Amendment to Civil Service Law §167(8) does not violate the compensation clause for certain judges set out in Article VI, §25[a] of the State Constitution

Amendment to Civil Service Law §167(8) does not violate the compensation clause for certain judges set out in Article VI, §25[a] of the State Constitution

Bransten v State of New York, 2017 NY Slip Op 08168, Court of Appeals

In 2011 the State-employee unions, in the course of collective bargaining, agreed to a percentage reduction to the State's employer contributions for health insurance to avoid layoff, salary freezes and unpaid furloughs. This negotiated agreement was reflected in an amendment to §167.8 of the Civil Service Law.*

The question addressed in Bransten: Does Civil Service Law §167(8), as amended, authorize a reduction of the State's contribution to health insurance benefits for State employees, including members of the State judiciary? With respect to judges the court concluded that the State's contribution for health insurance premiums is not "judicial compensation" protected from diminution and salary deductions for health insurance contributions does not singling out the judiciary for disadvantageous treatment.

The court concluded that "[a] contribution to health care premiums, which varies from year to year, is not compensation  and although the reduction of the employer's health insurance contributions "indirectly diminishes judicial compensation," the Legislature has not singled out judges for disadvantageous treatment. Where, as here, the reduction applies to all State employees, there is not even a suggestion that judges are being targeted. 

These reductions in the State's "employer contributions for health insurance" were also applied to retired judges and other retired employees of the State as the employer notwithstanding the fact that such retirees were not in danger of suffering " layoff, salary freezes and unpaid furloughs" nor were they members of a collective bargaining unit within the meaning of the Taylor Law [Article 14 of the Civil Service Law Article].

The decision, however, apparently directly addresses only the impact of the change on active employees. The issue of whether the reduction was lawfully applied to pre-amendment retirees was not specifically  addressed by the Court of Appeals.

Significantly, Judge Dillon, in a concurring opinion, noted the court had, "[b]y concluding that a direct diminution of judicial salary has not been mathematically established, in dollar terms," did not reach the secondary question of whether the State's reduced percentage contributions toward health care premiums for the judiciary and its retirees was accomplished in a discriminatory or non-discriminatory manner as compared with other employees of the State" and "[a]ccordingly, the judgment should be reversed without prejudice to plaintiffs recommencing a new action, if they be so advised." 

* §167.8 of the Civil Service Law was amended by §2 of Chapter 491 of the Laws of 2011 to read as follows [old text stuck out, new text underlined]:

8. Notwithstanding any inconsistent provision of law, where and to the extent that an agreement between the state and an employee organization entered into pursuant to article fourteen of this chapter so provides, the state cost of premium or subscription charges for eligible employees covered by such agreement may be [increased] modified pursuant to the terms of such agreement [and for a duration provided by such agreement and pursuant to rules and regulations as may be established by the president. Such increase in state cost shall only apply during the period of eligibility provided by such agreement and shall not be applied during retirement]. The president, with the approval of the director of the budget, may extend the modified state cost of premium or subscription charges for employees or retirees not subject to an agreement referenced above and shall promulgate the necessary rules or regulations to implement this provision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08168.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 25, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending November 25, 2017

Source: Office of the State Comptroller

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:

Office of General Services (OGS) and the State Education Department (SED): Preferred Source Contracting (Follow-Up) (2017-F-15)
New York state’s Preferred Source Program grants “preferred source” status to Corcraft and not-for-profit organizations that serve and employ the blind, severely disabled, and veterans. OGS is the state’s central procurement agency. The New York State Industries for the Disabled (NYSID) is the agency designated to facilitate orders among agencies for the severely disabled and veterans’ workshops. SED is responsible for the monitoring and oversight of NYSID and for ensuring NYSID is in compliance with all applicable regulations. An audit released in June 2016 found that SED provided only minimal oversight of NYSID offering little assurance NYSID was awarding contracts in a manner that best meets the purpose of the program as well as meeting program requirements. In a follow-up, auditors found OGS officials have made significant progress in addressing the issues identified in the initial audit.

Department of Health (DOH): Long Island Association for AIDS Care (LIAAC) (2017-BSE6-0)

For the period of February 2014 through May 2015, auditors found the claims for payment LIAAC submitted contained overbillings of $15,777. The claims were returned to DOH. Auditors also identified $95,918 in refunds and reimbursements from other entities for medical and dental expenses paid to LIAAC’s related entity and group medical benefits provider, the Long Island Network of Community Services, which should have been remitted to DOH.

Department of Health: Eye Care Provider and Family Inappropriately Enroll as Recipients and Overcharge for Vision Services (Follow-Up) (2017-F-11)

An initial audit report issued in March 2016 found the owner of a Medicaid eye care provider inappropriately enrolled as Medicaid recipients and inappropriately billed Medicaid for vision services. In a follow up, auditors found that of the initial report’s eight audit recommendations, two were implemented, five were partially implemented, and one has not yet been implemented. In March of 2016, the Office of the Medicaid Inspector General (OMIG) commenced an investigation of the provider, the Provider’s billing company, and the recipients identified in the original audit. At the time of our follow-up review, the investigation was ongoing and OMIG officials stated that recoveries of Medicaid overpayments and corrective actions would occur, if warranted, when the investigation was complete.

Department of Health: Improper Payments for Recipients No Longer Enrolled in Managed Long Term Care Partial Capitation Plans (Follow-Up) (2017-F-10)

An initial audit released in March 2016 found that Medicaid paid plans $21.4 million in capitation payments for recipients who were subsequently disenrolled. By the end of the audit fieldwork, some capitation payments had been recouped and about $12 million still needed to be recovered from the plans. In a follow-up, auditors found DOH officials made significant progress in addressing the problems identified in the initial audit report. However, further actions are still needed as only $3.4 million of the $12 million in improper capitation payments had been recovered.

Higher Education Services Corporation, Tuition Assistance Program: New York College of Health Professions (2016-T-4)

Auditors determined the College of Health was overpaid $298,224 because school officials incorrectly certified some students as eligible for State financial aid awards. Incorrect certifications include eleven students who received awards but did not demonstrate academic preparedness and eight students who did not meet the requirements for full-time status.

Metropolitan Transportation Authority, Triborough Bridge and Tunnel Authority (TBTA): Selected Aspects of Collection of Bridge and Tunnel Tolls and Feels (2016-S-64)

While TBTA makes efforts to collect unpaid tolls, we found $11.3 million in tolls that were either written off ($5.4 million in OTG tolls) or uncollected ($2.3 in OTG tolls and $3.6 in Deferred Tolls).In addition, TBTA had more than $72 million in unpaid fees for the Henry Hudson Bridge from 2013 through 2015. TBTA officials advised that they consider the fees a deterrent, but have waived as much as 90 percent of fees due upon receipt of the payment of the unpaid tolls. TBTA also did not fully utilize the new DMV registration suspension program, as evidenced by submitting only a limited number of registrations for suspension each week after the initial introductory period.

State Education Department: Lifeline Center for Child Development, Inc., Compliance with the Reimbursable Cost Manual (2016-S-95)

Lifeline is a Queens, New York-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of 3 and 5. For the three fiscal years ended June 30, 2015, auditors identified $304,192 in reported costs that did not comply with state guidelines, including $80,506 in bonuses.

State Education Department: HeartShare Human Services, Inc., Compliance with the Reimbursable Cost Manual (2016-S-45)

HeartShare is a New York City-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of 3 and 5.  For the three fiscal years ended June 30, 2014, auditors identified $1,529,789 in reported costs that did not comply with state requirements, including: $891,018 in non-program expenses for compensation paid to 71 individuals who did not work for HeartShare’s SED preschool cost-based programs; $204,855 in ineligible employee bonuses that did not comply with SED’s reimbursement requirements; and $201,237 in over-allocated expenses, including $60,338 in personal service costs and $140,899 in other than personal service costs.

Collective bargaining agreements between employee organizations and public employers in New York State are posted on the Empire Center's website

Collective bargaining agreements between employee organizations and public employers in New York State are posted on the Empire Center's website 
Source: The Empire Center* 

Click on text highlighted in color  to access the text of the agreements. 

Local government and school district collective bargaining agreements were added to SeeThroughNY, the Empire Center’s transparency website on November 21, 2017. The newly added collective bargaining agreements include 120 public school teacher contracts, 28 firefighter contracts, and 62 police contracts.

In addition, 164 school superintendent employment contracts have been updated on SeeThroughNY.

Broken down by region, the contracts are distributed as follows:

43 in the Capital Region, including North Colonie’s superintendent contract and Saratoga Springs’ fire contract;

26 in Central New York, including teacher contracts in Onondaga County and fire contracts in Oswego County;

33 in the Finger Lakes, including fire contracts in Monroe County and teacher contracts in Genesee County;

63 on Long Island, including 11 teacher contracts in Nassau County and 12 in Suffolk County;

71 in the Mid-Hudson region, including police contracts in Westchester County;

30 in the Mohawk Valley, including three superintendent contracts in Oneida County and four in Herkimer County;

28 in the North Country, including superintendent and teacher contracts for Clinton County;

34 in the Southern Tier, including police contracts for Tompkins County and fire contracts for Broome County; and

46 in Western New York, including the Buffalo city schools’ first contract with its teachers union in 12 years.

More than 6,700 current and expired public-sector union and school superintendent employment contracts are now searchable on SeeThroughNY’s contract database, the most comprehensive in the state.

Complete copies of hundreds of local government and school district labor union contracts were added today to SeeThroughNY, the Empire Center’s transparency website.

* The Empire Center, based in Albany, New York, self-describes itself as an independent, non-partisan, not-for-profit think tank dedicated to promoting policies to make New York a better place to live, work and do business.

Suing public officials and government entities for allegedly making defamatory statements concerning an individual

Suing public officials and government entities for allegedly making defamatory statements concerning an individual

Brummel v Board of Trustees of the Village of E. Hills, et al., N.Y., 2017 NY Slip Op 07971, Appellate Division, Second Department

Richard A. Brummel, alleging that the village's mayor made defamatory statements about him to another person and that person reported those statements in an article published in a local newspaper, sue the mayor, the village board, the newspaper and the editor of the newspaper.

The newspaper and its publisher moved to dismiss Brummel's complaint for failure to state a cause of action. The mayor and the defendant village board separately moved to [1] dismiss the complaint against the major and [2] for failure to state a cause of action and [3] to require Brummel seek leave of court to commence any future actions against it.

Supreme Court granted the motion of the Blank Slate defendants and that branch of the motion of the Village defendants to dismiss the complaint but did not address that branch of the Village's motion that would require Brummel to seek leave of court to commence any future actions against them. Brummel appealed and the mayor and the village cross-appealed.

The Appellate Division ruled that Supreme Court properly granted the motion of the Blank Slate defendants and that branch of the motion of the Village defendants seeking to dismiss the complaint insofar as asserted against each of them for failure to state a cause of action. The court, citing Gross v New York Times, 82 NY2d 146, explained that as "falsity is a necessary element of a defamation cause of action and only facts 'are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.'"

In this regard, distinguishing between fact and opinion is a question of law for the courts, to be decided based on "what the average person hearing or reading the communication would take it to mean." In so doing, the Appellate Division said that courts must consider:

1. whether the specific language has a precise meaning that is readily understood;

2. whether the statement is capable of being proven true or false;

3. whether the context in which the statement appears signals to readers that the statement is likely to be opinion, not fact; and

4. [quoting from Gross] "whether a reasonable [reader] could have concluded that the [articles were] conveying facts about the plaintiff."

Accepting the allegations in the complaint as true and affording Brummel the benefit of every favorable inference, the Appellate Division concluded that Brummel "did not state a cause of action to recover damages for defamation as some of the statements alleged to have been made 'do not have a precise meaning' while others are hyperbolic and incapable of being proven true or false."

Considering the context of the alleged statements, the court opined that "a reasonable reader would have concluded that he or she was reading an opinion, and not a fact, about [Brummel]."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07971.htm