New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 14, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 14, 2017 
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report 

Some NY Schools Not Reporting Bullying or Harassment 

Many New York schools fall short when it comes to protecting students from harassment and discrimination based on gender, race, religion, sexual orientation or gender identity, according to an auditby New York State Comptroller Thomas P. DiNapoli. 

Former Ontario Town Water Superintendent Charged With Covering Up Failure to Fix Water Leaks 

Former Ontario Water Superintendent Rodney Peets was arraigned in Wayne County on charges of offering a false instrument for filing, tampering with a public record and official misconduct after a year-long investigation by the State Comptroller’s Office, the New York State Police, and Acting Wayne County District Attorney Christopher Bokelman.

Resolving an issue of statutory interpretation in the event the statutory language is ambiguous

Resolving an issue of statutory interpretation in the event the statutory language is ambiguous

Feinman v County of Nassau, 2017 NY Slip Op 07110, Appellate Division, Second Department

The plaintiffs [Plaintiffs] in this action had worked at the Office of the Nassau County Attorney from 2002 or 2003 until 2009 and prior to that time had worked for the City of New York or the State of New York. They alleged that they "had been wrongly charged contributions to their health insurance premiums" under color of Nassau County Ordinance No. 543-1995. Plaintiff's petitioned Supreme Court for summary judgment seeking a refund of contributions paid by them and a declaration that they were entitled to receive health insurance coverage without contributions to the cost of premiums.*

Supreme Court determined that the plain language of Ordinance No. 543-1995 required the County to pay the full cost of Plaintiffs' health insurance premiums. The court said that:

1. §4.1(a) of the Ordinance provided that, "[f]or all employees hired prior to January 1, 2002, ... the County shall pay the full cost of the health insurance premium," but "[f]or all employees hired on or after January 1, 2002 and earning a salary greater than thirty thousand ($30,000.00) dollars the employee shall contribute" specified sums towards health insurance premiums;"

2. §5.2 of the ordinance provides that "prior public service to the State and/or a municipal subdivision thereof 'shall be deemed as service to the County for purposes of the benefits provided in this Ordinance,' and an employee 'shall be deemed to have an initial employment date with the County as of the original employment with the State and/or municipal subdivision thereof;'" and

3. After addressing how to credit prior public employment in the event there had been an interruption in public employment, the Ordinance states "All such prior public service to the State and/or a municipal subdivision thereof shall be considered as actual completed service to the County for purposes of this Ordinance and such . . . employee shall be deemed to have a initial employment date that reflects all prior public service form [sic] which appropriate benefits otherwise provided in this Ordinance shall be computed."

Nassau appealed the Supreme Court decision and its granting summary judgment to Plaintiffs. The Appellate Division affirmed the lower court's ruling, explaining:

a. §5.2 of the Ordinance does not mandate consideration of an employee's prior public service only for those benefits provided for in the ordinance which reference an employee's "actual completed service" to the County; it also mandates such consideration in determining an employee's "initial employment date" for the purposes of the benefits provided for in the ordinance;"

b. Accepting Nassau's construction of the Ordinance would render the provisions concerning an employee's "initial employment date" superfluous and, citing Universal Metal & Ore, Inc. v Westchester County Solid Waste Commission, 145 AD3d 46, said "[C]ourts must give effect to the wording of a statute without rejecting any words as superfluous, and must harmonize related provisions in a way that renders them compatible;"

c. When presented with a question of statutory interpretation, a court's "primary consideration is to ascertain and give effect to the intention of the Legislature" and courts  must first look to a statute's "plain language, as that represents the most compelling evidence of the Legislature's intent;" and

d. In the event the statute is ambiguous, the construction given to it by the administrative agency responsible for its administration should be sustained by the courts unless [i] the agency's interpretation is irrational, unreasonable, or inconsistent with the governing statute" except [ii] when a question is one of pure legal interpretation of statutory terms, deference to the agency is not required  and in such instances, courts should construe clear and unambiguous statutory language [so] as to give effect to the plain meaning of the words used.

In consideration of the Plaintiffs' prior public service, the court found that they all had effective "initial employment date[s]" with the County prior to January 1, 2002. Accordingly, the ordinance entitled them to have the County pay the full cost of their health insurance premiums, and the Supreme Court properly granted their motion for summary judgment on the declaratory judgment and breach of contract causes of action.

The Appellate Division then remitted the matter to the Supreme Court for the entry of a judgment declaring that [1] Nassau was not authorized to require Plaintiffs to pay any portion of the cost of the health insurance coverage provided to them by the County of Nassau and [2] Nassau is to reimburse Plaintiffs for any such payment made by Plaintiffs on or after April 12, 2004.

* Plaintiffs conceded that their damages were those damages incurred on or after April 12, 2004.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07110.htm

The judicial test for determining if a grievance involving a term or condition set out in a collective bargaining agreement is arbitrable

The judicial test for determining if a grievance involving a term or condition set out in a collective bargaining agreement is arbitrable

Matter of the Arbitration between Lewis County and CSEA Local 1000, AFSEME, AFL-CIO, Lewis County Sheriff's Employees Unit #7250-03, Lewis County Local 825, 2017 NY Slip Op 06743, Appellate Division, Fourth Department

The Lewis County Sheriff appointed one of three part-time dispatchers in the collective bargaining unit represented by CSEA Local 1000, AFSEME, AFL-CIO, Lewis County Sheriff's Employees Unit #7250-03, Lewis County Local 825 [Local 825] to the position of full-time dispatcher. Local 825 filed grievances on behalf of the two part-time dispatchers not selected for the full-time position, alleging that these two dispatchers had more seniority and experience than the part-time dispatcher selected for the full-time position by the Sheriff.

Lewis County denied the grievances and Local 825 filed demands for arbitration.* In response, Lewis County filed a CPLR Article 75 petition seeking a court order permanently staying the arbitration contending that the grievances were not the proper subject of arbitration." Supreme Court granted Lewis County's petition for a permanent stay of arbitration with respect to D.H.'s grievance and Local 825 appealed the ruling to the Appellate Division.

The Appellate Division said it agreed with Local 825 that Supreme Court erred in granting Lewis County's petition, explaining in City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, the Court of Appeals set out a two-pronged test to determine "whether a grievance is arbitrable."

Applying the first prong, usually referred to as "the may-they-arbitrate' prong," the court determines whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If the court concludes that arbitration is not so prohibited, it proceeds and considers "the second prong, known as "the did-they-agree-to-arbitrate' prong," in which the court examines the collective bargaining agreement [CBA] "to determine if the parties have agreed to arbitrate the dispute at issue".

As Lewis County did not claim that the arbitration of D.H.'s grievance is prohibited because of a statutory, constitutional or public policy prohibition against arbitration of the grievance, the Appellate Division said that it was only concerned applying the second prong of the test set by the Court of Appeals in Johnstown Police, the "did-they-agree-to-arbitrate' prong,"

With respect this second test, the court said "[i]t is well settled that, in deciding an application to stay or compel arbitration ... the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim." Citing Matter of Van Scoy [Holder], 265 AD2d 806, the Appellate Division said that "[w]here, as here, there is a broad arbitration clause and a reasonable relationship 'between the subject matter of the dispute and the general subject matter of the parties' [CBA], the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them."

In this instance the grievance concerned the determination of the appointing authority with respect to which one of three employees should be given the full-time position. Holding that "a reasonable relationship exists between the subject matter of the grievance and the general subject matter of the CBA," the Appellate Division ruled that "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

* The demand for arbitration was withdrawn with respect to one of the part-time dispatchers. The Local's demand to compel arbitration on behalf of the remaining part-time dispatcher, D.H., survived.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06743.htm

Liability for the acts or omissions of a deputy sheriff

Liability for the acts or omissions of a deputy sheriff

Jones v Seneca County et al, 2017 NY Slip Op 07084, Appellate Division, Fourth Department

Jacqueline M. Jones commenced an action seeking to recover damages for injuries she allegedly sustained as a result of an encounter with Deputy Frank Eldredge, a Sheriff's deputy employed by Seneca County. Supreme Court granted Seneca County's motion for summary judgment dismissing the complaint.

The Appellate Division affirmed the Supreme Court's decision noting its prior decisions holding that "[a] county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior,* in the absence of a local law assuming such responsibility."

Referring to the 1989 amendment to New York Constitution of Article XIII, §13(a), the so-called Flaherty Amendment,** the Appellate Division said that although the amendment "allows a county to accept responsibility for the negligent acts of the Sheriff[, it does not impose liability upon the county for the acts of the Sheriff or his [or her] deputies on a theory of respondeat superior." Further, said the court, Seneca County had established that it did not assume such responsibility by local law.

Jones also argued that Seneca County had "nevertheless assumed responsibility for the acts of its Sheriff's deputies when it entered into a collective bargaining agreement [CBA] with the Seneca County Sheriff's Police Benevolent Association." 

The Appellate Division rejected Jones' contention that the CBA provides for indemnification of employees from judgments and settlements of claims arising from actions taken within the scope of such employees' public employment and duties and opined "a CBA is not a local law*** and, in any event, the language of the CBA here does not expressly provide that defendant will assume responsibility for the tortious acts of its Sheriff's deputies."

* The Doctrine of Respondeat Superior provides that an employer or principal is legally responsible for the wrongful acts or omissions of an employee or an agent.

** Article XIII, §13(a) as amended, is sometimes referred to as the "Flaherty Amendment." The term "Flaherty deputies" was applied to certain employees of the sheriff following a decision by the Court of Appeals holding that the fact that the sheriff was personally liable for the acts of his or her civil deputies required their exemption from the civil service system of selection, appointment and promotion (Flaherty v Milliken, 193 NY 564). "Flaherty deputy sheriffs" -- civil deputies, as distinguished from "criminal deputy sheriffs" -- had been then exempted from the civil service merit system mandates on the authority of Flaherty v Milliken. Article XIII, §13(a) of the State Constitution, as amended in 1989, deleted the words "The county shall never be made responsible for the acts of the sheriff." As the amendment then allowed a county to assume liability for the acts of a sheriff's civil deputies, the State Department of Civil Service reasoned that where a county had assumed such liability the rationale for the exemption of "Flaherty deputies" from the merit and fitness requirements for such public employment was no longer valid. Accordingly, it was determined that effective January 1, 1990, Civil Service examinations would be required for the appointment and promotion of such civil deputies, i.e., civil deputies of a sheriff where the county has assumed liability for the acts or omissions of a sheriff's civil deputies in the performance of his or her duties. See, also, Hondzinski v. County of Erie, 57 NY2d 715, a decision addressing the "determining the seniority of a "Flaherty deputy sheriff" who had been grandfathered into the competitive class" in the event of a layoff.

*** Subdivision 2 of Public Officers Law §18, "Defense and indemnification of officers and employees of public entities," provides, in pertinent part, for an entity "whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation (i) to confer the benefits of this section upon its employees, and (ii) to be held liable for the costs incurred under these provisions."

The Jones decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07084.htm

Flaherty v Milliken is posted on the Internet at:
https://www.courtlistener.com/opinion/3626014/matter-of-flaherty-v-milliken/

The custodian of a record destroying or altering it so as to make it unavailable for use in litigation may result in sanctions being imposed of the custodian

The custodian of a record destroying or altering it so as to make it unavailable for use in litigation may result in sanctions being imposed of the custodian

Zacharius v Kensington Publ. Corp., 2017 NY Slip Op 06995, Appellate Division, First Department 

Spoliation is the destruction or alteration of a document that makes it unavailable for use as evidence in a legal proceeding. Further, spoliation is presumed to be damaging to the spoliator's interest with respect to proving his or her claims or his or her defenses when it is intentionally changed, modified, deleted or destroyed.

In Matter of Klikocki (NYS Department of Corrections, Mount McGregor), 216 AD2d 808, the Appellate Division decided that evidence Klikocki claimed would be helpful in his defense in a disciplinary action that the employer had destroyed had not been destroyed in an effort to conceal something but rather occurred in accordance with the normal procedure concerning the retention or destruction of certain records after they had been retained for a specified period of time.

In contrast, in Zacharius [Plaintiff] Supreme Court's granted Kensington's [Defendant]  motion for spoliation sanctions to the extent of directing Plaintiff to pay the attorneys' fees and costs incurred by Defendants in reviewing Plaintiff's e-mail account and in preparing the motion seeking sanctions for spoliation. Supreme Court's ruling was unanimously affirmed by the Appellate Division, with costs.

The Appellate Division held that the spoliation sanctions imposed by Supreme Court  were providently granted as the record demonstrated that Plaintiff, an attorney, was in control of the email account at issue; was aware of Plaintiff's obligation to preserve it at the time it was destroyed, with or without service of Defendants' litigation hold notice as Plaintiff [1] had commenced the action; and [2] had a "culpable state of mind," demonstrated by admitted to having intentionally deleted well over 3,000 emails during the pendency of the action.

In the words of the Appellate Division, "Destroyed evidence is automatically presumed 'relevant' to the spoliator's claims when it is intentionally deleted." The court noted that although Plaintiff asserted only "irrelevant emails" were deleted, Plaintiff's own emails "evidenced intentional deletion of thousands of emails" and Defendants recovered at least one email that was pertinent to the allegations in Plaintiff's complaint.

Under the circumstances, said the Appellate Division, Supreme Court "providently exercised its discretion in limiting the sanction against Plaintiff to costs and attorneys' fees, rather than the "drastic remedy" of striking Plaintiff's complaint as the Defendants were "not entirely bereft of evidence tending to establish [its] position."

Another element to consider: Is the custodian of the record required by law to retain the record for a minimum period of time?

For example, EEOC regulation implementing Title VII [42 USC 2000e-8(c)] requires “every employer ... subject to this subchapter” to “(1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, [and] (2) preserve such records for [two years].”

In Byrnie v Town of Cromwell Board of Education, CA2, 243 F.3d 93, Judge Rosemary S. Pooler said that “where, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination action.” As the Byrnie decision demonstrates, an employer's failure to retain these records for the statutory minimum period required may become a critical element in the course of litigation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06995.htm