The Intra-Military Immunity Doctrine bars judicial interference in discretionary military personnel decisions

A United States District Court granted the government’s motion to dismiss and, in the alternative, for summary judgment, on the Plaintiff-Appellant's [Cadet] claims that separation procedures of the United States Military Academy at West Point fail to provide due process and that the separation proceedings violated West Point’s own regulations in a manner that substantially prejudiced him. Cadet appealed the district court's ruling. 

The Circuit Court of Appeals held that West Point’s cadet separation procedures satisfy due process and that the intra-military immunity doctrine, which bars judicial interference in discretionary military personnel decisions, renders the Cadet’s regulatory claims nonjusticiable.

Accordingly, the Circuit Court affirmed the district court's judgment.

Click HEREto access the Circuit Court's ruling.

 

 

Diminishing retiree health insurance benefits

NYPPL has received a number of requests concerning a 2008 New York State Supreme Court decision that addressed the unilateral diminishing of retiree health insurance benefits by the retiree's former public employer.

The text of the decision, DiBattista v County of Westchester, is set out below:

 

DiBattista v County of Westchester

Decided on July 29, 2008
Supreme Court, Westchester County

Carmine DiBattista, ANTHYONY EGIZIACO, KATHERINE JONES, ANTHONY P. DEL BORGO, KENNETH A. FISCHER and VIOLA WANCHO on behalf of themselves and certain other RETIRED EMPLOYEES of the COUNTY OF WESTCHESTER formerly in the CSEA BARGAINING UNIT, Plaintiffs,

against

County of Westchester and ANDREW J. SPANO, as County Executive of the County of Westchester, Defendants.

Paul S. Bamberger, Esq.,
Nancy E. Hoffman, Esq.
Attorneys for Plaintiffs
CSEA, Inc.
Box 7125, Capitol Station
143 Washington Avenue
Albany, New York 12224

Matthew B. Kogan, Esq.
Ohrenstein & Brown, LLP
Attorneys for Defendants
1010 Franklin Avenue
Garden City, New York 11530

Joan B. Lefkowitz, J.

In this certified class action involving approximately 1,600 persons who retired from Westchester County during the period of 1993 to 2004, plaintiffs allege that defendants breached their contracts by diminishing their health insurance benefits causing plaintiffs additional medical and health insurance costs of $3,610,181 to date.

Between 1993 - 2001, two collective bargaining agreements were executed between CSEA and Westchester County which provided for certain medical health insurance benefits. Those provisions remained in effect until May 2004 when a new agreement was made. That agreement changed the health benefits of active employees and Westchester County decided that such changes also affected retired employees. It had been the policy of Westchester County to treat retirees the same as active employees whenever a new collective bargaining agreement occurred.

Counsel have stipulated to the facts in this action rather than a trial and have submitted various exhibits and memoranda of law for the Court to consider.

Until 1993, prior collective bargaining agreements insofar as health insurance benefits were concerned were effective for the duration of the contract or the term of the contract. The immediate past two collective bargaining agreements (effective January 1, 1993 through May 2004) omitted language as to duration and specifically included retirees.

Absent consent of all parties, a union does not represent retirees when it negotiates with an employer in collective bargaining. Allied Chem. Wkrs. v. Pittsburgh Plate Glass Co., 404 US 157, 180 footnote 20 (1971). Indeed, "vested retirement rights may not be altered without the pensioner's consent". Ibid. Where, as here, there is no durational limit in the immediate prior collective bargaining agreements as to retiree health insurance benefits "it is unlikely that such benefits, which are typically understood as a form of delayed compensation for past services, would be left to the contingencies of future negotiations". International Union, UAW v. Yard-Man, Inc., 716 F2d 1476, 1482 (6th Cir. 1983), cert. den. 465 US 1007 (1984). Retiree benefits "carry with them an inference that they continue so long as the prerequisite status is maintained". Ibid. This inference trumps any general duration clause as to the life or termination of the agreement. Id. at 1482-83. Therefore, pursuant to settled principles of law involving interpretation of collective bargaining agreements, it is clear that plaintiffs' health insurance benefits in the prior collective bargaining agreements survived those agreements and may not be diminished without their consent. Hudock v. Village of Endicott, 28 AD3rd 923 (3rd Dep't 2006); Della Rocco v. Schenectady, 252 AD2d 82 (3rd Dep't 1998); Myers v. City of Schenectady, 244 AD2d 845 (3rd Dep't 1997).

Defendants' reliance on McDonald Police v. Geneva, 92 NY2d 326 (1998) is misplaced as the collective bargaining agreements there did not address the benefits in issue whereas the prior collective bargaining agreements at bar do.

Accordingly, judgment in favor of plaintiffs is granted. Submit Order on notice. [*2]

DATED: July 29, 2008

ENTERED: /S/

JOAN B. LEFKOWITZ, J.S.C. 

 

Audits and reports issued during the week ending July 16, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending July 16, 2021. 

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

MUNICIPAL AUDITS

City of Binghamton – Joint Sewage Treatment Facility Capital Project Planning and Monitoring (Broome County)City officials properly planned and monitored the project by establishing a sound process for overseeing project activities that included daily onsite inspections documenting the following: daily onsite personnel; leak testing results for treatment lines; concrete inspection and testing results, including core samples and composition and work progress through photographic evidence. In addition, city officials ensured construction change orders were made only when warranted and after a thorough review. They avoided $11.3 million in interest and financing costs over 30 years by obtaining a $15 million interest-free loan and securing grants to fund 27 percent of project costs. In addition, city officials withheld payments to contractors to recover some of the $3.1 million in additional costs that were due to project delays.

Incorporated Village of Garden City – Check Signing (Nassau County) The village’s check signing process does not comply with village policy and the village treasurer did not maintain control of her electronic signature. In addition, the treasurer allowed her signature to be affixed to checks without her being present. Alternate signatories did not sign in the absence of the treasurer and deputy treasurer.

Selkirk Fire District – Procurement of Professional Services (2021M-55) (Glens Falls Regional Office)District officials did not solicit competition for professional services. During the audit period, district officials paid 12 professional service providers $759,029 without soliciting competition. Officials also did not issue a request for proposals for audit services totaling $25,200, although required by policy. In addition, officials could not provide documentation that they used other methods to assess the accountability, reliability, responsibility, skill, education and training, judgment, integrity and moral worth of the professional service providers as required by the district’s procurement policy.

 

SCHOOL DISTRICT AUDITS

Watervliet City School District – Information Technology (Albany County) The board and district officials did not ensure the information technology (IT) assets and data were safeguarded. Officials did not establish written procedures for managing, limiting and monitoring user accounts. Auditors determined officials also did not disable 72 unneeded network accounts in a timely manner. Officials also did not monitor compliance with the acceptable computer use policy. As a result, 12 of 13 computers auditors tested accessed nonbusiness websites prohibited by the policy. Sensitive IT control weaknesses were communicated confidentially to officials.

Westhill Central School District – Information Technology (Onondaga County) District officials did not implement adequate information technology (IT) controls over the district office’s network to safeguard personal, private and sensitive information. District officials also did not monitor employee Internet use. Auditors found eight of 10 employees’ computers they reviewed were used for personal internet activity. District officials did not properly manage network user accounts. Auditors examined all 31 enabled network user accounts on the district office domain controller. Six unneeded network user accounts, seven shared user accounts and three user accounts were found with unneeded administrative permissions. In addition, district officials did not provide formalized IT security awareness training to staff. Sensitive IT control weaknesses were communicated confidentially to district officials.

 

 

Redistricting for the 2022 Elections

Redistricting for the 2022 Elections, an article addressing New York State's engaging "in a new and untried procedure in creating legislative and congressional districts following the 2020 census," was posted July 16, 2021 by Richard Rifkin, Legal Director of Albany Law School's Government Law Center. 

Click HERE to access Mr. Rifkin's article.