Special Military Benefits and Post-Discharge Benefits available to employees of New York State as the employer through December 31, 2021

The Governor's Office of Employee Relations has signed Memoranda of Understanding with the Civil Service Employees Association, Council 82, District Council 37, NYS Correctional Officers and Police Benevolent Association, Police Benevolent Association of New York State, Graduate Students Employee Union, Public Employees Federation, and United University Professions, extending current special military benefits for service in connection with the war on terror, and certain benefits in connection with return from military duty for duty related to the war on terror that exceeds 180 days' duration through December 31, 2021. 

The same benefits provided in these MOUs are extended to State personnel designated Managerial or Confidential employees for the purposes of Article 14 of the Civil Service Law [the Taylor Law].

Provisions of the MOUs are not grievable.

The existing special military benefits extended under these MOUs are administered in accordance with previously issued memoranda.

New York State Departments and Agencies should consult the following memoranda to ensure proper administration of these benefits:

GIB 2001-04	Special Military Benefits for State Employees Activated in Connection with the Events of September 11, 2001
AM 2001-06	Special Military Leave for Employees Activated in Connection with the Events of September 11, 2001
AM 2002-01	Frequently Asked Questions about Special Military Leave in Connection with the Events of September 11th
AM 2002-03	Training Leave at Reduced Pay for Military Duty Not Related to the Events of September 11th and Extension of Special Military Leave in Connection With the Events of September 11th
AM 2004-01	Clarification of Special Military Leave Benefits
AM 2007-01	Memoranda of Understanding on Extension of Special Military Benefits and New Post-Discharge Benefits

Questions concerning these benefits should be directed to the Attendance and Leave Unit of the New York State Department of Civil Service [(518) 457-2295].

 

Taxable Fringe Benefit Essentials - A Webinar for Government and Tax Exmpt Employers

The Tax Exempt and Government Entities Division of the Internal Revenue Service [IRS] is hosting a free Webinar titled Taxable Fringe Benefit Essentials for Employerson April 14, 2021 at 1:00 p.m. (ET).  

This Webinar will cover the most common fringe benefits and explain if those fringe benefits are taxable.

Officers and employee of government and tax exempt entities and other interested parties may enroll to watch this free Webinar that is designed to explain what a fringe benefit is and how to value a fringe benefit by clicking here to register .

Additional information is available at Webinars for Tax Exempt & Government Entities. 

 

 

 

Providing electronic records in response to Freedom of Information Law requests

In this proceeding pursuant to CPLR Article 78 to compel the production of certain documents pursuant to the Freedom of Information Law [FOIL]* sought by the Petitioner [Plaintiff], the Appellate Division explained:

1. As a general rule, a governmental entity [Agency] responding to a FOIL request is not required to create any new record or data that is not already possessed and maintained by it as such.

2. Pursuant to Public Officers Law §89[3][a], some information maintained in an electronic format may be retrieved, compiled, and disclosed if doing so requires only a "reasonable effort".

Here, said the court, the Records Access Officer [Custodian] of the records in question stated that he lacked the technical sophistication to manually transfer the email addresses onto an Excel spreadsheet in order to provide an electronically formatted response to the Plaintiff's FOIL request.

However, the Appellate Division said Custodian did not address whether any other employee of the Agency could, with a reasonable degree of time and effort, create "an Excel spreadsheet" that would comply with the terms of Plaintiff's FOIL request. Citing Data Tree, LLC v Romaine, 9 NY3d at 466, the court opined that "[i]t cannot be said, therefore, that the [Plaintiff's] amended petition fails to state a cause of action, as it presents a question of fact as to whether reasonable efforts by [the Agency's] employees could be undertaken to provide an electronically formatted response."

The Appellate Division also noted that Supreme Court should not have granted that portion of the Agency's motion to dismiss that part of the Plaintiff's amended petition alleging FOIL violations pertaining to the Petitioner's request for a copy of the Custodian's email and its recipient list. The amended petition, said the court,  described a portion of the email as being defamatory toward Plaintiff.

Addressing the alleged "defamation," the court indicated that in an electronic response by the Agency's attorney [Counsel], the Petitioner was told that the Custodian was not required to respond to "factual characterizations and legal conclusions," which might be a cryptic reference to any potential allegation that the Custodian's email at issue was defamatory. However, said the court, Counsel stopped short of addressing whether the email and its recipient list would or would not be provided by the Agency and the Agency gave no further response related to this request.

Finally, as the Agency did not advise Petitioner of the availability of an administrative appeal as required by 21 NYCRR 1401.7(b), the Appellate Division said that the Supreme Court erred in concluding that the Petitioner's administrative appeal was time barred. Accordingly, the Appellate Division concluded that Supreme Court should not have granted that branch of the Agency's motion which was to dismiss so much of the amended petition as related to that FOIL request and remitted the matter  to Supreme Court "for a determination on the merits after the Agency serve and file their answer and, if necessary, complete the administrative record."

* Public Officers Law Article 6.

Click HERE to access the text of the Appellate Division's decision.

 

Distinguishing between prohibited, mandatory, and non-mandatory subjects of collective bargaining within the meaning of the Taylor Law

The Union of Automotive Technicians, Local 563, [Union] filed an improper practice charge with the Port Authority Relations Panel [Panel] alleging that  the Authority had revised its Security Identification Display Area [SIDA] clearance application form without negotiating changes in the form with the Union.

The earlier form required disclosure of "disqualifying offenses enumerated in 49 CFR 1542.209(d)". The new application form, however, required applicants to disclose "all offenses, other than certain traffic offenses, of which they had ever been convicted, or found not guilty by reason of insanity."

The Panel dismissed the Union's charge, holding that the requirements to disclose additional convictions were not terms and conditions of employment and thus not mandatory subject of collective bargaining within the meaning of Article 14 of the Civil Service Law, the so-called Taylor Law. The Union then filed a CPLR Article 78 petition in Supreme Court appealing the Panel's ruling. Supreme Court transferred the matter to the Appellate Division.*

Sustaining the Panel's determination, the Appellate Division indicated that it viewed the revised application form as:

1. An exercise of Port Authority's managerial prerogative to determine job qualifications, and amounted to "policy decisions relating to the primary mission of the public employer;" and

2. Section III(D) of Port Authority's Labor Relations Instruction excludes "the mission and management responsibilities of the Authority, including its ... staffing [and] operating ...  policies" from mandatory negotiation.

Other court decisions addressing areas excluded from mandatory negotiations within the meaning of the Taylor Law include City of Plattsburgh v Local 788, 108 AD2d 1045 and Szumigala v Hicksville Union Free School District, 148 AD2d 621.

Plattsburg involved the diminishing or impairing employee seniority for the purposes of layoff upon the abolishment of positions. 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. The City laid off Employee A rather than another worker, Employee B. While A, had been employed by the City for a longer period than B, B had received his permanent appointment before A was permanently appointed. Plattsburgh won an order prohibiting arbitration of the issue. The Court said that §80 of the Civil Service Law "reflects a legislative imperative" granted employees that the City was powerless to bargain away.

In Szumigala, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

In Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 NY3d 660, the court addressed a prohibited negotiating demand. Here the high court ruled that "[p]ublic policy requires that police departments retain the authority given them by Civil Service Law §61(1) to select one of three candidates for such promotions, thus barring an appointing authority from agreeing, in the course of collective bargaining, to limit its discretion in selecting a candidate for promotion by requiring the appointing authority to follow the so-called "rule of the list."

In contrast, Matter of Professional, Clerical, Tech. Empls. Assn. (Buffalo Bd. of Educ.), 90 NY2d 364, is an example of a non-mandatory negotiating demand with respect to negotiating the rule of the list. Here the Court of Appeals held that a public employer could, without violating public policy, agree to forgo its statutory authority to choose from among any of three candidates for promotion to clerical and secretarial positions. Here the use of the "rule of the list" was held not to offend pubic policy insofar as appointments of candidates to clerical or secretarial positions were concerned.

* Addressing a procedural issue, the Appellate Division said the Article 78 proceeding should not have been transferred to it as the petition did not raise an issue of substantial evidence but, "as a matter of judicial economy," it elected to retain jurisdiction "to dispose of all issues raised" in the Union's Article 78 petition.

Click HERE to access the text of the Port Authority decision.

 

Applicant denied accidental disability retirement benefits after failing to show that his disability was causally related to his accident

The Appellate Division introduced its consideration of this appeal by observing that the decision being appealed "was not made pursuant to an administrative hearing, and therefore the proceeding was improperly transferred to this Court" by the Supreme Court. The Appellate Division then decided to address the merits of the appeal "in the interest of judicial economy", citing Matter of DeMonico v Kelly, 49 AD3d 265.

An application for accidental disability retirement [ADR] benefits filed by a New York City firefighter [Applicant] was denied by the Board of Trustees of the New York City Fire Pension Fund [Trustees]. Applicant filed a CPLR Article 78 petition seeking court order vacating the Trustees' decision. The matter was, as noted earlier" improperly transferred to the Appellate Division. After considering the merits of Applicant's appeal the court opined that the Trustees' decision was supported by credible evidence, and was not arbitrary and capricious, citing Meyer v Board of Trustees of N.Y. City Fire Dept., Art.1-B Pension Fund, 90 NY2d 139.

The court said that the finding that Applicant's "disabling hip condition is causally related to a preexisting degenerative condition, rather than his fall while in the performance of his duties, is based upon credible medical evidence ... indicative of a chronic degenerative disease, not an acute injury." Thus the Appellate Division found that the Trustees "properly relied upon the [New York City Fire Pension Fund's] Medical Board's unanimous opinion as to causation, commenting that "in the event there is a conflict in the medical evidence regarding the cause of the disability [that determination] is within the sole province of the Medical Board to resolve."

In contrast, the court observed that Applicant failed to establish, as a matter of law,  that his disability was causally related to his accident, and in particular, that his asymptomatic preexisting degenerative disease was exacerbated by the accident as he claimed. Further, in the words of the Appellate Division, the Medical Board found there was no objective evidence to support that theory of causation alleged solely upon Applicant's subjective claims.

Unanimously confirming the decision of the Trustees', the Appellate Division dismissed Applicant's appeal.

Click HEREto access the full text of the Appellate Division's decision.

 

Arbitrating a grievance alledging the employer failed to fill a vacant position as required by a provision in the collective bargaining agreement

The Appellate Division, noting that the parties in this action were actually involved in two appeals each involving the arbitrability of a grievance alleging that the appointing authority [Employer] failed to fill certain vacancies in accordance with the terms set out in the collective bargaining agreement [CBA], said it was deciding both appeals "herewith."

Essentially the two disputes concerned a CBA provision that required Employer to fill "vacant promotional positions ... from [c]ivil [s]ervice lists within thirty (30) days." One grievance alleged Employer failed to fill two vacant Sergeant positions* and a second grievance alleging Employer failed to fill a vacant Captain position.**

The Sergeant Grievance: One sergeant was promoted to captain and another sergeant retired, leaving two vacant sergeant positions. After the second Sergeant position had been vacant for more than 30 days, the Union filed a grievance alleging that Employer had violated the CBA by failing to timely promote any eligible candidates to the vacant sergeant positions.

The Captain Grievance: Two months after an individual was promoted from the position of captain to assistant chief, leaving a vacant captain position, the Union filed a grievance alleging that Employer violated the CBA when it failed to promote one of the three eligible sergeants to the position of captain within 30 days.

Employer denied the grievances and the Union submitted demands to arbitrate the disputes. Employer then commenced two proceeding pursuant to CPLR §7503 seeking, respectively, court orders permanently staying the arbitrations. Supreme Court denied Employer's applications for the stays of arbitration and granted the Union's cross motions to compel arbitrating the two disputes. Employer appealed the Supreme Court's decisions.

In deciding these appeals the Appellate Division noted:

1. When deciding whether to stay or compel arbitration pursuant to CPLR 7503, courts are "concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim." 

2. In general, "any doubts as to whether an issue is arbitrable will be resolved in favor of arbitration."

3. Citing Deas v Levitt, 73 NY2d 525 and other decisions, the Appellate Division  opined although "no individual had a vested right to be appointed to a vacant position — not even those whose scores placed them in the top three examinees", in this instance once individuals were appointed, they may have become entitled to damages or other relief based on Employer's alleged contractual breach, i.e., failure to make such appointments within the time frame required by the CBA.

4. "The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, [courts] first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, [courts] then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement".

5. A public employer's promotional practices may lawfully be the subject of collective bargaining and, if agreed upon, may be the subject of arbitration when a related grievance is filed.

6. Article XXV of the CBA at issue, addressing promotions to newly-created and vacant positions, provides that "vacant promotional positions shall be filled from [c]ivil [s]ervice lists within thirty (30) days; provided, however, that if any list would expire prior to that time, the positions will be filled before the expiration of the list in existence at the time the vacancy occurs, or the new position is created."

Employer asserted that Article XXV was contrary to Civil Service Law §61(1). The Appellate Division disagreed, explaining that this is not a situation where the CBA mandates appointing the highest scoring person on the list willing to accept a police officer position rather than applying the "rule of three" - selecting a candidate from among the "top three eligibles" certified for appointment to the position. The court noted that here the Employer retained the discretion to choose from among the top three candidates, but voluntarily agreed to make such choice within a certain period. As Civil Service Law §61 contains no time requirements for making an appointment, the CBA's provision did not violate that statute or any related public policy.

As to the appointing authority exercising discretion in selecting an eligible individual for promotion, while in Matter of Professional, Clerical, Tech. Empls. Assn. (Buffalo Bd. of Educ.), 90 NY2d 364, the Court of Appeals held that a public employer could, without violating public policy, agree to forgo its statutory authority to choose any one of three candidates for promotion to clerical and secretarial positions, in  Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 NY3d 660, the high court ruled that "[p]ublic policy requires that police departments retain the authority given them by Civil Service Law §61(1) to select one of three candidates for such promotions," thus barring an appointing authority from agreeing, in the course of collective bargaining, to limit its discretion in selecting a candidate for promotion by requiring the appointing authority to follow the so-called "the rule of the list."***

Considering "budget arguments" advanced by the Employer, the Appellate Division opined that although Article XXV would allow Employer to eliminate an open captain position**** and thereby save the expenses related to that position, Employer had "bargained away its ability to keep the position as a line item in the budget but not fill it when it becomes vacant." This "partial limit" on a municipality's power to control its budget, which limit was voluntarily agreed upon by the Employer in the CBA, was not viewed as against public policy by the Appellate Division.

Finding that "[n]o constitutional provision prohibits arbitration here", the Appellate Division concluded its rulings by observing that "considering the broad scope of the CBA's arbitration clause, any argument concerning compliance with the grievance process, including any time limitations thereunder, is likewise a matter for the arbitrator to decide."

An historical note: Prior to 1900 New York State civil service appointments from eligible lists were based on the rule of one, also referred to as "the rule of the list." This rule mandated the appointment of the candidate standing highest on the eligible list certified by the responsible civil service commission. In 1900 the "rule of one" was struck down by the Court of Appeals as unconstitutional. The Court held that "if the civil service commissioners have power to certify to the appointing officer only one applicant of several who are eligible and whom they have, by their own methods, ascertained to be fitted for a particular position, and their decision is final ... then the civil service commission becomes and is the actual appointing power" [People v Mosher, 163 NY 32]. This decision prompted establishment of the so-called "rule of three," currently set out in Section 61.1 of the Civil Service Law and held valid by the Court of Appeals in People v Gaffney, 201 NY 535. 

* See Matter of City of Troy (Troy Police Benevolent & Protective Assn., Inc.), 2021 NY Slip Op 01172, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01172.htm

** See Matter of City of Troy (Troy Police Benevolent & Protective Assn., Inc.), 2021 NY Slip Op 01170, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01170.htm

*** The Rule of One, also known as the "Rule of the List." is mandated by Civil Service Law §§81.2 and 81.3 in situations involving an appointment from a preferred list and in situations involving an appointment from a similar list such as a Special Eligible List established pursuant to §243.7 of the State's Military Law while §243.12 of the Military Law provides that appointments from a Military Re-employment List may be made without regard to the selected individual's position on said list.

**** The Attorney General has opined that there must be an actual abolishment of the position in question in contrast to merely “creating a vacancy as the result of a layoff” in order to trigger the relevant statutory layoff procedures [1976 Opinions of the Attorney General 7].

Audits issued by the New York State Comptroller during the week ending March 5, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending March 5, 2021.

Click on the text highlighted in color to access the complete audit report.

Department, Authority, Program and Foundation Audits

Department of Health (DOH) Improper Fee-for-Service (FFS) Payments for Services Covered by Managed Care (Follow-Up) (2020-F-8)A prior audit identified over $36 million in improper Medicaid FFS payments for services that should have been covered by the recipients’ managed care plans. In a follow-up audit, auditors found DOH made some progress in addressing the problems identified. However, auditors still identified nearly $7 million in new improper payments.

Department of Health: Improper Payments for Sexual and Erectile Dysfunction (ED) Drugs, Procedures, and Supplies Provided to Medicaid Recipients, Including Sex Offenders (Follow-Up) (2020-F-15) An audit released in June 2019 identified $933,594 in improper payments for drugs, procedures and supplies to treat ED. Of that amount, Medicaid paid $63,301 for 47 sex offenders. Medicaid also made payments of $13.5 million for ED drugs that are approved to also treat other medical conditions. About $11.6 million of the $13.5 million in payments were made without verifying recipient sex offender status through DOH’s system, as required – consequently, auditors found Medicaid paid $285,641 on behalf of 14 sex offenders. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial audit report; however, more improvements are needed.

Department of Health: Medicaid Program - Improper Medicaid Payments for Individuals Receiving Hospice Services Covered by Medicare (2018-S-71) Auditors identified about $50 million in actual and potential Medicaid overpayments, cost-savings opportunities, and questionable payments for services provided to certain patients enrolled in Medicare-covered hospice. Among the cost savings, auditors recommended DOH review the $5.9 million in actual and potential overpayments and ensure proper recoveries are made. They also recommended DOH improve controls to prevent improper payments in the future. Another $39.8 million was identified as questionable because these expenses may have been eligible for coverage by Medicare.

Homes and Community Renewal - Division of Housing and Community Renewal (DHCR): Administration of Mitchell-Lama Waiting Lists (Follow-Up) (2020-F-19) An initial report issued in August 2017 found that DHCR needed to improve its monitoring of the Mitchell-Lama developments to ensure that affordable units were awarded in compliance with New York Codes, Rules and Regulations. In a follow-up, auditors found DHCR has made some progress in addressing the problems identified in the initial audit report.

Department of Motor Vehicles: Enforcement of Article 19-A of the Vehicle and Traffic Law (Follow-Up) (2020-F-6) An audit issued in February 2019 identified deficiencies in DMV’s policies and procedures that could result in motor carriers operating out of compliance with requirements for school bus drivers with the associated risk that under or unqualified drivers were operating vehicles and potentially jeopardizing safety. In a follow-up, auditors found DMV has implemented four of the five recommendations from the initial audit report, and has partially implemented one recommendation.

New York State Health Insurance Program: CVS Health – Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (Follow-Up) (2020-F-24) An audit issued in June 2019 found that CVS Health did not always invoice drug manufacturers for all rebates, collect all rebates from the manufacturers, or remit all rebate revenue to Civil Service. As a result, Civil Service was due $2,240,798 in rebates. In a follow-up, auditors found CVS Health addressed most of the problems identified in the initial audit.

Niagara Frontier Transportation Authority (NFTA): Use of Vendor-Supported Technology (Follow-Up) (2020-F-28) An initial audit determined that NFTA maintained its technology systems at vendor-supported levels. However, auditors identified unsupported systems used on 66 devices. NFTA officials did not develop policies and procedures to ensure that their systems were regularly reviewed and kept up to date, nor did they maintain a single clear inventory of IT assets to aid in tracking their systems. In a follow-up, auditors found NFTA officials have made significant progress in addressing the problems identified in the initial audit.

Olympic Regional Development Authority (ORDA): Compliance With Executive Order 95 (Open Data) (2020-S-36) ORDA did not begin to take steps to meet the requirements of EO 95 until after auditors started their work. Prior to the audit, ORDA did not have any data items published to Open Data. In addition, it did not designate a data coordinator, complete a comprehensive catalogue of publishable data, submit a master schedule of publishable datasets or incorporate Open Data into its ongoing core business planning and strategies. However, since then, ORDA has taken steps to comply with EO 95.

Research Foundation of the State University of New York (SUNY): Technology Transfer Program and Royalty Payments (Follow-Up) (2020-F-32) An audit issued in January 2020, found that the Research Foundation had taken steps to protect SUNY’s interest in the transfer of technology and royalties for projects developed at SUNY schools, but had not developed monitoring to determine whether licensees was accurately reporting net sales and paying the full royalty owed. Additionally, SUNY Downstate had accumulated $1,019,390 in campus royalty revenues, none of which had been reinvested to support SUNY research programs. In a follow-up, auditors found Research Foundation officials have made progress in addressing the findings identified in the initial report.

Rochester - Genesee Regional Transportation Authority (RGRTA): Compliance With Requirements to Maintain Systems at Vendor-Supported Levels (Follow-Up) (2020-F-30) An initial report found that RGRTA maintained its technology systems at vendor-supported levels. However, auditors did identify unsupported systems used on 14 devices. Additionally, RGRTA had not developed policies and procedures to ensure that its systems were regularly reviewed and kept up to date. In a follow-up, auditors found RGRTA made significant progress in addressing the problems identified in the initial audit.

State Education Department: Oversight of School Safety Planning Requirements (Follow-Up) (2020-F-17) An initial audit determined SED was not sufficiently monitoring school districts’ compliance with the requirements for school safety planning, and did not have assurance that the requirements were being met. In a follow-up, auditors found SED has made significant progress in addressing school safety issues.