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Employer’s rejection of an individual’s claim for GML §207-c disability benefits does not necessarily bar his or her becoming eligible for such benefits at a later date


Employer’s rejection of an individual’s claim for GML §207-c disability benefits does not necessarily bar his or her becoming eligible for such benefits at a later date
Zembiec v County of Monroe, 2013 NY Slip Op 01736, Appellate Division, Fourth Department

A Monroe County Sheriff's Department (MCSD) employee challenged the Department’s decision that he was not entitled to General Municipal Law §207-c benefits available to law enforcement personnel injured in the line of duty.

Supreme Court concluded that the MCSD’s determination was arbitrary and capricious and granted awarding the individual disability benefits retroactive to December 4, 2009, the date of the employee's request for those benefits. The Appellate Division affirmed the Supreme Court’s ruling.

The court took note of an earlier action involving the same parties [see Zembiec v County of Monroe [Appeal No. 2], 87 AD3d 1358] in which the employee sought disability benefits for the period August 12, 2008 through June 15, 2009 as well as his regular pay from June 15, 2009 through March 25, 2010. The Appellate Division denied that part of the employee’s petition seeking an award of regular pay from June 15, 2009 through March 25, 2010, explaining that the employee was required to report to a modified duty assignment on June 15, 2009, but did not do so

Among the arguments advanced by MCSD was that the employee’s claim in this proceeding was precluded by the doctrine of res judicata.* The Appellate Division rejected this claim, stating that the employees current claim for benefits was based on a December 2, 2009 status report prepared by an MCSD physician, in which the physician determined that he was not fit to return to work. The court explained that the employee’s introduction of this status report in the prior proceeding did not establish the claims being asserted in this proceeding and in the prior proceeding arose out of the same transaction or series of transactions.

Although the proceedings both involve claims concerning the employee's entitlement to disability benefits and are arguably related in time inasmuch as certain events relevant to this appeal, i.e., the issuance of the status report and petitioner's second request for disability benefits, occurred while the prior proceeding was pending, the proceedings are based upon two different transactions — MCSD’s June 15, 2009 decision denying the §207-c benefits and its July 19, 2010 decision denying the §207-c benefits being sought by the employee.

In the prior proceeding the court was concerned only with the issue whether MCSD’s June 15, 2009 determination was "arbitrary and capricious" and the court's "review of [the] administrative determination [in the prior proceeding was] limited to the facts and record adduced before the agency.'" Thus the court could not rely on post-determination submissions, such as the December 2, 2009 status report, in evaluating MCSD’s determination.

The Appellate also rejected MCSD’s alternative argument that the Doctrine of Collateral Estoppel** bared the employee’s instant claim, concluding that the issues concerning employee's ability to return to work and his eligibility for disability benefits in December 2009 had not been decided in the prior proceeding. The court explained that although it determined that Supreme Court erred in awarding the employee regular pay from June 15, 2009 through March 25, 2010, in the earlier proceeding, that determination had not foreclosed the possibility that employee might, at some point after June 15, 2009, again become eligible for disability benefits

* Res Judicata: Latin for a matter already decided or judged by a tribunal.

** The Doctrine of Collateral Estoppel bars issues that have been litigated from being litigated again by the same parties.

The instant decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_01736.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

Health Care Reform Webinar for Public Employers Now Available Online

Health Care Reform Webinar for Public Employers Now Available Online
 

The NYMUNIBLOG Editorial Team has posted the Harris Beach webinar, “Health Care Reform’s Impact on Public Entities: Don’t Get Caught Waiting for 2014 – What You Need to be Doing Now,” on the Internet. 

It is is now available for downloading and streaming for those unable to attend on March 14, 2013 presentation at http://nymuniblog.com/?p=3120

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Issued during the week ending March 17, 2013 [Click on the caption to access the full report]


DiNapoli: General Electric Agrees to Examine Risks from New PCB Hotspots in Hudson

General Electric Corp. has agreed to prepare an analysis of the actions required to remove recently discovered polychlorinated biphenyl contamination contaminated sediments from the Hudson River and report its findings to shareholders, New York State Comptroller Thomas P. DiNapoli announced Monday. The analysis will be completed by the end of 2013. In response to the agreement, DiNapoli withdrew a shareholder resolution calling on the company to do such an evaluation.


DiNapoli and Saratoga DA Murphy: Former Fire District Treasurer Pleads Guilty to Stealing Taxpayer Funds

The former treasurer of the Charlton Fire District has admitted to embezzling $500,000 in public funds as the result of an audit and investigation by State Comptroller Thomas P. DiNapoli and further investigation by Saratoga County District Attorney James A. Murphy, III and the New York State Police.


DiNapoli: Challenges Remain For New York City Budget

New York City’s budget is balanced in the current fiscal year and Mayor Bloomberg has presented a balanced preliminary budget for fiscal year 2014, but a number of issues pose significant budget risks in the years ahead, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.


DiNapoli: Nassau County Needs to Improve Contract Process

While Nassau County is following established guidelines for approving contracts, the authorization process often misses approval deadlines, according to an audit issued Thursday by State Comptroller Thomas P. DiNapoli. Auditors found that because of the lengthy review process vendors began working on half the contracts an average of seven weeks prior to the contract being signed by the county.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed audits of





the Town of Otselic; and,



Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed audits of:




the South Glens Falls Central School District.

New York State Comptroller Thomas P. DiNapoli’s audit of Mill Neck Manor reports the facility overcharged the State more than $280,000



New York State Comptroller Thomas P. DiNapoli’s audit of Mill Neck Manor reports the facility overcharged the State more than $280,000

An audit report released by New York State Comptroller Thomas P. DiNapoli on March 14, 2013 reports that the Mill Neck Manor School for the Deaf, a Nassau County provider of special education services for children with hearing disabilities, overcharged the State Department of Education* [SDE] more than $280,000, including charges for extra salary and benefits for the school’s Executive Director.

Mill Neck, part of the larger Mill Neck Family of Organizations, claimed $64,817 from the State for salary paid to its Executive Director, Mark Prowatzke, that should have come from elsewhere in the organization.  Auditors also identified $7,688 in vacation costs that were claimed for reimbursement, but were not paid by the school to its employees.

DiNapoli recommendations included that:
 
1. SDE review the inappropriate and unsupported expenses and take action to recover such reimbursed expenses; and

2. Mill Neck School should not charge costs to the program that are not in compliance with the State Education Department’s Reimbursable Cost Manual (Manual).

3. Explain Manual requirements to staff involved in preparing the Consolidated Fiscal Reports and the cost reimbursement processes.

A copy of the audit report is posted on the Internet at:
http://www.osc.state.ny.us/audits/allaudits/093013/11s40.pdf

DiNapoli has identified other fraud and improper use of funds in a recent series of audits of special education providers. There have been several criminal referrals, felony arrests, criminal convictions and hundreds of thousands of dollars in restitution made as a result of the audits. In total, 30 special education contractors have been or are being audited.

The Comptroller's recent audit of SED’s fiscal and program oversight of special education providers found that the agency has not conducted any on-site provider audits since 2007. A summary of key findings in this audit report, which was issued on December 18, 2012, is posted on the Internet at:http://osc.state.ny.us/audits/allaudits/093013/12s103.htm. The link to the full text of the December 2012 audit report, which is posted on the Internet, is: Link to full audit report (2012-S-103)

* SDE oversees special education programs for students with disabilities between the ages of 3 and 21. In addition to services provided by local school districts, these programs include services delivered to about 75,000 students by more than 300 for-profit and not-for-profit entities at an annual state cost of $1.3 billion.

Additional duties to incumbents of certain positions may serve as a rational basis for their allocation to different salary grades despite some overlap of duties


Additional duties to incumbents of certain positions may serve as a rational basis for their allocation to different salary grades despite some overlap of duties
Cribbin v New York State Unified Ct. Sys., 2013 NY Slip Op 01548, Appellate Division, Second Department
 
Patrick Cribbin file an Article 78 petition seeking an order compelling the Chief Administrative Judge of the Courts of the State of New York to reclassify an certain New York State Court Officer-Major I (Judicial Grade-26) employees to the title of New York State Court Officer-Major II (Judicial Grade-28).

The Appellate Division reversed a Supreme Court ruling that granted the petition [as amended] and remitted the matter to the Chief Administrative Judge of the Courts of the State of New York for further proceedings.

The court said that when a position classification decision is made "[t]he courts have the power to reverse or modify a particular classification . . . [only] if it is wholly arbitrary or without any rational basis," citing Association of Secretaries to Justices of Supreme and Surrogate's Courts in the City of New York. v Office of Court Administration of the State of New York., 75 NY2d 460 and other decisions.

The Appellate Division explained that “So long as the classification determination has a rational basis, a court may not disturb it even if there are legitimate grounds for a difference of opinion.” 

As the record established a rational basis for the distinction between the positions of  Major I and Major II, even though there was some overlap in duties, the court concluded  that the additional managerial duties assigned incumbents of Major II positions provided a rational basis for distinguishing between the two positions.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_01548.htm

The failure of a witness to respond to a subpoena issued by the hearing officer not necessarily fatal to the administrative decision if good cause for such failure is shown


The failure of a witness to respond to a subpoena issued by the hearing officer not necessarily fatal to the administrative decision if good cause for such failure is shown

The Appellate Division affirmed a Supreme Court’s denial of an Article 78 petition seeking to annul the determination of Waterfront Commission of New York.

Among the addressed by the Appellate Division concerning the admission of hearsay statements in the course of the proceeding and petitioner’s inability to cross-examine a witness alleged to have made statements to the detriment of the petitioner.

As to the issue concerning hearsay evidence, the Appellate Division ruled that “The admission of hearsay statements at the administrative hearing did not violate petitioner's due process rights to a fair hearing or cross-examination.” The court explained that “It is well established that ‘[h]earsay evidence can be the basis of an administrative determination,’" citing Gray v Adduci, 73 NY2d 741.

The court also noted that in addition to the challenged hearsay testimony, the Commission presented testimony that corroborated the hearsay testimony.

With respect to the issue concerning the petitioner’s inability to cross-examine an individual who made statements implicating him because the individual ignored a subpoena issued by the Administrative Law Judge, the Appellate Division said that this did not require a different result. In the words of the court: “The fact that the subpoena may have been ignored was not the fault of [Commission] or the [Administrative Law Judge…” as the target of the subpoena was incarcerated at the time.

The court noted that the petitioner was able to cross-examine the live witnesses, and good cause was established for the failure to produce the subpoenaed witness at the hearing.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_01496.htm

A town council member may not simultaneously serve as the town's financial operations manager


A town council member may not simultaneously serve as the town's financial operations manager
Informal Opinions of the Attorney General 2013-01

A town asked for the Attorney General’s opinion as to whether the positions of town council member and town financial operations manager or, alternatively, director of finance, can be held by the same person.

The Attorney General concluded that such positions may not be held by the same individual, explaining that  because of the town board's responsibility to oversee the Town's fiscal operations, a council member should not simultaneously hold the position of financial operations manager or director of finance.

The opinion notes that the Attorney General has repeatedly expressed the view that one person cannot serve as both a member of a local government's governing body and in a subordinate second position for the same local government.

The fundamental concept regarding such incompatibility: one person cannot be both the supervisor and the supervised [see People ex rel. Ryan v. Green, 58 N.Y. 295, 304 (1874)]

The Informal Opinion is posted on the Internet at:

Former town clerk alleged to have used town’s credit card to pay personal debts


Former town clerk alleged to have used town’s credit card to pay personal debts

State Comptroller Thomas P. DiNapoli reported that a former clerk of the Town of Argyle, Washington County, used a town credit card to pay for more than $8,000 of personal expenses.

DiNapoli’s auditors found that from January 2009 through December 2012, the former clerk made four separate purchases totaling $8,347 that were not for town business. In addition, late fees and finance charges totaling $2,013 were accumulated. The town supervisor alerted auditors to the misuse.

The former clerk paid off the debt and admitted to improperly using the town’s credit card. The town did not pay for any of the unauthorized purchases, late fees or finance charges incurred. Charges were not filed because the clerk repaid the town.

DiNapoli’s recommendations for the town to avoid such situations in the future included:

1. The board should ensure that all town-issued credit cards are used for business purposes only and the monthly credit card statements are included with the monthly claims to be audited prior to payment;

2. The board and town clerk should assess the credit limit on the Clerk’s credit card account and reduce it to an appropriate level for the needs of the office;

3. The clerk should deposit all moneys intact and in a timely manner; and

4. The clerk should remit moneys collected to the town supervisor and other agencies in a timely manner.

Town officials agreed with several findings in the audit. Their comments are included in the audit report.

For a copy of the report, it is available on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2013/argyle.pdf

Disqualification of applicant unable to meet Civil Service Commission’s hearing requirements not unlawful discrimination under the State’s Human Rights Law


Disqualification of applicant unable to meet Civil Service Commission’s hearing requirements not unlawful discrimination under the State’s Human Rights Law

A candidate for the position of a Nassau County police officer filed an Article 78 petition challenging the Nassau County Civil Service Commission’s decision disqualifying him for the position.

Although Supreme Court granted the candidates petition and annulled the Commission’s determination, the Appellate Division reversed the lower court’s ruling and dismissed the candidate’s petition “on the merits.”

The Commission had appealed two rulings by Supreme Court:

The first was procedural: was the candidates Article 78 petition timely. The Commission contended that it was untimely, arguing that the Article 78 action was commenced more that four months after its determination disqualifying the candidate.

The Appellate Division disagreed with the Commission, holding that the candidate’s petition was timely. Noting that CPLR 217(1) specifies that the limitations period begins to run when "the determination to be reviewed becomes final and binding upon the petitioner," the court explained that "An administrative determination becomes final and binding when the petitioner seeking review has been aggrieved by it."

Here, said the Appellate Division, the candidate “was not aggrieved until he was notified that he was disqualified from further consideration” for failing to meet its hearing requirements.

The second issue concerned the Commission’s exercise of its discretion when it adopted a more stringent audio logy standard than that established by the State’s Municipal Police Training Commission.

The Appellate Division ruled that the Commission had acted within the scope of its discretionary power when it adopted a resolution which modified the Municipal Police Training Commission standards and did not contravene the procedure for the adoption of "rules" in doing so.

As the appointing authority has wide discretion in determining the fitness of candidates, the disqualification of the petitioner for failing to meet those modified audiological, the court concluded that the modified standard was not arbitrary and capricious.

In addition court noted that the Commission’s determination that the candidate failed to meet the modified Municipal Police Training Commission hearing standards constituted an individualized finding that his disability prevents him from performing the functions of a police officer in a reasonable manner “such that his disqualification did not constitute unlawful discrimination under the State’s Human Rights Law.
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_01404.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Issued during the week ending March 10, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Dunkin’ Donuts Agrees to Run on Sustainable Palm Oil

New York State Comptroller Thomas P. DiNapoli announced Thursday that Dunkin’ Brands Group, owner of Dunkin’ Donuts, has agreed to set a date for sourcing 100 percent of the palm oil used to make its products from sustainable sources.


DiNapoli: State and Local Public Authority Debt Nears $250 Billion

Public authority debt increased to nearly a quarter of a trillion dollars in the latest reported fiscal year, according to a reportreleased Tuesday by State Comptroller Thomas P. DiNapoli. New York relies on authorities to undertake most borrowing on its behalf, and routinely uses authority resources to plug state budget gaps.


MTA’s East Side Access Project 10 Years Late and $4.4 Billion Over Budget

The Metropolitan Transportation Authority’s (MTA’s) East Side Access project, which will bring Long Island Rail Road service to Grand Central Terminal for the first time, is expected to cost nearly $9 billion when finished in 2019, more than twice the MTA’s initial cost estimate and a decade later than expected, according to a reportreleased Wednesday by New York State Comptroller Thomas P. DiNapoli.


DiNapoli Announces Results of General Obligation Bond Sale: $566,560,000 Awarded

State Comptroller Thomas P. DiNapoli Thursday awarded three series of New York State General Obligation Bonds, totaling $566,560,000, through a competitive sale. Specifically, the sales were $348,065,000 of Series 2013A Tax–Exempt Bonds, $47,810,000 of Series 2013B Taxable Bonds and $170,685,000 of Series 2013C Tax–Exempt Refunding Bonds. The bonds are scheduled to be delivered on March 19, 2013.


DiNapoli Urges Caution as Budget Progresses

The amendments to the Executive Budget for state fiscal year 2013–14 curtailed some risks contained in the originally proposed budget, but the impact from federal sequester cuts represent a risk to the Financial Plan according to a reportreleased by Comptroller Thomas P. DiNapoli.


DiNapoli: Rochester Faces Serious Fiscal and Demographic Challenges

The city of Rochester, hampered by increasing budget gaps and the highest percentage of families living in poverty of any city in New York, is expected to face heightened fiscal stress in coming years, according to a reportreleased Monday by State Comptroller Thomas P. DiNapoli. The city’s revenues have grown at a higher rate than other cities, giving it some flexibility that other cities do not have. The report is the latest in a series of fiscal profiles DiNapoli will issue on cities across the state.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed the following audits:



the City of Rome.

Accrual of a cause of action commences upon the receipt of the final administrative determination


Accrual of a cause of action commences upon the receipt of the final administrative determination

In this Article 78 action the Appellate Division affirmed Supreme Court’s determination that the employee’s claim  did not accrue until she received the final administration decision, citing Education Law §3813.2-b.

As the individual commenced her action within one year of her receiving the final determination, the Supreme Court ruled that she had satisfied the relevant statute of limitations.

In some case, however, the final administrative determination may not initially be sent to the individual.

Significantly, the delivery of a final administrative decision to an employee's union does not count with respect to the commencement of the running of the statute of limitations. In Weeks v State of New York, 198 AD2d 615, the court held that the statute of limitations begins to run when the decision is served on the employee, not from the date on which the union received its copy.

The basic rules are:

1. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to commence the running of the statute of limitations.

2. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.

It should be remembered, however, that an individual’s request for reconsideration of a “final administrative determination” neither tolls the running of the statute of limitations [see Lavin v Lawrence, 54 AD3d 412] nor extends the statute of limitations [see Raykowski v NYC DOT, 259 AD2d 367] for the purposes of perfecting an appeal.  

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01358.htm

Alcohol-related misconduct


Alcohol-related misconduct
OATH Index No 543/13

OATH Administrative Law Judge Kevin F. Casey found that the Department of Sanitation sustained seven charges relating to time and leave violations brought against a sanitation worker, R.M.

R.M. admitted much of the charged misconduct.

ALJ Casey, however, found that most of R.M.’s time and leave issues were related to an alcohol problem, that R.M. had completed inpatient alcohol rehabilitation, and that R.M. had not been late or AWOL since completing the program.

Citing McEniry v. Landi, 84 N.Y.2d 554, in which the Court of Appeals ruled that an employee should not be terminated for alcohol-related misconduct that occurred before rehabilitation if he or she completed it successfully and maintains satisfactory performance afterwards, Judge Casey recommended that R.M. should not be terminated from his position. Rather, the ALJ recommended that R.M. be suspended without pay for 30-days.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-543.pdf

Alleged violation of a job security clause in a collective bargaining agreement not always subject to arbitration


Alleged violation of a job security clause in a collective bargaining agreement not always subject to arbitration
Village of Monticello v Monticello Police Benevolent Association, Supreme Court, Sullivan County, Index #2974-12

Contending that the Village of Monticello had breached the relevant collective bargaining agreement which provided that the Monticello Police Department shall not consist of less than a Chief of Police and twenty-three sworn officers, the Monticello Police Benevolent Association [PBA] demanded that its grievance be submitted to arbitration.

The Village filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to stay the arbitration, contending that the staffing provision as set out in the agreement, which it characterized as a “job security clause,” violated public policy and thus was not subject to arbitration.

Supreme Court Justice Christopher E. Cahill said the sole issue to be resolved was whether the so-called “job security clause” in the collective bargaining agreement satisfies the stringent test the Court of Appeals referred to in deciding Johnson City Professional Firefighters Local 921, 18 NY3d 32, i.e., did the employer explicitly agree to bargain away its rights to eliminate positions and terminate or layoff employees for budgetary or other reasons.

In Board of Educ. of Yonkers City Sch. Dist. v Yonkers Federation of Teachers, 40 NY2d 268, the Court of Appeals noted that “Not all job security clauses are valid and enforceable, nor are they ‘valid and enforceable under all circumstances.’" In Yonkers Federation of Teachers the court found that a "job security" wasexplicit in its protection of the [workers] from abolition of their positions due to budgetary stringencies" and thus enforceable.

In contrast, in CSEA v City of Yonkers [Crossing Guard Union], 39 NY2d 964, the Court of Appeals concluded that the "job security" clause in the collective bargaining agreement relied upon by the Crossing Guard Union was ambiguous and thus not enforceable.

Similarly, the clause relied upon by the Monticello PBA, said Justice Cahill, did not explicitly protect the police officers from the abolition of their positions due to economic and budgetary stringencies. Concluding that provision was ambiguous, the court ruled that it did not constitute an “explicit” provision barring such layoffs.

__________________

Brian D. Nugent, Esq., Feerick Lynch MacCartney PLLC, represented the Village of Monticello in this proceeding and sent a copy of Justice Cahill’s February 21, 2013 decision to NYPPL.

Court cites the “principle of stare decisis” in affirming a custodian of public record’s denial of a Freedom of Information Law request


Court cites the “principle of stare decisis” in affirming a custodian of public record’s denial of a Freedom of Information Law request
Empire Ctr. for N.Y. State Policy v Teachers' Retirement Sys. of the City of N.Y, 2013 NY Slip Op 01329, Appellate Division, First Department

The Appellate Division, Third Department recently considered another “FOIL case” involving the not-for-profit Empire Center for New York State Policy’s request seeking the names of the New York State Teachers’ Retirement Systems [NYSTRS] retirees and concluded that the NYSTRS could lawfully deny such request within the exemptions from disclosure permitted by Public Officers Law §89(7)."*

The First Department came to the same conclusion in this action, holding “[The New York City Retirement System’s] decision to withhold the names of retirees of the public retirement system pursuant to the exemption set forth in Public Officers Law § 89(7) was not affected by an error of law.”

The City Retirement System’s determination, explained the court “is in accord with [the court’s] interpretation of that exemption in Empire Ctr. for N.Y. State Policy v New York City Police Pension Fund (88 AD3d 520 [1st Dept 2011]), motion for leave to appeal dismissed, 18 NY3d 901 [2012]).**

Accordingly, said the First Department, “we adhere to our prior holding under the principle of stare decisis,*** which applies with particular force to issues of statutory interpretation.”


 * Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2013 NY Slip Op 01117, Appellate Division, Third Department at http://publicpersonnellaw.blogspot.com/2013/02/a-foil-request-seeking-names-of-public.html

** The First Department also noted the decision in New York Veteran Police Assn. v New York City Police Dept. Art. I Pension Fund, 61 NY2d 659, cited by the Third Department in its ruling.

*** Latin for "to stand by things decided."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01117.htm

Ninth Circuit: Class Action Erroneously Certified Given Wal-Mart v. Dukes

Back in 2004, employees of the Chinese Daily News started a class action, claiming mis-classification, unpaid overtime and denied meals and breaks.  The trial court eventually certified a class, and the employees won summary judgment on whether reporters for the newspaper qualified under the professional exemption.  The employees won millions of dollars after trial, which the Ninth Circuit affirmed.

Not so fast, said the Supreme Court.  Following the Supreme Court's Wal-Mart Stores v. Dukes decision (discussed here), the Supreme Court vacated the Ninth Circuit's decision in this case.  The Ninth Circuit decided that Wal-Mart requires reconsideration of the decision and sent it back to the district court.

Why? The trial court did not apply the proper analysis (after Wal-Mart) to determine whether there is sufficient commonality to certify the class.  As explained by the Court:

On remand, the district court must determine whether the  claims of the proposed class “depend upon a common contention . . . of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 131 S. Ct. at 2551.
So, it's not enough that there are "common questions" in the abstract, because, as the Ninth Circuit stated (quoting Wal-Mart and its own later decision in Ellis v. Costco):

"any competently crafted class complaint literally raises common questions.” Wang [sic], 131 S. Ct. at 2551 (alteration and internal quotation marks omitted). “What matters to class certification is not the raising of common questions — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (alteration and internal quotation marks omitted). Dissimilarities within the proposed class may “impede the generation of common answers.” Id. “If there is no evidence that the entire class was subject to the same allegedly
discriminatory practice, there is no question common to the class.” Ellis v. Costco Wholesale Corp., 657 F.3d 970, 983 (9th Cir. 2011).

The Ninth Circuit also decided that the district court would have to reconsider whether certification is appropriate under Federal Rule of Civil Procedure 23(b)(3).  That rule permits monetary recovery in class action cases when

the court finds that the questions of law or fact  common to class members predominate over any questions affecting only individual  members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
First, the district court over-relied on the employer's policies applicable to all employees, but without considering whether issues pertaining to individual claims and defenses would "predominate" over the common policy.  Second, the district court did not have the California Supreme Court's Brinker decision (you've heard of it, right?) to assess whether certification of a meal / rest claim was appropriate. 

Of note, the Ninth Circuit also wrote this, which will likely be of interest to class action litigators:

In Wal-Mart, the Supreme Court disapproved what it called “Trial by Formula,” wherein damages are determined for a sample set of class members and then applied by extrapolation to the rest of the class “without further individualized proceedings.” Wal-Mart, 131 S. Ct. at 2561. Employers are “entitled to individualized determinations of each employee’s eligibility” for monetary relief. Id. at 2560.
Employers are also entitled to litigate any individual affirmative defenses they may have to class members’ claims. Id. at 2561. 

The case is Wang v. Chinese Daily News and the opinion is here.


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Issued during the week ending March 1, 2013 [Click on text highlighted in bold to access the full report]


Wall Street Bonuses Rose In 2012

Cash bonuses paid to New York City securities industry employees are forecast to rise by 8 percent to $20 billion during this year’s bonus season, according to an estimate released by State Comptroller Thomas P. DiNapoli. Click here to view video.


DiNapoli Audit Finds Errors and Potential Abuses in STAR Program

Administrative shortcomings in the School Tax Relief program have resulted in duplicate and improper exemptions going to individuals or entities not eligible to receive them, according to an audit released Thursday by New York State Comptroller Thomas P. DiNapoli. Auditors estimate these exemptions cost New York State $13 million during the 2010–11 fiscal year and could top $73 million by the 2015–16 fiscal year.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed audits of the


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of the

City of Saratoga Springs.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Issued during the week ending March 1, 2013 [Click on text highlighted in bold to access the full report] 

The state Department of Health [DOH] made $26 million in Medicaid overpayments and other questionable payments because of flaws in its eMedNY claims processing computer system according to an audit released on March 1, 2013 by State Comptroller Thomas P. DiNapoli.

DOH officials generally agreed with the audit’s findings and have begun to implement the recommendations.  For a copy of the report, including DOH’s response, click on: 


The audit looked at claims for patients who are both Medicare and Medicaid eligible, which are known as crossover claims. In December 2009, the Department of Health implemented a new payment mechanism in eMedNY to achieve greater control over Medicaid payments.  The new mechanism is an attempt to ensure Medicaid does not pay crossover claims denied by Medicare, only pays the portion of the claim that it actually owes and crossover claims are billed first to Medicare before being billed to Medicaid.

DiNapoli’s auditors found that from implementation of the new system in 2009 through March 31, 2012, the system was not working correctly, allowing nearly 866,000 improper and questionable payments to be made. Auditors identified $6.9 million that eMedNY improperly paid for, including 137,000 crossover claims previously denied by Medicare. Auditors also identified $3.1 million for 277,000 crossover claims where the payment exceeded the amount that Medicaid owed. In addition, auditors found that more than 24,800 providers were able to bypass crossover system controls and bill approximately 452,000 claims directly to Medicaid instead of first billing Medicare. As a result, Medicaid made potential overpayments totaling $16.4 million. Since December 3, 2009, Medicaid reimbursed a total of $1.1 billion for approximately 41.4 million crossover claims.

DiNapoli’s auditors recommended that the DOH:


 · Correct the eMedNY computer controls that caused the Medicaid overpayments identified during the audit;

 · Recover the Medicaid overpayments totaling $10 million caused byeMedNY computer programsthat incorrectly processed Medicare crossover claims; and

 · Review the $16.4 million in potential Medicaid overpayments and recover where appropriate.


Office of Children and Family Services, Oversight of Child Protective Services Outside New York City (Follow-Up) (2011-F-19)

An initial audit found that districts are intervening in a timely and appropriate manner to protect the children who are at risk in the most serious types of child abuse cases. However, the actions taken are not summarized in a format that would enable OCFS to readily determine that necessary interventions have actually occurred. In a follow-up report, auditors determined OCFS officials have not made progress in correcting the problems identified in the initial report.

In November 2007, the Private Housing Law was amended to require housing companies to provide disabled veterans with a preference in the admission to Mitchell-Lama housing developments. An initial audit found disabled veterans did not receive the intended housing preference. The individual Mitchell-Lama housing companies failed to follow the Division’s guidance concerning the law, and the division failed to monitor the housing companies adequately. In a follow-up report, auditors found DHCR officials have made significant progress in correcting the problems identified in the initial report.
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, Auditors examined travel expenses for the highest-cost travelers in the State. In an audit of $1,293,461 of the college’s travel payments, auditors found two Alfred employees had travel costs totaling $224,683. Auditors also examined other travel expenses, including $1,037,509 paid to a provider of campus services such as transportation, vending, and concessions, and airfare expenses incurred by one employee that totaled $31,269. Auditors found that the travel expenses for the three employees and the service provider were documented and adhered to state travel rules and regulations.
As part of a Statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state. Auditors found five SUNY Cortland employees had travel costs totaling $696,909. The travel expenses for the employees selected for audit were documented and adhered to state travel rules and regulations.
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state.

One employee at the College of Optometry had travel costs totaling $116,828. The selected employee was responsible for arranging travel for other college staff members, charging these travel expenses to his travel card. The expenses were documented and generally adhered to state travel rules and regulations. However, auditors found one instance where SUNY Optometry paid $9,000 to the Intrepid Museum Foundation for an event that was not related to travel. SUNY Optometry travel guidelines states that such payments are not permissible. A college official told auditors the card was uses only as a contingency because the vendor had not received the check issued for payment.
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state.

An employee at SUNY Purchase and incurred lodging costs totaling $991,999. Auditors found the employee was responsible for arranging overflow student housing at local hotels each fall semester when on campus housing was exhausted, charging these expenses to her procurement card. Housing students at local hotels has been the practice since 2002. The expenses were appropriately approved and documented. However, College management has not conducted a formal written study to examine the options for alleviating the student housing shortage and to ensure the most efficient use of state funds.

The fact that subordinates failed to complete an assigned task standing alone is not sufficient to prove a charge of “failure to supervise”


The fact that subordinates failed to complete an assigned task, standing alone, is not sufficient to prove a charge of “failure to supervise”
OATH Index No. 681/13

The Department of Investigation discovered that certain sanitation workers collected and sold recyclable scrap metal, referred to as “mongo.” As a result their supervisor was charged with failure to supervise subordinates who engaged in the activity.  

OATH Administrative Law Judge Kevin F. Casey noted that the charge of failure to supervise requires more than proof that a subordinate did not complete a task; there must be proof of neglect or fault by the supervisor. 

Judge Casey recommended dismissal of the charges, finding the Department of Sanitation did not prove that there was unauthorized material on the truck in a place where the supervisor should have discovered it before the crew was sent to the dump.  

The decision is posted on the Internet at: