ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

August 01, 2022

An administrative determination by the Public Employment Relations Board made following an administrative hearing will be sustained if it is supported by substantial evidence

In response to a threat by an individual that "I'm coming tomorrow with a gun to shoot up this ...." school, a teacher at the school and the building delegate chairperson for employee organization [Union] representing the teachers announced that there was going to be a meeting in her classroom. During that meeting or shortly thereafter, 10 teachers called "out of work for the following day" and ultimately, a total of 23 teachers employed at the school called in sick and were absent from work the next day.

The district conducted an investigation and concluded that 16 of the 23 teachers absent from work had engaged in an unlawful strike. The district then filed a notice and a charge with the Public Employment Relations Board [PERB] alleging the Union had violated Civil Service Law §210(1) by engaging in an unlawful strike against the district.

Following a hearing, a PERB Administrative Law Judge [ALJ] sustained the charge, determining that Union had engaged in an unlawful strike in violation of Civil Service Law §210(1). PERB ultimately affirmed the ALJ's decision, holding that the Union had "engaged in, caused, encouraged, instigated, and condoned an unlawful strike by unit members." The Union challenged the PERB's ruling and initiated a CPLR Article 78 proceeding, contending that PERB's determination was not supported by substantial evidence.

Noting that Civil Service Law Article 14, commonly referred to as the Taylor Law, provides that "[n]o public employee or employee organization shall engage in a strike, and no public employee or employee organization shall cause, instigate, encourage, or condone a strike," the Appellate Division opined that "an employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his [or her] duties in his [or her] normal manner without permission, on the date or dates when a strike occurs" is presumed to have engaged in such strike on such date or dates.

The issue before the Appellate Division was whether PERB's administrative determination, which was "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law," was "supported by substantial evidence."

Citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the Appellate Division explained that "[T]he substantial evidence standard is a minimal standard" that is "less than a preponderance of the evidence, and demands only that a given inference is reasonable and plausible, not necessarily the most probable."

Further, said the court, "[I]t is the responsibility of the administrative agency to weigh the evidence and choose from among competing inferences therefrom and, so long as the inference drawn and the ultimate determination made are supported by substantial evidence, it is not for the court to substitute its judgment for that of the administrative agency," citing Matter of Watson v New York State Justice Ctr. for the Protection of People with Special Needs, 152 AD3d 1025.

Deferring to PERB's credibility determinations, the Appellate Division said that although there is evidence that could support an alternate conclusion, "there is substantial evidence in the record to support PERB's determination that the Union caused, encouraged, instigated, and/or condoned an unlawful strike by 16 of its unit members at the school" and thus "there is no basis upon which to disturb the determination" made by PERB.

Significantly, to the extent that PERB and, or, the ALJ suggested that a finding of an unlawful strike may be negated by a "justification defense" or excepted by a "bona fide fear of personal injury," the Appellate Division opined that it did not find such a defense or exception to have been created by the Article 14 of the Civil Service Law or relevant case law, citing Local 252, Transp. Workers Union of Am. AFL-CIO v New York State Pub. Empl. Relations Bd., 58 NY2d 354. 

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

July 30, 2022

Audits and reports issued by the New York State Comptroller during the week ending July 29, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for New York State and New York City Departments and Agencies, Municipalities and School Districts were issued during the week ending July 29, 2022:

Click on the text highlighted in colorto access the complete audit report.

School District Audits

On July 29, 2022, New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued.

Bethlehem Central School District – In-School Internet Connectivity (Albany County) The district’s internet connectivity met the Federal Communications Commission’s recommended bandwidth of 100 megabits per second (Mbps) per 1,000 students, as guided by the New York State Education Department. When tested, the average wireless internet download speed was 142 Mbps.

Greater Amsterdam School District – Capital Project (Montgomery County) The board and district officials properly planned, authorized contracts, and accounted for the ongoing project. However, auditors found that while the business administrator maintained financial reports that documented the project’s budget-to-actual expenditures, she did not provide them to the board for review and the claims auditor did not audit and approve seven claims totaling $873,056 prior to payment.

Buffalo Collegiate Charter School – Credit Cards (Erie County) Credit card charges were not always properly approved or adequately supported. Without adequate support, officials could not demonstrate that all charges were for school purposes. Auditors reviewed 170 credit card charges totaling $128,070 and found supporting documentation, such as receipts, was not available for 66 charges totaling $23,376. The need or purpose was not documented for 72 charges totaling $50,989. The treasurer did not adequately review credit card charges in a timely manner. The treasurer reviewed credit card charges an average of 108 days after the credit card statement was paid. Auditors reviewed all 18 credit charges over $2,500 in our audit period totaling $70,337 and found no evidence that the treasurer pre-approved these charges as required by the policy.

Fabius-Pompey Central School District – Claims Auditing (Onondaga County) Auditors reviewed 100 claims totaling approximately $5.3 million and found that they were adequately documented and for appropriate purposes. However, the district needs to improve the claims audit process because some claims were not subject to an independent claims audit and some were not properly approved before they were paid. Twelve claims totaling approximately $3.3 million paid to the Onondaga-Cortland-Madison Board of Cooperative Educational Services (BOCES) were inappropriately audited by a BOCES employee who functioned as the district’s claims auditor. The treasurer paid five claims totaling $11,692 without the required claims auditor’s certification and authorization.

Friendship Central School District – Fund Balance and Reserves (Allegany County) The board and district officials did not properly manage fund balance and reserves. As a result, real property taxes were higher than necessary. The board and district officials overestimated appropriations by a total of $2.3 million (8%) in the three fiscal years audited. This made it appear the district needed to use fund balance and reserves to close projected budget gaps. However, they were not used to fund operations. The board and district officials improperly restricted $246,000 in a debt reserve fund. The funds should be returned to the general fund. Officials also did not develop and adopt a comprehensive written multiyear financial plan. As a result, as of June 30, 2021, the recalculated surplus fund balance totaled $2.5 million, exceeding the statutory limit by 20 percentage points. 

 

Palmyra-Macedon Central School District – In-School Internet Connectivity (Wayne County The district’s internet connectivity met the Federal Communications Commission’s recommended bandwidth of 100 megabits per second (Mbps) per 1,000 students, as guided by the New York State Education Department. When tested, the average wireless internet download speed was 232 Mbps, and the average ethernet cable internet download speed was 564 Mbps.

Unadilla Valley Central School District – Non-Resident Special Education Student Tuition (Otsego County)  Officials did not establish nonresident tuition (NRT) rates for special education students in accordance with regulations. The district’s NRT rates exceeded the New York State Education Department’s maximum allowable rate during four of the past five school years. As a result, the district overcharged seven school districts by a total of $183,250.

Yorkshire-Pioneer Central School District – In-School Internet Connectivity (Cattaraugus County) The district’s Internet connectivity met the Federal Communications Commission’s recommended bandwidth of 100 megabits per second (Mbps) per 1,000 students, as guided by the New York State Education Department. When tested, the average wireless internet download speed was 134 Mbps and the average ethernet cable Internet download speed was 706 Mbps.

Municipal Audits

 On July 29, 2022 New York State Comptroller Thomas P. DiNapoli announced the following local government audits have been issued. 

Town of Brookhaven Local Development Corporation – Project Approval and Monitoring (Suffolk County) The board did not properly approve and monitor projects and did not incorporate job creation and retention goals into each project’s resolution. Consequently, the board cannot determine whether the projects are meeting their intended purposes. While the board president, CEO and CFO questioned whether setting goals was practical, and said it was not legally required, the board should strive to ensure that town residents realize increased prosperity and economic benefit from the projects that the corporation approves. To do so, the board must establish measurable goals for all approved projects, monitor the projects to ensure these goals are met and establish written project approval and monitoring policies or procedures.

 

Livingston County Court and Trust (2022-C&T-4) Upon receiving notification of the impending review of court and trust funds, the treasurer and county clerk reconciled their records and found that the treasurer did not receive surplus money from a referee after the sale of foreclosed property on April 1, 2017, totaling $87,849. However, auditors were able to determine all money from the sale of the foreclosed property totaling $176,000 was paid directly to the lienholder. Auditors also found that the treasurer did not report all court and trust fund transactions as required. Specifically, the treasurer did not report surplus funds received and disbursed during 2017, totaling $23,461. Auditors found the records maintained by the county clerk and surrogate’s court were up to date and complete.

 

Utica Harbor Point Development Corporation – Budgeting and Board Oversight (Oneida County) The board and officials did not establish realistic budgets. Also, the board did not review periodic financial reports to monitor the budget and finances and did not establish a comprehensive written multiyear financial plan. The board adopted budgets that did not include realistic revenue and expense estimates, which caused funding gaps. As of Dec. 9, 2021, the corporation’s projected costs exceeded revenues by about $2.3 million. While the corporation received grant funds for two projects, officials relied on lines of credit (LOCs) to provide cash flow for several years. The corporation’s ability to pay off the LOCs is contingent on the sale of three properties, which officials plan to sell in 2022. However, the board has not developed alternative plans to satisfy the debt should the properties not sell.

 

Village of Bemus Point – Clerk-Treasurer (Chautauqua County) The clerk-treasurer did not properly deposit, record, report and disburse village funds and was arrested in February 2021 and charged with grand larceny, falsifying business records, forgery, and official misconduct. In December 2021, she pleaded guilty to petit larceny and paid restitution to the village. The board did not monitor the clerk-treasurer’s work, implement compensating controls, or audit the records as required. Specifically, the clerk-treasurer did not properly deposit, record or report taxes collected, issue duplicate receipts or maintain other adequate supporting documentation. The clerk-treasurer also did not file payroll tax reports or remit payments totaling $40,837 and, as a result, the village was assessed penalties and interest of $18,100.

 

Delaware County – Court and Trust Funds (2022-C&T-2) Auditors found the treasurer established adequate procedures, maintained appropriate records, and properly reported court and trust funds as prescribed by statute. Records maintained by the county clerk were generally up to date and complete and without any material discrepancies. Although the surrogate’s court clerk maintained copies of all court orders filed in her office, she did not make entries into a surrogate’s register to record money ordered to be paid into a court. As a result, the assets ordered to be paid into court and her records could not be used to verify that all court-ordered deposits had been properly received and deposited.


Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.



NYPPL's New York Public Personnel Law Handbooks are listed below and are available for purchase from BookLocker, Inc.

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 about this electronic handbook, click HERE.

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. For more information click HERE.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual - This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HEREfor more information. 

 

July 29, 2022

Property belonging to a public entity may have been deposited with the New York State Comptroller as abandoned property pursuant to §1401 of the Abandoned Property Law

New York State's Abandoned Property Law provides that the Office of the State Comptroller is to receive unclaimed monies and other property deemed abandoned. A list of the names, the last known addresses of the entitled owners of this abandoned property and the source of such property delivered to the Comptroller is maintained by the Comptroller pursuant to §1401 of the Abandoned Property Law.

Some of the property deposited with Comptroller is the property of an individual while other property belongs to a public entity or a private business.

For example, Comptroller DiNapoli recently presented a member of the Council of School Supervisors and Administrators with an unclaimed funds check for $841.98 at the Comptroller's School Safety Roundtable Discussion. Set out below are some of the data made available by the Comptroller to assist the owners of "abandoned property" reclaim such property, including public entities.

To check to see if your organization, or you or a family member, may have "abandoned property" being held by the State Comptroller's Office of Abandoned Property, visit Department of Audit and Controls' web site by clicking HEREand searching for the entities' or the person's name under the appropriate "search heading".

Listed below are notices of "abandoned property" posted on the Internet by the State Comptroller's Office of Abandoned Property naming a public entity as its rightful owner. Click on the text in color to retrieve a brief description of the item.

Received following from the State Comptroller on August 1, 2022:

More Than $1.5 Million in Lost Money Returned Daily

Staff from New York State Comptroller Thomas P. DiNapoli’s office will attend community events this month to help residents search for lost and forgotten money, also known as unclaimed funds. DiNapoli oversees more than 46 million unclaimed funds accounts valued at $17.5 billion and wants to return the money to its rightful owners.

“So far this year, we’ve given back over $234 million in lost or forgotten money,” DiNapoli said. “This should motivate everyone to come out and search for money that may be waiting for them to claim. And you don’t have to limit your search to yourself, you can check for family members, friends, neighbors, churches, synagogues, mosques or any organization you care about and let them know that they may have money awaiting them. I want to get this money back where it belongs—in the hands of New Yorkers.”

The billions in unclaimed funds come from old bank accounts, utility deposits, uncashed checks, insurance claims, stocks and other sources that have been dormant for a number of years. Some accounts hold money that has been lost and forgotten since the 1940s.

Residents who cannot make it to the events can search for and claim their money by using the online claiming system or by calling 1-800-221-9311.

 

3 of 166 "County of" listed

[Search for the name of your particular organization]


COUNTY OF ERIE NY

DIVISION OF PURCHASING 1875 HARLEM RD BUFFALO NY 14212

CITIBANK NA (NYS)

 

 

 

 

COUNTY OF ESSEX NYS

PO BOX 217 PC67296 ELIZABETHTOWN NY 12932

STAPLES INC

 

 

 

 

COUNTY OF GENES

3837 WEST MAIN STREET ROAD BATAVIA NY 14020

UNITED MEMORIAL MEDICAL CENTER

 

 3 of 675 "Town of" listed

[Search for the name of your particular organization]

 

TOWN OF AVA

PO BOX 68 AVA NY 13303

ONEIDA COUNTY COMMISSIONER OF FINANCE

 

 

 

 

TOWN OF AVON

27 GENESEE ST AVON NY 14414

W W GRAINGER INC

 

 

 

 

TOWN OF BABYLON

153 WEST MAIN STREET BABYLON NY 11702

NRG ENERGY INC

 

 

3 of 270 "Village of" listings

[Search for the name of your particular organization]

 

VILLAGE OF ALFRED WW

198 N MAIN ST ALFRED NY 14802

W W GRAINGER INC

 

 

 

 

VILLAGE OF ALLEGANY

106 E MAIN ST ALLEGANY NY 14706

RELX INC & AFFILIATES

 

 

 

 

VILLAGE OF AMITYVILLE

C/O ATTN DEIRDRE PARKER OFFICE HIGHWAY E MPLOYEES AMITYVILLE NY 11701

AFLAC OF NEW YORK

 

 

3 of 244 "SUNY" listings

[Search for the name of your particular organization]

 

 

SUNY 403 B PROGRAM

MOHAWK VALLEY CC 1101 SHERMAN DRIVE UTICA NY 13501

FIDELTY INVESTMENTS INSTITUTIONAL OPERATIONS CO

 

 

 

 

SUNY @ ALBANY

ATTN: K VACCARIELLO 1400 WASHI ALBANY NY 12222

VERIZON COMMUNICATIONS INC

 

 

 

 

SUNY ADIRONDACK

640 BAY RD QUEENSBURY NY 12804

 

 

 

 

3 of 26 "BOCES" listed

[Search for the name of your particular organization]

 

BOCES

CAYUGA-ONONDAGA BOARD OF COOPE PO BOX 45 1 SYRACUSE NY 13208

TIME WARNER CABLE INC

 

 

 

 

BOCES ADULT & CONTIN UING

0 WILSON ST GOUVERNEUR NY 13642

NIAGARA MOHAWK POWER CORP

 

 

 

 

BOCES BROOME TIOGA

36038 MAIN STREET BINGHAMPTON NY 13905

NCS PEARSON INC

 

 

3 of 8 "Union Free School District" listed

[Search for the name of your particular organization]

 

UNION FREE SCHOOL DI

480 CLAY PITTS RD EAST NORTHPORT NY 11731

HEWLETT PACKARD CO

 

 

 

 

UNION FREE SCHOOL DI

TOWN OF GREENBURGH BOARD OF ED 360 BROAD WAY HASTINGS NY 10706

PRUDENTIAL INSURANCE CO OF AMERICA

 

 

 

 

UNION FREE SCHOOL DIST 1

399 KNOLLWOOD RD APT 103 WHITE PLAINS NY 10607

AETNA LIFE INSURANCE & ANNUITY CO

 

3 of 7 "Central School District" listed

[Search for the name of your particular organization]

 

CENTRAL SCHOOL DISTRICT

NEWFIELD HIGH SCHOOL ATTN PRINCIPAL 145 MARSHALL DRIVE SELDEN NY 11784

AMERICAN MUSEUM OF NATURAL HISTORY

 

 

 

 

CENTRAL SCHOOL DISTRICT #2

BEDFORD ROAD POCANTICO HILLS NORTH TARRYTOWN NY 10591

FIRST NATIONAL BANK OF NORTH TARRYTOWN

 

 

 

 

CENTRAL SCHOOL DISTRICT 1

TOWNS OF PHILLIPSTOWN & PUTNAM 289 291 M AIN MALL POUGHKEEPSIE NY 12601

SPRINT NEXTEL CORP

 

3 of 14 "CSEA" listed

[Search for the name of your particular organization]

 

CSEA METROPOLITAN REGION 2

125 MAIDEN LANE NEW YORK NY 10038

NATIONWIDE MUTUAL INSURANCE

 

 

 

 

CSEA PORT JEFFERSON VILLAGE

5 HEARTH CT CORAM NY 11727

SUFFOLK FEDERAL CREDIT UNION

 

 

 

 

CSEA UNIT 7910

405 UNION AVE ATTN FAITH LUMPK NEW WINDSOR NY 12553

VERIZON COMMUNICATIONS INC

 

3 of 3 "United University Professions" listed

[Search for the name of your particular organization]

 

UNITED UNIVERSITY PROFESSIONS

PO BOX 15143 ALBANY NY 12212

ING LIFE INSURANCE & ANNUITY CO

 

 

 

 

UNITED UNIVERSITY PROFESSIONS

47 SAUNDERS ROAD BALLSTON LAKE NY 12019

ENTERPRISE HOLDINGS INC

 

 

 

 

UNITED UNIVERSITY PROFESSIONS

526 LEE ENTRANCE SU UB COMMONS BUFFALO NY 14228

STAPLES INC

 

 


 

July 28, 2022

Silence in a collective bargaining agreement negotiated pursuant to Civil Service Law Article 14, the Taylor Law, does not infer a right or benefit

New York State's Court of Appeals [NYCA] accepted certification of questions submitted to it by the United States Court of Appeals, Second Circuit [USCA] concerning the vesting of lifetime rights to retirement benefits by public employees of the State as the employer. 

Answering the first part of USCA's first certified question, NYCA responded that "New York's contract law does not recognize ... inferences" of vested lifetime rights to retiree benefits from silence and that "[a]bsent such inferences, none of the Collective Bargaining Agreement [CBA] provisions identified establish a vested right to lifetime fixed premium contributions, either singly or in combination." NYCA then declined "to determine whether the CBA's text is ambiguous." *

Considering the guidance provided by NYCA, USCA said that it concluded that the federal district court "did not err in granting summary judgment to the State respondents on both claims," explaining that "The New York Court of Appeals held as a matter of state law that the CBA provisions at issue cannot unambiguously establish a vested lifetime right to fixed premium contributions, so the breach of contract claim cannot succeed without the consideration of extrinsic evidence."

USCA further held that the CBA provisions at issue were not ambiguous regarding the establishment of such a vested right, and therefore "consideration of extrinsic evidence is not permissible".

On July 27, 2022, USCA handed down following decisions addressing this matter.

Click on the numbers highlighted in color to access the text of the decision.

18-3221

New York State Court Officers Association v. Hite

07-27-2022

SUM

 

18-3151

New York State Correctional Officers & Police Benevolent Association, Inc. v. The State of New York

07-27-2022

SUM

 

18-3220

Kreh v. Cuomo

07-27-2022

SUM

 

18-3142

The New York State Law Enforcement Officers Union v. The State of New York

07-27-2022

SUM

 

18-3066

The New York State Police Investigators Association v. The State of New York

07-27-2022

SUM

 

18-3183

Police Benevolent Association v. The State of New York

07-27-2022

SUM

 

18-3140

Spence v. State of New York

07-27-2022

SUM

 

18-3122 (L)

Brown v. State of New York

07-27-2022

SUM

 

18-3172

Roberts v. The State of New York

07-27-2022

SUM

 

18-3049

The Police Benevolent Association of the New York State Troopers, Inc. v. The State of New York

07-27-2022

SUM

* See 36 N.Y.3d 935; 38 N.Y.3d 1. 

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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