New York State Department of Civil Service - Policy Bulletin #16-01

New York State Department of Civil Service - Policy Bulletin #16-01

Separations and Leaves

N.B. The Rules of the New York State Civil Service Commission and the Regulations of the President of the Civil Service Commission, except as otherwise specified in any particular rule, apply to positions and employments in the classified service of the State of New York as the employer and positions and employments in the classified service of public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions and county personnel officers have adopted similar provisions addressing separations and leaves of employees in the classified service of such jurisdictions.

Leaves of Absence Without Pay

THIS POLICY BULLETIN REPLACES POLICY BULLETIN #98-02, issued December 29, 1998.

This policy bulletin is intended to be a guide to agencies on the topic of leaves of absence without pay.

Leaves of Absence Generally

The purpose of any leave of absence without pay is to provide employees with their appropriate tenure protection, promotion rights, and layoff rights based upon the employee's status in that position. Employees may not have multiple simultaneous leaves from the same item/position. However, to completely preserve their rights, employees may be on leave from different positions in the same title, in the same or different jurisdictional classes.

Some types of leaves are termed "mandatory." Other leaves are termed "discretionary."

Mandatory leaves must be granted as required by Civil Service Law or rule or negotiated agreement, or Federal law, or State policy.

Discretionary leaves may be granted in accordance with the provisions set out in 4 NYCRR 5.2.

Usually a mandatory leave is granted when a permanent employee:

1. Is promoted or transferred to a position in which the employee must serve a probationary period:

   (a) In the competitive class is appointed in contingent permanent, temporary or provisional status to a position in the employee's agency.

   (b) In the non-competitive or labor class is appointed in contingent permanent status to a position in the employee's agency.

2. Is absent for a reason specified in the Family & Medical Leave Act.

3. Is absent for reasons specified in the Military Law. [An employee ordered to military service may be entitled to Military Leave with Pay for limited periods.] 

4, Is unable to perform the duties of the employee's position due to disability. [See Civil Service  Law §71, Workers' Compensation Leave and Civil Service Law §§72 and 73, Leave for ordinary disability. Such leaves are without pay although the employee may use accrued leave credits in order to remain of the payroll until such leave credits are exhausted.]

When an employee must be granted a leave in a situation governed both by a Civil Service Law, or rule and a negotiated agreement, and the identified limitations or length of leave required are different, the employee must be given the leave terms which provide the employee with the most protection,

[N.B. 4 NYCRR 26.3, "Rules applicable to employees in negotiating units," provides that "The provisions of these attendance rules, insofar as they apply to employees in the negotiating units established pursuant to Article 14 of the Civil Service Law [the Taylor Law], shall be continued; provided, however, that during periods of time when there is in effect an agreement between the State and an employee organization reached pursuant to the provisions of said Article 14, the provisions of such agreement and the provisions of such rules shall both be applicable. In the event the provisions of the agreement are different from the provisions of the attendance rules, the provisions of the agreement shall be controlling"(emphasis supplied). 4 NYCRR 29.1 and 29.2 address Leaves Without Pay for officers and employees designated Managerial or Confidential within the meaning of the Taylor Law and, presumably, officers and employees not so designated and not in a collective bargaining unit for the purposes of the Taylor Law. See  Attendance for Managerial/Confidential Employees in New York State Departments and Institutions.] 

Usually a discretionary leave is granted when a permanent employee who is not eligible for a mandatory leave:

1. Requests a leave because the employee accepted an appointment to a position in a different jurisdictional class.

2. Requests a leave because the employee accepted an appointment in another agency in temporary or provisional status.

3. Requests a leave for educational, parenting, or other personal reasons.

Basic Principles of Discretionary Leaves

A leave is discretionary if it is not mandatory.

4 NYCRR 5.2 permits an appointing authority to grant a discretionary leave for two years. At the end of this initial two years permission to extend such leave must be granted by the Civil Service Commission.

In some cases the courts have viewed a discretionary leave as being essentially a "contract" between an employee and his/her appointing authority. For the specified period the employee is entitled to be absent and, at the end of that period, to return. The terms of these contracts may only be changed by mutual consent, with the exception that employees on discretionary leave to serve in another position in the State service must be restored upon request.

A leave of absence does not prohibit the agency from dealing with the position in the normal course of business, e.g., filling the position, abolishing the position or assigning the position to a different location.

Employees may not be on mandatory leave and discretionary leave simultaneously from the same position.

Where an extension or further extension is not granted, the employee must return to the former position (i.e., title and status) and serve for six months before the agency may grant them a "new" discretionary leave, which does not require Commission approval.

Rights to Return to a “Hold Item”

Although for the sake of record-keeping a position (called a "hold item") is always identified, and usually the employee returns to it, management's right to assign and reassign staff among available positions overrides any right to a specific position, or even a location. The employee has the right to return to a position in their former title, jurisdictional class and appointment status.

When restoration to a hold occurs the agency designates the specific position. Agencies may change designated hold items and may reassign hold items to different locations at any time. However, some negotiated agreements may provide rights and limitations when employees return (for example see CSEA, I.S.U. Article 12). Further, agencies may not arbitrarily or capriciously reassign employees, nor do so punitively.

An employee who refuses to return to a hold item which was moved to a different geographic location (i.e., different county) is considered to have declined a reassignment, and is eligible for reemployment list status, but the employee is not eligible for bumping or retreat.

An employee granted a mandatory leave while serving probation may request restoration to a hold item prior to end of the leave, and the agency must restore the employee. This right to return is only provided under rule and contract to an employee granted mandatory leave while serving probation (4 NYCRR 4.5).

An employee who has been temporarily or provisionally appointed to another competitive class position, within the same agency, must be restored upon request (4 NYCRR 4.10).

A contingent permanent employee who is affected by the return of a prior permanent incumbent must be offered restoration with permanent status to the hold item required for this purpose by 4 NYCRR  4.11 and 4 NYCRR 4.12 provided the employee was originally appointed to the hold item in permanent status. If however, the employee was originally appointed to the hold item in contingent permanent status, and the agency made subsequent contingent permanent appointments to the same position, a comparison of the seniority dates (seniority dates are determined in accord with §80, or §80-a of the Civil Service Law) of all the contingent permanent appointees is required. Only if the returning former contingent permanent employee is the most senior may the employee return. If the one prior permanent incumbent has already returned, the contingent permanent employee may not return, regardless of seniority.

A contingent permanent employee who has completed probation may not voluntarily return to a hold item in the absence of a return of incumbent. Complete policy information regarding contingent permanent appointments and leaves can be found at SPMM 1810.

Appointments to Positions in the Non-competitive Class

A non-competitive phi designation on an employee's current position or the position to which the employee is appointed has no effect on the leave policies herein. See Advisory Memorandum #02-03 for more information.

Non-competitive class employees appointed pursuant to Civil Service Law §55-b/c must be given a leave when appointed to ANY OTHER §55-b/c position. See Advisory Memorandum #02-03 and Policy Bulletin #11-01 for more information.

Appointments to Positions in the Exempt Class

Exempt class employees may be granted a discretionary leave of absence. However, the employee should be informed that the leave does not give the employee the right to return or to hold the position for any period of time. The exempt class employee continues to serve at will, albeit while on leave.

Pending Commission Review

Newly classified positions are competitive class positions until the Commission and Governor act to place them in another jurisdictional class (with the exception of titles the Commission has designated that "all" positions in the title are in a particular jurisdictional class, and, therefore a newly classified position is immediately placed in that jurisdictional class). After the Commission acts, the position is considered "pending non-competitive," "pending exempt," or "pending labor" as a shorthand way of keeping track of the status. But, in fact, the jurisdictional class does not change from competitive until the entire administrative process is complete and the resolution is filed with the Department of State. Therefore, a permanent competitive class employee appointed to such a pending position, or an incumbent whose position has been reclassified to a pending position, should be considered as having received an appointment to a competitive class position for the purposes of leave rights under the provisions of 4 NYCRR 10.

When an exempt class position becomes vacant it is reviewed by the Commission. During the review period, only appointments in temporary status are permitted. A permanent competitive class or non-competitive class employee appointed on a temporary basis to such a position is not covered by 4 NYCRR 4.10 or negotiated agreements and therefore any leave granted must be discretionary.

Summary of Mandatory Leaves of Absence by Type of Appointment

Depending upon the type of appointment that a permanent employee receives, various negotiated agreements and the Civil Service rules may require a leave of absence be provided from the current position. The following tables summarize this department's interpretations of the various rules, laws and negotiated agreements which mandate a leave of absence be provided when certain appointments occur. The compilation of the tables is intended to provide a complete catalog of the conditions under which mandatory leaves are provided. It is recognized that there is an overlap between the various authorities under which leaves are mandated. Where such overlaps occur, the leave which provides the greatest benefit to the employee, either in terms of duration or limitations, should be applied.

The rules refer to specific sections of the Classified Service Rules. The negotiated agreements can be found on the GOER website at  https://www.goer.ny.gov/Labor_Relations/Contracts/.

Promotion is defined as:

The appointment of a permanent competitive, non-competitive or labor class employee to a competitive class position via appointment from a promotion or transition list; OR

The appointment of a permanent non-competitive or labor class employee to a higher grade position in the same jurisdictional classification.

---

The Department of Civil Service may update the tables on the online version of this Memorandum to reflect changes resulting from future negotiations or reinterpretation. When updated, the previous tables will be chronicled in the Staffing Division policy files.

The online version of this Policy Bulletin, including the tables, is posted on the Internet at: 
https://www.cs.ny.gov/ssd/Manuals/SPMM/2200SeparationsLeaves/Policy%20Bulletin%2016-01.htm

A school district’s decision to abolish a position and have a BOCES assume performing the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2).

A school district’s decision to abolish a position in the classified service and have a BOCES assume performing  the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2).

However, said the Appellate Division, petitioner’s “data management services” job duties in the position abolished by the school district were assumed by existing staff members of BOCES. Thus, said the court, petitioner failed to establish a clear right to the relief sought because she was not a "necessary employee" within the meaning of §70.2.

The court noted §70(2) provides, in relevant part that "Upon the transfer of a function . . . from one department or agency of the state to another department or agency of the state, . . . provision shall be made for the transfer of necessary officers and employees who are substantially engaged in the performance of the function to be transferred."Accordingly, said the Appellate Division, "[a]n employee is eligible for a a transfer pursuant to Civil Service Law §70(2) only if he or she is a 'necessary ... employee' - i.e., if the agency or the department to which his or her duties are being transferred does not have sufficient staff at the time of the transfer to perform the duties being transferred.

N.B. Had the "transfer of function" involved duties performed by an employee in the unclassified service, the provisions of Education Law §3014-a would control. §3014-a addresses the rights of educators in the event a BOCES takes over a program formerly operated by a school district or by a county vocational education and extension board.

Decision cited as 2016 NY Slip Op 08139, Appellate Division, Third Department

Substantiated, nonpretextual complaints of petitioner's subordinates comprise a legitimate, nondiscriminatory, nonretaliatory reason for terminating supervisor

Substantiated, nonpretextual complaints of petitioner's subordinates comprise a legitimate, nondiscriminatory, nonretaliatory reason for terminating supervisor

The termination of petitioner's employment did not violate a constitutional or statutory provision or a policy established by decisional law where employer's investigation reveled that the petitioner “favored employees of his own national origin, including his brother-in-law, giving them more favorable schedules and faster promotions, and discriminated against women and persons not of his own national origin.”

Reported as 2016 NY Slip Op 08010, Appellate Division, First Department

_____________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

_____________________  

Evaluating claims seeking to recover damages for alleged defamation and maintaining a hostile work environment

Evaluating claims seeking to recover damages for alleged defamation and maintaining a hostile work environment

In this action to recover damages for defamation and a hostile work environment in violation of Executive Law §296, the plaintiff, Pall, appealed an order of the Supreme Court granting the Roosevelt Union Free School District’s motion to dismiss her complaint.

The Appellate Division affirmed the Supreme Court’s ruling, explaining:

1. "To state a cause of action to recover damages for defamation, a plaintiff must allege that the defendant published a false statement, without privilege or authorization, to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se."

2. "Since falsity is a necessary element of a defamation cause of action and only facts' are capable of being proven false, it follows that only statements alleging facts can properly be the subject of a defamation action.'" and

3. "The dispositive inquiry . . . is whether a reasonable [reader] could have concluded that [the statement was] conveying facts about the [Pall]."

The Appellate Division ruled that “accepting the allegations in the complaint as true, affording [Pall] the benefit of every favorable inference, and considering the evidentiary material submitted by the parties,” Pall did not have a cause of action to recover damages for defamation as the context of the alleged statement was such that a reasonable reader would have concluded that he or she was reading an opinion, and not a fact, about Pall.

Addressing Pall’s claims of the existence of “a hostile work environment in violation of Executive Law §296,” the court held that her allegations “fell short of alleging that the workplace was " permeated with discriminatory intimidation, ridicule, and insult . . . that [was] sufficiently severe or pervasive to alter the conditions of . . . employment and create an abusive working environment.'"

Pall v Roosevelt Union Free Sch. Dist., 2016 NY Slip Op 07937, Appellate Division, Second Department

Rights of employees transferred to another jurisdiction pursuant to §70(2) of the Civil Service Law.

Rights of employees transferred to another jurisdiction pursuant to §70(2) of the Civil Service Law.

The Village of East Syracuse dissolved its police department and police officers who were formerly employed by the Village were transferred to the Town of DeWitt Police Department and placed at a salary step that was at a lower seniority level than warranted by those police officers length of service with the Village. Supreme Court concluded that the Town of DeWitthad acted arbitrarily and capriciously and directed it to award each former Village police officer seniority credit for each year of service as a Village police officer.

The Appellate Division agreed, explaining that Supreme Court had properly concluded that §70(2) of the Civil Service Law “requires [the Town] to award [the former Village police officers] full seniority credit for the time that they served as police officers in the Village.” In pertinent part, said the court, the statute mandates that "[o]fficers and employees transferred to another governmental jurisdiction pursuant to the provisions of this subdivision shall be entitled to full seniority credit for all purposes for service rendered prior to such transfer in the governmental jurisdiction from which transfer is made."

[See Civil Service Law §45 with respect to the status of employees upon acquisition of a private institution or enterprise by a New York governmental entity.] 

Barhite v Town of DeWitt, 2016 NY Slip Op 07782, Appellate Division, Fourth Department

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 10, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 10, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

State Comptroller’s auditors find flaws allowed $16.6 million in inappropriate payments to home health care providers

The New York State Department of Health (DOH) erroneously made $16.6 million in Medicaid payments to 95 home health providers over a 3 1/2-year period, largely because the agency mistakenly paid for more days of care than what was provided, according to an audit released by New York State Comptroller Thomas P. DiNapoli.

“Home health care providers fill a great need by allowing patients to stay in their homes and avoid costly placement in hospitals or rehabilitation centers,” DiNapoli said. “However, my auditors found numerous instances where the state Department of Health’s eMedNY billing system paid providers for weeks of service, when only days of care had been given.”

In 2012, as part of its Medicaid redesign program, DOH implemented an Episodic Payment System (EPS) to reimburse certified home health agencies (CHHA) for health care services provided to Medicaid recipients in their homes. CHHAs provide various services including long-term nursing services, home health aide services, physical therapy, social work and nutrition services.

The payment system is based on 60-day episodes of care. CHHAs can be paid for a full episode or may receive pro-rated payments based on the number of days of care on the claim.

For the period May 1, 2012 through Dec. 31, 2015, DiNapoli’s auditors identified about $16.6 million in improper Medicaid payments to 95 CHHAs. About 93 percent ($15.4 million) of the overpayments went to 20 CHHAs.

Auditors found $8.2 million in overpayments to CHHAs for recipients who were transferred into Managed Long Term Care (MLTC) during a 60-day episode of care. The CHHAs should have received pro-rated payments for the partial episodes of care. For example, one CHHA received a full payment of $11,607 for a recipient who received home health services for only four days, leading to an overpayment of $10,833.

 
Approximately $7.1 million in overpayments were made to CHHAs that improperly billed multiple episodes for the same recipient within 60 days of the recipient’s original episode start date.

Another $1.3 million in overpayments went to CHHAs that improperly received full 60-day payments for recipients who subsequently obtained services from a different CHHA within an episode of care. For example, a CHHA was paid $10,979 (a full 60-day payment) for ten days of services. Five days later, the recipient then received services from a different CHHA, which received $4,202 for 56 days of services. The first CHHA should only have received a pro-rated payment amount of $1,830 for the 10 days.

DiNapoli’s auditors determined DOH has not established eMedNY system controls to prevent the improper payments they identified. The issues found by auditors were raised by DOH employees during the construction of the EPS. However, insufficient resources and the EPS billing configuration prevented the development of effective eMedNY system controls to prevent the overpayments, according to DOH officials.

DiNapoli recommended DOH:

• Review the $16.6 million in improper payments made to CHHAs and recover overpayments, as appropriate, and ensure prompt attention is paid to those providers that received the largest dollar amounts of overpayments; and

• Develop and implement mechanisms to identify and recover overpayments when CHHAs do not bill according to DOH guidelines.

DOH officials concurred with the audit recommendations and indicated actions will be taken to address them. Their full response is included in the complete audit.

Read the report, or go to: http://www.osc.state.ny.us/audits/allaudits/093017/16s4.pdf

Municipal Audit Reports

Bradford Volunteer Fire Company, Inc. – Apparent Misappropriation of Funds (Steuben County)

After a referral from Steuben County District Attorney Brooks Baker, auditors found that controls were not adequate to ensure that financial activity was properly recorded and reported and that moneys were safeguarded. As a result, it appears the treasurer was able to misappropriate approximately $8,500 from January 1, 2014 through May 31, 2015. In addition, there was a shortage of $490 in bell jar proceeds that were controlled by the president without detection by company officials.

Town of Conesville – Long-Term Planning (Schoharie County)

Town officials have allocated sufficient resources to properly maintain the town’s roads. However, they have not allocated sufficient resources for future highway equipment needs. The capital plan should incorporate the board’s decisions about when equipment should be replaced and whether to accumulate funds for replacement in reserves or take advantage of current low interest rates to finance acquisitions.

New York State Department of Labor (NYSDOL) – Unemployment Insurance Payments to County Jail Inmates (2015M-278)

NYSDOL does not have the necessary information to monitor county jail inmate populations effectively for inappropriate unemployment insurance benefit payments. Auditors found inmate data used was incomplete 28 percent of the time for county jail inmates outside of New York City and 55 percent of the time for city inmates. In addition, NYSDOL did not receive data from each county in each biweekly data file. Finally, while NYSDOL performs a data match on a biweekly basis for county jail inmates outside of New York City, payments of benefits are made weekly, allowing inappropriate payments to occur prior to the match.

Painted Post Fire Department – Cash Receipts and Disbursements (Steuben County)

The board should improve its oversight of the department’s fiscal activities and the safeguarding of its resources. The bylaws do not adequately segregate the treasurer’s duties. They require the treasurer to receive all department moneys, pay all bills and report the department’s financial status at regular department meetings; however, they do not provide for mitigating controls such as someone other than the treasurer reviewing and reconciling the bank accounts.

Sachem Public Library – Claims Processing (Suffolk County)

The board, as a whole, did not audit any claims during the audit period. Instead, each quarter, it designated a single trustee to audit all claims, after which the board, as a whole, reviewed and approved the abstracts by resolution. Any board member other than the trustee designated as claims auditor could request to review individual claims if there were questions about an unfamiliar vendors or unusual claim amounts on the abstracts; however, this did not often occur. A review of 30 claims totaling $147,624 disclosed that the designated trustee did not perform a thorough audit of claims. As a result, eight claims totaling $1,791 did not contain sufficient supporting documentation.

Ulster County – Property Tax Exemptions (2016M-333)

The department’s procedures for prorating property tax exemptions on transfers of property, correcting property tax exemption errors and inputting tax exemption income limits were effective.

A procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

A procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

In this appeal L.B. requested the Commissioner remove certain school personnel.  The removal of respondent’s board president, Superintendent Kelly, and Principal Sykes.  However, said the Commissioner, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such. The Commissioner explained that joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Here the record indicated that the petition was personally served on the district clerk, the School Superintendent and a School Principal Sykes but the board president was neither named in the caption nor was he served with a copy of the petition or a notice of petition.  As L.B. request to remove the board president was dismissed “for failure to join him as a necessary party.”

Another procedural defect noted by the Commissioner: L.B.’s demands to remove school officers failed to comply with §277.1 of the Commissioner’s regulations. 

§277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for the respondent’s removal from his or her office.

L.B., however, failed to comply with the notice requirements set out in §277.1(b) but, instead, used the notice prescribed under §279.3 for a petition seeking review by a State Review Officer of the determination of an impartial hearing officer concerning the identification, evaluation, program or placement of a student with a disability pursuant to Education Law, Article 89 and Part 200 of the Commissioner’s regulations. 

The Commissioner explained that a notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent.

To the extent that L.B. sought the removal of the School Principal, the Commissioner does not have jurisdiction to remove a School Principal. Education Law §306 authorizes the Commissioner to remove a trustee, member of a board of education, clerk, collector, treasurer, district superintendent, superintendent of schools or other school officers.

However, Education Law §2(13) defines “school officer” by specifically identifying a number of positions and including any “other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.” 

School Principals, said the Commissioner, are district employees and not school officers subject to removal under §306 and thus the Commissioner of Education lacks jurisdiction to remove a School Principal.

As to L.B.’s requests that the Commissioner initiate an investigation concerning aspects of the appeal, the Commissioner explained that such an appeal does not provide for investigations.

Appeal of L.B., Decisions of the Commissioner of Education, Decision #16,998

New Jersey court rejects civil service changes for public workers

New Jersey court rejects civil service changes for public workers

Source: Governing the States and Localities

“In a defeat for Gov. Christie’s administration, [a New Jersey] appeals court ruled on Thursday that he could not scrap exam requirements for hiring or promoting career public workers in state government.”

The Bergen Record, a newspaper, reported that “The court also ruled that the Legislature has a ‘legislative veto’ — the power to strike down any regulations adopted by the executive branch if they defy ‘legislative intent.’"

The text of the Governing the States and Localities article is posted on the Internet at:

http://www.governing.com/topics/mgmt/new-jersey-court-rejects-civil-service-changes-public-workers.html?utm_term=New%20Jersey%20Court%20Rejects%20Civil%20Service%20Changes&utm_campaign=Why%20Even%20a%20Public%20Management%20Expert%20Might%20Not%20Take%20a%20Government%20Job&utm_content=email&utm_source=Act-On+Software&utm_medium=email

The Bergen Record article concerning the decison is posted on the Internet at:

http://www.northjersey.com/story/news/new-jersey/2016/12/01/court-nj-must-hire-promote-workers-based-merit/94753552/

Invoking the attorney – client privilege

Invoking the attorney - client privilege

The primary issue in this appeal is whether attorneys who have sought the advice of their law firm's in-house general counsel on their ethical obligations in representing a firm client may successfully invoke attorney-client privilege to resist the client's demand for the disclosure of communications seeking or giving such advice.

Stock v Schnader Harrison Segal and Lewis LLP, 2016 NY Slip Op 05247, Appellate Division, First Department

Claiming absolute privileges and immunities as a defense in litigation

Claiming absolute privileges and immunities as a defense in litigation

The plaintiff in this Article 78 action, Crvelin, alleged that the Board of Education of City School District of City of Niagara Falls undertook an investigation and ultimately passed a resolution concluding that she had violated the residency policy and directed that the process to terminate Crvelin’s employment be commenced. Crvelin contended that the School District had defamed her and that as a result of the School District’s action she had suffered intentional infliction of emotional distress. 

In addition, Crvelin claimed that during the litigation of the proceeding, legal counsel for the School District made written statements in a memorandum of law submitted to the court that, according to Crvelin, were defamatory.

The School District, in its defense, claimed various absolute privileges and immunities.

Addressing the merits of plaintiff’s Article 78 complaint, the Appellate Division said:

1. “It is well settled that government officials are absolutely immune for discretionary acts carried out in the course of official duties and that immunity attaches ‘however erroneous or wrong [such conduct] may be, or however malicious even the motive which produced it.’”

2. “Statements made by government officials in the context of a quasi-judicial proceeding such as that at issue here are absolutely privileged and immunize the communicants from liability in a defamation action.” and

3. As the alleged defamatory statements made by the School District’s attorney were contained in a writing submitted to a court on behalf of the School District in the context of Crvelin's Article 78 proceeding “they are absolutely privileged.”

Crvelin v Board of Educ. of City Sch. Dist. of City of Niagara Falls, 2016 NY Slip Op 07783, Appellate Division, Fourth Department

The obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny."

The obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny."

Razzano v Remsenburg-Speonk Union Free Sch. Dist., 2016 NY Slip Op 07329, Appellate Division, Second Department

Insubordinate and discourteous conduct

Insubordinate and discourteous conduct

OATH Administrative Law Judge Astrid B. Gloade recommended a 25-day suspension without pay as penalty after a job opportunity specialist was found guilty of refusing to interview clients on a number of occasions, was insubordinate, was discourteous to his supervisors, and was absent without leave.

NYC Office of Administrative Trials and Hearings, OATH Index No. 2340/16

______________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York Statecourt and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

______________

Crediting allegations of sexual orientation-based discrimination in violation of the New York City Human Rights Law as suspension and demotion are, on their faces, adverse employment actions

Crediting allegations of sexual orientation-based discrimination in violation of the New York City Human Rights Law as suspension and demotion are, on their faces, adverse employment actions.

James v City of New York, 2016 NY Slip Op 07400, Appellate Division, First Department

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 1, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 1, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

Robert Schusteritsch impersonated his deceased brother to collect his brother’s State retirement benefits 

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced today the conviction and sentencing of Robert J. Schusteritsch, 71, a resident of the state of Florida, for the crimes of grand larceny in the second degree, a class C felony, and criminal impersonation in the second degree, a class A misdemeanor, in Albany County Court.

Schusteritsch’s conviction comes after a joint investigation by the Office of the Comptroller and the Attorney General’s Office, which revealed that Schusteritsch stole over $180,000 in pension benefits issued by the New York State and Local Employees Retirement System to his deceased brother, Martin Petschauer, between July 2008 and September 2015.

According to the Comptroller and Attorney General’s offices, Petschauer was a New York State pensioner who retired as Chief of the Pooling and Audit Review Section of the New York Metro Milk Marketing Area in approximately 1986.  He passed away on July 9, 2008.  At the time of Petschauer’s death, his pension benefits were being direct deposited into a bank account held in a trust for the benefit of Petschauer; Schusteritsch was the sole trustee for his brother and had exclusive access to the bank account.  

 
When Petschauer died, Schusteritsch concealed his brother’s death from the bank and the Retirement System and kept the trust account open to maintain the direct deposits.  He then routinely accessed the pension deposits and spent the money for his own benefit.   All told, Schusteritsch stole over $180,000 in pension benefits until the Retirement System discovered Petschauer’s death in October 2015. Further, when the Retirement System learned of Petschauer’s death and stopped paying benefits into the trust account, Schusteritsch called the Retirement System’s call center on November 2, 2015, pretended he was Petschauer, and asserted that he was not actually dead, in an effort to maintain eligibility for the pension benefits.

This past summer, Schusteritsch was arrested in his home state of Florida and transported to Albany County, where he was arraigned on an indictment charging him with the crimes of Grand Larceny in the Second Degree, a class C felony, and Criminal Impersonation in the Second Degree, a class A misdemeanor.   On September 16, 2016, Schusteritsch pleaded guilty before Hon. Peter A. Lynch, Albany County Court, to the entire indictment.

 
Schusteritsch was sentenced by the Hon. Peter A. Lynch to six months in jail and five years’ probation, and signed a confession of judgment in the amount of $180,140.45 in favor of the New York State and Local Employees Retirement System on December 2, 12016. 

"Today’s sentencing of Mr. Schusteritsch proves once again that stealing from New York State's pension system is risky business," said State Comptroller DiNapoli. "My office will continue to thwart pension thieves and protect our New York State & Local Retirement System in partnership with Attorney General Schneiderman." 

“Those who illegally obtain pension funds intended for someone else do so at the expense of hardworking New Yorkers who rely on their pension for a secure retirement,” said Attorney General Schneiderman. “Comptroller DiNapoli and I will continue our joint efforts to root out pension system theft and hold those responsible accountable.”

The case is the latest joint investigation under the Operation Integrity partnership of the Comptroller and Attorney General, which to date has resulted in dozens of convictions and more than $11 million in restitution.

Comptroller DiNapoli and Attorney General Schneiderman thanked the Charlotte County Sheriff’s Office in Florida for their assistance.

The Comptroller’s investigation was handled by the Division of Investigations working with the New York State and Local Retirement System.

The case was prosecuted by Assistant Attorney General Benjamin S. Clark of the Criminal Enforcement and Financial Crimes Bureau. The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chief Stephanie Swenton.

The Attorney General’s investigation was conducted by Investigator Samuel Scotellaro, III and Deputy Chief Antoine Karam. Forensic accounting was performed by Meaghan Scovello, Associate Auditor. The Investigations Bureau is led by Chief Dominick Zarrella.  The Forensic Audit Section is led by Chief Auditor Edward J. Keegan. 

The State Comptroller encourage anyone with information on alleged public corruption activities to contact the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

New York StateComptroller’s auditors identify Medicaid overpayments made to Medicare providers

New York State’s Medicaid system made approximately $6.8 million in inappropriate payments, including $3.5 million for separately billed medical services that should have been covered by managed care plans, according to an auditreleased by State Comptroller Thomas P. DiNapoli. By the end of audit fieldwork, about $2.4 million of the overpayments were recovered.  

Additionally, auditors identified 15 Medicaid providers who were charged with or found guilty of crimes that violated the laws or regulations of a health care program. In addition, auditors found three providers who were involved in civil settlements. They advised DOH officials of the 18 providers and DOH terminated 14 of them from the Medicaid program. Another was also terminated from the program following the audit, according to DOH.  

New York’s Medicaid program, administered by the State Department of Health (DOH), is a federal, state, and locally funded program that provides a wide range of medical services to those who are economically disadvantaged or have special health care needs. DOH’s eMedNY computer system processes Medicaid claims submitted by providers for services rendered to Medicaid-eligible recipients and generates payments to reimburse the providers for their claims.

“New York’s Medicaid system is vast and complex with plenty of opportunity for waste and abuse,” DiNapoli said. “My auditors found several cases in which the Department of Health’s eMedNY system failed to catch millions in overpayments. To its credit, the Department is working to recoup these overpayments and make adjustments to its processing systems to prevent these problems from reoccurring.”

DiNapoli’s office audits Medicaid payments on a routine basis to make sure claims are being paid appropriately and to determine if improvements are needed and whether money should be recovered because of errors, abuse or fraud. In 2015, DiNapoli’s auditors identified problems or irregularities with $223 million in payments.

DOH pays Medicaid providers through the fee-for-service method and the managed care plan method. Under the fee-for-service method, Medicaid pays health care providers directly for Medicaid-eligible services rendered to Medicaid recipients. Under the managed care plan method, Medicaid pays each managed care plan a monthly premium for each enrolled recipient and the plan arranges for the provision of services to its members. Plans typically have networks of participating health care providers that they reimburse directly for services provided to their enrollees. Generally, the costs of all services that plan enrollees require are covered by monthly premiums.

DOH uses eMedNY to make Medicaid payments to participating health care providers and managed care plans. The system is used to determine whether claims are eligible for reimbursement. For example, eMedNY will deny fee-for-service claims for services that are covered by a recipient’s managed care plan.

DiNapoli’s audit identified $3,521,562 in overpayments for 14,983 fee-for-service clinic claims that were inappropriate. The claims were processed on behalf of 3,504 recipients who were enrolled in a particular managed care plan. Auditors determined the services were covered by the plan and therefore, fee-for-service claims should not have been paid. A data entry error in eMedNY allowed clinic services for enrollees of this plan to be processed as fee-for-service. After being alerted to the issue, DOH immediately updated eMedNY to prevent future inappropriate payments.

DiNapoli’s auditors also found:

· $1,342,307 in overpayments for claims billed with incorrect information pertaining to other health insurance coverage that recipients had;

· $937,424 in overpayments for newborn claims that were submitted with incorrect birth weights;

· $389,813 in improper payments for inpatient, clinic, durable medical equipment, transportation, and eye care services;

· $333,504 in improper payments identified by the Centers for Medicare & Medicaid Services that DOH did not recover from providers;

· $260,330 in overpayments for inpatient claims that were billed at a higher level of care than what was actually provided; and

· $50,767 in improper payments for duplicate billings. 

DOH officials generally agreed with the audit recommendations and indicated that certain actions have been and will be taken to address them. DOH’s full response is included in the complete audit.

Read the report, or go to: http://www.osc.state.ny.us/audits/allaudits/093017/15s74.pdf

Other audits and reports issued

State Education Department (SED): The Child Development Council Inc., Compliance with the Reimbursable Cost Manual (2016-S-22)

Auditors identified $16,699 in costs charged to the preschool special education programs that did not comply with SED’s requirements for reimbursement. The non-reimbursable costs included $5,394 in ineligible property expenses, $3,609 in ineligible food costs, $2,337 in ineligible costs for consultant services, $2,309 in non-program-related costs, and $3,050 in other non-reimbursable costs.

State Education Department: Rochester Childfirst Network, Compliance with the Reimbursable Cost Manual (2016-S-15)

For the fiscal year ended June 30, 2014, auditors identified $13,201 in costs that were charged to the preschool special education programs that did not comply with SED’s requirements for reimbursement. The ineligible costs included $7,042 in other than personal service costs and $6,159 in personal service costs. 

State Education Department: Susan E. Wagner Preschool, Compliance with the Reimbursable Cost Manual (2015-S-100)

For the three fiscal years ended June 30, 2014, auditors identified $140,902 in reported costs that did not comply with SED’s requirements for reimbursement, including $81,370 in real estate taxes, $39,709 in unsupported or ineligible compensation costs for six employees; $18,650 in inadequately documented consultant costs; and $1,173 in ineligible staff food costs.

Department of Taxation and Finance: Property Tax Freeze (PTF) Credit

Auditors examined 138,962 individual high-risk PTF Credit payments totaling more than $75.9 million. They identified 31,924 questionable payments totaling almost $8 million for follow-up evaluation and appropriate action, including: 25,567 payments totaling $5,480,752 due to calculation errors; 3,998 payments totaling $1,621,590 where either the homeowner or property was not eligible for the STAR property tax exemption; and 2,052 payments totaling $818,766 to deceased homeowners.

An Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division.

An Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division.

However, said the Appellate Division, “because the full record is now before this Court, this Court will retain jurisdiction to decide the proceeding on the merits in the interest of judicial economy.”

The Appellate Division then ruled that “Under the circumstances presented here, the penalty of dismissal from the petitioner's employment with the school district was not so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion,” explaining "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" and neither the Supreme Court nor the Appellate Division have any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed.

The test applied: Is the penalty imposed “shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals," the so-called Pell standard [Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222].

Reported: 2016 NY Slip Op 08083, Appellate Division, Second Department

_____________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

_____________________  

Failure to obtain the consent of her employer's workers' compensation carrier to her settlement of a third-party action barred her from receiving further benefits.

Failure to obtain the consent of her employer's workers' compensation carrier to her settlement of a third-party action barred her from receiving further benefits.
 
Shiner v SUNY At Buffalo, 2016 NY Slip Op 07738, Appellate Division, Third Department

Bureau of Justice Statistic's Victimization Unit Chief receives Young Career Award

Bureau of Justice Statistic's Victimization Unit Chief receives Young Career Award

The Bureau of Justice Statistics' (BJS) Victimization Unit Chief Lynn Langton received the 2016 White-Collar Crime Research Consortium (WCCRC) Young Career Award at the American Society of Criminology Conference in New Orleans, Louisiana.
 

This award recognizes outstanding contributions to scholarship on white-collar crime by persons early in their professional career. Select members of the WCCRC, which was founded by and is partially maintained by the White Collar Crime Center, choose recipients based on a single work or for a series of contributions.

Source: http://www.bjs.gov/index.cfm?ty=abu

 

Making false statements to investigators concerning alleged misconduct

Making false statements to investigators concerning alleged misconduct

OATH Administrative Law Judge John B. Spooner recommended termination of employment of a child protective specialist found guilty of coercing a former agency client into housing a friend, mading false statements to investigators, and accessing confidential records without authorization.  

NYC Office of Administrative Trials and Hearings, OATH Index Nos. 1342/16 and  1904/16, [recommendations adopted by the appointing authority]. 

_____________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

______________

Tests applied by the courts in determining if a demand to arbitrate a grievance pursuant to the terms of a collective bargaining agreement should be granted

Tests applied by the courts in determining if a demand to arbitrate a grievance pursuant to the terms of a collective bargaining agreement should be granted
Locust Valley Central School District v Benstock, 2016 NY Slip Op 07299, Appellate Division, Second Department [Matter #1]

Locust Valley Central School District v Locust Valley Teachers' Association 2016 NY Slip Op 07299, Appellate Division, Second Department [Matter #2]

The relevant collective bargaining agreement [CBA] between Locust Valley Teachers' Association [LVTA] and the Locust Valley Central School District [School District] provided that either party had the right to submit a grievance to arbitration in the event the grievance was not resolved by the School District. The CBA defined a "grievance" as "a claimed violation, misinterpretation or inequitable application [of a] provision of th[e] Agreement."

LVTA filed a grievance against the School District concerning the School Districts commencing a plenary action* against a teacher formerly employed by the School District. The former teacher was a member of the LVTA and presumably in the collective bargaining unit represented by LVTA.

In the plenary action, the School District sought, under a "faithless servant" theory,**the forfeiture of all compensation earned by the former teacher pursuant to the CBA during a period of time in which the teacher allegedly engaged in certain criminal conduct. That conduct ultimately resulted in the teacher's plea of guilty to several criminal charges.

In an action (Matter #1) and a related proceeding pursuant to CPLR article 75 to permanently stay arbitration of a grievance (Matter #2), the School District in Matter #2 appealed from an order of the Supreme Court which denied its petition seeking a stay of arbitration and granted LVTA’s motion to compel arbitration of the grievance.

The Appellate Division affirmed the Supreme Court’s ruling in Matter #2.

The court explained that the determination of whether a dispute between a public sector employer and employee is arbitrable is subject to a two-prong test.

The court must first if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. In the event it finds no such prohibition, the court must review the relevant collective bargaining agreement between the parties and determine if they, in fact, agreed to arbitrate the particular dispute.

Citing Board of Educ. of Watertown City School Dist. [Waterman Edu. Assn.], 93 NY2d 132, the Appellate Division said that in examining the collective bargaining agreement, must "merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [agreement]." If there is such a relationship, said the Appellate Division, "the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the . . . provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them."

In determining whether a matter is arbitrable, however, the court may not "consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute."

Finding that the School District had not identified any statutory, constitutional, or public policy prohibition against arbitrating the grievance, the Appellate Division affirmed the Supreme Court’s decision. In the words of the Appellate Division, the fact that “the grievance concerns the right of the School District to bring a plenary action seeking the equitable forfeiture of compensation paid to the teacher under the CBA establishes “a reasonable relationship between the grievance and the CBA.”

* A lawsuit where the merits are fully investigated and discussed and the decision is not based on another lawsuit.

** The "faithless servant doctrine" states that an individual owing a duty of fidelity to a principal and who is faithless in the performance of his or her services generally cannot recover his or her compensation or other consideration that would be otherwise available to that individual [Murray v Beard, 102 NY 505]. See, also, http://publicpersonnellaw.blogspot.com/2010/02/applying-faithless-servant-doctrine.html

The decisions in Matter #1 and Matter #2 are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07299.htm