An officer or employee must possesses the appropriate license or permit only if he or she is performing duties that require such a license or permit

An officer or employee must possesses the appropriate license or permit only if he or she is performing duties that require such a license or permit

Ricket v Mahan, 2012 NY Slip Op 05773, Appellate Division, Third Department

One of the issues considered by the Appellate Division in this appeal was the allegation that the Town of Colonie appointed an individual to the office of Commissioner of Public Works who was unqualified for the position.

In this instance the court found that the individual appointed to the position of Commissioner of Public Works was selected based on his "administrative experience and qualifications for the duties of the office” and that  he was not required to possess a specific license or engineering degree to perform the duties of the position to which he had been appointed.

Noting that an investigation conducted by the State's Education Department determined that the Commissioner had not engaged in the practice of engineering while serving in the position, the Appellate Division concluded that the challenged appointee “has not engaged in nor was he required to practice engineering while holding this position."

This ruling reflects "the law of the case" set out in Matter of Martin as Administrator (Lekkas), 86 AD2d 712.

In Lekkas an Assistant Clinical Physician holding a permanent appointment with the Office of Mental Retardation and Developmental Disabilities was terminated from his position without notice or hearing because he did not obtain a license to practice medicine issued by the Education Department (Education Law §8522) set out in the minimum qualifications for appointment to the title Assistant Clinical Physician.

The issue arose after the Education Law was amended to require persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position Assistant Clinical Physician prior to the amendment but had not obtained a New York State license to practice medicine within the prescribed time period.

Affirming the lawfulness of summarily discharging an employee without notice and hearing if the worker is unable to produce his or her required license or permit necessary to perform the duties of the position when requested to do so, the Appellate Division ruled that summary termination was permitted only if the duties actually being performed required the possession of the license or permit.

Lekkas, however, was performing administrative duties rather than “practicing medicine.” 

Ruling that no license was mandated by law to perform administrative duties, notwithstanding Lekkas’ title of  “Assistant Clinical Physician,” the court concluded that his removal from his position was subject to the notice and hearing provisions of §75 of the Civil Service Law.

The Ricket decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05773.htm

Examination for Fire Lieutenant prepared by the New York State Department Civil Service held job related

Examination for Fire Lieutenant prepared by the New York State Department Civil Service held job related

M.O.C.H.A. Soc'y, Inc. v. City of Buffalo, US Circuit Court of Appeals, Second Circuit,  No. 11-2184 – [The following case summary was prepared by Findlaw]

In a Title VII suit against the City of Buffalo (City) claiming race discrimination in the administration of the 1998 and 2002 promotional examinations for the position of fire lieutenant, district court's judgment in favor of the defendants is affirmed where:

1. On plaintiffs' disparate impact challenge to the 1998 examination, the district court did not clearly err in finding that the defendant carried its burden to demonstrate that the examination's job relatedness by showing that the test derived from a valid statewide job analysis indicating the fire lieutenants across New York performed the same critical tasks required the same critical skills and in finding that the [New York State] Civil Service Department exercised reasonable competence in designing the examination and that the examination was both content related and representative;

2. On plaintiffs' disparate treatment challenge, the district court correctly concluded that plaintiffs could not re-litigate questions of job relatedness and business necessity decided against them at the bench trial of their disparate impact claims and that plaintiffs had not established a genuine material of fact that the City intentionally discriminated against African Americans by using the 1998 test results; and

3. On plaintiffs' Title VII challenge to the 2002 examination, the district court correctly relied on collateral estoppel to grant summary judgment in favor of the City because the only matters in dispute had been resolved in the earlier challenge to the 1998 examination and there was sufficient identity between the plaintiffs in both suits.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/cbf9a517-2698-41d9-a045-210a717001bc/1/doc/11-2184_10-2168_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cbf9a517-2698-41d9-a045-210a717001bc/1/hilite/

An individual may not rely on the actions of another party to toll the running of the Statute of Limitations for filing a timely Article 78 petition

An individual may not rely on the actions of another party to toll the running of the Statute of Limitations for filing a timely Article 78 petition
Portnoy v Board of Educ. of City School Dist. of City of N.Y., 20 Misc.3d 1119(A)

This decisions sets out some of reasons that a court may consider in rejecting arguments that actions by another party served to toll the relevant statute of limitations.

Noting that the four-month period of the statute of limitations begins to run when the determination made by the agency becomes final and binding, Judge Madden said that:

[1] A request for reconsideration of an administrative determination does not toll or revive the statute of limitations, even when the agency reconsiders its determination or negotiates with individual regarding modification of the administrative decision.

[2] A statute of limitations is not tolled should the individual seeks redress through a procedure that subsequently turns out to be unavailable.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_31933.pdf

Judicial review of disciplinary determination of guilt is limited to considering whether the determination is supported by substantial evidence

Judicial review of disciplinary determination of guilt is limited to considering whether the determination is supported by substantial evidence

Barthel v Town of Huntington, 2012 NY Slip Op 05738, Appellate Division, Second Department

The Director of the Department of Human Services of the Town of Huntington adopted the findings of a hearing officer, made after a hearing pursuant to Civil Service Law §75, which the employee guilty of certain disciplinary charges and terminated the individual's employment with the Town.

The Appellate Division dismissed the individual’s appeal on the merits, explaining that the standard of judicial review of an administrative determination made after a trial-type hearing required by law, at which evidence is taken, “is limited to considering whether the determination was supported by substantial evidence.”

In this instance, said the court, there is substantial evidence in the record to support the determination that the individual was guilty of the subject disciplinary charges.

As to the penalty imposed, termination, the Appellate Division found that dismissal “was not so disproportionate to the offense as to be shocking to one's sense of fairness,” citing Ellis v Mahon, 11 NY3d 754; Rutkunas v Stout, 8 NY3d 897, Waldren v Town of Islip, 6 NY3d 735 and Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05738.htm

Using employer’s computer to store sexually explicit files results in recommendation the employee be terminated

Using employer’s computer to store sexually explicit files results in recommendation the employee be terminated

Human Resources Admin. v. Vila, OATH Index No. 1578/08

OATH Administrative Law Judge Julio Rodriguez recommended termination for a paralegal aide who used the agency computer to store thousands of unauthorized images and video clips, many of which were sexually explicit, as well as other programs and files.

The evidence also showed that the individual was insubordinate and committed multiple time and leave violations.

 

School district not liable for losses suffered by employees participating in its Tax Deferred Annuity Plan

School district not liable for losses suffered by employees participating in its Tax Deferred Annuity Plan
Elmira Teachers' Assn. v Elmira City School Dist., 53 AD3d 757

The Elmira City School District offered its employees an opportunity to participate in a Tax Deferred Annuity Plan pursuant to Section 403(b) of the Internal Revenue Code. The District designated Horizon Benefits Administration, Inc. to act as the third-party administrator of the District's plan. Employees electing to participate in the program, which was voluntary, entered into a salary reduction agreement (SRA) with the District authorizing moneys to transferred to a custodial bank where the funds were then distributed to various vendors of investment products selected by the participants.

In addition to serving as the Plan’s administrator, Horizon offered an “investment option” known as ChoicesUnlimited to participants that gave them access to various mutual funds.

As the result of an investigation by the Ohio Attorney General, Horizon's assets were frozen and the company was eventually liquidated. District employees who had elected to participate in Horizon's ChoicesUnlimited investment account lost money while those electing other investment vehicles processed by Horizon did not suffer any similar loss.

The Teachers’ Association and four teachers that had lost money then sued the District for “breach of contract and breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, negligent retention, negligent supervision and negligent misrepresentation.”

The School District moved to have the lawsuit dismissed, contending that the “hold harmless provision” in the SRA controlled. The “hold harmless” provision relied upon by the District provided that "[t]he Employee agrees that the Employer shall have no liability whatsoever for any loss suffered by the Employee with regard to his [or her] selection of an insurance company or mutual fund, or the solvency of, operation of, or benefits provided by said insurance company or mutual fund company".*

The Appellate Division agreed with the District, noting that the “hold harmless” provision was clear and unambiguous, and clearly intended to encompass a situation where the plan participants who lost money did so because they selected a particular investment option offered by Horizon in its capacity as a vendor of investment products rather than some other investment vehicle.

The court found it significant that “there is no evidence that the plan participants who selected alternative investment options and deposited their money in funds offered by other vendors suffered losses as a result of Horizon's liquidation even though it was the overall plan administrator.” Accordingly, the Appellate Division concluded that “the hold harmless provision is applicable and precludes [the Teachers’ Association] from asserting causes of action against [District] arising from Horizon's ultimate liquidation.

* See, also, Meirowitz v Bayport-Bluepoint Union Free School Dist., 57 AD3d 858, in which the Appellate Division that a “save harmless clause” barred employees and retirees from recouping Tax Deferred Plan investment losses from the school district.

Comment: Education Law Article 8-c, Special Annuity, addresses tax deferred annuity programs available to certain employees of the State and political subdivisions of the State. Section 299.2, in pertinent part, provides: Neither the state, or a political subdivision thereof, nor an employer shall be a party to any annuity contract purchased or custodial account established in whole or in part with payments pursuant to said agreement, and no retirement, death or other benefit shall be payable by the state, or political subdivision thereof, or by an employer under such agreement or such annuity contract or custodial account.”

The Elmira Teachers’ Association decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/school-district-not-liable-for-losses.html

The Meirowitz decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_10136.htm

The Civil Service Law – an 1888 perspective

The Civil Service Law – an 1888 perspective

In 1888 William Harrison Clark wrote a book, The Civil Service Law – A defense of its principles, with corroborative evidence from the works of many eminent American statesmen. It addresses a variety of topics, some of which are still relevant in today’s public personnel law arena.

The text of this historical volume is posted on the Internet at:

http://books.google.com/books?hl=en&id=byoUAAAAIAAJ&dq=%22civil+service+law%22&printsec=frontcover&source=web&ots=MJrGimrom1&sig=3lluAl_cK1D1eryLOpKdBv37Kl4#PPP7,M1

Alaska Supreme Court recognizes a union-relations privilege in confidential union-related communications and statutory protection against unfair labor practices

Alaska Supreme Court recognizes a union-relations privilege in confidential union-related communications and statutory protection against unfair labor practices

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2012, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

The Alaska Supreme Court recognized a union-relations privilege in Peterson v. State of Alaska, No. S-14233, ___P.3d___, 2012 WL 2947636  (Alaska, July 20, 2012) [A copy of the decision may be downloaded [Download Peterson ]

The Court held that "[b]ased on the strong interest in confidential union-related communications and statutory protection against unfair labor practices, we hold [the state labor relations act] impliedly provides the State's union employees a union-relations privilege."  The reasoning employed by the Court - that "the proper functioning of [a] mandatory grievance and arbitration system . . . requires some protection for confidential communications made for the purpose of facilitating the rendition of grievance-related representative services to the employee" and that recognizing a privilege "harmonizes [the state labor relations act]'s strong public policy in favor of contractual resolution of labor disputes with the civil discovery rules" - should be useful in other states and in other settings where this issue frequently arises.

This is a major decision. It is my hope that other states will follow suit. I wrote a law review article on this topic a few years ago, Is a Full Labor Relations Evidentiary Privilege Developing? 29 Berkeley Journal of Labor and Employment Law 221 (2008), available here. 

Though this decision arose in the public sector, there is no reason why this decision would not be applicable to private employers. The policies behind the Alaska statute and the NLRA are virtually identical and the policies and need for the recognition of this privilege are certainly identical. 

Mitchell H. Rubinstein

Prohibition against personal use of state property by State officers and employees and other political campaign matters

Prohibition against personal use of state property by State officers and employees and other political campaign matters

Governor Andrew M. Cuomo - Executive Order 8.2*

With partisan political campaigning approaching, State officers and employees should keep in mind the mandates of Executive Order 7.7 promulgated by former Governor David A. Paterson.

Continued in effect by Governor Andrew M. Cuomo via his Executive Order 8.2, former Governor Paterson's Executive Order 7.7 states that "it is the obligation of every State employee and officer to pursue a course of conduct that will not engender public concern as to whether the individual is engaged in acts that may violate his or her public trust; and all State employees therefore must act in a manner consistent with that public trust, and must not take any actions that are intended, or appear to be intended, to achieve personal gain or benefit; State supplies, equipment, computers, personnel and other resources may not be utilized for non-governmental purposes, including for personal purposes or for outside activities of any kind."

Significantly, E.O. 7.7 declares that "The designation ‘personal’ on agency stationery means only that the contents are meant for the personal viewing of the addressee and not that the sender is acting unofficially. All letters and other written materials printed on such official stationery are considered official, and thus the designation ‘unofficial’ has no meaning and may not be used." Presumably this means that any such writing will not enjoy any privilege preventing disclosure of its contents.

Further, E.O.7.7 cautions that "any violation of this order may result in dismissal or other appropriate sanction as determined by the appointing authority of the individual committing such violation."

* Governor Cuomo’s Executive Order 8.2, which continues in force a number of Executive Orders issued by former Governors of New York State, is posted on the Internet at:

http://www.governor.ny.gov/executiveorder/2

NOTE: Executive Order 8.2 indicates that this is the 2nd Executive Order issued by Governor Cuomo.  Executive Orders issued by previous governors are designated 1.xx, 2.xx, 3.xx, etc., commencing with Executive Order 1.1 issued by the late Governor Nelson A. Rockefeller.

Dismissal of action to place employee on involuntary Section 72.1 leave recommended

Dismissal of action to place employee on involuntary Section 72.1 leave recommended

Housing Auth. v. Anonymous, OATH Index No. 1867/08

Oath Administrative Law Judge Joan Salzman recommended dismissal of the Housing Authority’s petition seeking to place a housing assistant on involuntary leave pursuant to Section 72 of the Civil Service Law.

Although the employee has a seizure disorder, and has had seizures while at work, the ALJ ruled that the Authority did not prove that his condition rendered him currently unfit to perform his duties.

The ALJ noted that the individual has only recently been given a correct diagnosis and treatment and that he demonstrated a continuing ability to perform his job.

As the Court of Appeals held in Matter of Sheeran v New York State Dept. of Transp., 18 NY3d 61 [Decided with Birnbaum v NYS Department of Labor], the procedural safeguards set out in Civil Service Law §72.1 are available to an employee if employer bars his or her return to work from sick leave.

A summary of the Court of Appeals’ ruling is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/2011/11/procedural-safeguards-set-out-in-civil.html

A false statement of fact is a necessary element in proving a cause of action alleging defamation

A false statement of fact is a necessary element in proving a cause of action alleging defamation

Goldberg v Levine, 2012 NY Slip Op 05613, Appellate Division, Second Department

Supreme Court dismissed Barry Goldberg’s petition seeking to recover damages for alleged defamation based upon certain written and oral statements allegedly made about him by the Steven Levine at town board meetings and in a local newspaper. Goldberg appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that in determining whether a complaint states a cause of action to recover damages for defamation, “the dispositive inquiry” is whether a reasonable listener or reader could have concluded that the statements were conveying facts about the complaining party.

Falsity, said the court, is a necessary element in a defamation cause of action and only facts are capable of being proven false. Accordingly, it follows that “only statements alleging facts can properly be the subject of a defamation action.”

Characterizing certain of Levine’s statements that Goldberg alleged were made at Town Board meetings and in a local newspaper as “rhetorical hyperbole” and expressions of “individual opinion,” the court said “accepting these allegations in [Goldberg’s] complaint as true … they fail to state a cause of action to recover damages for defamation.”

The Appellate Division also observed that “the documentary evidence submitted by [Levine] demonstrated that the Levine's statements … were substantially true” and  "Truth is an absolute defense to an action based on defamation."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05613.htm

Attorney may not withdraw from an OATH hearing without his or her client’s permission

Attorney may not withdraw from an OATH hearing without his or her client’s permission

Health & Hospitals Corp. (Lincoln Medical & Mental Health Center) v. Wolf, OATH Index No. 2153/08

Under rules of the New York City’s Office of Administrative Trials and Hearings, an attorney who has filed a notice of appearance may not withdraw from representation without the client's permission or as delineated in the Code of Professional Responsibility.

OATH Administrative Law Judge Ingrid Addison denied an attorney's motion to withdraw based on the accused employee's failure to appear at the hearing and the attorney's inability to contact him.

The ALJ found no indication that the attorney had taken steps to avoid prejudice to the employee, including giving due notice of her intention to withdraw.

The hearing continued not withstanding the employee's absence.

A “citizen action” challenging the State’s settlement of earlier litigation involving payment of damages by the State dismissed

A “citizen action” challenging the State’s settlement of earlier litigation involving payment of damages by the State dismissed
Santora v Silver, 20 Misc.3d 836, Modified and Affirmed, 61 A.D.3d 621, Motion to appeal denied, 13 N.Y.3d 704

This “citizen taxpayer action” pursuant to State Finance Law Section 123 et seq., sought money damages from Assembly Speaker Sheldon Silver and his former chief legal counsel, James Michael Boxley for the sum paid by the State of New York in settlement of a prior action entitled Jane Doe v The New York State Assembly, et al, Sup. Ct., Albany County, Index No. 33 14/04 (the Jane Doe action).

Ultimately The Jane Doe action was settled for $507,500 with the State of New York paying $500,000, conditioned on the approval of all appropriate state officials in accordance with the provisions for indemnification under Section 17 of the Public Officers Law.*$7,500 was paid contributed by Boxley, who was represented by private counsel in that litigation.

In this action, Joseph J. Santora sued in an effort to obtain a court order directing “restitution to [the State] from Silver and Boxley of the ‘$480,000’ that was paid by [the State] in settlement of the Jane Doe action.” In addition, Santora sought “money damages for the value of the legal services provided by the Attorney General in connection with his defense of Silver in the Jane Doe action, and argues that the Attorney General must be prevented from appearing in the present action on behalf of Silver.”

Judge Goodman dismissed the complaint filed by Santora against Silver and Boxley for the following reasons:

1. The complaint fails to allege any illegal or wrongful expenditure of state funds on Silver’s behalf, even if Silver had demonstrated leadership that would have led to an entirely different and more acceptable outcome. “A claim that state funds are not being spent wisely is patently insufficient to satisfy the minimum threshold for standing under the [relevant] statute.”

2. The Attorney General’s representation of public officers does not entail the expenditure of public funds within the meaning of the State Finance Law … and [the Court is powerless to undertake] judicial scrutiny of statutorily-mandated non-fiscal activity of the Attorney General.”

3. Boxley was represented by private counsel in the Jane Doe action; and he was personally responsible for $7,500 of the total settlement paid to Jane Doe.

* Section 18 of the Public Officers Law permits political subdivisions of the State to elect to provide for representation and indemnification of its officers and employees sued as the result of the performance of, or the failure to perform, official duties.

The Supreme Court’s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_31995.pdf

The Appellate Division’s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03456.htm

An official significantly involved in the prosecution of a disciplinary action brought against an employee should not participate in making the final determination

An official significantly involved in the prosecution of a disciplinary action brought against an employee should not participate in making the final determination

Ashe v Town Bd. of The Town of Crown Point, N.Y., 2012 NY Slip Op 05693, Appellate Division, Third Department

The Town Board of the Town of Crown Point filed disciplinary charges against one of its employees pursuant to Civil Service Law §75.

The Board conducted the hearing rather than appointing a hearing officer hear the charges and make findings of fact and a recommendation as to the disposition of the charges. The Town Supervisor was the primary person to present proof in support of the charge.

Ultimately the employee was, a divided vote found guilty of misconduct and terminated from his employment with the Town Supervisor participating in the Board’s voting on the charge and penalty. The Supervisor voted in favor of the prevailing determination to find the employee guilty and terminate his employment with the Town.

The employee challenged the Board’s action.

As to the role of the Town Supervisor in the proceeding and adjudication, the Appellate Division, citing Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714, noted that "Although '[i]nvolvement in the disciplinary process does not automatically require recusal,' . . . individuals 'who are personally or extensively involved in the disciplinary process should disqualify themselves from . . . acting on the charges.'"

Finding that the Town Supervisor “was extensively involved as she presented virtually all of the proof in support of the charge,” the court concluded that the Town Supervisor should have disqualified herself from voting on the final determination.

Considering a procedural challenge made by the Town concerning the employee’s appeal, the Appellate Division commented that although an objection to a particular hearing officer generally must be timely asserted at the hearing to preserve the issue for appeal, it is incumbent upon a person who has been extensively involved in the disciplinary process to "disqualify himself or herself from [involvement in] rendering a final determination," [emphasis supplied].

Finding that the Town Supervisor was extensively involved in the disciplinary proceeding but did not recuse herself from participating in the determination, the Appellate Division ruled that the determination must be annulled and the matter remitted to Town Board for a de novodetermination based on the record.

On this last point, the court noted that it appeared that the Board considered events that occurred after the misconduct alleged in the charges and the hearing. Accordingly, it said, the Board’s determination should not consider any such post-hearing events.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05693.htm

===================

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Free speech does not protect individuals using epithets

Free speech does not protect individuals using epithets
Charles Williams v Town of Greenburgh, et al, 535 F.3d 71

A governmental entity may be sued for allegedly suppressing an individual’s Constitutional protected Freedom of Speech.

In the Williams case, the Second Circuit addressed, among other things, Williams’ allegation that the Town of Greenburgh’s actions against him were taken in retaliation for his exercising his right to free speech when it expelled him from a town facility and prosecuted him for trespass.

In addressing this aspect of Williams’ petition, the Second Circuit explained that it has “described the elements of a First Amendment retaliation claim in several ways, depending on the factual context, comparing Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (requiring a private citizen who sued a public official to show: “(1) [the plaintiff] has an interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his First Amendment right”), with Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (requiring evidence of “adverse employment action” where plaintiff was a public employee), and Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (requiring, in the prison context, an adverse action by defendants and a causal connection between the adverse action and the protected speech).

Regardless of the factual context, said the court, it has required a plaintiff alleging retaliation to establish that his or her speech was protected by the First Amendment.

Citing Chaplinsky v. New Hampshire, 315 U.S. 568, the Circuit Court noted that “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.

The court concluded that because Williams could not show that his speech was either silenced or chilled — i.e., that his right to free speech was actually violated — his claim failed as a matter of law and sustained the district court’s granting the Town’s motion for summary judgment dismissing his petition.

The decision is posted on the Internet at:

http://caselaw.findlaw.com/us-2nd-circuit/1124970.html

A so-called “Zipper Clause” bars considering the terms of a stipulation of settlement resolving grievances brought under an earlier CBA

A so-called “Zipper Clause” bars considering the terms of a stipulation of settlement resolving grievances brought under an earlier CBA
Local 2841 of N.Y. State Law Enforcement Officers Union, AFSCME, AFL-CIO v City of Albany, 53 AD3d 974

A stipulation of settlement was entered into by Local 2841 and the City of Albany to resolve a number of grievances filed under the then Collective Bargaining Agreement [CBA]. By its terms, the stipulation “could not be modified or rescinded absent a subsequent writing of the parties.”

Subsequently the Local and the City negotiated and executed a successor CBA.

In the course of resolving a grievance brought under the new CBA, the arbitrator found that the stipulation made under the earlier CBA had not been modified or rescinded by any writing of the parties. Further, the arbitrator deemed the stipulation of settlement to be a rule of the Albany Police Department and, therefore, concluded that the City violated the terms of the CBA by not complying with its provisions.

The Appellate Division disagreed and vacated the arbitrator’s award.

The court said that “inasmuch as the successor CBA represents the entire agreement between the parties, it was not proper for the arbitrator to rely on the ‘stipulation of settlement’ flowing from the earlier CBA in resolving the instant grievance.”

“Accordingly,” ruled the Appellate Division, “the arbitrator exceeded his power in amending the terms of the CBA by considering that stipulation of settlement in contravention of an expressed term of the CBA which prohibited amending, modifying or deleting any provision thereof,” presumably viewing a term in the successor CBA as constituting “a subsequent writing of the parties” modifying or rescinding the terms of the stipulation of settlement entered into under the earlier CBA.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06421.htm

Termination of employee for poor attitude and aggressive behavior recommended

Termination of employee for poor attitude and aggressive behavior recommended

Triborough Bridge & Tunnel Auth. v. Bell, OATH Index No. 1635/08

 

A Bridge and Tunnel Officer drew his firearm and pointed it at a customer after the customer reached into a bag during a dispute at the Queens Midtown Tunnel tollbooth.

OATH Administrative Law Judge Alessandra Zorgniotti found that the employee’s use of his firearm was reasonable but recommended his dismissal because the incident stemmed from his proven discourtesy and unexplained refusal to process the customer's toll.

The ALJ found that the respondent's significant history of customer complaints relating to his poor attitude and aggressive behavior made him a threat to public safety.

Court of Appeal: Administrative Exemption After Harris

Harris v. Superior Court (discussed here and article here) is the California Supreme Court's recent interpretation of the administrative exemption.  The Supreme Court reversed the lower court's decision, saying the court of appeal mis-applied the law.  Of note, the court insisted that the court of appeal apply the relevant standards in the wage order, which includes reliance on certain federal Department of Labor Regulations.  The court sent the case back down for the court of appeal's re-consideration.

The court of appeal has issued its new decision . Again, it decided that the claims adjusters at issue in the case are non-exempt under the administrative test.  In fact, the court again granted the plaintiffs' motion for summary adjudication, which means that the court believes the claims adjusters are non-exempt as a matter of law.  Therefore, there will be no trial over whether the class of claims adjusters are exempt or not. The only dispute is over damages and penalties. If allowed to stand or remain published, it appears the court of appeal's decision limits the administrative exemption.

The Supreme Court's decision rejected the court of appeal's analysis of the exemption because the court relied on the "administrative / production dichotomy" to the apparent exclusion of the Wage Order's tests for the exemption. This time the court of appeal mostly avoided the dichotomy and focused on a different method of analyzing the exemption:

Federal Regulations former part 541.205 (2000) is one of the regulations incorporated in Wage Order 4-2001, subdivision 1(A)(2)(f). That regulation defined the italicized phrase above. It is this directly related‘ phrase that distinguishes between 'administrative operations‘ and production‘ or sales‘ work. (Fed. Regs. § 541.205(a) (2000).) 

Parsing the language of the regulation reveals that work qualifies as 'administrative‘ when it is directly related‘ to management policies or general business operations. Work qualifies as directly related‘ if it satisfies two components. First, it must be qualitatively administrative. Second, quantitatively, it must be of substantial importance to the management or operations of the business. Both components must be satisfied before work can be considered directly related‘ to management policies or general business operations in order to meet the test of the exemption. (Fed. Regs. § 541.205(a) (2000).)  

The regulation goes on to further explicate both components. Federal Regulations former part 541.205(b) (2000) discusses the qualitative requirement that the work must be administrative in nature. It explains that administrative operations include work done by ‗white collar‘ employees engaged in servicing a business. Such servicing may include, as potentially relevant here, advising management, planning, negotiating, and representing the company. Federal Regulations former part 541.205(c) (2000) relates to the quantitative component that tests whether work is of ‗substantial importance‘ to management policy or general business operations. (Harris, supra, 53 Cal.4th at pp. 177–182 & fns. 3, 5, fns. 2, 4 & 6 omitted.)  

Only the qualitative component of the ―directly related‖ requirement is at issue in this case. (Harris, supra, 53 Cal.4th at p. 182.)

So, the Court set about analyzing what it means to be "directly related to management policies or general business operations."  In doing so, the court appeared to conflate the qualitative and quantitative standard.  The court reasoned that every job is in some way "directly related to management policies," which cannot mean that everyone is exempt.  The court explained that even the lowest level employees may "advise" management (about mundane things), and may "represent the company" when calling a cab.  The court reasoned that the exemption would include everyone if that were the case, seeming to ignore the "quantitative" test of "importance."

So, the court sought to draw a line and readily concluded:

The undisputed facts show that Adjusters are primarily engaged in work that fails to satisfy the qualitative component of the "directly related" requirement because their primary duties are the day-to-day tasks involved in adjusting individual claims. They investigate and estimate claims, make coverage determinations, set reserves, negotiate settlements, make settlement recommendations for claims beyond their settlement authority, identify potential fraud, and the like.

 * * *

The claims adjusters were responsible for determining coverage, setting and updating reserves, determining liability, evaluating a claim for settlement, and negotiating settlement of claims,‖ as well as recognizing potential subrogation on claims and forwarding such claims to the Subrogation Unit‖ and recognizing indicators of potential fraud on claims and forwarding such claims to the Special Investigations Unit.‖ The settlement authority of the adjusters under the declarant‘s supervision ranged from $6,000 to $40,000, and their expense authority ranged from $5,000 to $20,000. The declarant estimated that 85 percent of the adjusters‘ claims were settled within their settlement authority; for claims exceeding their authority, he ―generally expect[ed] them to provide [him] with a recommendation of settlement as well as a thorough analysis of their reasoning.‖ Other declarations described other adjusters who had lower or higher settlement authority (some as high as $100,000), but all of them performed similar duties.

None of that work, or the similar work of the other class members, is carried on at the level of management policy or general operations. Rather, it is all part of the day-to-day operation of Employers‘ business.

Here's how you know the court of appeal seems to have conflated the qualitative and quantitative components of the exemption:

For example, if a Golden Eagle underwriter consults with a Golden Eagle claims examiner regarding whether the company should issue certain types of policies to a particular customer, the claims examiner is not giving advice about management policies or general operations. But if Golden Eagle‘s underwriters consult with Golden Eagle‘s claims examiners regarding whether the company should offer certain types of policies in general (namely, whether such policies should be included in Golden Eagle‘s line of products), the claims examiners are giving advice about management policies or general operations.

So, that means if you are not formulating or implementing policies on a company wide basis, you're non-exempt?  The exemption does not say you have to formulate the policies. Whether you issue a certain policy to a particular customer is the application of a business policy. That is "administrative" work.  Similarly, if an employee relations manager evaluates the employee handbook policies and decides whether a management decision to discharge is wise, that is exempt work - advising management.  If you take the court of appeal's analysis to the next step, only the HR manager responsible for drafting the handbook is exempt; everyone else just applies it to the individual worker and is non-exempt?  Everyone in the accounting department is non-exempt except the CFO or those who manage 2 or more people? That will be news to thousands of employers, (and plaintiff lawyers.)

There's more here, but you get the picture.

Dear court of appeal, with respect, I think you got this one wrong. I hope the California Supreme Court decides to re-review this one or depublish it.

The case is Harris v. Superior Court and the opinion is here.

The Doctrine of Maintenance and Cure provides seamen with a workers’ compensation type of benefit

The Doctrine of Maintenance and Cure provides seamen with a workers’ compensation type of benefit

Messier v Bouchard Transp., USCA, 2^nd Circuit, Docket #10-5181

The Doctrine of Maintenance and Cure has been compared to workers’ compensation benefits in that the duty arises from employment and “does not rest upon negligence or culpability on the part of the owner or master.” As the Second Circuit said in Weiss v. Cent. R.R. Co. of N.J., 235 F.2d 309, maintenance and cure has been called “a kind of nonstatutory workmen’s compensation” benefit.

Under the Doctrine, the owner of the vessel is obligated to provide food, lodging, and medical services to a seaman while in he or she is in service. The Doctrine entitles an injured seaman to three remedies —maintenance, cure, and wages. The general rule is that “maintenance and cure” is available for any injury or illness that occurs during a seaman’s service.

A seaman filed a complaint in federal district court asserting claims for negligence under the federal Jones Act* and for "maintenance and cure under general maritime law."** Ultimately he withdrew all claims other than those for “Maintenance and Cure.”

Reversing the district court’s dismissal of the seaman’s petition, the Circuit Court of Appeals said that “Maintenance” compensates the injured seaman for food and lodging expenses during his medical treatment. “Cure” refers to the reasonable medical expenses incurred in the treatment of the seaman’s condition while lost wages are provided in addition to maintenance on the rationale that “maintenance compensates the injured seaman for food and lodging, which the seaman otherwise receives free while on the ship.”

“The obligation to provide maintenance and cure payments,” however, “does not furnish the seaman with a source of lifetime or long-term disability income.” An eligible seaman is entitled to maintenance and cure only “until he [or she] reaches maximum medical recovery,” i.e., “until such time as the incapacity is declared to be permanent.”

Citing Farrell v. United States, 336 U.S. 511, the Circuit Court noted that the Supreme Court ruled that … “where a seaman has reached the point of maximum medical cure and maintenance and cure payments have been discontinued, the seaman may nonetheless reinstitute a demand for maintenance and cure where subsequent new curative medical treatments become available."

The Circuit Court than cautioned: “The analogy to workers’ compensation, however, can be misleading, because maintenance and cure is a far more expansive remedy. First, although it is limited to 'the seaman who becomes ill or is injured while in the service of the ship,' it is not restricted to those cases where the seaman’s employment is the cause of the injury or illness. '[T]he obligation can arise out of a medical condition such as a heart problem, a prior illness that recurs during the seaman’s employment, or an injury suffered on shore'.”

Further said the court, “the doctrine is ‘so broad’ that ‘negligence or acts short of culpable misconduct on the seaman’s part will not relieve the shipowner of the responsibility.’” Accordingly, the doctrine may apply even if a seaman is injured or falls ill off-duty or while on shore leave, so long as the seamen is “in the service of the ship,” which means he is “generally answerable to its call to duty rather than actually in performance of routine tasks or specific orders.”

Another difference pointed out by the court: a seaman may be entitled to maintenance and cure even for a preexisting medical condition that recurs or becomes aggravated during his or her service.

Accordingly, the Circuit Court remanded the matter to the district court to “proceed to trial on the amount of maintenance and cure due” the seaman.

* 46 United States Code 883.[See, in particular, 46 USC 30104, Personal injury to or death of seamen.]

** A seaman who is required to sue a shipowner to recover maintenance and cure may also recover attorney fees [Vaughan v. Atkinson, 369 U.S. 527].

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/cd687548-b977-4833-8f81-7edb94f3058a/2/doc/10-5181_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cd687548-b977-4833-8f81-7edb94f3058a/2/hilite/

Retired teacher ruled entitled to enroll new spouse in the District’s health insurance plan under the terms of the collective bargaining agreement

Retired teacher ruled entitled to enroll new spouse in the District’s health insurance plan under the terms of the collective bargaining agreement

Bower v Board of Educ., Cazenovia Cent. School Dist., 53 AD3d 967

Retired from his teaching position with Cazenovia Central School District, at which time he was enrolled as an individual participant in the district's group health insurance plan, the retired teacher subsequently married and asked the District to change his health insurance to family coverage so that his wife would be covered. The district refused, contending that a retired teacher is not permitted to change his or her health insurance coverage.

The retiree sued, arguing that (1) the applicable collective bargaining agreement permitted him to change his coverage and (2) the district's refusal violated the statutory moratorium against reducing health insurance benefits of retirees unless there was a corresponding reduction for active employees.

Supreme Court held that retiree had the right under the terms of the collective bargaining agreement to change his health insurance coverage to include his new spouse. The District appealed, only to the Appellate Division affirm the lower court’s ruling.

The Appellate Division noted that Article XXII of the agreement provided that "[a]ll bargaining unit personnel currently employed or retired from [the district] who are legally eligible may participate in the . . . health insurance program," and that Appendix G to the agreement, sets forth individual coverage and family coverage as the "two types of enrollment" available, pointed out that a section in the agreement entitled "ENROLLMENT CHANGES" recognized that "[c]hanges in your family status may make it necessary or desirable for you to change the coverage for which you are enrolled," and states, in relevant part, that "[y]ou may request a change from individual coverage to [f]amily coverage . . . [t]o provide coverage for a newly acquired spouse."

As there is nothing in the collective bargaining agreement to indicate that "you" in this provision was not intended to include retired employees, the Appellate Division said that “Reading the relevant provisions as a whole, we agree with Supreme Court that the agreement permitted the retiree to add his spouse to his health insurance.”

The full text of the decision is posted at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06418.htm

Appointing authority’s decision to terminate an employee found guilty of misconduct may not be set aside if supported by substantial evidence

Appointing authority’s decision to terminate an employee found guilty of misconduct may not be set aside if supported by substantial evidence
Guerrero v Scoppetta, 53 AD3d 615

The New York City Fire Commissioner, adopting the recommendation of a hearing officer, found a New York City Fire Department Emergency Medical Technician [EMT] guilty of a number of charges of misconduct and terminating his employment.

The Appellate Division said that the finding that finding that the employee was guilty of the charges was supported by substantial evidence.

Substantial evidence, said the court, is "less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt" and here New York City Fire Department records, the testimony of numerous witnesses and the EMT, and a videotape of the incidents on which the determination was based, provided "such relevant proof as a reasonable mind may accept as adequate"

Judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence. The Appellate Division dismissed the EMT’s appeal, holding that as the Commissioner’s determination was supported by substantial evidence, it may not be set aside.

The full text of the decision is posted at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06375.htm

Court of Appeal Upholds Arbitration Agreement

Nelsen v. Legacy Partners (opinion here) is the latest decision from the court of appeal to address the validity of arbitration agreements in California, after recent federal developments (Concepcion, DR Horton, etc.). 

The issues, as usual, are whether the arbitration agreement is "unconscionable," or violates public policy, and therefore is unenforceable as a contract.

The arbitration agreement was located at the end of a long handbook. Not surprisingly, the court first found that the agreement was "procedurally unconscionable,"  because

It was part of a preprinted form agreement drafted by LPI that all of LPI‘s California property managers were required to sign on a take-it-or-leave-it basis. The arbitration clause was located on the last two pages of a 43-page handbook. While the top of page 42 contains a highlighted prominent title ―TEAM MEMBER ACKNOWLEDGMENT AND AGREEMENT,‖ the title makes no reference to arbitration and the arbitration language itself appears in a small font not set off in any way to stand out from the rest of the agreement or handbook. Moreover, unless Nelsen happened to be conversant with the rules of pleading in the Code of Civil Procedure, the law and procedure applicable to appellate review, and the rules for the disqualification of superior court judges, the terms and rules of the arbitration referenced in the clause would have been beyond her comprehension.

So, now the courts say that failing to attach the Code of Civil Procedure makes an agreement procedurally unconscionable.  What happened to "everyone is bound to know the law?" or "ignorance is no excuse?"  Also, by saying that the agreement is not in a different font, the court is imposing a requirement that does not apply to other contracts.  That's not supposed to be allowed, demonstrating once again that the unconscionability doctrine is just an end run around Federal Arbitration Act preemption.

However, the court then turned to "substantive" unconscionability, which must also exist for an arbitration agreement to be invalidated.  In this case, though, the arbitration agreement was pretty much lifted verbatim from a California Supreme Court decision. (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064.)  So, the Court did not find substantive unconscionability.

But Nelsen then argued that, regardless of unconcsionability, the arbitration agreement violated "public policy" under the California Supreme Court's decision in  Gentry v. Superior Court (2007) 42 Cal.4th 443.  In particular, Nelsen argued that the arbitration agreement barred her from bringing a class claim in arbitration because the agreement was silent as to class claims.

The court of appeal held that, indeed, the silent agreement did not encompass class-based claims.
However, the court then decided that Gentry did not invalidate the arbitration agreement because Nelsen did not adequately support the argument to the trial court.  That is, Gentry does not invalidate "all" class action waivers, so you have to establish the Gentry "factors," which Nelsen did not do.  In ruling this way, the court sidestepped whether Gentry remains good law.

Finally, the court decided that the National Labor Relations Board's decision in DR Horton was not binding and that the court would not follow it. The court noted that the decision was issued by just 2 Board members and that the issue of whether class action waivers are enforceable are beyond the Board's normal expertise.

So, another arbitration agreement survives. 

A factual demonstration to support allegations that an individual was denied a fair hearing by an administrative tribunal is critical to rebutting the presumption of honesty and integrity accorded to administrative bodies

A factual demonstration to support allegations that an individual was denied a fair hearing by an administrative tribunal is critical to rebutting the presumption of honesty and integrity accorded to administrative bodies

Dutrow v New York State Racing & Wagering Bd., 2012 NY Slip Op 05699, Appellate Division, Third Department

One of the issues in this appeal challenging a disciplinary action taken against an individual by the New York State Racing & Wagering Board was a claim that the target of a disciplinary action by the Board was deprived of a fair hearing as a result of the refusal of Board’s chair, John Sabini, to recuse himself from the proceeding.

Sabini, in addition to serving as the Board’s chair, was an unpaid officer of the Association of Racing Commissioners International, an organization devoted to maintaining a multi-jurisdictional database of licensed horse racing professionals' disciplinary histories.Sabini, however, had no prior official involvement with, and made no appearance in, this case stemming from his position with the Association. 

The Association’s president, however, had informed Sabini that a United States Senator's office had inquired about the case. The Association's president also had publicly urged the Board to assess individual’s "suitability to continue his participation in racing." The court, however, observed that [1] Sabini was not bound to follow any suggestions made by the Association or its president and [2] there was nothing in the record indicating that Sabini took any action based upon these communications or otherwise "gave the impression that [he] had prejudged the facts."

The Appellate Division said that such a “bare allegation” that these communications led to bias is insufficient absent "a factual demonstration to support the allegation . . . and proof that the [adverse] outcome flowed from it."

As the accused individual had failed, in the words of the court, "to rebut the presumption of honesty and integrity accorded to administrative bodies," the Appellate Division held “it cannot be said that he was denied a fair hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05699.htm

Employee terminated for violating employer’s written policy ineligible for unemployment insurance benefits

Employee terminated for violating employer’s written policy ineligible for unemployment insurance benefits
Pagan v Commissioner of Labor, 53 AD3d 964

The Unemployment Insurance Appeal Board disqualified an applicant for unemployment insurance benefits following his termination for accepting a designation to run as a candidate for the State Assembly, ruling that his employment was terminated due to misconduct.

The individual, employed by the New York City Housing Authority, had violated the Authority written policy prohibiting its staff members from running for political office in a partisan election.*

Noting that “It is well settled that "[v]iolation of an employer's reasonable policies may constitute disqualifying misconduct," the Appellate Division said that the Authority’s guidelines were established “to assure compliance with the Hatch Act (5 USC §1501 et seq.) and the City of New York’s Conflicts of Interest Board Rules.”

As the record indicated that the individual was aware of the Authority's guidelines prior to his termination and that he was afforded an opportunity to comply with the policy before any adverse action was taken against him by it, the court ruled that substantial evidence supported the Board's determination finding him guilty of disqualifying misconduct for the purposes of unemployment insurance benefits.

* A candidate seeking election to a school board is typically deemed to be seeking office in a “non-partisan” election.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06414.htm

Employee entitled to go for a cancer-screening examination without loss of pay or charge to leave accruals

Employee entitled to go for a cancer-screening examination without loss of pay or charge to leave accruals
Moran v City of Saratoga Springs, et al, 21 Misc 3d 195

In Cruz et al v Wappingers CSD, Supreme Court, Dutchess County, Judge James V. Brand, Index #2197 /08 [not selected for publication in the Official Reports] a State Supreme Court ruled that Civil Service Law §159-b* requires employees to be paid for absences for cancer-screening examinations without charge to leave accruals and ordered the school district to restore sick leave accruals to three of its employees whom the district forced to use leave accruals in connection with absences for breast cancer screening.

In Moran, State Supreme Court Judge Thomas D. Nolan came to the same conclusion.

An City of Saratoga Springs employee took an hour off during the workday from her position in the City's accounts department to have a mammogram and reported this "leave of absence" on her weekly time report. The City's payroll department, however, advised Moran that she would not be paid for the one hour "leave", but if she wanted to be paid, she could charge the time against her accrued sick, personal or vacation leave.
The employee charged her absence to her leave accruals.

The Civil Service Employees Association Local 1000 (CSEA) asked the City restore those two hours to her accrued sick leave, stating that the §159-b leave was "to be paid leave" and that the City was in violation of the Civil Service Law when it required to charge her leave accruals or be deemed "on unpaid leave." The City refused to restore the employee’s leave credits to her and CSEA sued.

Judge Nolan said that the City's interpretation, though plausible, does not further the law's principal goal of encouraging public sector employees to be regularly screened for breast cancer. “Certainly,” said the court, “the screening leave was not intended to result in any financial detriment to the employee.” In addition, the court pointed out that the State's Civil Service Department's interpretation is that the statute provides for paid leave for New York State officers and employees with respect to the State as an employer.

Finding that the “legislative history” of §159-b is clear, the court concluded that the Legislature intended not only that annual cancer screening examinations would be excused and not be charged against any other leave, but also, that it would be a "paid" leave.**

In support of his conclusions, Judge Nolan cited two recent trial level court decisions – Cruz v Wappingers Cent. School Dist., [supra] and Fringuello v Wappingers Cent. School Dist., (Sup Ct, Dutchess County, July 15,2008, Dolan, J., index No. 2231/08, [Not selected for publication in the Official Reports].

Judge Nolan ruled that the City's determination to deny the employee paid leave of absence in connection with her absence for breast cancer screening "is arbitrary and capricious and cannot stand." Granting CSEA’s petition, the court order the City “to credit two hours to [the employee’s] sick leave accruals.

* §159-b.1, Excused leave to undertake a screening for breast cancer, provides, in pertinent part: “Every public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system….”

** The court's role in interpreting legislation was summarized in Matter of Monroe County Pub. School Dists. v Zyra (51 AD3d 125, 130

Selected Reports issued by the Office of the State Comptroller during the week of July 16 - 22, 2012

Selected Reports issued by the Office of the State Comptroller during the week of July 16 - 22, 2012

Source: Office of the State Comptroller

DiNapoli to Audit SUNY Downstate Medical Center

New York State Comptroller Thomas P. DiNapoli announced Tuesday that his office has commenced an independent financial review of the financially–troubled State University of New York Downstate Medical Center and its affiliates.

DiNapoli: Queens Special Education Contractor Overcharged State $1.5 Million

Bilingual SEIT & Preschool Inc., a Queens–based provider of special education services, inappropriately charged New York City’s Department of Education by nearly $1.5 million for salaries, vehicle leases and items such as cosmetics and children’s furniture, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The findings were referred to the Queens County District Attorney’s Office.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed an audit of the Mayfield Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed the following audits: the Clarksville Volunteer Fire Company; the Town of Homer; the City of Kingston Police Department; and, the Village of Sodus.

Comptroller DiNapoli Announces Upcoming Training for Local Officials

Two webinars providing critical training for local government officials will be held in August.

A webinar providing an Update on the Property Tax Cap and a Demonstration of Multiyear Financial Planning will be held on August 7th, from 2:00 p.m. to 4:00 p.m. Participants will learn about common errors made during the 1st year of calculating the property tax levy limit and tips for avoiding those errors. They will also benefit from a demonstration of OSC’s multi–year financial planning tool. Local officials should register at: https://www3.gotomeeting.com/register/838061582.

An Information Technology Governance webinar will be held on August 15th, from 2:00 p.m. to 4:00 p.m. Participants will gain an understanding of their responsibilities in managing government technology systems and how to properly protect electronic resources, data, and access to systems. Local officials should register at: https://www3.gotomeeting.com/register/213023830.

Compensation for 12-hour work shifts and vacation and days off canceled not considered in determining retirement allowance

Compensation for 12-hour work shifts and vacation and days off canceled not considered in determining retirement allowance
Port Auth. Police Benevolent Assn., Inc. v Anglin, 54 AD3d 495

The New York State and Local Police and Fire Retirement System determined that an Port Authority Police Sergeant’s final average salary was $166,432.83, a figure that did not include any of the premium payments the Sergeant had received for having to work instead of taking vacation days, etc., after the terrorist attack of September 11, 2001. All Port Authority police officers, including the Sergeant, were required to work daily 12-hour shifts and all vacation and days off were cancelled following the attack.

When the Sergeant retired, the Retirement System did not include any of the premium payments he had received for having to work instead of taking vacation days in calculating his retirement allowance. At the hearing held pursuant  the Sergeant's request for recalculation of this amount to include this additional compensation, the Hearing Officer found that the premium payments for lost vacation days were properly excluded from the calculation of his final average salary. The Deputy Comptroller adopted the decision of the Hearing Officer, denying the Sergeant’s application for recalculation of his final average salary. The Sergeant  appealed.

The Appellate Division sustained the Deputy Comptroller’s determination.

The court said that the Comptroller is vested with exclusive authority to determine applications for retirement benefits within the meaning of the applicable statutes. Accordingly, it said "we will uphold a determination of what constitutes a retiree's final average salary as long as it is not irrational."

The Appellate Division then noted that Retirement and Social Security Law §302(9)(d) and §431(1) expressly exclude lump-sum payments for accumulated vacation credit, and it has previously held that this exclusion applies even though the payments are made biweekly rather than in a lump sum upon retirement.

In this instance the Sergeant was seeking to have included in his final average salary payments that were made pursuant to the vacation provisions of a collective bargaining agreement that were invoked when his vacation days were cancelled. These premium payments were made in lieu of vacation and in addition to the regular, straight rate of pay that he received for working his normal eight-hour shift and the overtime pay he received for the hours he worked each day after his normal shift.

According to the decision, the fact that “a national emergency required [the Sergeant] to forgo his vacation time does not render the payments any less extraordinary” and the relevant statutes “attach no significance to whether the extra compensation was for vacation time lost voluntarily or involuntarily.”

Dismissing the Sergeant’s appeal, the court said that the Retirement System’s conclusion that such payments were compensation for lost accrued vacation credit, rather than for overtime work under General Municipal Law §90, cannot be said to be irrational.

For the full text of the opinion, go to:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06617.htm

Not reporting for drug test without submitting documentation showing employee was unable to report constitutes a refusal to submit to drug testing

Not reporting for drug test without submitting documentation showing employee was unable to report constitutes a refusal to submit to drug testing
OATH Index No. 1977/08

OATH Administrative Law Judge Faye Lewis sustained a charge that a sanitation worker had refused to comply with an order to report to the clinic for random drug testing.

The employee submitted a doctor's note requesting excusal from work for seven days due to back pain. The doctor's note, however, did not indicate, that the employee was unable to travel to the clinic for his drug test.

ALJ Lewis credited Department's argument that since the worker was able to visit his own doctor's office, he should have been able to travel to the clinic the next day.

The penalty recommended by the ALJ under the facts of this case: Termination.

Another FOIL Lesson: Be mindful of your audience

Another FOIL Lesson: Be mindful of your audience

Source Patrick M. Malgieri, Esq. – Posted on the NYMuniBlog* July 18, 2012 - Reprinted with the permission of NYMuniBlog

Another FOIL Lesson: Be mindful of your audience by Patrick M. Malgieri could be sub-title “Another example of the Doctrine of Unintended Consequences.”

Mr Malgieri writes:

“In a recent decision of the New York Court of Appeals, the state’s highest court determined that records exchanged by a state agency with a federal agency were not entitled to an exemption from disclosure under the state’s Freedom of Information Law set out in Article 6 of the New York Public Officers Law.**  In the case of Waterford v. New York State Department of Environmental Conservation, 18 N.Y.3d 652, 944 N.Y.S.2d 429 (March 22, 2012), the town of Waterford sought to obtain from the DEC records relating to the joint DEC and U.S. Environmental Protection Agency project in the Hudson River dredging PCBs deposited in the Hudson River.  While DEC complied with a portion of the request, it denied access to certain records that had been exchanged between it and the EPA, claiming that the “inter-agency” exception set out in Section 87(2)(g) of the Public Officers Law exempted those records from disclosure.

“The court, in an opinion by Chief Judge Lippman, found that the term 'agency' as defined in Section 86(3) of the Public Officers Law included only state and municipal agencies.  As such, the EPA, as a federal agency, did not constitute an agency for purposes of FOIL.  Consequently, the inter-agency exemption did not apply to the materials exchanged between the state and federal agencies.

“DEC also argued that the 'intra-agency' exemption would be applicable to these records.  The Court of Appeals had long ago found that, in furtherance of the deliberative process, the intra-agency exception could extend to records exchanged between a public agency and outside consultants engaged by that agency. 

However, the court in Waterford declined to apply the exemption, finding that, in this instance, the EPA was the lead agency on the project and ‘was not retained by the DEC and does not function as its employee or agent.’

“Public officials would do well to keep in mind that all public records and communications are presumptively subject to disclosure unless the record or the circumstance falls within one of the relative handful of express exceptions set out in the Public Officers Law or an exception to disclosure set out in another statute or is covered under a statutory or common law privilege (such as the attorney-client privilege).  One of the easiest traps in which public officials may fall is when they communicate with or share a record with someone to whom the exception or privilege does not extend.  In Waterford, that someone was a federal agency which, although concededly a governmental entity, was not among the governmental agencies identified in the FOIL statute. 

“Another ready trap is when a record or communication is shared with or made to a group of individuals and/or entities (such as an e-mail to a large number of recipients), not all of whom fall within the exception or privilege. One stray recipient can unwittingly subject the entire record to disclosure.”

* You may register to receive the NYMuniBlogvia e-mail at:

http://nymuniblog.com/?page_id=16

**  NYPPL Notes: The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited or prohibited by statute, are to be made available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise fall within the ambit of the several exceptions to such disclosure permitted by FOIL.

School officials have a duty to report suspected child abuse to the appropriate government agency

School officials have a duty to report suspected child abuse to the appropriate government agency

J.H. v. County of Nassau, 20 Misc 3d 1142(A)

J.H. v. County of Nassau the court considered the question of the fallout if school personnel file a report of alleged child abuse that is ultimately found to be incorrect. Could the employee be held liable for defamation if the report proved to be “unfounded?”

Citing Rine v. Chase, 309 AD2d 796, the court ruled that as the school was required to report the alleged abuse of maltreatment of a child to the appropriate child protective agency, neither the school nor the individual filing the report were liable notwithstanding the fact that ultimately the allegation was found to be “unfounded” as filing such reports were mandated by law

Not only do school personnel enjoy a qualified immunity in connection with reporting suspected child abuse in good faith, their failure to do so may result in disciplinary action.

In Hoey v PERB, App. Div., 284 A.D.2d 633, teacher aides were given specific instructions to report any concerns about classroom matters -- they were to immediately bring them to the attention of the supervisor of special education or the school principal.

According to the decision, the aides becoming aware that a teacher had engaged in bizarre and inappropriate behavior of a sexual nature with one of the students.

About a month later they reported the teacher's suspected conduct to one of their union representatives rather than school administrators. Two days later the union representative told school administrators of the aides' report.

A number of other aides were terminated after being found guilty of insubordination for failing to follow a supervisor's directive and jeopardizing the safety of a child under their supervision by failing to timely report suspected child abuse.