Leaving employment without good cause disqualifies a claimant for unemployment insurance benefits

Leaving employment without good cause disqualifies a claimant for unemployment insurance benefits

Matter of Walters (Commissioner of Labor), 2017 NY Slip Op 05497, Appellate Division, Third Department

The Unemployment Insurance Appeal Board [Board] found that an applicant for unemployment insurance benefits [Claimant] was ineligible for such benefits because she had "voluntarily left her employment without good cause."

Claimant appealed but the Appellate Division sustained the Board's ruling finding that its decision was supported by substantial evidence. Claimant had advanced three arguments in pressing her claim for benefits.

Claimant first contended that on her last day of employment she would be late reporting for duty because of a "doctor's appointment" and, after she learned that her supervisor had to cover for her, she quit because she was afraid she was going to be reprimanded or terminated.

Citing Welsh [Commissioner of Labor], 138 AD3d 1328, the Appellate Division noted that "resignation in anticipation of being discharged does not constitute good cause for leaving one's employment."

Claimant had also testified that she also quit her job "because the employer made it difficult for her to schedule medical appointments when the employer was short-staffed."

However Claimant admitted that she was never informed that her job was in jeopardy due to being absent from or late to work.

The Appellate Division, citing McCarthy [Commissioner of Labor], 120 AD3d 876, explained that dissatisfaction with one's work schedule "... does not constitute good cause for leaving one's employment."

As to Claimant's final justification for quitting her job, she testified she had quit "due to stress involving a coworker." Claimant admitted, however, that her supervisor had taken certain actions as a result of her report and had changed her schedule so she did not have to work with the individual in question.

The Appellate Division said that it its view, the Board's decision that Claimant left her employment for personal and non-compelling reasons, was supported by substantial evidence and declined to disturbed it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05497.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 22, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 22, 2017

Click on text highlighted in color  to access the full report

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

OCFS Should Improve Foster Care Placement Oversight

The state Office of Children and Family Services (OCFS) could not show that caseworkers contacted children in foster care within the first 30 days of their placement and lacked documentation proving children were placed in foster homes that met program certifications, according to an auditby New York State Comptroller Thomas P. DiNapoli.

Town of Geneseo – Information Technology and Multiyear Planning (Livingston County)
The board has not adopted policies to sufficiently protect the town's information technology assets and did not ensure that the adopted acceptable use policy was enforced or monitored. Town officials did not adequately segregate online banking duties and did not dedicate a separate computer for online transactions to limit access to online bank accounts. In addition, auditors found the town accumulated excessive fund balance in various funds.

Monticello Joint Fire District – Fiscal Operations (Sullivan County)
The board did not adopt realistic budgets for the 2014 through 2016 fiscal years. Although total budgeted revenues were reasonable, total expenditures were overestimated an average of 20 percent or almost $391,000 annually. The treasurer performs all financial transactions without adequate oversight.

Town of Orchard Park – Recreation Department Cash Receipts (Erie County)
The board did not adopt written policies over financial operations or approve a key department contract. The department generally recorded and deposited cash receipts properly, but did not remit money to the supervisor in a timely manner.

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

2017 NY Slip Op 05608, Appellate Division, Second Department

In this decision the Appellate Division sets out the basic rules followed by the courts when reviewing an administrative determination arrived at following a quasi-judicial hearing by an appointing authority or its designee. In this instance the appointing authority adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75 finding the charged party [Petitioner] guilty of certain disciplinary charges, and terminated the Petitioner's employment.

Confirming the appointing authority's determination is confirmed, the Appellate Division explained:

1. The standard of review of an administrative determination made after a quasi-judicial hearing required by law is limited to considering whether the determination was based on substantial evidence.

2. It is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject.

3. Where evidence is conflicting and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency.

Here, said the court, substantial evidence supported the appointing authority's determination that Petitioner was guilty of committing certain acts of misconduct or insubordination.

As to the penalty imposed, dismissal from the position, the Appellate Division, citing Kreisler v New York City Tr. Auth., 2 NY3d 775, concluded that "the penalty of termination of [Petitioner's] employment was not so disproportionate to the offenses as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05608.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click onhttp://booklocker.com/books/7401.html

 ________________

Municipalities and school districts rely on federal aid

Municipalities and school districts rely on federal aid

Source: Harris Beach PLLC, New York Municipalities Blog

A new report released by New York State Comptroller Thomas DiNapoli shows how much municipalities and school districts rely on federal aid. 

The report covers statistics from 2015 and shows that local governments and school districts outside New York City received $4.7 billion in direct federal support.

Click Here to Read Full Post

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

2017 NY Slip Op 05657, Appellate Division, Third Department

Appeal from a judgment of the Supreme Court Ulster County granting petitioner's [Petitioner] application in a proceeding pursuant to CPLR Article 78 seeking to annul a determination of the Board of Education denying Petitioner's request for certain seniority rights.

The Petitioner in action was elementary teacher and had attained tenure with the school district [the District]. In 2004 Petitioner took an unpaid leave of absence and in December 2005 resigned from her position when her eligibility for continuation on unpaid leave expired rather than return to work. In 2007 the District appointed Petitioner to a teaching position and she was subsequently granted tenure by the District upon her satisfactory completion of her probationary period associated with this new appointment in 2009.

In 2010 the District eliminated positions in the elementary tenure area and Petitioner seniority for the purposes Education Law §2510 was based on her service with the District running from 2007. §2510 provides, in pertinent part, "Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

A temporary kindergarten teaching position then became available for the 2011-2012 school year. However, another former teacher was recalled to fill the vacancy because of her greater seniority. Petitioner, contending that the District had improperly calculated her seniority by ignoring her earlier service with the District and it should have reinstated her to the vacancy. Petitioner initiated the Article 78 action seeking a court order annulling the District's decision and ultimately Supreme Court directed the District to recalculate Petitioner's "seniority rights and all salary due to her."

The District appealed the Supreme Court's decision, contending that Petitioner's resignation from her position in 2005 served to sever her ties with the District and thus she forfeited any claim with respect to her earlier service with the District for the purposes of determining her  seniority rights.

The Appellate Division, citing Kwasnik v King, 123 AD3d 1264, explained that "Although an employee may waive his or her seniority rights by resigning or retiring, such a relinquishment must be knowing and voluntary" and be an effective waiver of such rights, the waiver "must be free from any indicia of duress or coercion."

In Petitioner's case the Appellate Division concluded that she resign from her position in 2005 rather than return from her leave when the District informed her that such extension was not possible as she had "exhausted her unpaid leave time." In other words, it was Petitioner decision to resign rather than return to work.

Thus, said the court, there was nothing in the record that could be construed as duress or coercion on the part of the District to obtain her resignation and the record indicated that Petitioner voluntarily resigned for her tenured position "in response to being accurately informed that she had exhausted her [rights to additional unpaid] leave.”

The Appellate Division also noted that Petitioner had been subsequently appointed by the District as a probationary employee after a year and half break in service, thus "belying any claim that she maintained a continuing employment relationship with it."

Accordingly, said the court, the District had properly determined that Petitioner was not entitled to count the period of time she had been employed by it prior to her 2005 resignation "for the purpose of [§2510] seniority" and, reversing the Supreme Court's decision, reinstated the District's initial determination regarding Petitioner seniority for the purposes of her reinstatement from the preferred list.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05657.htm

_______________

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

_______________

New York State regulations for Paid Family Leave Program adopted

New YorkState regulations for Paid Family Leave Program adopted

Source: NYS Workers Compensation Board

On July 19, 2017, Governor Andrew M. Cuomo announced that New York State has adopted regulations implementing New York's landmark Paid Family Leave program. These regulations outline the responsibilities of employers and insurance carriers in implementing the most comprehensive paid family leave program in the nation. 

Starting January 1, 2018, Paid Family Leave will provide employees with wage replacement and job protection to help them bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is deployed abroad on active military service. Employees are also entitled to be reinstated to their job when their leave ends and to the continuation of their health insurance during their leave. 

Paid Family Leave provides coverage for:

• Parents during the first 12 months following the birth, adoption, or fostering of a child;

• Employees caring for a spouse, domestic partner, child, parent, parent-in-law, grandparent, or grandchild with a serious health condition; and

• Employees assisting loved ones when a spouse, child, domestic partner, or parent is deployed abroad on active military duty.

Employee Eligibility:

• Employees with a regular work schedule of 20 or more hours per week are eligible after 26 weeks of employment.

• Employees with a regular work schedule of less than 20 hours per week are eligible after 175 days worked.

Insurance Coverage

Paid Family Leave coverage will typically be included as a rider to an employer's existing disability insurance policy, and will be fully funded by employees through payroll deductions. In 2018, the maximum employee contribution is 0.126% of an employee's weekly wage up to 0.126% of the annualized New York State Average Weekly Wage. The program is mandatory for nearly all private employers. Public employers may opt into the program.

Phase-in Schedule

Paid Family Leave will be phased in over four years, beginning January 1, 2018. In 2018, employees may take up to eight weeks of paid leave at 50% of an employee's average weekly wage up to 50% of the New York State Average Weekly Wage. That increases to 12 weeks of paid leave in 2021 paid at 67% of an employee's average weekly wage up to 67% of the New York State Average Weekly Wage.

The regulations and other information is posted on the Internet at:

http://www.wcb.ny.gov/PFL/pfl-regs.jsp

  

Employment Law News from WK WorkDay Source: Wolters Kulwer

Employment Law News from WK WorkDay 

Source: Wolters Kulwer

Selected reports posted in WK Workday distributed July 19, 2017

Click on text highlighted in color  to access the full report

Per CBA, Teamsters had sole right to integrate pilot seniority lists post-merger

Macy’s ‘offer’ to decline ‘benefits of arbitration’ was no offer; employee’s silence was no acceptance

Fired medical marijuana user can sue Massachusetts employer for disability discrimination

  

Petitioning the Commissioner of Education to remove a member of a school board from his or her office

Petitioning the Commissioner of Education to remove a member of a school board from his or her office 

Decisions of the Commissioner of Education, Decision #17,055

A number of district residents, taxpayers and current or former members of the Board of Education [Petitioners] sought to have a sitting member of the Board of Education [Respondent] removed from his office by action of the Commissioner of Education pursuant to §306 Education Law. Petitioners alleged that the Respondent was guilty of "willful violation of the Education Law, General Municipal Law §805-a(1)(b) and Public Officers Law §105, and engaging in acts of willful misconduct in violation of the [school] district's code of ethics and policies concerning the confidential nature of the board's executive sessions."

Finding that there were a number of procedural defects in their appeal, the Commissioner dismissed Petitioners' complaint without reaching its merits.

First, said the Commissioner, Petitioners' application must be denied as moot as only matters in actual controversy will be considered and no decision will be rendered "on a state of facts which no longer exist or which subsequent events have laid to rest." In arriving at this ruling the Commissioner took "administrative notice that the official website" of the school district indicated that the Respondent "no longer serves on the board of education." Thus the issue of his removal from office was a  matter that had been "laid to rest."

The Commissioner then said that even if the Petitioners' application had not been dismissed as moot, it would have been denied because of the following procedural error or omissions:

1. Lack of proper service" as Petitioners did not personally serve their complaint "upon each named respondent;" and

2. The notice of petition was defective as it did not specifically advise a school officer that an application was being made for his or her removal from office by using the notice prescribed under 8 NCYRR §275.11(a) for appeals brought pursuant to Education Law §310.  

The Commissioner explained that "A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent" as it is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings. Thus the Petitioners' "failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal."

That said, the Commissioner noted that although the Petitioners' application must be dismissed on procedural grounds, there was yet "one administrative matter" to be consider.

The Respondent in this action had requested that the Commissioner issue a "certificate of good faith" pursuant to Education Law §3811(1) thereby authorizing the Board to indemnify him for "legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a board member."

The Commissioner explained that it was appropriate to issue such certification "unless it is established on the record that the requesting board member acted in bad faith."

As the Petitioners' application in this action was denied on procedural grounds and there had been no finding that Respondent acted in bad faith, the Commissioner certified, "solely for the purpose of Education Law §3811(1)" that the Respondent is entitled to a certificate of good faith.

The decision is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume56/d17055

An employer may be vicariously liable for an allegedly slanderous statement made by its employee

An employer may be vicariously liable for an allegedly slanderous statement made by its employee

2017 NY Slip Op 05353, Appellate Division, Fourth Department

The Plaintiff in this action against a village and an employee of the village [Defendants] alleged that an employee of the village made defamatory remarks*concerning the Plaintiff in the course of her employment as an administrative assistant of the village.

Addressing appeals concerning the disposition of motions for summary judgment dismissing the Plaintiff's petition filed by the Defendants, the Appellate Division said:

1. It is well established that, although "[s]lander as a rule is not actionable unless the plaintiff suffers special damage," where, as here, a statement charges plaintiff with a serious crime, the statement constitutes "slander per se" and special damage is not required.

2. In situations involving "slander per se," the defendants may claim a qualified privilege contending that there was a good faith, bona fidecommunication upon a subject in which the individual has an interest, or a legal, moral or societal interest to speak, and the communication is made to a person with a corresponding interest.

3. In the event the defendants in such an action meet their initial burden of establishing that any of the alleged disparaging statements are protected by a qualified privilege inasmuch as they were made between members of the organization in connection with the plaintiff's application for employment, membership or a similar relationship, "the burden shifted to plaintiff to raise a triable issue of fact whether the statements were motivated solely by malice."

4. In the event the plaintiff raises an issue where a jury could reasonably conclude that malice was the one and only cause for the publication of the statements claimed by the plaintiff to constitute slander, the plaintiff has raised an issue of fact whether statements were motivated solely by malice and thus are not protected by a qualified privilege.

5. Citing Seymour v New York State Elec. & Gas Corp., 215 AD2d 971, the Appellate Division noted that an employer may be held vicariously liable for an allegedly slanderous statement made by an employee only if the employee was acting within the scope of his or her employment at the time that the statement was made.

In this action the Appellate Division concluded that the village failed to establish its  entitlement to summary judgment as a matter of law on the theory that the administrative assistant was not acting within the scope of her employment when she allegedly made disparaging statements concerning Plaintiff to other officials or employees of the village.

* A false statement that tends to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation. An oral utterance that inaccurately accuses a person of a serious crime can be slander per se as can oral statements alleging an individual's being infected with some disease that would result in his or her being ostracized from society, or being unfit to perform of his or her duties as an officer or employee. Defamatory words that could prejudice the individual in his or her profession or trade or the chastity of the individual have been held to constitute slander per se.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05353.htm

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law
Kirsch v Board of Educ. of Williamsville Cent. Sch. Dist., 2017 NY Slip Op 05547, Appellate Division, Fourth Department

Kim A. Kirsch filed a petition pursuant to CPLR Article 78 seeking a court order directing the Williamsville Central School District's Board of Education [Board] to comply with her Freedom of Information Law [FOIL] request. Kirsch's FOIL request sought certain email records.

In its review of a Supreme Court's ruling directing the Board to provide the records demanded by Kirsch the Appellate Division addressed the following objections raised by the Board:

1. Standing to submit a FOIL request.

The Board contended that Kirsch's attorney, Michael A. Starvaggi, Esq., the individual submitting the FOIL request, "lacked standing" to maintain the Article 78 action. The Appellate Division rejected this claim, explaining FOIL provides that "Any person denied access to a record may appeal and seek judicial review of any adverse appeal determination," and "any person on whose behalf a FOIL request was made has standing to maintain a proceeding to review the denial of disclosure of the records requested."

The court noted that the administrative appeal letter expressly stated that Starvaggi was making the request on behalf of Kirsch and concluded that Kirsch had "standing to maintain this proceeding."

2. Statute of Limitations.

Notwithstanding the fact that the Board's claim that the action was untimely was not "preserved for [the Appellate Division's] review," the court elected to consider the merits of its argument that the proceeding is barred by the statute of limitations. In so doing, the Appellate Division opined that the Board "failed to meet [its] burden of establishing that petitioners received notice of the final decision denying the administrative appeal more than four months before the proceeding was commenced.

3. Adding another party to the action.

The Board objected to Supreme Court's granting Starvaggi's oral motion to amend Kirsch's Article 78 petition "to add Starvaggi as a petitioner." The Appellate Division sustained the lower court's granting his oral motion "under the circumstances" in this action. Significantly, the court said that the relation back doctrine* permited the addition of Starvaggi after the expiration of the statute of limitations as the claims brought by Starvaggi and Kirsch are identical in substance - i.e., that Board improperly denied the FOIL request made by Starvaggi on behalf of Kirsch, and Starvaggi and Kirsch are united in interest in seeking compliance with that request.

4. Exemptions from disclosure.

The Board contended that the emails may contain "exempt material." The Appellate Division affirmed the Supreme Court directing the Board to provide Kirsch and Starvaggi  with the requested emails, "with any claimed exemptions from disclosure documented in a privilege log that may be reviewed by the court."

Addressing the Board's "broad allegation here that the [emails may] contain exempt material," the Appellate Division said that such a representation "is insufficient to overcome the presumption that the records are open for inspection . . . and categorically to deny petitioner[s] all access to the requested material."

Further, said the court, should the Board establish that a requested email contains exempt material, "the appropriate remedy is an in camera** review and disclosure of all nonexempt, appropriately redacted material."

5. Identification of the records demanded.

Noting that Kirsch and Starvaggi had "reasonably described" the requested emails thus enabling the Board to identify and produce the records, the Appellate Division, citing Konigsberg v Coughlin, 68 NY2d 245, held that the Board "cannot evade the broad disclosure provisions of [the] statute . . . upon the naked allegation that the request will require review of thousands of records."

It should be remembered that the basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The release of certain public records, such as those identified in Civil Rights Law §50-a, Education Law §1127 - Confidentiality of records and §33.13 Mental Hygiene Law - Clinical records, are examples of records to which access has been limited by statute. 

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 becomes necessary 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 formal 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 of the record could rely upon in denying a FOIL request, in whole or in part, for the information or records sought.

* Apply the Doctrine of Relation Back permits "something done today" to be treated as though it "were done earlier" notwithstanding the fact that the otherwise controlling statute of limitations had already expired.

** A hearing held conducted by the court or hearing officer in private or when the public is excluded from the proceeding to consider a particular issue is referred to as being held in camera.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05547.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 14, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 14, 2017

Click on text highlighted in color  to access the full report

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

DiNapoli report highlights local government reliance on federal aid

On July 14, 2017, State Comptroller Thomas P. DiNapoli issued a report  detailing the impact of federal aid on New York’s municipalities and school districts. In 2015, local governments and school districts outside New York City received $4.7 billion in direct federal aid. Separately, New York City received $7 billion, of which $1.7 billion went to funding the city’s public schools. “Local governments receive much-needed federal aid that supports our schools, fixes our roads and keeps our communities safe,” said DiNapoli. “But potential policy changes in Washington could have a considerable impact on local government operations. In today’s political climate, it’s important for New Yorkers to get a sense of how much funding is at stake and what programs might be at risk.”

How heavily local governments rely on federal aid as part of their individual revenue mix varies by class.  In 2015, federal aid as a share of total revenue was the highest for counties (11.2 percent), followed by New York City (10.1 percent), New York City schools (6.5 percent), other cities in the state (5.7 percent), other school districts (4.1 percent), villages (2.9 percent) and towns (2.7 percent). Reliance on federal aid can also vary widely within these classes of government. Specific data on each county, city, town, village and school district for 2015 is available through a new, interactive feature on DiNapoli’s website.

Generally, the type of federal aid New York’s local governments received in 2015 supported a broad range of purposes, which includes social services, education, transportation, public safety, economic development, health, community services, culture and recreation, utilities and sanitation.

To read DiNapoli’s report “The Impact of Federal Aid on New York’s Local Governments,” go to:

 http://www.osc.state.ny.us/localgov/pubs/research/federal-aid-impact.pdf

To view the interactive data, go to: http://wwe1.osc.state.ny.us/localgov/fedaid/fedaid.cfm 


State audits and examinations issued:

Department of Health (DOH): Medicaid Program: Medicaid Payments for Pharmacy Claims - Joia Pharmacy and a Related Prescriber (2013-S-4)

Based on a statistical projection, auditors determined DOH overpaid Joia $1,485,121 for improper pharmacy claims. Disallowances included: claims billed for excess quantities of drugs; claims for drugs in which the prescriptions were missing or invalid; and claims for unauthorized and inappropriate refills. The audit also identified a range of practices by both Joia and a doctor that warrant further review. The doctor was listed as the prescriber on 63 percent of Joia’s claims; among these claims, auditors found high volumes of prescriptions for individual patients on single days, and instances of drug conflicts and prescriptions that exceeded utilization.

Department of Health (DOH): Inappropriate Payments for Recipients not Enrolled in Medicaid Mainstream Managed Care or Family Health Plus (2015-S-47)  
For the period Oct. 1, 2010 through Dec. 31, 2014, DOH made 190,686 improper or questionable premium payments, totaling about $72.6 million, on behalf of 105,358 recipients who were subsequently disenrolled retroactively from managed care plans and who did not receive medical services during the disenrollment periods. This included more than $10.5 million related to 7,415 deceased recipients. During the six-month period after auditors provided the claim details to DOH, 14,209 claims totaling more than $7.4 million in improper premium payments had been voided, leaving 176,477 premium payments totaling about $65.2 million that still needed to be reviewed and, if warranted, recovered.

New York State Health Insurance Program: Empire BlueCross BlueShield (Empire): Controls over Payments for Special Items (2016-S-67)
In response to prior audits, Empire improved its controls over the identification and recovery of overpayments for special items. As a result of Empire’s efforts, including contracts with two vendors, Empire recovered overpayments totaling $6,313,534 for special items. Nonetheless, auditors concluded that Empire needs to further enhance its reviews of special item payments by incorporating steps and techniques that result in additional recoveries.

New York State Liquor Authority (SLA): Statewide Compliance with Administrative Requirements for Retail Liquor License Approvals, Renewals, and Enforcement Actions (2016-S-32)
On a statewide basis, SLA generally approved new liquor licenses and license renewals consistent with state law and its prescribed administrative protocols. SLA adequately ensured that license applicants and parties seeking renewals complied with the prescribed documentation requirements. For the new license applications selected for review, SLA had 99 percent of the required documentation on file. SLA also complied with its administrative requirements pertaining to license revocations, cancellations, and suspensions.

Department of Health, Office of Parks, Recreation and Historic Preservation - Department of Environmental Conservation Oversight of Health and Safety Regulations at Public Pools, Beaches, and Spray Grounds (2016-S-55)
All three agencies have appropriate controls in place and are providing adequate oversight to ensure that public pools, beaches, and spray grounds under their jurisdiction are safe for public use. Each agency has developed procedures to address health and safety issues at each of the facilities it operates or oversees.

New York City Department of Finance: Selected Controls over Property Tax Assessments (2015-N-1)
Auditors reviewed 508 parcels valued during fiscal year 2014 to fiscal year 2016 and found the agency  did not conduct necessary inspections for 276 (54 percent) of them. Without the required inspections, DOF cannot be certain such changes are adequately considered when valuing a property.

Office of Temporary and Disability Assistance (OTDA):  Electronic Benefit Transfer Card Transactions and Prohibited Locations(2016-S-52)
OTDA has adopted appropriate policies and practices to avoid the risk of federal financial penalties. In addition, auditors found the office’s monitoring of EBT transactions to generally be adequate, but identified certain strategic refinements that could help the office to better monitor transactions and identify violations. Auditors analyzed client card usage at prohibited locations and identified 15 recipients with 20 or more EBT transactions. Of these, seven recipients had 20 or more transactions at the Turning Stone Casino, including one recipient with 71 EBT card transactions totaling more than $3,360.

Department of State (DOS): Monitoring of Not-for-Profit Cemetery Corporations for Fiscal Stability and Adequate Facility Maintenance (2016-S-79)
As of Sept. 30, 2016, DOS records indicate 642 cemeteries (37 percent) had overdue audits and 285 (16 percent) had delinquent annual reports. For 145 cemeteries (8 percent), audits were overdue and annual reports were delinquent as well. As of Dec. 1, 2016, 391 cemeteries (22 percent) had not been inspected in over seven years.

Municipal audits and examinations issued:

Village of Fleischmanns – Financial Condition and Clerk-Treasurer’s Duties (Delaware County)
The board has not developed a multiyear financial plan and did not adopt effective budgets because it did not receive accurate and sufficient financial information from the clerk-treasurer. Unpaid property taxes ($101,000) and water bills ($64,000) have severely impacted the village’s financial condition. The board also did not conduct an annual audit of the clerk-treasurer’s records and reports.

Village of Old Westbury – Justice Court (Nassau County)
The justices correctly reported financial activities to the Justice Court Fund on a monthly basis. However, they did not perform bank reconciliations or accountability analyses on a monthly basis during the audit period. As a result, two of the three judges had cash overages totaling $1,743.

Town of Orangetown – Overtime (Rockland County)
The board did not develop overtime budgets based on known needs and historical trends. Officials did not adequately monitor adopted budgets and allowed them to be over-expended each year. Auditors also found that although the police department’s collective bargaining agreement allows officers to accumulate up to 80 hours of overtime during the year, town officials did not adhere to those limits.

Town of Portland – Water Operations (Chautauqua County)
The town’s unaccounted-for water during the past two years was approximately 38 million gallons, or 40 percent of total production. Inaccurate master meters and customer meters have contributed to the unaccounted-for water. Water Districts 1, 3 and 7 reported deficit fund balances as of December 31, 2016, and all but two water districts realized operating deficits in 2016.

Rockville Centre Housing Authority – Claims Auditing and Cash Receipts (Nassau County)
The board needs to improve the claims auditing process to ensure all claims are properly audited, adequately supported and for legitimate authority purposes. The board also needs to improve its cash receipt process to ensure cash receipt functions are adequately segregated to safeguard authority assets.

Village of Southampton – Fire Department Length of Service Award Program (Suffolk County)
The village’s length of service award program (LOSAP) records for 47 of the department’s 138 active volunteers showed that at least 27 of these volunteers did not receive accurate LOSAP points. This may result in the loss of future benefits for volunteers or, conversely, in the village incurring more LOSAP costs than necessary.

Westchester Community College – Fixed Assets (Westchester County)
College officials have adopted effective fixed asset policies and procedures. The fixed asset policies and procedures establish the minimum cost to determine when assets should be recorded in the inventory records.

City of Yonkers – Budget Review (Westchester County)
The 2017-18 budget relies on nonrecurring revenue, such as fund balance, to balance its budget. The city could potentially face a shortfall of approximately $1.7 million in revenue if income tax surcharges remain at 2016-17 levels and a shortfall of $515,000 if revenue estimates from the Parking Violations Bureau are not realized. Police overtime costs could potentially be over budget by as much as $2.6 million based on the 2016-17 fiscal year overtime costs.

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

 

Attempting to vacate an adverse arbitration award rendered after a consensual arbitration process

Attempting to vacate an adverse arbitration award rendered after a consensual arbitration process

Transit Workers Union, Local 100 v New York City Tr. Auth., 2017 NY Slip Op 05446, Appellate Division, Second Department

The New York City Transit Authority [CTA] terminated the employment of a member of the Transit Workers Union, Local 100 [Local 100], a bus CTA driver, who had been involved in an incident with a pedestrian. Local 100 filed an Article 75 action seeking a court order vacating an arbitration award that held that CTA had just cause to terminate Local 100's member's employment because of the incident.

The Supreme Court denied the petition and Local 100 appealed.

The Appellate Division sustained the lower court's decision, explaining that "Where, as here, an arbitration award was rendered after a consensual arbitration process pursuant to the terms of a collective bargaining agreement, the award may not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation of the arbitrator's power."

Contrary to Local 100's contention that the arbitrator's award was irrational, the Appellate Division ruled that "the arbitrator's award was supported by evidence in the record and is, therefore, rational."

Local 100 also argued that the penalty imposed, termination from employment, was irrational. The Appellate Division said it disagreed and sustained the dismissal of the bus driver from employment by CTA, concluding that the penalty did not violate any strong public policy or clearly exceed an enumerated limitation on the arbitrator's power.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05446.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click onhttp://booklocker.com/books/7401.html

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Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Decisions of the Commissioner of Education, Decision No. 17,054

After disposing of a number of procedural issues, the Commissioner of Education addressed Petitioner's allegations that she was unlawfully placed on administrative leave with pay without any disciplinary charges having been preferred against her pursuant to Education Law §3020-a in violation of her rights to administrative due process. Holding that this aspect of the appeal submitted by Educator was timely, the Commissioner explained that the "Suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board (see Education Law §3020-a). Suspension of a tenured teacher without the filing of such charges within a reasonable time is ultra vires and constitutes a continuing wrong.

Turning to the merits of Petitioner's appeal, the Commissioner found that although Petitioner was advised that she was being placed on “paid administrative leave,” there was nothing in the record indicating the reason for her placement on such leave beyond the initial two days. In any event, the Commissioner found that Petitioner had been suspended for more than a year without any charges being preferred against her and that during that time she has been prohibited from coming onto school property. 

The only reason provided by the district for the continuation of Petitioner on such leave was her failure to submit a HIPAA-compliant release and submit to an independent medical examination as requested more than three months after she was placed on such "administrative leave."  However, said the Commissioner, there is nothing in the record to show that the district preferred charges alleging insubordination against Petitioner based on her alleged failure to comply with the district’s directive "to submit to a medical examination, as it is clearly empowered to do."

The Commissioner agreed that a board of education has the right to place an employee on administrative leave pending an investigation and, or pending disciplinary charges being filed against the employee and has the right to require a teacher to submit to a medical examination. However, on this record, the Commissioner ruled that the district’s actions constitute an unlawful suspension in the absence of its timely filing of disciplinary charges against Petitioner. Further, said the Commissioner, the board of education did not introduce any evidence that it was conducting an active investigation during the period of such administrative leave and had not established that it took action to file charges within a reasonable time in compliance with Education Law §2566(6). Further, the Commissioner noted that there was no "viable explanation" for the board's delay in bringing disciplinary charges against Petitioner.

The Commissioner concluded that as Petitioner's suspension was not acted upon in a timely manner, it must be deemed null and void and directed that all references to the suspension challenged by Petitioner be expunged from her record.

Finally, the Commissioner ordered that Petitioner be deemed to be on involuntary sick leave pursuant to Education Law §913 until she submits to a medical examination, indicating "that nothing in this decision precludes [the] board from filing [disciplinary] charges [against Petitioner] in accordance with Education Law §3020-a within the period of limitation prescribed in Education Law §3020-a(1).

The decision is posted on the Internet at:

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

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

2017 NY Slip Op 01628, Appellate Division, First Department

The penalty of termination of employment was imposed by a disciplinary hearing officer upon the petitioner in the Article 78 action [Petitioner], a special education home instruction teacher. The hearing officer found that Petitioner had submitted time sheets falsely stating that she had provided instruction to a disabled student and inaccurately indicated that she had reported to certain New York City Department of Education [DOE] schools and libraries over the two-month period in the aftermath of the impact of Hurricane Sandy on New York City and its surrounding area.

There was no question that the hearing officers findings were correct; Petitioner was guilty of all charges and specifications. Petitioner, however, appealed, seeking a court order not to setting aside the findings of misconduct but only an order modifying the penalty imposed on her. Further, Petitioner had acknowledged her error in judgment and pledged to change her practices and never to repeat the error.

Notwithstanding Petitioner's guilt of the charges misconduct filed against her, the Appellate Division ruled that under the circumstances the penalty of termination shocked its sense of fairness and applied the so-called Pell Doctrine [see Matter of Pell v Board of Educ., 34 NY2d 222, 233.

The Appellate Division explained that here there were extraordinary conditions to consider, as well as certain attempts at mitigation undertaken by Petitioner, including the following:

1. Petitioner and her student had been displaced from their homes as a result of Hurricane Sandy and Petitioner, although she had contacted her student's mother, did not provide any educational services to her student.

2. The Department of Education had not provided teachers such as Petitioner with any guidance or information as to the instruction of students displaced by Hurricane Sandy, other than that displaced students would not be penalized.

3. Petitioner had filled out the time sheets in question in advance of the dates to which those time sheets pertained and although she had  no provided instruction to the disabled student on the days indicated in those time sheets, she had instructed other students on each of the dates in question and 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 extraordinary benefit from her actions.

4. Prior to Hurricane Sandy Petitioner had an unblemished record over a 17-year period as a special education home instruction teacher and the disabled student's mother had  testified at the disciplinary hearing that Petitioner was a good teacher who worked well with her son and had served his needs more successfully than had other teachers.

The Appellate Division characterized Petitioner's misconduct as "more a matter of lax bookkeeping than implementation of any venal scheme" and no intent to defraud or harm to the public. and any harm to DOE was mitigated. It then explained that "a [disciplinary] 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 to be considered, said the court, "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."

Noting that at the hearing Petitioner admitted guilt and acknowledges that her misconduct warrants punishment since the disabled student was deprived of the services of a teacher for two months, the Appellate Division,  . Petitioner does 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. She has acknowledged her error in judgment and has pledged to change her practices and never to repeat the error.

Citing Bolt v New York City Dept. of Education, 145 AD3d 450, the Appellate Division said that "There is no evidence that '[Petitioner] could not remedy her behavior'" and that it believed that the penalty of termination, "is disproportionate to the level of [Petitioner's] misconduct and exceeds the standards that society requires to be applied to this offense."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_01628.htm

 _______________

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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Guidelines applicable when police officer being sued in a civil action seeks to have his or her employer provide for his or her defense and indemnification in the civil action

Guidelines applicable when police officer being sued in a civil action seeks to have his or her employer provide for his or her defense and indemnification in the civil action

2017 NY Slip Op 01549,  Appellate Division, Second Department

A federal civil rights action was commenced in the United States District Court for the Eastern District of New York against, among others, a Nassau County police officer [Petitioner]. The claims in the federal action against Petitioner arose from an off-duty altercation caused by a traffic dispute, during which the Petitioner allegedly fired a gun at the plaintiff in the federal action. Petitioner sought to have his employer, Nassau County, defend and indemnify him in the federal action.

The Nassau County Police Officer Indemnification Board* concluded that Petitioner was not entitled to defense or indemnification by Nassau County because the alleged acts underlying the federal action were not committed "while [Petitioner was engaged] in the proper discharge of his duties and were not within the scope of his employment."

Supreme Court dismissed Petitioner's challenge of the Board's determination and he appealed its ruling.

Citing General Municipal Law §50-l, the Appellate Division said that question of whether a police officer's acts which formed the basis of the civil action were committed in the proper discharge of his or her duties and within the scope of his or her employment is to be determined in the first instance by the Board.

The Board's determination that Petitioner was not acting in the proper discharge of his duties and within the scope of his employment may be set aside by a court only if it was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.

The Appellate Division, sustaining Supreme Court's ruling, concluded that the record supported the Board's determination that Petitioner "was not acting while in the proper discharge of his duties or within the scope of his employment, since there is a factual basis for the conclusion that the alleged misconduct arose from an altercation that was personal in nature" and was not undertaken in the exercise of his "public responsibility as a police officer."

* General Municipal Law §50-l, in pertinent part, provides for "the defense of any civil action or proceeding brought against a duly appointed police officer of the Nassau county police 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 ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01549.htm

A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority

A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority

2017 NY Slip Op 04740, Appellate Division, Fourth Department

The employee [Petitioner] in this CPLR Article 78 proceeding sought a court order vacating the appointing authority's decision to reinstate her to her lower grade position, contending that she had been appointed to the higher grade position as a permanent or contingent permanent employee and thus was entitled to the procedural protections of Civil Service Law §75 as a condition precedent to her being returned to her lower grade position.

The Appellate Division ruled that Supreme Court had properly dismissed her petition as the record indicated that Petitioner had been given a "temporary appointment ... [to fill] a position that was encumbered by an employee on leave of absence."

Accordingly, there was nothing to support Petitioner's claim that she had been appointed to the higher grade position on a contingent permanent basis in the record.

As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, an employee, even if otherwise eligible for appointment as a contingent permanent employee pursuant to §64.4 of the Civil Service Law, must be specifically designated as being appointed as a contingent permanent employee by the appointing authority, which status is granted solely at the discretion of the appointing authority.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04740.htm

Unlawful discrimination complaint sustained notwithstanding respondent's failing to appear at the administrative hearing conducted by the NYS Division of Human Rights

Unlawful discrimination complaint sustained notwithstanding respondent's failing to appear at the administrative hearing conducted by the NYS Division of Human Rights

New York State Div. of Human Rights v Milan Maintenance, Inc., 2017 NY Slip Op 05508, Appellate Division, First Department

The Appellate Division unanimously sustained the New York State Division of Human Rights' (DHR) determination holding that  Milan Maintenance, Inc., [Milan] had unlawfully discriminated against an individual that it rejected for employment and DHR's awarding the complainant $10,000 for mental anguish and humiliation.

Noting that Milan defaulted at the administrative hearing held by DHR,* thus failing to rebut a prima facie showing that it had unlawfully discriminated against the complainant, the court said that DHR's findings were supported by substantial evidence and DHR's "award of compensatory damages for mental anguish" was proper.

Mari v Safir, 291 AD2d 298, sets out the tests typically applied by New York courts in resolving litigation challenging the decision of an administrative agency arrived at as the result of having conducted an administrative hearing in absentia. 

* In Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division upheld an arbitrator's award in favor of the employee after Environmental Conservation boycotted the arbitration because if believed that the employee was not entitled to arbitrate the dispute.

The Milan decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05508.htm

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing
2017 NY Slip Op 05147, Appellate Division, Third Department

An employee [Employee] at a residential facility operated by the Office of People with Developmental Disabilities [OPWDD] was alleged to have physically abused a resident.

An investigator conducted interviews of several witnesses and found the report of physical abuse to be substantiated. After a hearing, Employee's request that report be amended to unsubstantiated and that the report be sealed was rejected and a final determination sustaining the report of physical abuse was made.

Employee then commenced a CPLR article 78 proceeding challenging the determination which was made following an administrative hearing as unsupported by substantial evidence. Supreme Court transferred the proceeding to the Appellate Division.

The Appellate Division found that the final determination was supported by substantial evidence. Addressing Employee's contention that the hearsay statements in the record cannot constitute substantial evidence, the Appellate Division said that "it is well established that, in an administrative hearing, hearsay is admissible and may support a finding of substantial evidence."

Citing Matter of Today's Lounge of Oneonta, Inc. v New York State Liq. Auth., 103 AD3d 1082, the court commented that hearsay evidence may, "under appropriate circumstances, form the sole basis of an agency's determination, unless the hearsay evidence is seriously controverted."

In this instance, said the court, the corroborated description of the incident by the eyewitness was only controverted by Employee's denial.  Consequently, the corroborated description by the eyewitness could be viewed as not seriously controverted and "sufficiently reliable" so as to constitute substantial evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05147.htm