New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 15, 2017

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 15, 2017

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Department of Environmental Conservation (DEC): Collection and Use of Oil Spill Funds (Follow-Up) (2017-F-13)
An initial audit report issued in August 2015 determined that there were weaknesses in DEC’s oversight of Major Oil Storage Facilities (MOSFs) reporting and facility registration, as well as a lack of facility data analysis to identify and correct discrepancies. In a follow-up, auditors found DEC officials have made significant progress in correcting the problems identified in the initial report. The initial report’s four recommendations were implemented.

Department of Health: Medicaid Claims Processing Activity October 1, 2016 Through March 31, 2017 (2016-S-66)
Auditors identified approximately $12.4 million in improper Medicaid payments, including $4.58 million in overpayments for long-stay inpatient claims that were billed at higher levels of care than what was allowed; $2.9 million in overpayments for Comprehensive Psychiatric Emergency Program claims that were billed in excess of permitted limits; and $1.4 million in overpayments for claims that were billed with incorrect information pertaining to other health insurance coverage that recipients had. By the end of the audit fieldwork, about $6.3 million of the overpayments had been recovered.

Department of Health (DOH): Appropriateness of Medicaid Eligibility Determined by the New York State of Health System (NYSOH) (Follow-Up) (2017-F-4)
An initial audit report released in October 2015 found flaws in NYSOH’s eligibility process that resulted in overpayments of about $3.4 million due to enrollments of deceased individuals and continued coverage for individuals who died after enrollment; multiple Client Identification Numbers (CINs) issued to individual recipients; and unreasonably high numbers of CINs issued for expected multiple births per pregnancy. In a follow-up, auditors found DOH made certain improvements to NYSOH and most of the overpayments caused by the enrollment of deceased individuals were recouped. However, further actions are still needed.

Office of Information Technology Services (ITS): Disaster Recovery Planning (2016-S-97)
Auditors found ITS has made some efforts toward disaster recovery planning; however, there is not a complete, functional, and tested disaster recovery plan that covers all aspects of its operations, including the College of Nanoscale Science and Engineering (CSNE) data center and the centralized IT services it provides to the 46 executive agencies. ITS is working on completing a disaster recovery plan for the CNSE data center and anticipates it will be done in late 2018.

Metropolitan Transportation Authority: Long Island Rail Road - Utilization of the Arch Street Yard and Shop Facility (2016-S-78)
Auditors found the facility was never used as intended for the acceptance and inspection of certain train cars. Moreover, except for occasional use of the wheel truing equipment to round off flat spots on rail car wheels, the facility was also not used for periodic inspections or repairs. Since its construction in December 2004, the facility has undergone periods when it was vacant (for over 3.5 years), leased to a vendor to make warranty repairs, and licensed twice; once as a parking lot to accommodate a tenant displaced from an MTA project, and once to a contractor to perform modifications on Metro-North Railroad rail cars. The LIRR incurred costs of $2.43 million to maintain and secure the facility from January 1, 2013 to June 30, 2016.

New York City Department of Housing Preservation and Development: Vacancies at the Clinton Towers Mitchell-Lama Housing Development (2017-N-1)
Vacant apartments at Clinton Towers were often not rented in a timely manner. Auditors found that for the period January 2012 through March 2017, an average of 13 apartments each month had been vacant for over 60 days, resulting in an estimated $740,000 in lost rental revenue. On March 31, 2017, 15 apartments at Clinton Towers had been vacant for more than 60 days, even though there were over 9,000 applicants on the external waiting lists, resulting in approximately $78,000 in lost rental revenue. Eleven of these apartments were vacant for more than six months, including three that had been vacant for more than a year.

State Education Department (SED): The New Interdisciplinary School (NIS), Compliance with the Reimbursable Cost Manual (2017-S-20)
NIS is a not-for-profit special education provider located in Suffolk County providing preschool special education services to children with disabilities who are between three and five years of age. For the two fiscal years ended June 30, 2014 and 2015, auditors identified $119,752 in ineligible costs that NIS reported for state reimbursement. The ineligible costs included: $83,192 in personal service costs and $36,560 in other than personal service costs.

State To Save Millions After Audit Uncovers Unnecessary Medicaid Transportation Costs

New York state’s Medicaid program is expected to save $7.6 million over the next five years as the result of actions taken by the state Department of Health (DOH) after an audit found it had incorrectly paid contractors for transportation management services it shouldn’t have, according to a report released by State Comptroller Thomas P. DiNapoli.

“Thanks to the work of my auditors, the state has tightened oversight of this important service and these changes will save millions of dollars,” DiNapoli said. “The state Department of Health moved quickly to correct these problems, and my office will continue to monitor for overpayments and abuse in the Medicaid system.”  

The Medicaid program provides transportation to medical services for individuals who are unable to obtain their own transportation. DOH contracted with two companies to manage the non-emergency transportation program statewide: LogistiCare Solutions LLC and Medical Answering Services LLC. These companies were reimbursed nearly $180 million over the audit period, January 1, 2013 to December 31, 2016.

DiNapoli’s auditors found that DOH overpaid these contractors more than $6.2 million during the audit period for transportation management services for individuals who were not eligible for these services. In response to the audit, DOH made changes, which are expected to save taxpayers another $7.6 million over the coming years.

Auditors also identified a provider of taxi services that overbilled DOH for tolls. The provider told auditors it charged for tolls based on the cash toll rate instead of the discounted amount it actually paid through its E-ZPass account. During the audit period, the provider billed Medicaid a total of $169,893 for tolls. In response to the work of auditors, the provider informed the Office of the Medicaid Inspector General (OMIG) of the overbilling. At the end of the audit fieldwork, the amount of the overpayment had not yet been determined by the OMIG.

DiNapoli’s auditors also identified another provider of taxi services that did not have supporting documentation for claims totaling about $2.4 million, and four advanced life support first responder (ALSFR) providers that were inappropriately enrolled in Medicaid, resulting in $162,401 in inappropriate payments.

DiNapoli recommended DOH:

● Recover the $6.2 million in contract overpayments to the transportation managers for the period January 2013 to December 2016 and ensure that Medicaid coverage groups are excluded from the monthly recipient counts that are used to pay transportation managers;

● Review the Medicaid payments made to the two taxi providers and recover any improper payments as warranted; and

● Review the Medicaid payments made to the four ALSFR providers and recover overpayments as warranted. Take the necessary corrective steps regarding the four ALSFR providers’ future participation in the Medicaid program, and take steps to ensure that ALSFR companies are not enrolled as Medicaid providers.

DOH’s response is included in the audit.

Read the report, or go to: http://www.osc.state.ny.us/audits/allaudits/093018/16s67.pdf

For access to state and local government spending, public authority financial data and information on 140,000 state contracts, visit Open Book New York. The easy-to-use website was created to promote transparency in government and provide taxpayers with better access to financial data.

Appeal of Richard A. Mikulek regarding the use of library funds, property and staff

Appeal of Richard A. Mikulek regarding the use of library funds, property and staff

Decisions of the Commissioner of Education, Decision No. 17,277

Richard A. Mikulek [Petitioner] appealed certain actions of the Board of Trustees of the Fairport Public Library [Board], alleging the Board had improperly gifted library funds, among other things, to a third party, the "Friends of [the] lFairport Public Library [FFPL].* 

The Commissioner's decision frames the underlying facts as follows: FFPL is an entity whose main purpose is to provide support to the Library in various ways.  At issue in the instant appeal are book sales the FFPL conducts.  The proceeds from these book sales provide a source of funding for various Library activities, programs, and purchases.  The Library apparently maintains bins for its patrons to donate their used books.  These used books are then donated by the Library to the FFPL to be sold at a book sale.  During normal Library business hours, the sale of these books, still located at the Library, are handled by Library staff.

Petitioner and the Board disagreed over the extent to which the Library may make such donations to FFPL and the bounds of a permissible relationship between the Library and FFPL.

The Commissioner, after setting out an extensive background statement concerning the positions of the parties, said that "[t]he appeal must be dismissed for failure to join a necessary party."  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner, here FFPL, was a necessary party but was not joined as such.

Addressing additional procedural infirmities, the Commissioner said:

1. To the extent Petitioner requests the removal of trustees through an order requiring their resignation, such a claim must be dismissed for lack of subject matter jurisdiction.  Education Law §306 authorizes the Commissioner of Education to remove members of a board of education, superintendents and other school officers for willful violations of law or neglect of duty.  A public library trustee is not a “school officer” as defined in Education Law §2(13), and such a trustee is not among the officers listed in §306. Therefore, such a trustee is not subject to removal by the Commissioner pursuant to Education Law §306.

2. Petitioner also asked that the Commissioner order a “full audit” of the Library’s financial records by an independent auditor who will make a presentation to the community on the his/her findings in a public forum prior to next year’s budget."  However, an appeal to the Commissioner is appellate in nature and does not provide for investigations.

3. As to Petitioner's requesting several advisory opinions based on Education Law §226(6) and its impact on the actions of the Board and the FFPL, including the Library donations of surplus books to a not-for-profit which shares the Library’s website; the ownership of donations that are received from the Library; and whether discussion of FFPL business at Library board meetings causes it to become “associated” with the Library and no longer an independent non-for-profit corporation, "[i]t is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310." Thus, such requests for advisory opinions must be denied.

That said, the Commissioner addressed Petitioner's claims that the Board continues to allow the FFPL to use Library resources, including its facilities and books received from the Library, and continues to allow the use of its communications facilities and employees to further the book sales conducted by the FFLP and alleges that in so doing, the Library violates the prohibition in New York State Constitution, Article VIII §1 of the "gift-giving" public monies.

The Commissioner declined  to dismiss the appeal to the extent Petitioner "seeks an order directing [the Board] to cease allowing the use of its resources by the FFPL because it allegedly involves an unconstitutional gift," noting that "Even if the appeal were not dismissed for non-joinder of the FFPL as a necessary party, it would be dismissed on the merits."

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief. On this record, said the Commissioner, "I find that Petitioner has not met his burden of proving that [the Board] has violated Article VIII, §1 of the New York State Constitution, or any other provision of law, with respect to the book sales by the FFPL.

The Commissioner cited Chapter 96 of the Laws of 1987, which, among other things, amended Education Law §226(6)(b) by removing a requirement that donations of books by a public library to a not-for-profit must have no market value, contained a “Legislative findings” that stated in part: The legislature recognizes that as the repository of the art and knowledge of our civilization, library books are capable of continuing to provide a benefit to the community even after a library determines that they are surplus or of such condition that they are no longer suitable for library use.  The legislature hereby finds that the donation of such used or surplus books to not-for-profit corporations or political subdivisions is a public purpose and that such continued use of used or surplus books will provide an important benefit to the general public. (Emphasis in the Commissioner's decision.) 

Based on the Legislature’s finding, the Commissioner ruled that that "a public library’s donation of used or surplus books, pursuant to Education Law §§226(6)(b) and 260 to a not-for-profit corporation such as the FFPL is a public purpose."

Also noted in the decision was that the record indicated that "FFPL is taking used books donated to the Library and a small percentage of books originally purchased by the Library and subsequently discarded by the Library as surplus books and conducting book sales to the public." Further, the Board and FFPL indicate that the proceeds of such book sales "are used to provide funding for library activities, programs and purchases." The Commissioner opined that "Such an arrangement is entirely consistent with Education Law §§226(6) and 260 in that the FFPL is conducting the sale of used or surplus books for the benefit of the Library."

Additional findings by the Commissioner include:

a. Donation of books to the FFPL under such circumstances clearly serves a proper library and public purpose by raising funds to support library programs and activities. 

b. Use of the Board's library resources to promote book sales by the FFPL for the benefit of the Library, including its facility, communications facilities and employees, also serves a proper library and public purpose.  

Finally, although the appeal was dismissed for the reasons stated above, the Commissioner urged the Board to avoid future such appeals by being more transparent about the fund-raising activities of the FFPL.  

As the Board knows that FFPL provides the Library with approximately $15,000-$20,000 each year to support library programs and activities, the Commissioner said that "it should be an easy matter for the Board to document what those programs and services are and to identify to the public upon request where in the Library budget those contributions appear."  In so doing, the Board should be able to persuasively document that the FFPL’s activities are of substantial benefit to the Library rather than responding in generalities as it did with Petitioner’s inquiries.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17277

Paid Family Leave

Paid Family Leave
Source: New York State Department of Labor

 
Effective January 1, 2018, most employees who work in New York State for private employers are eligible to take Paid Family Leave, [see Workers' Compensation Law §200 et. seq., The Disability Benefits Law and the Paid Family Leave Benefits Law]. In addition, many public employers provide Paid Family Leave.

New York’s paid family leave law provides job-protected, paid time off so employees can bond with a newly born, adopted or fostered child; care for a close relative with a serious health condition; or assist loved ones when a family member is deployed abroad on active military service.

The employee is able to continue his or her health insurance while on leave and is guaranteed the same or a comparable job after the leave ends. If the employee contribute to the cost of health insurance, he or she must continue to pay the premium cost while on Paid Family Leave. 

Information for employers is posted on the Internet at: https://paidfamilyleave.ny.gov/paid-family-leave-information-employers

 

Information for employees is posted on the Internet at: https://paidfamilyleave.ny.gov/paid-family-leave-information-employees

Information for health care providers is posted on the Internet at: https://paidfamilyleave.ny.gov/paid-family-leave-information-health-care-providers

 

Additional New York Paid Family Leave Law information is available on the Internet at: https://paidfamilyleave.ny.gov/

FMLA Law News Update December 2017

FMLA Law News Update December 2017

Source: fmlalaw | December 13, 2017

Click on text highlighted in color to access the full report

Timing Is Everything: FMLA Claim Survives Summary Judgment …
The National Law Review-Nov 21, 2017
Employees requesting, currently taking, or just returning from leave under the Family and Medical Leave Act (“FMLA”) can be terminated for legitimate reasons that are unrelated to their FMLA leave. This point is exemplified by Jennings v. Univ. of N.C., N.C. Ct. App., Case No. COA16-1031 (July 5, 2017), …

Reassignment can be post-FMLA accommodation
Business Management Daily-Dec 11, 2017
When a disabled employee wants to return to work, limitations may make it impossible for him to do his old job. If so, it may be reasonable to either grant more leave or reassign the employee—or both. The worker may prefer another accommodation, but it’s the employer’s choice. Recent case: Gary …

FMLA FAQ: If an Employee Racks Up Both FMLA and Unexcused …
Lexology-Dec 8, 2017
Mary Beth is a nurse for a local hospital and has been diagnosed with cancer and asthma. Over the course of about one year: 1. She is certified for FMLA leave for her cancer and asthma;. 2. She incurs a total of 13 intermittent absences in a 12-month period;. 3. A handful of these absences relate to her …

Terminated employee's civil rights violation claim dismissed pursuant to the doctrine of res judicata

Terminated employee's civil rights violation claim dismissed pursuant to the doctrine of res judicata

Russo v. City of New York, USCA, 2nd Circuit,  17-233-CV*

United States District Court for the Eastern District of New York  dismissed Anthony J. Russo's claim brought under 42 U.S.C. §1983. The district court sua sponte** dismissed Russo’s complaint pursuant to 28 U.S.C. §1915(e)(2)(B) and the doctrine of res judicata.***

Russo had been terminated by the New York City Board of Education as the result of an arbitration conducted pursuant to §3020-a of the New York State Education Law. Although Russo brought a CPLR Article 75 action challenging the arbitration award in New York State Supreme Court, the award was ultimately affirmed by the New York State Court of Appeals.

The Second Circuit affirmed the district court dismissal Russo’s complaint and the denial of his motion for reconsideration on the ground that Russo’s claims are barred by the doctrine of claim preclusion. We note at the outset that “the failure of a defendant to raise res judicata does not deprive a court of the power to dismiss a claim on that ground” in large part because of “the strong public policy in economizing the use of judicial resources by avoiding relitigation.

The Circuit Court then found that the dismissal Russo's petition on the basis of res judicata was appropriate in this case because Russo raises claims that are premised entirely on the same set of facts and alleged misconduct as the facts and misconduct alleged in his state court action, and because the initial state forum had the power to award the full measure of relief sought in this §1983 action.

Further, said the court, "even though Russo’s federal claims were not raised and litigated in his state action, there was no error in the district court’s decision to dismiss these claims on the grounds that they were barred by the state court judgment."

*N.B. Summary order - rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by federal rule of appellate procedure 32.1 and the 2nd Circuit's local rule 32.1.1.

** An action taken by the court without a formal motion by a party.

*** A matter that has been adjudicated by a court of competent jurisdiction and as a result not be relitigated further by the same parties.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/cc7bc7e6-927e-417c-9f36-b426227d82f7/14/doc/17-233_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cc7bc7e6-927e-417c-9f36-b426227d82f7/14/hilite/

Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday December 13, 2017

Click on text highlighted in color to access the full report 

Supervising company may be liable for harassment of female construction worker

Trump DOJ reverses course on public sector ‘agency fees’

Bipartisan bill would invalidate predispute agreements to arbitrate a ‘sex discrimination dispute’

Second Circuit finds trial court got Glatt right; magazine interns reap educational benefits, not pay

Possessing “over-the-counter and, or, prescription drugs or harmful substances” on school property

Possessing “over-the-counter and, or, prescription drugs or harmful substances” on school property

Decisions of the Commissioner of Education, Decision No. 17,269

The lunch bag belonging to a student [W.H.] who is the subject of this appeal was found to have in it "over the counter medication.”  The principal advised W.H.'s parents [Petitioners ] that W.H. would be suspended for three days based upon his possession of “over the counter medication.” Petitioners told the principal that the pills were “vitamin C, Olive Leaf extract and Echinacea supplements.” 

The principal advised Petitioners that, in accordance with school policy, over the counter medications must be authorized by parents and physicians and may only be administered by the school nurse.  The principal requested that the student be immediately picked up from school. The school principal then advised Petitioners that W.H.'s possession of the supplements violated the portion of Marathon Central School District's code of conduct prohibiting “conduct that endangers the safety, morals, health, or welfare of others.”  A second letter described the supplements as “unknown substances” and noted that the student “admitted to having them in his possession.”

Petitioners subsequently met with the superintendent and the principal and explained that [1] they were aware of the district's policy concerning the administration of over-the-counter medications and [2] the pills which the student possessed were nutritional supplements, which the Food and Drug Administration considers food, not drugs. 

The superintendent declined to modify the student’s three-day suspension, and Petitioners thereafter appealed to school board. The president of the school board told Petitioners that the board had considered their appeal and upheld the three-day suspension and Petitioners appealed to the Commissioner seeking to have the student’s suspension be expunged from his record.

After considering a number of procedural issues, the Commissioner considered the merits of Petitioners' appeal and said that "in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief."

In this instance the Commissioner found that Petitioners had "met their burden of proof to show that [the school board's] decision was arbitrary and capricious. The Commissioner explained that Petitioners asserted, and the school board has not refuted, that the student possessed vitamins and herbal supplements which the Food and Drug Administration classifies as foods, not drugs.  Further, Petitioners admitted that they were and are aware of the school district's policy which prohibits the possession of “over-the-counter and, or, prescription drugs or harmful substances,” but contended that the “food” possessed by the student did not fall into any of these categories. 

In contrast the Commissioner found that the school board had not submitted any proof to refute Petitioners’ allegations or establish that the vitamins and herbal supplements at issue were over-the-counter drugs or harmful substances within the meaning of its policy that would support a finding that the student engaged in “conduct that endanger[ed] the safety, morals, health or welfare of others.”

Accordingly, the Commissioner ruled that "on this record" Petitioners have met their burden of proving that the student’s conduct was not prohibited by any portion of school board's code of conduct and ordered that W.H.'s suspension "be expunged from his record."

In addition, the Commissioner observed that:

1. Although the school district had argued that the supplements were subject to prohibition as “look-alike” drugs, this rationale is not supported by the evidence in the record as the school board had not established on this record that its code of conduct prohibits the possession of “look-alike” drugs or that the principal, superintendent or the school board relied upon such reasoning in imposing or upholding W.H.'s disciplinary penalty. 

2. Although the school board failed to demonstrate on this record that its code of conduct prohibits possession of vitamins, herbal supplements or “look-alike” drugs, nothing in this decision should be construed as prohibiting the school district from adopting a code of conduct which clearly apprises students and parents that students may be subject to discipline for the unauthorized possession of nutritional supplements, herbal remedies or look-alike drugs.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17269

Payment for "workdays" occurring during a school recess to an individual while he or she is on leave without pay

Payment for "workdays" occurring during a school recess to an individual while he or she is on leave without pay

Decisions of the Commissioner of Education, Decision No. 17,265

Citing Matter of Hilferty, 23 Ed Dept Rep 53 and other decisions of the Commissioner of Education, Commissioner MaryEllen Elia said that in determining the number of working days for which a teacher is entitled to salary pursuant to Education Law §3101(3) no deduction should be made from salary when a teacher performs all the services required of teachers in the district during the month. Accordingly, under ordinary circumstances the days of absence during a school recess should be counted as working days in computing a teacher's compensation.

In contrast, Commissioner Elia, citing Appeal of Zaccaro, 51 Ed Dept Rep, Decision No. 16,336, said that Education Law §3101(3) should not be interpreted to confer a right to salary for a teacher who has been placed on unpaid leave pursuant to the leave provisions of the applicable CBA. 

In this appeal, the school district argued that a teacher [Petitioner] was not entitled to compensation for the days during a spring recess because, pursuant to the provisions set out in a collective bargaining agreement, [CBA], she had been placed on unpaid leave under FMLA. The school district contended that Petitioner had been granted medical leave based on her representation that she would be using the maximum number of allotted sick days with pay for her leave and continue her absence pursuant to the  "federal Family Medical Leave Act" for the remainder.

Following a six week paid medical leave pursuant to the CBA, Petitioner was placed on unpaid leave pursuant to the FMLA until her return on April 16.  However, the district's schools were closed from April 4 through April 13 for spring break, during which time teachers were not required to report to work, but received their regular pay. Petitioner alleged that the school district reduced the her paychecks to reflect the district’s improper recoupment of monies paid for the work days over spring recess.  Petitioner appealed the school district's actions.

Petitioner alleges that respondents violated Education Law §3101(3) by recouping eight days’ pay for April 4, through April 15.  Petitioner requests an order directing respondents to pay her for the eight days that were allegedly improperly recouped.

The school district responded to Petitioner's appeal to the Commissioner alleging that Petitioner [1] had failed to state a cause of action; [2] did not demonstrate that she had a legal right to the relief requested; [3] that the issue "is solely reviewable pursuant to the district’s CBA, not in an appeal to the Commissioner"; and, in any event, [4] Petitioner was not entitled to pay prior to the stated return date in her request for leave, April 16.

Addressing a procedural issue, the Commissioner noted that Petitioner's employee organization, on behalf of Petitioner, commenced a grievance proceeding pursuant to the CBA regarding this matter seeking identical relief after Petitioner had filed her §301 appeal the Commission and which grievance was still pending.

Commissioner Elia opined that "It is well-settled that a school employee who has elected to submit an issue for resolution through a contractual grievance procedure may not bring an appeal pursuant to Education Law §310 for review of the same matter." She then ruled that "[i]n light of the strong public policy favoring internal grievance mechanisms and the finality of grievance processes in collective bargaining that was articulated by the Court of Appeals in Matter of Board of Education, Commack UFSD v. Ambach , 70 NY2d 501, Petitioner’s employee organization's subsequent filing of a grievance on the same issue of contractual interpretation and seeking the same relief has "divested the Commissioner of jurisdiction over the determinative issue in this appeal."*

Even though Petitioner's §310 appeal was filed before the employee organization filed its contract grievance on behalf of Petitioner, Commissioner Elia concluded that she must dismiss Petitioner's appeal under the doctrine of election of remedies.  To hold otherwise, reasoned the Commissioner, would create an unacceptable risk of conflicting decisions interpreting the relevant CBA provision and that "a decision under Education Law §310 that conflicts with a final determination in grievance arbitration would be in violation of the principles articulated by the Court of Appeals [in Commack]".

* Editor's comment: The decision indicates that the Commissioner elected to yield jurisdiction to the arbitration process to avoid "an unacceptable risk of conflicting decisions interpreting the CBA and a decision by the Commissioner interpreting the Education Law. The courts, however, have held that in the event a CBA provision conflicts with a right provide to an employee by statute, the statute controls.

For example, New York State's Civil Service Law provides that a permanent employee's seniority controls in the event of a layoff. This element – seniority – cannot be diminished or impaired by the terms of collective bargaining agreement as demonstrated by City of Plattsburgh v Local 788, 108 AD2d 1045.

In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a layoff situation. The collective bargaining agreement between Plattsburgh and the Union provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date that is to be used to determine an individual's service for seniority purposes under State law in the event of a layoff, i.e., the individual's date of initial permanent appointment in public service.

For example, assume Employee A was provisionally appointed on January 1, and  Employee B was provisionally appointed February 1, of the same year. Employee B, however, was permanently appointed on March 1 of the same year, while Employee A was permanently appointed a month later, on April 1.

Under the terms of the Local 788 collective bargaining agreement A would have greater seniority for layoff purposes than B. But §§80 and 80-a of the Civil Service Law provides that the date of an individual's most recent, uninterrupted "permanent appointment" determines his or her seniority for the purposes of layoff and so, under the law, B would have greater seniority than A.

When the City laid off A rather than B, the Union grieved, contending that under the seniority provision in the collective bargaining agreement, B should have been laid off. The City, on the other hand, argued that Civil Service Law §80 controlled and thus A,  having less seniority than B and had to be laid off before B.

Plattsburgh sought, and won, a  court order prohibiting arbitration. The court held that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away.

It would appear that the rational set out in Plattsburgh should control in this instance. Absent legislative authority to enter into collective bargaining with respect to an employee benefit conferred by law, here the provisions of Education Law §3101(3), the law would control. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17265

Unless the employer provides the educator with a reasonable assurance of continued employment following a holiday recess a per diem educator is eligible for unemployment insurance

Unless the employer provides the educator with a reasonable assurance of continued employment following a holiday recess a per diem educator is eligible for unemployment insurance

Matter of Papapietro (Commissioner of Labor), 2017 NY Slip Op 08596, Appellate Division, Third Department

The Appellate Division reversed a decision by the Unemployment Insurance Appeal Board that held that a per diem teacher was ineligible to receive unemployment insurance benefits because it found that he had a reasonable assurance of continued employment following a holiday recess.

John Papapietro was a per diem substitute teacher for the Rochester City School District. In the week immediately prior to a holiday recess at the end of December 2015 Papapietro had worked at least three days. However, his application for unemployment insurance benefits due to a "lack of work" related to the recess was denied by the Department of Labor. Although an administrative law judge had reversed the Department's decision, the Unemployment Insurance Appeal Board vacated the Administrative Law Judge's decision, holding, among other things, that Papapietro had received a reasonable assurance of employment after the recess and that, as a result, he was not entitled to the benefits he had applied for.

Papapietro appealed the Board's ruling and the Appellate Division held that the Board's interpretation of Labor Law §590(10) was inconsistent with the plain language of that provision's requiring a reasonable assurance of continued employment from an employer and reversed the Board's decision.

Citing Matter of Scott [Commissioner of Labor], 25 AD3d 939, the court said that "Pursuant to Labor Law §590(10), a claimant who is employed in an instructional capacity by an educational institution is precluded from receiving unemployment insurance benefits during 'any week commencing during an established and customary vacation period or holiday recess, not between such academic terms or years, provided the claimant performed services for such institution immediately before such vacation period or holiday recess and there is a reasonable assurance that the claimant will perform any services ... in the period immediately following such vacation period or holiday recess'" Despite the fact that the Legislature required an assurance in this regard, the court said that the Board had found that none was needed, while, in contrast, it has "long held" that an employer is required to  give an employee reasonable notice regarding his or her employment following a recess or a vacation.

In, the words of the Appellate Division, Third Department it "has repeatedly held that the interpretation of plain language in Labor Law §590(10) is a matter for resolution by the courts, not subject to deference in regard to the Board's interpretation" and has well-established precedent interpreting the identical phrase in Labor Law §590(10), "reasonable assurance," regarding two successive academic years or terms to require "a representation by the employer" as to future employment, which representation "often takes the form of a letter from an employer assuring a per diem substitute teacher of future employment opportunities."

Rochester had not sent any letter to Papapietro nor provided him with any other form of notice that made a representation regarding his continued employment after the recess. 

Finding that the Board's conclusion that the employer need not make any representation or provide any notice to an employee regarding the provision of services immediately following a recess or vacation to be inconsistent with the plain legislative requirement that the employer provide a reasonable assurance regarding such services, the Appellate Division reversed the Board's determination and remitted the matter to the Unemployment Insurance Appeal Board "for further proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08596.htm

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 9, 2017

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 9, 2017

Click on text highlighted in color to access the full report

Department of Agriculture and Markets: Oversight of Weights and Measures Program (2016-S-98)

Auditors found systemic issues with the quality of data the department relies on to administer the state’s weights and measures program. Inaccuracies and system deficiencies were found in two critical databases. Such deficiencies diminish the department’s ability to conduct useful analyses and to provide meaningful information to the municipalities. Such information could potentially assist municipalities to focus their limited resources on areas of highest risk to consumers and producers. Site visits to seven municipalities also found most of them did not complete all their mandated annual inspections.

City University of New York (CUNY): Central Office: Controls Over Bank Accounts (2015-S-94)

Auditors found multiple internal control weaknesses related to CUNY’s use of bank accounts. These weaknesses impacted various aspects of the banking process, including: opening and properly authorizing accounts; making deposits to accounts; and ensuring all accounts are used for appropriate business purposes. These weaknesses increased the risk of fraud, waste or abuse from unauthorized bank accounts and expenditures. Auditors also found that as of June 30, 2016, CUNY’s Money Market balances of about $163 million were uninsured and uncollateralized beyond the Federal Deposit Insurance Corporation (FDIC) limit of $250,000.

City University of New York: Medgar Evers College (MEC): Controls Over Bank Accounts (Follow-Up) (2017-F-14)

An audit issued in June 2016, found weaknesses in the monitoring of bank accounts, which increase the risk that Medgar Evers College personnel could conduct transactions using unauthorized accounts. In a follow-up, auditors found MEC officials made progress in addressing the issues identified in the initial report. Both of the two prior audit recommendations were partially implemented.

State Education Department (SED): Advanced Therapeutic Concepts Inc., Compliance with the Reimbursable Cost Manual (2016-S-42)

For the three fiscal years ended June 30, 2015, auditors identified $181,938 in reported costs that did not comply with SED requirements and recommended such costs be disallowed. The ineligible costs consisted of $85,104 in personal service costs and $96,834 in other than personal service costs.

State Education Department: Oversight of School Fire Safety Compliance (2017-F-22) (Follow-Up)

An initial audit report, issued in August 2016, concluded that the department did not adequately monitor whether schools are in compliance with all fire safety regulations and accurately report violations. In a follow-up, auditors found SED has made significant progress in correcting the problems identified in the initial report. Of the four prior audit recommendations, two have been implemented and two recommendations have been partially implemented.

Division of State Police: Seized Assets Program (2017-F-21) (Follow-Up)

An initial audit report, which was issued in December 2014, covering the period April 1, 2011 through September 2013, concluded that the division did not properly account for or track seized assets. In a follow-up, auditors found the division has implemented the six recommendations identified in the prior audit report.

A salary reduction upon reassignment to another position in the course of an agency reorganization is not a disciplinary action requiring notice and hearing

A salary reduction upon reassignment to another position in the course of an agency reorganization is not a disciplinary action requiring notice and hearing

Matter of Soriano v Elia, 2017 NY Slip Op 08431, Appellate Division, Third Department

Supreme Court dismissed Charles R. Soriano's CPLR Article 78 petition seeking a review of the Commissioner of Education's dismissing Soriano's challenge to the reduction of his salary and benefits following his reassignment to another position.

Soriano served as the East Hampton Union Free School District's Assistant Superintendent. In 2012 the school board approved a reorganization plan for administrative staff within the school district that resulted in Sorian's being reassigned and appointed to Middle School Principal, a position within his tenure area. This change, however, entailed a reduction in his annual salary from approximately $205,000 to $180,000 in his new position. Although Soriano did not challenge the reassignment, he objected to any reduction in his salary or benefits as a consequence of this reassignment*.

Soriano appealed the school board's action to the Commissioner of Education contending that his annual compensation could not be unilaterally reduced by the school board except as "discipline" pursuant to the procedures set forth in Education Law §3020-a. The Commissioner dismissed the appeal, finding that Soriano "failed to demonstrate that the salary reduction constituted discipline under Education Law §3020-a or that the school board's actions were otherwise arbitrary and capricious.

The Appellate Division rejected Soriano's argument that, as a matter of law, the reduction in his salary resulting from his reassignment to Middle School Principal constituted  "discipline" within the meaning of §3020-a and such discipline could not be imposed without notice and hearing.

Noting that "Discipline" is not defined in the Education Law, the court said it must "construe [this] word of ordinary import with [its] usual and commonly understood meaning" and the term is uniformly defined, both in the legal and ordinary sense, as "punishment."

The Appellate Division concluded that the school board's actions with regard to Soriano's  compensation did not constitute discipline under the statute and the uncontradicted evidence submitted by the school board establishes that his reassignment was part of an overall reorganization of the school district's administrative staff and that his compensation was set after consideration of a number of factors, including the salaries being earned by other middle school principals in the surrounding area, salary reductions for other administrative positions within the school district, recent budgetary cuts and the overall financial constraints of the school district.

As there was no evidence to suggest that the reduction in Soriano's compensation was the product of any dissatisfaction with him or his job performance or was otherwise undertaken as a means of punishment, the Appellate Division held that the Commissioner properly concluded that Soriano was not entitled to the procedures set forth in §3020-a prior to the school board's setting his new compensation. Further, said the court, "Nor can we conclude that [Soriano] had a constitutionally protected property interest in the compensation he received while serving as Assistant Superintendent" while serving in his reassigned position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08431.htm

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* Although both the term reassignment and the term transfer are used to describe this change, the term "reassignment" is more accurate in this instance. A movement of an individual from one position to a second position subject to the jurisdiction of the same appointing authority is typically described as a "reassignment." In contrast, the movement of an employee from one position to a second position under the jurisdiction of a different appointing authority is characterized as a "transfer."

That said, in the opinion of your editor this personnel change was neither a transfer nor a reassignment. Rather it appears to involve the abolishment of the position of Assistant Superintendent by the school board, resulting in Soriano's being laid off and the placement of his name on a preferred list. Soriano was then reinstated to the position of Middle School Principal, an then existing vacancy or a newly established position within his tenure area. Accordingly, his compensation upon such reinstatement should be determined accordingly.

Challenging an arbitration award

Challenging an arbitration award

2017 NY Slip Op 08382, Appellate Division, Second Department

A county employee [Petitioner] was served with disciplinary charges alleging misconduct for accessing unauthorized websites for non-County use and acting in an immoral manner during working hours, including viewing inappropriate material of a sexually explicit nature. Following a disciplinary hearing on these charges, the arbitrator found Petitioner guilty of misconduct and imposed a penalty of termination. Petitioner then initiated a CPLR Article 75 proceeding seeking to vacate the arbitration award.

Supreme Court dismissed the proceeding and confirmed the award. The Appellate Division sustained the lower courts ruling, explaining that judicial review of an arbitrator's award is extremely limited and the party seeking to vacate an arbitration award "bears a heavy burden[,]' and must establish a ground for vacatur by clear and convincing evidence."

Article 75 of the CPLR provides that an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeded his or her power; or (4) the arbitrator failed to follow the procedures mandated by Article 75.

In addition, in Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, the Court of Appeals held that an arbitration award may be vacated by the court if it finds that arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

Finding that in Petitioner's case the arbitrator's determination was supported by evidence in the record, that nothing in the record indicates that the arbitrator exceeded a specifically enumerated limitation on the arbitrator's powers and that the arbitrator's decision was not irrational, the Appellate Division dismissed Petitioner's challenge to the Supreme Court's decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08382.htm

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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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Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday November  29, 2017

Click on text highlighted in color to access the full report

Employer’s attempt to contractually shorten limitations period on FMLA claim fails

Transgender prof prevails on sex discrimination, retaliation claims in tenure denial

Dramatic uptick in major U.S. companies, law firms advancing LGBTQ nondiscrimination protections

Driver can’t be compelled to arbitrate misclassification claim; he wasn’t party to arbitration clause

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer

OATH Index No. 2230/17

The employer alleged that the employee was absent without leave [AWOL] for two weeks, that the employee falsely attributed her absences to pre-approved leave granted under the Family Medical Leave Act ("FMLA"), that the individual  failed to supervise her subordinates and that the employee failed to attend a mandatory training class.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Alessandra F. Zorgniotti recommended dismissal of the AWOL and falsification of leave charges in part, explaining that the employer had failed to show that the employee was AWOL or that she falsely attributed her absences to FMLA for the first week of her absence. The ALJ found that the record supported the employee's claim that her supervisor had approved her request for leave without pay and that that leave was supported by a valid doctor's note.

In contrast, Judge Zorgniotti found that the employer did prove the charges with respect to the second week of the employee's absence. In addition, Judge Zogniotti sustained the charges filed against the employee alleging that she failed to supervise her subordinates and that she had failed to attend the mandatory training class.

The ALJ recommended that the employee be given a penalty of a 60-day suspension without pay. The appointing authority, however, sustained all charges filed against the individual and terminated the individual's employment.

In Gradel v Sullivan Co. Public Works, 257 A.D.2d 972, the Appellate Division sustained the appointing authority's imposing a greater penalty that the one recommended by the hearing officer, explaining that there was ample evidence in the record to support the appointing authority's decision.

As a general rule, courts are reluctant to substitute their judgment for that of the employer on the fairness of penalties, but will do so if the penalty appears grossly unfair -- the standard established in Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2230.pdf

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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 on http://booklocker.com/7401.html

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Arbitrator rules that qualified retirees and future retirees to have the same health insurance coverage as the employer's active employees

Arbitrator rules that qualified retirees and future retirees to have the same health insurance coverage as the employer's active employees
Monroe County Deputy Sheriffs' Assn., Inc. (Monroe County), 2017 NY Slip Op 08107, Appellate Division, Fourth Department

Supreme Court granted the Monroe County Deputy Sheriffs' Association's petition to confirm the award rendered in a labor arbitration directing Monroe County and the Monroe County Sheriff to provide qualified retirees and future retirees from the Monroe County Sheriff's Office with the same health insurance coverage - here coverage for the dependent child of a retiree until the child reaches the age of 26 years - that was being  provided to active employees.

The Appellate Division cited the federal Affordable Care Act, 42 USC §300gg-14 [a] and the collective bargaining agreement (CBA) between the parties as the authority for the arbitrator's award.

The court rejected the County's and the Sheriff's claim that the arbitrator exceeded his power in fashioning the award, explaining that "It is well settled that an arbitrator exceeds his or her power within the meaning of CPLR §7511(b)(1) (iii) where the arbitrator's award " clearly exceeds a specifically enumerated limitation on the arbitrator's power."

Further, said the Appellate Division, "To exclude a substantive issue from arbitration . . . generally requires specific enumeration in the arbitration clause itself of the subjects intended to be put beyond the arbitrator's reach." The court then concluded that in this instance "the arbitrator did not exceed a specifically enumerated limitation on his power."

The Appellate Division also rejected the County's and Sheriff's contention that the arbitrator's award was irrational.

Citing Matter of Lackawanna City School District [Lackawanna Teachers Federation], 237 AD2d 945, the court decided that the arbitrator's interpretation of the CBA was not completely irrational and thus his ruling was beyond its power to review because "An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08107.htm