, that part of the matter "must be remitted to Supreme Court for the entry of an appropriate judgment thereon."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02868.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

_____________________

Employer's reimbursing its retirees' Medicare Part B premiums for 20+ years held to be a past practice within the meaning of the Taylor Law

Employer's reimbursing its retirees' Medicare Part B premiums for 20+ years held to be a past practice within the meaning of the Taylor Law
Albany Police Officers Union, Local 2841, Law Enforcement Officers Union Dist. Council 82, AFSCME, AFL-CIO v New York Pub. Empl. Relations Bd., 2017 NY Slip Op 02719, Appellate Division, Third Department

Since the late 1980s, the City of Albany [City] consistently reimbursed Albany Police Officers Union [Union]members for their Medicare Part B monthly premiums upon their retirement.

In October 2008, the City sent a notice to all retirees of various changes to the City's available health plans. As to Medicare Part B reimbursements, the notice advised the retirees that "[u]nder the City's current policy, the City will reimburse you the Medicare Part B premium on a monthly basis."

A separate notice of the same date was distributed to the active members similarly advising them of various changes to the offered health plans but did not mention anything about Medicare Part B reimbursements.

In October 2009, the City sent a notice to all retirees advising them again of changes to the offered health plans. This notice, however, further stated that, as of December 31, 2009, "the City would no longer reimburse Medicare Part B premiums whose effective date for Part B was January 1, 2010." In addition in October 2009 a notice was sent to all active members in the negotiating unit that also advised them of changes to the offered health plans but, once again, omitted any reference to Medicare Part B premium reimbursements.

The Union filed an improper practice charge with the Public Employment Relations Board (PERB) alleging that the City violated Civil Service Law §209-a(1)(d) by, among other things, unilaterally discontinuing the practice of reimbursing Medicare Part B monthly premiums to retirees.

After a hearing, a PERB Administrative Law Judge (ALJ) dismissed the charge holding that no violation of the Civil Service Law had occurred because "retirees are not covered by the [Public Employees' Fair Employment Act] and the City has made no announcement to current bargaining unit members of its intention to cease . . . and/or terminate certain Medicare Part B premium reimbursements."

PERB sustained the ALJ's determination, but on different grounds, concluding that the Union failed to carry its burden of establishing the existence of past practice. PERB said that the October 2008 notices "eliminated or altered various plans and benefits" and, therefore, interrupted any past practice of reimbursement of Medicare Part B monthly premiums.

In addition, PERB also found that the phrase, "under the City's current policy," as provided in the October 2008 notice to retirees, "served to provide notice that such policy [of reimbursing Medicare Part B premiums] could not be relied upon to continue indefinitely."

The Union appealed PERB's ruling.

Addressing the merits of the Union's appeal, the Appellate Division said "whether the reimbursement of Medicare Part B premiums was a past practice depends on whether such 'practice was unequivocal and was continued uninterrupted for a period of time under the circumstances to create a reasonable expectation among the affected unit employees that the practice would continue.'" The Appellate Division then explained that "[T]he expectation of the continuation of the practice is something that may be presumed from its duration with consideration of the specific circumstances under which the practice has existed."

Reviewing PERB's decision to ascertain if it was supported by substantial evidence, the court concluded that a rational basis does not exist to support PERB's determination that the claimed "past practice" had been interrupted.

The City, said the Appellate Division, has been reimbursing the retirees for their Medicare Part B monthly premiums for over 20 years. At the hearing before PERB, several witnesses testified as to their understanding and expectation that the City would reimburse them for their Medicare Part B monthly premiums upon their retirement and "that such reimbursements would continue for the rest of their life."

The court's decision also noted that one witness testified that in the course of collective bargaining with the City, the issue of reimbursement for Medicare Part B monthly premiums was raised but the City felt it was unnecessary to formalize such benefit into the collective bargaining agreement "because everyone knew that it would last "forever."

In contrast, PERB, relying on the notices sent to retirees and to the active members of the Union by the City, determined that a past practice of reimbursements did not exist based on the documentary evidence in the record. The Appellate Division disagreed, concluding that such documentary evidence did not provide "a rational basis to support the findings upon which [PERB's] determination is predicated."

The court pointed that although the October 2008 notice that was sent specifically to active members advised them of various changes to the health plans offered by the City, it was entirely silent as to the reimbursement of Medicare Part B premiums. Furthermore, said the court, the October 2008 sent to the retirees could not have apprised union's active members that the reimbursement of Medicare Part B monthly premiums would not continue indefinitely because this notice was sent only to retirees, a group of former employees not represented by the Union.

Thus, ruled the Appellate Division, PERB's conclusion that the Union never objected to the City's proposed modifications of Medicare Part B reimbursements lacks evidentiary support inasmuch as the Union's active members did not have notice of any potential changes to which an objection could be lodged.

Indeed, said the court, "even if [the Union] or its active members had received adequate notification," the five words — "under the City's current policy" — do not constitute substantial evidence connoting either the absence of a past practice of reimbursing Medicare Part B monthly premiums by the City, especially when the record as a whole demonstrates that there was no formal policy for such reimbursements and the City continually reimbursed the retirees for such monthly premiums for a significant period of time, or that such practice would only be temporary."

Finding that PERB's determination was not supported by substantial evidence, it was  annulled by the Appellate Division.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02719.htm