Hearing officer rejects appointing authority's allegation that employee was unfit to perform the duties of the position within the meaning of §72 of the Civil Service Law

The New York City Department of Health and Mental Hygiene [MH] initiated a Civil Service Law §72 proceeding alleging a school nurse [Employee] was unfit to perform the duties of her position due to schizoaffective disorder.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls found that MH failed to prove that the Employee was currently unfit to perform the duties of a school nurse and recommended that the proceeding be dismissed.

Employee submitted reports from her psychiatrist and her therapist demonstrating that she had been under their care for more than a year, attended regular appointments with each of them, that she was aware of her mental health condition, and she was diligent about taking her medication. 

Based on the doctor’s reports, Judge McGeachy-Kuls found that it was clear that Employee was actively engaged in her treatment with each of them. Further Employee’s psychiatrist and therapist both expressed “unequivocally” that she was fit to resume her duties as a school nurse and that she is not a danger to herself or to the students.

The decision is posted on the Internet at: 

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2002.pdf

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New training requirements contained in the employer's operations order held not a mandatory subject of bargaining

The Appellate Division sustained the determination of New York City Board of Collective Bargaining [BCB] rejecting the Correction Officers' Benevolent Association's [Association] improper practice charge that the Department of Corrections [DOC] had unilaterally modified the process used in awarding staff assignments. 

BCB had determined that the inclusion of employee evaluation criteria based on an assessment of an officer's use of force was not subject to mandatory bargaining as the new evaluation procedures did not concern procedural aspects of officers' performance evaluations and did not require any participation by officers, but only altered the supervisory functions and discretion of the supervisors who performed such evaluations.

The court opined that BCB's determination that the operations order issued by DOC did not impose a substantive change to the process of awarding job assignments was rational, noting the presence of testimony in the record that the information now required to be considered about a correction officer's history of use of force was already a consideration under the previous operations order. 

Further, said the Appellate Division, divisions of DOC required to be contacted during the process of awarding assignments were regularly consulted when the previous order was in effect.

The court's decision notes that BCB's determination that the new training requirements contained in the operations order were not a mandatory subject of bargaining was rational and supported by witness testimony about the role seniority played under both the current and previous operations orders.

The decision also noted that the lack of training did not prevent an officer from applying for or being awarded an assignment and that the language of the new operations order and DOC practice permitted officers to be awarded new assignments and receive required training before beginning assignments.

Citing Matter of United Fedn. of Teachers v City of New York, 154 AD3d 548, the decision also addressed a procedural issue. The Appellate Division noted the BCB hearing, following which BCB made its determination, was discretionary rather than mandatory. Accordingly, the court held that the standard of judicial review was whether BCB's determination was arbitrary and capricious. Concluding that Supreme Court's transfer of the action to the Appellate Division was unwarranted, the Appellate Division elected to dispose of the matter "on the merits" rather than remand the matter to Supreme Court for its further consideration and reviewed BCB's determination "for rationality."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02549.htm

Disclosing matters discussed in an executive session to the public

In this appeal the Appellate Division was asked to vacate a determination of the Commissioner of Education [Commissioner] where the penalty imposed was the removal of a member of a school board [Member] from the school board [Board]. The Board had asked the Commissioner to remove Member from his position following the publication of [1] an article Member had penned that many considered to be racially offensive and [2] an article in which Member revealed certain information concerning matters that the Board had discussed in executive sessions.*

The Board met with outside counsel and was advised that Member could not be removed from the school board for his allegedly racially offensive comments because such comments were protected speech under the First Amendment. However, the Board was further advised that Member's disclosure of confidential information to the public obtained in the course of an executive session was a removable offense. 

The Board subsequently met and passed a resolution authorizing the filing of a petition with the Commissioner seeking Member's removal from the Board based on his disclosure of "confidential information" discussed during an executive session of the Board. The Board's application filed with the Commissioner alleged that Member had disclosed confidential information he had obtained during an executive session meeting concerning [1] certain litigation involving a former contractor and the school district; [2] collective bargaining negotiations with the representative of school district employees in a negotiating unit; and [3] a personnel matter.

Following a hearing, although the Commissioner found that Board had failed to establish that Member disclosed confidential information concerning the litigation between the school district and the contractor or a personnel matter, the Commissioner determined that Member had violated General Municipal Law §805-a "by willfully disclosing confidential information concerning the collective bargaining negotiations" and ordered Member's removal from the Board.

Member then commenced a combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment** challenging the Commissioner's determination to remove him from the Board.

After considering two procedural matters, the Appellate Division addressed Member's argument that the Commissioner's determination that Member had disclosed confidential information was not supported by the record. 

Citing Matter of Francello v Mendoza, 165 AD3d 1555 and Matter of State of New York v New York State Pub. Empl. Relations Bd., 176 AD3d 1460, the court explained that its review of an administrative decision made as a result of a hearing was limited to whether the decision was supported by substantial evidence, "which, in turn, depends upon whether there exists a rational basis in the record as a whole to support the findings upon which the determination is based."

Considering the basis for the removal of a member of a board of education, the Appellate Division opined that:

a. pursuant to Education Law §306 (1), a member of a board of education may be removed from his or her position when he or she has been found guilty of "any willful violation or neglect of duty . . . after a hearing;" and

b. a member of a board of education may be removed pursuant to Education Law §2559 for "Willful disobedience of any lawful requirement of the commissioner . . ., or a want of due diligence in obeying such requirement or willful violation or neglect of duty."

Noting that General Municipal Law §805-a[1][b] provides that "such willful violation may include a disclosure of "confidential information acquired by him [or her] in the course of his [or her] official duties or use [of] such information to further his [or her] personal interests," the Appellate Division said that as relevant in this appeal "when a public body conducts an executive session, that meeting is not open to the general public and, therefore, disclosure of the information or discussion that occurred during the executive meeting may be prohibited, and that Public Officers Law Public Officers Law §105[1][e] provides that "A public body may conduct an executive session only for limited purposes, including "collective negotiations pursuant to article [14] of the [C]ivil [S]ervice [L]aw."

The Appellate Division held that the record "supports the Commissioner's finding that [Member's] disclosure of confidential information was willful," including Member's testimony was "evasive and demonstrated a lack of regard for his responsibilities as a member of the [Board]" and the Board's "policy and Code of Conduct, which informed [board] members of their duty to refrain from disclosing confidential information."

Another argument advanced by Member was that the Board "failed to adhere to the procedures required by the Open Meetings Law," contending that this failure made the Board's removal application "ultra vires*** and void" in that the Board failed to have a public meeting and vote for authorization to pursue the removal application based upon the disclosure of confidential information.**** The Appellate Division rejected Member's challenge as not properly before it. 

The court said that to commence a proceeding against a public body, a petitioner must submit a CPLR Article 78 claim within four months "after the determination to be reviewed becomes final and binding upon the petitioner." Here, said the court, the Board held a meeting on January 17, 2017 and authorized the removal application and submitted the petition to the Commissioner on January 18, 2017. At that moment, the removal proceeding commenced and became final and binding on Member and Member's challenge to the alleged unlawful procedure accrued. Member, however, "did not submit a CPLR Article 78 petition to challenge the alleged unlawful meeting within four months thereof and, thus, he is precluded from arguing it in this matter."

After considering and rejecting a number of other arguments relied upon by Member in his challenge to the Commissioner's determination, the Appellate Division concluded that the penalty imposed by the Commissioner, removal of Member from the Board, "was not so disproportionate to the offense as to shock one's sense of fairness and, as such, it will not be disturbed."

* Member expressly stated that the information he was relaying in the published article "was discovered from an executive session."

** The Appellate Division noted that Member's "request for declaratory relief is not authorized in a proceeding transferred pursuant to CPLR 7804 (g) and, thus, that part of the matter must be remitted to Supreme Court for the entry of an appropriate judgment thereon."

*** Acting beyond one's legal power or authority.

**** At an executive session, i.e., "that portion of a meeting not open to the general public," the topics that may be discussed are circumscribed by statute and include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person [Zehner v Bd. of Ed. of Jordan-Elbridge CSD, 91 AD3 1349].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_02835.htm

Audits released by the New York State Comptroller during the week ending May 17, 2020

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending May 17, 2020.

Office of Addiction Services and Supports (OASAS): Problem Gambling Treatment Program (Follow-Up) (2020-F-5) An audit issued in February 2019 found since 2006, OASAS had not conducted a comprehensive needs assessment or social impact study to identify the number or location of individuals in need of problem gambling treatment services. As such, the audit was unable to determine whether OASAS had a sufficient number of treatment programs available for problem gamblers or whether OASAS’ limited resources were applied where they were needed most. In a follow-up, auditors found OASAS implemented both recommendations contained in the initial report.

Division of Criminal Justice Services: Monitoring and Administration of Public Protection Grant Programs (2019-S-21) The division’s administration and monitoring of the grant programs reviewed were adequate to ensure that the related grant expenses were supported and allowable. Of the $3.1 million in combined grant expenditures auditors reviewed from the three years ended Dec. 31, 2019 (of $57.3 million expended during the period), they identified one exception related to a grantee’s payments of confidential funds, some of which, totaling $1,652, lacked documentation of approval or receipt.

Gaming Commission: Equine Health and Safety (Follow-Up) (2019-F-49) An audit issued in November 2018 found that the commission had implemented measures to improve its practices to promote equine health and safety. However, auditors determined the commission could better document its daily operating policies and procedures; improve how information is recorded in the Equine Breakdown, Death, Injury and Incident Database; and ensure adherence to drug testing requirements. In a follow-up, auditors determined commission officials have made limited progress in correcting the problems identified in the initial report, and additional action is still needed. 

Department of Health, Medicaid Program: Opioid Prescriptions for Medicaid Recipients in an Opioid Treatment Program (Follow-Up) (2019-F-53)  An audit released in November 2018 identified 18,786 recipients who received 208,198 opioid prescriptions through the Medicaid program while also receiving opioids as part of a Treatment Program for opioid use disorder. These recipients may have received inappropriate, unnecessary, and/or dangerous prescriptions if treatment programs did not check the computer database and, where authorized, coordinate care with other prescribers. In a follow-up, auditors found DOH officials made significant progress in addressing the problems identified in the initial audit.

Division of Military and Naval Affairs (DMNA): Internal Controls Over Selected Financial Operations (2018-S-66) An agreement between DMNA and the federal National Guard Bureau (NGB) allows DMNA to be reimbursed by NGB for expenses it incurs in operations and training of the State Army and Air National Guard. Auditors found weaknesses in DMNA’s handling of reimbursement requests to NGB resulted in nearly $1.27 million in lost reimbursements. Auditors also found significant weaknesses in DMNA’s controls over accounting for employee credit card purchases. 

New York City Department of Social Services (DHS): Oversight of Selected Fiscal Aspects of Homeless Shelter Services (Follow-Up) (2019-F-54) An audit issued in October 2017, found that DHS lacked internal controls over the shelter contract procurement and rate-setting process. There were no written standard operating procedures for key aspects of the procurement process, and auditors could not determine whether shelter rates were reasonable. In a follow-up, auditors found DHS has made progress in addressing the issues identified in the initial report.

State Education Department (SED): Parsons Child and Family Center: Compliance With the Reimbursable Cost Manual (2019-S-25) Parsons is an SED-approved special education provider located in Albany County. Parsons is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2015, auditors identified $247,699 in ineligible costs that Parsons reported, including $188,149 in overstated expenses that resulted from Parsons misreporting revenue that should have been offset against program expenses.  

State Education Department: Oversight of Chronic Absenteeism (Follow-Up) (2019-F-57) An audit issued in September 2018 identified risks to the implementation of the Department’s chronic absenteeism initiatives that could negatively affect progress toward the Department’s goals of increased student engagement and achievement. In a follow-up, auditors found SED made significant progress in addressing the problems identified in the initial audit report.

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