New York Public Personnel Law

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law”

noreply@blogger.com (The Public Employment Law Press) — Thu, 20 Jun 2013 11:00:00 +0000

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law”

2013 NY Slip Op 04472, Appellate Division, Fourth Department

The Appellate Division reversed a Supreme Court decision that denied a tenured teacher’s [Educator] Article 78 petition seeking to annul the school district’s suspending her without pay for 30 days.

The Appellate Division said it agreed with Educator that the school district failed to comply with the requirements of Education Law §3020(1) when it disciplined her without affording her a hearing pursuant to Education Law §3020-a.

The court explained that “the plain language of Education Law §3020(1) provides that a tenured teacher facing discipline, and whose terms and conditions of employment are covered by a collective bargaining agreement (CBA) that became effective on or after September 1, 1994, is entitled to elect either the disciplinary procedures specified in Education Law §3020-a or the alternative procedures contained in the CBA.”

The court determined that the relevant CBA took effect on July 1, 2006. Accordingly, said the court, Educator was entitled to choose whether to be disciplined under the procedures set forth in the CBA or to elect a disciplinary hearing in accordance with Education Law §3020-a as a matter of law regardless of whether or not the CBA offered such an option.

The school district, however, had denied Educator’s written request for a §3020-a hearing.

Finding that the school district’s action was “incorrect,” the Appellate Division annulled the school district’s imposing a disciplinary penalty suspending Educator for 30 days without pay and directed the school district to [1] reinstate her to her position with back pay and benefits retroactive to the date of her suspension and [2] to remove all references to the discipline imposed from Educator’s personnel file.

Significantly, §3020.1, in pertinent part, provides that any such ”alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September 1, 1994, must provide for the written election by the employee of either the procedures specified in such §3020-a or the alternative disciplinary procedures contained in the collective bargaining agreement.” [emphasis supplied].

Further, the negotiated alternative disciplinary procedure must provided constitutional due process protections equivalent to those available under the statutory procedure [Antinore v State, 40 NY2d 6].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04472.htm

_____________________________

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State a 2100+ page e-book. For more information click on http://thedisciplinebook.blogspot.com/

noreply@blogger.com (The Public Employment Law Press) — Wed, 19 Jun 2013 19:30:00 +0000

Local Government Performance and Efficiency Program (LGPEP) grant assistance

Source: Department of State

On June 19, 2013, the New York Department of State announced over $12 million in Local Government Performance and Efficiency Program (LGPEP) grant assistance in recognition of the recurring financial savings generated by 13 projects. The grants will be distributed in equal parts over three years, and are contingent upon continued demonstration of savings.

A competitive program, LGPEP rewards local governments for undertaking significant and innovative actions that reduce the property tax burden confronting residents. The projects recognized today are estimated by applicants to generate $38.2 million in combined annual savings. In accepting an award, these local governments commit to measuring and sustaining the financial impact of these savings.

The Awards were as follows:

City of Corning, $279,575.00, Fire Department Efficiency Initiative

Town of Gates, $710,000.00, Health Insurance Consolidation Project

Town of East Hampton, $536,425.00 Re-engineering of Town Government

Village of Liberty, $99,375.00, operations streamlining

Essex County, $244,881.40, Creation of the Office of Community Resources

Madison County, $1,615,724.00, Home Care Services Privatization

Town of Alden, $138,905.00, Town Clerk/Tax Receiver Consolidation Project

Nassau County, $5,000,000.00, Police Department Personnel Reduction and Precinct Consolidation Initiative

Town of New Castle, $194,313.14, Once per Week Garbage Collection

Town of Bethlehem, $776,107.36, Departmental Restructuring of Payment System and Maintenance Staff

Essex County, $984,250.00, Privatization of the Horace Nye Nursing Home

Town of Alden, $72,578.20, Innovative Employee Health Insurance Program

City of Rochester, $1,857,183.30, Neighborhood & Business Development Consolidation and Efficiencies Program

For additional information concerning the grant program please call the Office of the LGPEP Program Manager, (518) 473-3355.

Article 75 petition seeking to confirm an arbitration award holding the current CBA preserved the rights retirees obtained under previous CBAs granted by court

noreply@blogger.com (The Public Employment Law Press) — Wed, 19 Jun 2013 11:00:00 +0000

Article 75 petition seeking to confirm an arbitration award holding the current CBA preserved the rights retirees obtained under previous CBAs granted by court

Port Auth. of N.Y. & N.J. v Port Auth. Police Lieutenants Benevolent Assn., 2013 NY Slip Op 50953(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

Due to budget constraints, the Port Authority, effective January 1, 2011, discontinued its free E-Z Pass program available to all Port Authority retirees. As a result, the Port Authority Police Lieutenants Benevolent Association [LBA] filed a grievance under the arbitration provision in its Collective Bargaining Agreement, [CBA] claiming that the Port Authority had violated the CBA by discontinuing the E-Z pass program for retirees.

The Arbitrator framed the issues as follows:

1. Is the grievance substantively arbitrable?

2. If so, did the Employer violated [sic] the Collective Bargaining Agreement (CBA) by discontinuing on or about December 2010 or January 2011 free passage and parking at Port Authority facilities for retirees of the bargaining unit?

3. If so, what shall the remedy be?

The relevant CBA was agreed to in April 2005, effective retroactive to January 21, 2003, through to January 20, 2010. It contained a "Savings Clause," which provides that wages, benefits and conditions of employment "shall remain in full force and effect until a new Memorandum of Agreement [i.e., CBA] is executed." The provision relied upon by the LBA provided “for distribution of free passes for ‘permanent and project employees, retired employees, and employees on military leave for use at tunnels, bridges and some air terminals.’" Retired Lieutenants were provided with free passage “in the form of E-Z Passes.”

Arbitrator Howard C. Edelman found in the LBA's favor, ruling that the Port Authority had "violated the Collective Bargaining Agreement by discontinuing on or about December 2011 free passage and parking for retirees of the bargaining unit." The Port Authority was directed to reinstate the free passage and parking, and reimburse retirees for the monies they had expended on passage and parking since the program was terminated.

The Port Authority filed an appeal pursuant to Article 75 of the CPLR seeking to vacate the award. It contended that the Arbitrator exceeded his powers in ruling that free passage should be applicable to all LBA retirees, because the issue before the Arbitrator was limited to those employees who retired under the CBA 2003-2010 CBA. Accordingly, the Port Authority contended that it was error to apply the Arbitrator’s ruling to all “LBA retirees” and argued that the court should modify the award so as to limit the benefit to employees in the negotiating unit retiring between 2003 and 2010.

Judge Anil C. Singh said the Arbitrator had acknowledged the Port Authority’s argument in the Award but found that under Savings Clause which provided that, "all clauses of the contract ... continue in full force and effect' after the expiration of the [CBA]" and that the CBA thus "requires the continuation of the retiree benefit in question until the parties modify it in collective bargaining."

Judge Singh found that the Arbitrator had not exceeded his power by including pre-2003 retirees in the award where the arbitration was conducted pursuant to the 2003-2010 CBA.

Citing Riverbay Corp. (Local 32-E, S.E.I.V. AFL-CIO), 91 AD2d 509, the court said that “An arbitrator exceeds his or her power by giving ‘a totally irrational construction to the contractual provisions in dispute,’ so as to effectively rewrite the parties' contract.” The court then held that the Arbitrator did not exceed his powers, or rewrite the parties' agreement, when he found that the right to free E-Z Passes and parking applied to more than just retirees who had retired under the 2003-2010 CBA. The decision indicates that the language in CBA’s “Savings Clause” retained the right of retirees from previous MOAs to receive these benefits.

Concluding that the current CBA preserved the rights retirees obtained under previous CBAs, Judge Singh ruled that Arbitrator was not acting irrationally or exceeding his powers when he applied his ruling to past LBA retirees and confirm the LBA’s petition to confirm the award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50953.htm

noreply@blogger.com (The Public Employment Law Press) — Tue, 18 Jun 2013 11:00:00 +0000

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan
Bryant v Board of Educ., Chenango Forks Cent. Sch. Dist., 2013 NY Slip Op 04379, Appellate Division, Third Department

Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.*

The Public Employment Relations Board directed the School District to rescind its June 2003 memorandum in which it notified employees and retirees that it was terminating its practice of reimbursing Medicare Part B premiums.

In a companion case PERB ruled that the school district must reinstate its former practice of reimbursing retirees for Medicare Part B premiums** -- the same relief sought in the current proceeding.

The Appellate Division noted that PERB's order in the companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op 04039 (2013)]. Accordingly, Bryant received the full relief challenged by School District in the current appeal as a result of that determination, . Accordingly, the court ruled that the instant appeal is now moot.

As to argument advanced under color of an exception to the mootness doctrine, the Appellate Division held that the claimed exception “does not apply in that, although the issue advanced herein may recur and is significant, it is not likely to evade review.”

* The underlying facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134 [2005]) and in the companion case brought by the Chenango Forks Central School District (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the Internet at http://publicpersonnellaw.blogspot.com/search?q=bryant

** The reason for reimbursing retirees for Medicare Premiums that they are required to pay is explained in a “comment" in NYPPL’s summary of Munger v Board of Educ. of the Garrison Union Free School Dist., 85 AD3d 747, posted on the Internet at: http://publicpersonnellaw.blogspot.com/2009/12/city-to-pay-100-of-cost-of-health.html

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm

The Statute of Limitations for seeking payment of compensation alleged due an employee pursuant to a contract begins to run when the employee had a legal right to demand such payment

noreply@blogger.com (The Public Employment Law Press) — Mon, 17 Jun 2013 11:00:00 +0000

The Statute of Limitations for seeking payment of compensation alleged due an employee pursuant to a contract begins to run when the employee had a legal right to demand such payment

2013 NY Slip Op 04321, Appellate Division, Second Department

The Village Police Commissioner and the Village had signed a contract that provided that the Commissioner was to earn $5,000 more than the highest-ranking lieutenant for each year that he served as Commissioner. In June 2010, the Commissioner learned that he would not be reappointed as Commissioner and alleged that he subsequently learned that his Lieutenants were earning more than he had been earning.

The Commissioner filed a written claim with the Village on November 2, 2010 alleging that the Village had breached its contract with him from 1999 through 2010 and on September 28, 2011commenced an action in Supreme Court pursuant to CPLR Article 78 alleging breach of contract and sought to “recover the wages that allegedly were owed him for those years.”

Supreme Court denied the Village’s motion [1] to dismiss so much of the Commissioner’s complaint that sought to recover payments allegedly due him prior to March 28, 2010 and [2] to transfer the Commissioner’s complaint to District Court, Nassau County. The Village appealed.

The Appellate Division reversed Supreme Court’s ruling and remanded the matter to District Court, Nassau County. In the words of the court, ”the damages sought [by the Commissioner] in connection with the portion of the complaint that is not time-barred fall within the jurisdictional limit of the District Court. Therefore, removal to that court is appropriate.”

Addressing the issue of the timeliness of the Commissioner’s petition, the Appellate Division [1] said that §9802 of the Civil Practice Act and Rules provides that, "no action shall be maintained against the village upon or arising out of a contract of the village unless the same shall be commenced within eighteen months after the cause of action therefor shall have accrued, nor unless a written verified claim shall have been filed with the village clerk within one year after the cause of action shall have accrued," and [2] explained that “Where the claim is for the payment of a sum of money allegedly owed pursuant to a contract, the cause of action accrues when the plaintiff possesses a legal right to demand payment.”

The Village had argued that the Commissioner's causes of action alleging breach of contract accrued at the end of each year that the Commissioner allegedly was not paid in accordance with his contract. The Appellate Division agreed, ruling that as the Commissioner’s action was not commenced until September 28, 2011, the Village established, prima facie, that the action was time-barred to the extent that the Commissioner sought to recover damages accruing prior to March 28, 2010, i.e., 18 months prior to the commencement of his action.

Significantly, the Appellate Division held that the Commissioner’s reliance on “his lack of knowledge that the several breaches had occurred” did not toll the running of the statute of limitations for bringing a timely action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04321.htm

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

noreply@blogger.com (The Public Employment Law Press) — Sat, 15 Jun 2013 13:58:00 +0000

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

Reports issued during the week ending June 15, 2013 [Click on text highlighted in bold to access the full report]

DiNapoli: Watertown Boasts Strong Finances

The City of Watertown has maintained a stable tax base, developed healthy revenue streams and built up rainy day reserves, according to a fiscal profile of the city issued by State Comptroller Thomas P. DiNapoli. The report was released June 12, 2013 in conjunction with the Comptroller’s 2013 Local Government Leadership Institute in Watertown.

DiNapoli: Auditors Uncover $3 Million in Improper Unemployment Insurance

State Comptroller Thomas P. DiNapoli uncovered up to $3 million in inappropriate unemployment insurance payments made by the Department of Labor, including payments to recipients who were ineligible because they were employed, had collected more than the maximum weekly benefits or were not authorized to work in the United States, according to a report released June 14, 2013.

Comptroller DiNapoli Releases Municipal Audits

On June 13, 2013 New York State Comptroller Thomas P. DiNapoli announced that his office completed audits of:

the Village of Belle Terre;

the Town of Calicoon;

the Town of Gardiner;

the Town of New Berlin;

the Village of Nichols;

the Town of Pittsfield; and,

the Sylvan Beach Fire District.

Comptroller DiNapoli Releases Audits

On June 14, 2013 New York State Comptroller Thomas P. DiNapoli announced that his office completed the following audits:

the Metropolitan Transit Authority;

the Office of General Services;

the Workers’ Compensation Program;

the Department of State;

the Office of Children and Family Services; and,

the Division of State Police.

Individual whose new employer rescinded the offer of employment for good cause disqualified for Unemployment Insurance benefits under the circumstances

noreply@blogger.com (The Public Employment Law Press) — Fri, 14 Jun 2013 11:00:00 +0000

Individual whose new employer rescinded the offer of employment for good cause disqualified for Unemployment Insurance benefits under the circumstances

2013 NY Slip Op 03735, Appellate Division, Third Department

A public employee [Claimant] delivered his letter of resignation to the appointing authority indicating that he had been offered, and had accepted, a position at another facility.

Subsequently Claimant drove a motor vehicle after he had taken prescription medication and was arrested for “driving while ability impaired.” When his prospective employer learned of his arrest, it withdrew its offer of employment and Claimant’s former employer would not allow him to withdraw or retract his resignation.*

The Department of Labor initially disqualified Claimant from receiving unemployment insurance benefits, finding that he voluntarily left his employment without good cause.

Claimant appealed and after a hearing, an Administrative Law Judge overruled this determination. The Unemployment Insurance Appeal Board reversed the Administrative Law Judge’s decision and Claimant appealed the Board’s ruling.

The Appellate Division affirm the Board’s decision, explaining "A claimant's conduct . . . with regard to accepting a new position is a critical element in determining whether separation from employment was for good cause."

In this instance, said the court, Claimant had a valid offer of employment at the time he tendered his resignation but he lost this offer through his own poor judgment in driving a motor vehicle after taking prescription medication.

Under these circumstances, said the court, substantial evidence supports the Board's finding that good cause did not exist for Claimant's voluntary departure from employment and that he was disqualified from receiving benefits and it found

* Given that Claimant worked in the field of substance abuse prevention, the Appellate Division said that his former employer was justified in refusing to allow Claimant to rescind his resignation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03735.htm

New York State Governor Andrew Cuomo releases provisional open data guidelines to increase transparency among state agencies

noreply@blogger.com (The Public Employment Law Press) — Thu, 13 Jun 2013 18:38:00 +0000

New York State Governor Andrew Cuomo releases provisional open data guidelines to increase transparency among state agencies

Source: Office of the Governor

On June 13, 2013, Governor Andrew M. Cuomo released provisional open data guidelines for state agencies and public authorities to participate in Open.ny.gov. New York is the first state in the nation to publish its provisional open data guidelines* and seek public comment on GitHub, an open source platform that allows for open collaboration and sharing. Public comment is open until September 1, 2013.

Governor Cuomo said. “This transparency website is a coordinated effort by all of state government, so today’s provisional open data guidelines will provide direction to state agencies and authorities on how to catalogue and share their data on Open.ny.gov. I encourage New Yorkers to submit their comments as we work to build a new level of openness in government.”

On March 11, 2013, the Governor issued Executive Order 95** along with launching Open.ny.gov. The Executive Order directed state agencies, for the first time, to review and catalogue data they collect, and take steps to make public data available on Open.ny.gov in accordance with guidelines developed by the NYS Office of Information Technology Services (ITS).

These guidelines are designed for use by both covered state entities and other government entities not covered by Executive Order 95 including localities. The guidelines will help with identifying, reviewing, and prioritizing state data for publication. The Executive Order directs ITS to encourage public input and finalize the guidelines in the coming months.

Robert Freeman, Executive Director of the Committee on Open Government, said, “The use of Github represents a first among the fifty states, and will serve as the equivalent of a chat room open to the world. It will enable thoughtful and creative people to make contributions and communicate in a manner that can only improve the operation of government.”

Open.ny.gov is a comprehensive state data transparency website that provides user-friendly, one-stop access to open data from New York State agencies, localities, and the federal government. "Open data" refers to data that is free from restrictions and can be released in a format that can be retrieved, downloaded, indexed, and searched by commonly used web search applications. Open.ny.gov provides "open data" access and transparency to the wealth of information collected and maintained by the state and local governments. It allows researchers, citizens, business, and the tech community direct, centralized access to high-value government data to search, explore, download, and share.

* The Provisional Open Data Handbook is posted on the Internet at:

http://nys-its.github.io/open-data-handbook/

** Executive Order 95 is posted on the Internet at: http://www.governor.ny.gov/executiveorder/95

Application to participate in the employer's “Vested Benefits Program” rejected because the individual was not an employee “in good standing” when he resigned from his position

noreply@blogger.com (The Public Employment Law Press) — Thu, 13 Jun 2013 11:00:00 +0000

Application to participate in the employer's “Vested Benefits Program” rejected because the individual was not an employee “in good standing” when he resigned from his position

2013 NY Slip Op 04102, Appellate Division, First Department

The Port Authority of New York and New Jersey advised an employee that disciplinary action was being taken against him because he failed to obtain the Authority’s permission to engage in outside employment that was required to be so employed.

Subsequently the employee submitted his resignation from his position with the Port Authority and then filed an application to participate in the Authority’s Vested Benefits Program “as a retiree.”

The Port Authority rejected the individual’s application to participate in its Vested Benefits Program because was not an employee “in good standing” when he submitted his resignation from his position. As a matter of policy the Authority deemed that “disciplinary action is pending” if the employee has been informed that disciplinary charges are being prepared.

According to the Appellate Division’s decision, the Authority’s rejection of the individual's application to participate in the Authority's "Vested Benefit Program" was based on its long standing policy that an employee who resigns while disciplinary charges are pending is not “in good standing and is therefore not entitled to such benefits.”

As the individual had been advised that disciplinary charges were being prepared prior to the effective date of his resignation, the Appellate Division ruled that the Authority’s rejection of his application to participate in the Authority’s Vested Benefits Program was “not arbitrary and capricious or affected by an error of law.”

The court then indicated that the Authority had “reasonably complied with its own regulations when it determined that the lack of good standing disqualified petitioner from eligibility to participate in the Vested Benefits Program.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04102.htm

Tenure by estoppel

noreply@blogger.com (The Public Employment Law Press) — Wed, 12 Jun 2013 11:00:00 +0000

Tenure by estoppel

2013 NY Slip Op 04006, Appellate Division, Second Department

Tenure by estoppel results "when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term."

When a probationary teacher was denied tenure prior to the end of his probationary period, he claimed that he had attained tenure by estoppel.

According to the decision, the Board of Education had employed the teacher [Educator] as a per diem substitute teacher from September through the following June. Upon Educator’s completion of that academic year he appointed as full time teacher subject to the satisfactory completion of a two-year probationary period commencing July 1, 2008 through to June 30, 2010. The decision notes that Educator was entitled to a “one-year credit” toward the statutory three-year probationary period based on his prior tenure service in another district as provided by Education Law §3012[1][a].

What was ultimately to prove critical to the resolution of Educator’s claim that he had attained tenure by estoppel was a revised “letter of intent” he had signed that memorialized his probationary appointment and which specified that he would become eligible for tenure on July 1, 2010.

In May 2010, the superintendent of schools advised Educator that would be recommend the termination of his probationary appointment and on June 23, 2010 the Board voted to terminate Educator’s employment effective June 25, 2010.

Educator challenged the Board’s action and filed an Article 78 seeking a court order directing his reinstatement to his former contending that the Board did not have the authority to summarily terminate his employment because he had acquired tenure by estoppel.

Supreme Court denied Educator’s petition.

The Appellate Division sustained the Supreme Court’s decision, explaining that Educator had failed to demonstrate that the Board unduly delayed his formal appointment to his position or that he had otherwise acquired tenure by operation of law.

The court said that it was undisputed that Educator signed a revised letter of intent. This letter was held to have superseded all prior agreements and specified that Educator would become eligible for tenure on July 1, 2010.

Educator, however, had already discharged from his employment prior to that date.

Accordingly, ruled the Appellate Division, the Supreme Court properly denied Educator’s petition and dismissed the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04006.htm

Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

noreply@blogger.com (The Public Employment Law Press) — Tue, 11 Jun 2013 11:01:00 +0000

Determining the back pay due an individual terminated from his or her employment upon reinstatement by court order

Torpey v Town of Colonie, N.Y., 2013 NY Slip Op 04085, Appellate Division, Third Department

With respect to back pay to be awarded in the event a discharged employee is reinstated by action of a civil service commission or personnel officer or a court, prior to its amendment in 1985 Civil Service Law §§76 and 77 provided that the amount of back pay due an individual found to have been unlawfully terminated from his or her position was to be reduced by the amount of compensation he or she may have earned in any other employment or occupation following his or her termination, together with any unemployment insurance benefits he or she may have received during that period.

In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.

The issue in Torpey: May the compensation due employees reinstated to their former positions in the classified service pursuant to a court order be “reduced by” their earnings in other employments during the period in question.

The employees involved had been terminated from their long-term employment with the Town of Colonie on the ground that they were public officers who were required to, but did not meet, the residency requirement set out in the Public Officers Law. Following their termination, they accepted other employment with the Town for which there was no residency requirement.

The employees then challenged their termination and asked Supreme Court to reinstate them to their former positions "with full back pay, benefits and emoluments of employment."

Supreme Court determined that the employees had been erroneously terminated, finding that the Town had not shown that they were public officers subject to the residency requirements. The court granted the employees’ petition, ruling that the employees were "entitled to be reinstated to their former positions and to all back pay and associated benefits to which they would have been entitled had they not been improperly terminated."

Subsequently a dispute arose between the employees and the Town regarding, among other things, the meaning of the court's directive that employees were entitled to "all back pay," i.e., whether the back pay awards was to be “reduced by” the employees' earnings while employed by the Town as laborers, as the Town claimed, or whether they were entitled to full back pay without any such offset, as the employees argued.

The employees then asked Supreme Court “to resettle and/or clarify the court's prior judgment regarding back pay.” Supreme Court denied their motion, finding it represented an improper attempt to amplify and expand upon the court's prior decision and the employees appealed.

The Appellate Division agreed with Supreme Court, concluding that the employees’ motion “was one to resettle and/or clarify Supreme Court's prior judgment regarding back pay.” Such a motion, said the court, is designed "not for substantive changes [in, or to amplify a prior decision of, the court], but to correct errors or omissions in form, for clarification or to make the [judgment] conform more accurately to the decision.” Such motions rest on the inherent power of courts to "cure mistakes, defects and irregularities that do not affect substantial rights of [the] parties."

In this instance the Appellate Division decided that the employees’ motion in Supreme Court sought to amplify and substantively amend, not merely to clarify, Supreme Court's prior judgment relating to back pay, “by invoking for the first time Civil Service Law provisions* in support of their argument that the back pay award should not be offset by earnings as Town employees during the period in which they had been improperly terminated, points which should have been raised and argued before a determination was rendered on their petition.”

The Appellate Division’s rational: “Such an offset would directly affect the amount of back pay owed by the Town and, as such, would clearly have ‘alter[ed] [a] substantial right[] of the parties.’”

Holding that “Under established precedent, no appeal lies from the ‘denial of a motion to resettle [or clarify] a substantive portion of an order,'" the Appellate Division dismissed the employees’ appeal.

* Presumably the Appellate Division did not view the employees’ reinstatement by Supreme Court as being within the ambit of Civil Service Law §76.3 or §77 and thus the provisions of neither §76.3 nor §77 were operative in this instance as a matter of law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04085.htm

Past practice found sufficient to trump the absence of language in the relevant collective bargaining agreements providing for the practice

noreply@blogger.com (The Public Employment Law Press) — Mon, 10 Jun 2013 11:00:00 +0000

Past practice found sufficient to trump the absence of language in the relevant collective bargaining agreements providing for the practice
Chenango Forks Cent. Sch. Dist. v New York State Pub. Empl. Relations Bd., 2013 NY Slip Op 04039, Court of Appeals

The Chenango Forks Central School District told its faculty and staff it was discontinuing its practice of reimbursing Medicare Part B premiums of retirees 65 years of age or older participating in the District’s health insurance plan due to the cost involved of providing that benefit.

Initially the School District had been reimbursing these premiums as required by its then healthcare insurance plan. In 1990 the Union representing the faculty and the staff and the District agreed upon a new health insurance plan. This new plan was set out in the relevant collective bargaining agreement (CBA).

Although the new plan did not require the District to reimburse the retirees for the Medicare Part B premiums they were paying, the District continued to provide this benefit to its retirees. The successor collective bargaining agreements subsequently negotiated by the parties were silent with respect to the District reimbursing retirees for their Medicare Part B premium.

In response to the letter the Union filed a contract grievance contending that the School District had violated the CBA by failing to negotiate cancellation of Medicare Part B premium reimbursement. Shortly thereafter it filed an improper practice charge with the New York State Public Employment Relations Board on essentially the same theory.

Consistent with PERB's policy of refraining from asserting jurisdiction over an issue in dispute that was pending arbitration “until a determination is made as to whether the parties' [CBA] provide[d] a source of right to the charging party," PERB’s Administrative Law Judge “conditionally dismissed the [Union's] improper practice charge, subject to a motion to reopen.”

The arbitrator ruled there was no language in the collective bargaining agreement that would require Chenango Fork to reimburse retirees' Medicare Part B premiums that they had paid. The arbitrator explained that with respect to historical practices of the District regarding its making reimbursing retirees for the Medicare Part B premium they had paid “such practices originated from the former [healthcare plan] and a now repealed statutory obligation on the part of the District, and once the statutory obligation was removed, the District made voluntary Medicare Part B reimbursement payments to retirees. The voluntariness of the District's conduct,* given the origin of the District's Medicare Part B reimbursements, does not contain sufficient evidence of a mutual understanding and agreement to establish a binding past practice" (emphasis in the original).

The Union then asked PERB to reopen the improper practice charge it had earlier filed. PERB's Administrative Law Judge granted the Union’s request, opining that because "the arbitrator found no [contractual] source of right to [the Union] with respect to the dispute at issue ..., [the Union was] not seeking to enforce an agreement in the context of the charge, and PERB [had] jurisdiction over the alleged failure to continue a non-contractual practice."

Based on facts stipulated by the parties and the testimony given at hearings, ultimately PERB held that the District had violated Civil Service Law §209-a (1) by circulating the memorandum advising its employee of the fact that the District was going to discontinue its reimbursing retirees for the premiums they paid for Medicare Part B and there existed a past practice of providing a benefit — “the promise to reimburse current employees' post-retirement Medicare Part B premiums — which is a mandatory subject of bargaining”

PERB noted that the test for establishing a binding past practice under the Taylor Law was set out in its decision in Matter of County of Nassau (24 PERB ¶ 3029 [1991]) where it ruled that the "practice was unequivocal and was continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected [bargaining] unit employees that the [practice] would continue.”. PERB also noted that "the expectation of the continuation of the practice is something that may be presumed from its duration with consideration of the specific circumstances under which the practice has existed" and denied the District’s exceptions to the Administrative Law Judge’s ruling.

The Court of Appeals sustained PERB’s determination, concluding that under the facts in this case “it was reasonable for PERB not to defer to the arbitrator [as the] identity of issues was lacking and, to the extent the arbitrator purported to determine there was no past practice within the meaning of the Taylor Law, he exceeded his authority and his finding was repugnant to that statute.”

* The District contended that its continuation of the reimbursement of its retirees for Medicare premiums was the result of an administrative oversight.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_04039.htm

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

noreply@blogger.com (The Public Employment Law Press) — Sat, 08 Jun 2013 14:08:00 +0000

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

Issued during the week ending June 8, 2013 [Click on text highlighted in bold to access the full report]

DiNapoli Issues Report On Public—Private Partnerships

New York State Comptroller Thomas P. DiNapoli called for strong oversight provisions if New York broadens the authority of the state to enter into public—private partnership (P3) projects or goes forward with private financing of public projects. DiNapoli’s recommendations follow the release of a report Wednesday examining the benefits and problems that have plagued P3 projects elsewhere in the country.

DiNapoli To Audit Superstorm Sandy Payments By State Agencies

State Comptroller Thomas P. DiNapoli will examine payments made by the state in response to Superstorm Sandy to make sure state agencies received goods and services at the appropriate price.

DiNapoli: Elmira Showing Signs of Progress

The city of Elmira’s finances have improved in recent years due to higher rates of revenue growth and a concerted effort to control spending, according to a fiscal profile report issued last week by State Comptroller Thomas P. DiNapoli. The city, however, remains challenged by unemployment and poverty.

DiNapoli: Mayor’s FY 2014 City Budget is Balanced, but Substantial Risks Remain

New York City Mayor Michael Bloomberg’s proposed budget for the upcoming fiscal year is balanced, but challenges remain including the unknown cost of potential labor agreements and the likelihood of realizing anticipated revenue from the sale of new taxi medallions, according to an analysis of the city’s four—year financial plan released Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Niagara Falls Hampered by Budget Deficits

The city of Niagara Falls has a growing disparity between its revenues and expenditures, forcing city officials to use nearly $22 million of its rainy day funds for operating costs from 2009 through 2013, according to an audit issued Tuesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

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

the Allegany County Industrial Development Agency;

the City of Middletown;

the Village of Mount Morris;

the Village of Rockville Centre; and,

the Yaphank Fire District.

Comptroller DiNapoli Releases School Audits

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

the Bolton Central School District;

the Maine–Endwell Central School District;

the Plattsburgh City School District; and,

the Warwick Valley Central School District.

An individual seeking workers’ compensation benefits must show that any subsequent reduction in his or her earnings was related to his or her compensable injuries

noreply@blogger.com (The Public Employment Law Press) — Fri, 07 Jun 2013 11:00:00 +0000

An individual seeking workers’ compensation benefits must show that any subsequent reduction in his or her earnings was related to his or her compensable injuries

2013 NY Slip Op 03537, Appellate Division, Third Department

A school principal suffered work-related injuries to his ankle, knee and back. The principal filed a claim for workers' compensation benefits [the school district was self-insured] which was not controverted, but he did not begin to receive any such benefits as the school district continued to pay him his salary.

Some time later the principal received a letter from the school district notifying him that he had been denied tenure and he then submitted a letter of resignation, effective the last day of the school year. The principal never returned to work but subsequently secured a teaching position in Florida at a substantially reduced salary effective at the beginning the new school year.

The principal sought workers' compensation benefits as of the effective date of his resignation. A Workers' Compensation Law Judge ruled that the principal “was entitled to lost earnings and reduced earnings payments" commencing June 30.

The Workers' Compensation Board, however, modified that determination, concluding that principal had “ceased working for reasons unrelated to his disability and failed to demonstrate that his reduction in earnings was causally related to his compensable injuries and, thus, he was not entitled to awards subsequent to June 30.”

The Appellate Division affirmed the Board’s ruling, explaining that when employment is lost due to factors other than a compensable injury, the claimant bears the burden of establishing that his or her disability contributed to any subsequent reduction in earnings.

In this case, said the court, substantial evidence supports the Board's threshold determination that the principal 's employment ended for reasons unrelated to his disability as he had testified that upon receiving the letter advising that he had been denied tenure, he resigned his position to avoid having the inevitable termination on his employment record. As his resignation letter gave no indication that his resignation was in any way related to his disabilities, it became the principal’s burden to demonstrate that any subsequent reduction in his earnings was due, at least in part, to his disability. This, said the court, he failed to show.

Another factor: the principal had also testified that during his job search subsequent to resignation he applied and interviewed for a school principal position that was no different than the job he performed for the school district nor did he inform that prospective employer — or any other potential employer during the course of his search — about any restrictions due to his disability. In addition, said the court, the principal indicated that it was rather difficult to secure a position in education in New York, which ultimately led him to accept a teaching position in Florida, where it was easier to obtain employment.

In the words of the Appellate Division: “Thus, claimant's own testimony established that his reduction in earnings was not caused, even in part, by his disability, but rather by other economic factors; thus, we decline to disturb the Board's decision.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03537.htm

Android apps for attorneys

noreply@blogger.com (The Public Employment Law Press) — Thu, 06 Jun 2013 11:15:00 +0000

Android apps for attorneys

Nicole Black, an attorney based in Rochester, New York, has posted an article on her LawBlog, Sui Generis, that focuses on the latest Android apps for attorneys. To access the item, click on:

http://nylawblog.typepad.com/suigeneris/daily_recordlegal_currents_column/index.html

Ms. Black is also the author of a number of books including Cloud Computing for Lawyers and has co-authored Social Media for Lawyers with Carolyn Elefant, Esq.

The shifting burdens of going forward in actions involving alleged unlawful discrimination

noreply@blogger.com (The Public Employment Law Press) — Thu, 06 Jun 2013 11:00:00 +0000

The shifting burdens of going forward in actions involving alleged unlawful discrimination

2013 NY Slip Op 03617, Appellate Division, First Department

A complainant alleging unlawful discrimination must set out a prima facie case of such discrimination, shifting the burden of going forward to the employer to demonstrate a nondiscriminatory reason for its action. If the employer can successfully demonstrate a nondiscriminatory reason for its decision, the burden shifts back to the complainant to show that the reasons given by the employer were pretextual in an effort to excuse its unlawful action.

In other words, once a prima facie case of alleged unlawful discrimination is rebutted by the employer with “legitimate, independent and nondiscriminatory reasons” for its decision, the burden of going forward shifts to the aggrieved individual to demonstrate that the explanation offered by the employer was mere subterfuge for its unlawful discriminatory actions.

This decision addressing charges of alleged unlawful discrimination and charges of alleged unlawful retaliation illustrate the “shifting of the burden of going forward.”

According to the decision, the plaintiff had presented a prima facie case of “age-based discrimination” for his failure to be selected for employment as a teacher by the New York City Department of Education for its New York City Teaching Fellows program.

However, the Appellate Division dismissed his petition explaining that the Department of Education met its burden of proffering legitimate, nondiscriminatory reasons for failing to hire the plaintiff in it’s Teaching Fellows program by showing that the plaintiff had made “stereotyping statement” that parents in a particular ethnic group are more successful in communicating the importance of education to their children, resulting in superior academic performance in the course of his being interviewed to the position.

That done, the court said that the plaintiff had failed to show that Department's proffered reasons were pretexts for unlawful discrimination.

With respect to the plaintiff’s allegations of retaliation, the Appellate Division said that while he again had made out a prima facie case of retaliation, the Department had met its burden of proffering legitimate, nondiscriminatory reasons for declining to accept plaintiff into its SMART teaching certification program, including reciting the plaintiff's “expressed intention to focus his teaching energies on students ‘willing and interested’ in learning.”

Again, said the court, the plaintiff failed to show that Department's reasons were pretextual in an effort to justify its acts of unlawful discrimination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_03617.htm

Ratification of the proposed contract for staff in the professional service of the State University of New York represented by United University Professions announced

noreply@blogger.com (The Public Employment Law Press) — Wed, 05 Jun 2013 11:30:00 +0000

Ratification of the proposed contract for staff in the professional service of the State University of New York represented by United University Professions announced

On June 4, 2013, Governor Andrew M. Cuomo and United University Professions (UUP) President Frederick Kowal announced the ratification of a collective bargaining agreement between the state and the union representing more than 35,000 SUNY employees in the professional service of the State University of New York.*

UUP members had been without a contract since 2011. The agreement won the approval of 77 percent of UUP members who cast ballots.

According to the State Budget Office, the agreement will save approximately $87 million in wages through a Deficit Reduction Program over the contract period. All changes to health benefits will save $99 million over the contract period.

Contract highlights:

· Zero percent General Salary Increases for the three years 2011-2013, and 2% General Salary Increase increases in 2014 and 2015.

· Deficit Reduction Program involving nine days.

· A two percentage point increase in the employee's health insurance premium contribution for employees earning less than $40,137, making the employee contribution 12% for individual coverage and 27% for dependent coverage.

· A six percentage point increase in the employee's health insurance premium contribution for employees earning $40,137 and above, making the employee contribution 16% for individual coverage and 31% for dependent coverage.

· Benefit design changes for use of out of network services in the Empire Plan, including deductible and coinsurance increases for out of network medical benefits.

· A health plan opt-out provision so employees can opt-out through a spouse/partner to a non-State health plan.

· Payments of $500, $500, and $250 to be awarded to employees by the Chancellor. UUP members receive no "step" increases or longevity payments but campus presidents may also make performance incentive lump sum payments of 0.5% annually (1% at end of the contract term).

* See Subdivision three of Section three hundred fifty-five-a of the Education Law.

Misconduct conduct that results in the termination of employment may not necessarily constitute “disqualifying misconduct” for unemployment insurance benefit purposes

noreply@blogger.com (The Public Employment Law Press) — Wed, 05 Jun 2013 11:00:00 +0000

Misconduct conduct that results in the termination of employment may not necessarily constitute “disqualifying misconduct” for unemployment insurance benefit purposes
2013 NY Slip Op 03734, Appellate Division, Third Department

A Lieutenant with the Sheriff's Department was served with disciplinary charges pursuant to Civil Service Law §75 alleging misconduct, incompetence and insubordination.

One of misconduct charge resulted from an incident in which the Lieutenant was served with an order of protection obtained on ex parte* by his estranged wife. When two superior officers served the order of protection, which required that the Lieutenant surrender all firearms, he became upset, orally protested the surrender of his firearms and used profanity toward his superior officers. The Lieutenant eventually complied with the terms of the order of protection.

Found guilty of the disciplinary charged, the Lieutenant was terminated from his position. He challenged his termination but the Appellate Division sustained the penalty imposed [see 90 AD3d 1390).

At the time of his termination the Lieutenant applied for unemployment insurance benefits. Initially disqualified from receiving benefits on the ground that he lost his employment through misconduct, a Department of Labor Administrative Law Judge concluded otherwise after a hearing and awarded him unemployment insurance benefits.

Finding that the Lieutenant’s termination did not result from disqualifying misconduct, the Unemployment Insurance Appeal Board sustained the Administrative Law Judge’s ruling.

The Lieutenant’s former employer appealed the Board’s decision but the Appellate Division sustained the Board’s decision.

The court explained that as the Lieutenant “had a full and fair opportunity to litigate the issue of misconduct at the Civil Service Law §75 hearing,” the Board was correct in applying the Doctrine of Collateral Estoppel to the factual findings of the Hearing Officer. However, said the court, it was incumbent on the Board to draw its own conclusion as to whether such factual findings amounted to misconduct disqualifying the Lieutenant from receiving unemployment insurance benefits.

Significantly, said the Appellate Division, "[t]he same conduct that leads to a claimant being discharged for cause may not necessarily rise to the level of misconduct for unemployment insurance purposes," citing Matter of Wright [City of Syracuse—Commissioner of Labor], 101 AD3d 1198 and its decision will be sustained if supported by substantial evidence.

In this instance the Board found that although the Lieutenant had used vulgar and intemperate language toward his superior officers, it concluded that, given the context of his conduct, it was not so egregious as to disqualify him from receiving benefits. The Board relied on evidence of claimant's marital problems and his lack of knowledge of the order of protection prior to being served with it. Furthermore, the superior officers testified that they were not directly threatened by Lieutenant and that the Lieutenant fully complied with the terms of the order of protection by timely surrendering his firearms.

The Appellate Division dismissed the employer’s appeal, holding that “… substantial evidence supports the Board's finding that [the Lieutenant] did not engage in disqualifying misconduct, despite the existence of substantial evidence supporting the contrary conclusion.”.

* An ex parte proceeding is one in which only one side is present and the other side absent or unrepresented:

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03734.htm

Benefits available to certain dependents of a volunteer firefighter who died in the line of duty

noreply@blogger.com (The Public Employment Law Press) — Tue, 04 Jun 2013 11:00:00 +0000

Benefits available to certain dependents of a volunteer firefighter who died in the line of duty

Dickinson v Cape Vincent Volunteer Fire Dept., 2013 NY Slip Op 03723, Appellate Division, Third Department

The Lt. Michael E. Neuner/Timothy Goff Memorial Death Benefit Program [see Volunteer Firefighters' Benefit Law §7(46)], provides, among other benefits available to dependents of volunteer firefighters killed in the line of duty, for payments “for the support of each parent or grandparent of the deceased if dependent upon the deceased at the time of the injury.” *

Marsha Dickinson, the mother of a volunteer firefighter who died in the line of duty,* applied for benefits for herself and the volunteer firefighter's younger brother, contending that they were "dependent upon the deceased at the time of his death."

The Workers' Compensation Board ultimately agreed, whereupon the employer and its workers' compensation carrier appealed the Board’s determination.

The Appellate Division, noting that "The issue of dependency is a factual one for the Board to resolve and, if supported by substantial evidence, its decision will not be disturbed", affirmed the Board’s decision.

Noting that the record indicated that the volunteer firefighter lived with his mother, his stepfather and his younger brother and that the parents worked very little due to their physical limitations, and his brother, a high school student, worked part time at a grocery store and that the volunteer firefighter “was the primary breadwinner for the family,” the Appellate Division concluded that “Given these facts, the Board properly found ‘that the loss of . . . decedent's financial contribution had an adverse or detrimental effect on the claimant’ and decedent's brother thereby warranting an award of benefits.”

* $532 per week is payable during such dependency is payable pursuant to §7(46), but in no case may the aggregate amount payable under §7(46) exceed $887 per week.

** The volunteer firefighter was shot and killed by a patient in the course of his work as a volunteer firefighter/emergency medical technician.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03723.htm

Teacher terminated after being found guilty of subjecting a student to corporeal punishment

noreply@blogger.com (The Public Employment Law Press) — Mon, 03 Jun 2013 11:00:00 +0000

Teacher terminated after being found guilty of subjecting a student to corporeal punishment

2013 NY Slip Op 03769, Appellate Division, First Department

A New York City schoolteacher filed a petition seeking to vacate a post-hearing award finding her guilty of administering corporal punishment on a kindergarten student and of directing students who witnessed the incident not to discuss what they had observed, and imposing the penalty of termination of her employment. The court granted her petition in part, vacating the penalty imposed and remanding the matter to a different hearing officer for a determination of the penalty based on the administrative record, “but taking no account of any evidence of uncharged wrongdoing.”

The Appellate Division modified that award and reinstated the penalty imposed – termination

The Appellate Division explained that Supreme Court had found that there was adequate evidence in the record made at the disciplinary hearing to support the hearing officer’s determination that the teacher was guilty of administering corporal punishment on the kindergarten student and directing the students who witnessed the incident not to discuss what they had observed.

The apparent basis for the Supreme Court’s remanding the matter to a different arbitrator was the teacher’s representation that she was denied due process because the Hearing Officer's decision to terminate her employment was based upon evidence of wrongdoing that was not charged.

The Appellate Division said that the allegation that the Hearing Officer's decision to terminate her employment was based upon evidence of wrongdoing that was not charged is unavailing, since the Hearing Officer “expressly based the penalty upon the charged misconduct.”

Finding that the record showed that the teacher “showed a lack of remorse for her actions,” the Appellate Division concluded that “the penalty of termination does not shock one's sense of fairness, in light of petitioner's egregious misconduct of kicking a kindergarten student with special needs and then directing her other impressionable students not to discuss what they had observed.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03769.htm

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

noreply@blogger.com (The Public Employment Law Press) — Sun, 02 Jun 2013 11:00:00 +0000

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

Issued during the week ending June 2, 2013 [Click on text highlighted in bold to access the full report]

DiNapoli Calls For End To Discrimination At ExxonMobil

New York State Comptroller Thomas P. DiNapoli Wednesday took his case to ExxonMobil shareholders for the fourth consecutive year as the New York State Common Retirement Fund’s resolution (page 69) calling on the company to explicitly prohibit discrimination based on sexual orientation and gender identity heads to a vote.

DiNapoli: State Labor Department’s Failure to Collect Millions in Fees Masks Implications for Public Safety

The state Department of Labor’s failure to maintain records on building boilers and asbestos remediation projects needing inspection may jeopardize public health and safety, according to an audit released Friday by New York State Comptroller Thomas P. DiNapoli. The audit also found that DOL failed to collect $3.8 million from building owners who had boilers inspected, asbestos abatement contractors and employers who failed to comply with workplace safety rules.

DiNapoli Reaches Agreement With Ralph Lauren to Report on Labor Practices, Environmental Impacts

New York State Comptroller Thomas P. DiNapoli Monday announced an agreement with Ralph Lauren, a New York–based global apparel retailer, for the company to produce a report measuring and analyzing its labor practices, human rights and environmental impacts. As a result of the agreement, DiNapoli has withdrawn his shareholder resolution filed with the company.

DiNapoli Takes on Board Diversity at Urban Outfitters

Shareholders at Urban Outfitters Inc. vote Tuesday on a resolution requesting the company take steps to improve its poor record of accountability and diversity on its board of directors at the company’s annual meeting in Philadelphia. New York State Comptroller Thomas P. DiNapoli, trustee of the New York State Common Retirement Fund, noted that the nomination of Margaret Hayne, the spouse of Urban Outfitters Chairman, CEO and founder Richard Hayne, and an employee of the company for more than 30 years, to the board of directors failed to meet the resolution’s request for an open and inclusive candidate selection process.

DiNapoli Encourages New Yorkers To Participate In New York’s 529 College Savings Program

May 29 is College Savings Day, and New York State Comptroller Thomas P. DiNapoli is encouraging parents to enroll in New York’s 529 College Savings Program to help offset college costs. The program, available nationwide, is administered in New York State by DiNapoli in partnership with the New York State Higher Education Services Corporation. Comptroller DiNapoli oversees the investment function for the New York State 529 program.

Comptroller DiNapoli Releases Municipal Audits

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

the Village of Castleton–on–Hudson;

the Town of Davenport;

the Town of Fort Ann;

the Town of Huntington; and,

the Town of Wayne.

NYS Cyber Security Conference: June 4-5, 2013

noreply@blogger.com (The Public Employment Law Press) — Sat, 01 Jun 2013 11:00:00 +0000

This message was received from New York State's new, official system for press releases.

NYS Cyber Security Conference: June 4-5, 2013

Conference to bring internationally-recognized cyber security experts to Albany

Brian Digman, Chief Information Officer

Michelle McDonald, Public Information Officer

518-408-2475

The 16th Annual New York State Cyber Security Conference will be held on June 4-5, 2013 at the Empire State Plaza in Albany. Recognized as the premier Northeast conference for cyber security education, the event is co-hosted by the NYS Office of Information Technology Services’ Enterprise Information Security Office, the New York State Forum, Inc., and the University at Albany's School of Business and College of Computing and Information.

Each year the event draws approximately 1,000 attendees from government, the private sector, and academia to the Capital Region. This year’s conference theme is Helping Navigate Stormy Seas. Two full days of sessions are offered.

"Given that we live in a world in which Internet-connected systems are relied upon in every aspect of our public and private lives and there are an increasing number of threats to the security of those systems, the State of New York focuses considerable attention on protecting the sensitive information entrusted to its care. This focus includes initiatives such as the Governor’s Cyber Advisory Board and the Department of Financial Services’ efforts to review the security steps taken by insurance companies that do business in the state. Another important aspect of this focus is the state’s longstanding commitment to outreach, training, and awareness in the area of cyber security. It is incumbent upon information security professionals to receive regular training and share information in order to maintain their ability to secure these systems," said Thomas D. Smith, New York’s Chief Information Security Officer. “The 16th Annual Conference continues our efforts to provide a venue in which information security professionals, as well as members of the broader community, are afforded an opportunity to learn from leading experts from government, industry, and academia and to network with their peers."

On June 4, the conference opens with a welcome by Fran Reiter, Executive Deputy Director of State Operations. The conference continues with featured keynote speaker Michael Papay, Vice President of Information Security and Cyber Initiatives for Northrop Grumman’s Information Systems sector and Chief Information Security Officer, presenting “Recommended Cyber Actions for Large Enterprises: An Industry Perspective.” Billy Rios of Cylance returns on June 5 to provide the Annual Symposium on Information Assurance’s keynote talk “Why every CSO needs to know Industrial Control Systems (ICS).”

The Annual Symposium on Information Assurance (ASIA) runs concurrently with the main conference and presents academic papers on information security topics by academic experts.

Other highlights of the conference include 48 training sessions featuring topics such as: threat landscape, mobile, legal and cloud security issues, incident response, public–private partnerships, IT solutions, and more.

For more information, including conference agenda, keynote biographies, and registration information, visit the conference website at http://www.dhses.ny.gov/go/conference2013, follow the conference on Twitter @#nyscyber, and on Facebook at https://www.facebook.com/nystatecio.

The “personal records” exemption from disclosure set out in Civil Rights Law §50-a (1) applies to both active and former employees of the agency

noreply@blogger.com (The Public Employment Law Press) — Fri, 31 May 2013 11:00:00 +0000

The “personnel records” exemption set out in Civil Rights Law §50-a (1) applies to both active and former employees of the agency

Hearst Corp. v New York State Police, 2013 NY Slip Op 03900, Appellate Division, Third Department

Supreme Court dismissed the Hearst Corporation’s [Hearst] appeal of an administrative decision denying its Freedom of Information [FOIL] request for “all records” maintained by the Division of State Police concerning a former State Trooper. The Division had claimed that the records sought “records were exempt from disclosure under Civil Rights Law §50-a.”

Essentially §50-a.1 provides that the personnel records of police officers, deputy sheriffs, peace officers, firefighters, firefighter/paramedics and correction officers used to evaluate their performance with respect to their continued employment or promotion are confidential and not subject to inspection or review without the express written consent of the individual concerned “except as may be mandated by lawful court order.”*

Addressing the Civil Rights Law §50-a.1 arguments advanced by Hearst in seeking a former State Trooper’s personnel records, the Appellate Division sustained the lower court’s ruling, explaining:

1. Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2);

2. Public Officers Law §87(2)(a) permits an agency to deny access to public records that "are specifically exempted from disclosure by state or federal statute." One such exemption is found in Civil Rights Law §50-a.1** and

3. Such statutory exemptions to disclosure under FOIL must be narrowly construed and the agency opposing disclosure "carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption by articulating a particularized and specific justification for denying access."

Considering the Hearst newspaper’s claim that “as a matter of law, Civil Rights Law §50-a does not apply to records related to former officers,” the court said that §50-a.1 exempts from disclosure personnel records "used to evaluate performance toward continued employment or promotion" and so long as a document was used “at any time during the officer's employment” to evaluate the officer for promotion or continued employment, it is exempt from disclosure as a personnel record.

The Appellate Division said that the fact that the individual is a “former officer” does not mean that there is no realistic possibility of abusive use of the records against him in litigation, noting that to hold otherwise “would lead to the illogical result that a document ceases to be a personnel record immediately upon the officer's severance from employment.”

Accordingly, the court concluded that a document that is a personnel record within the meaning of Civil Rights Law §50-a does not depend on whether the officer to whom it relates is a current or former employee of the agency maintaining the record.

* Civil Rights Law §50-a.4 provides that “The provisions of this section shall not apply to any district attorney or his assistants, the attorney general or his deputies or assistants, a county attorney or his deputies or assistants, a corporation counsel or his deputies or assistants, a town attorney or his deputies or assistants, a village attorney or his deputies or assistants, a grand jury, or any agency of government which requires the records described in subdivision one, in the furtherance of their official functions.

** Other New York State statutes limiting the disclosure of public records include Education Law, §1127 - Confidentiality of records; and §33.13, Mental Hygiene Law - Clinical records; confidentiality].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03900.htm

Municipalities intending to promulgate or amend civil service personnel rules must comply with the provisions of Civil Service Law §20

noreply@blogger.com (The Public Employment Law Press) — Thu, 30 May 2013 11:00:00 +0000

Municipalities intending to promulgate or amend civil service personnel rules must comply with the provisions of Civil Service Law §20

Floyd v City of New York, 2013 NY Slip Op 03772, Appellate Division, First Department

Under color of New York City Mayoral Personnel Orders No. 2012/1 and 2012/2, the City issued rules allocating certain “ungraded” civil service titles otherwise subject to prevailing wage bargaining under Labor Law §220 to positions allocated to a salary grade. Such positions, however, upon their being allocated to a salary grade fell within the ambit of the New York City Collective Bargaining Law rather than the provisions of Labor Law §220. The City’s rules were challenged by the several unions in this action.

The unions argued that the City's actions unilaterally changed ungraded civil service titles which are subject to Labor Law §220 application of prevailing rate wages and supplemental benefits by effectively deleting these classifications and reclassified the ungraded prevailing rate titles into 14 new “Maintenance and Operation Services” titles in violation of Civil Service Law §20.2.*

The City, on the other hand, contended that it had complied with Civil Service Law §20.1 when it allocated titles to a salary grade because it had not change the jurisdictional classification of the position as §20 “only applies when a title is changed from competitive to noncompetitive or exempt class.” The City also argued that the Department of Citywide Administrative Services has authority to act as a municipal civil service commission pursuant to the New York City Charter and may review salaries and titles, grade and classify them, and remove them from the scope of Labor Law §220 subject to the Mayor's approval and that “the grading of competitive class titles was rational because it is within the City's managerial prerogative, and therefore notice, public hearings and New York State Civil Service Commission approval are not required.”

Supreme Court Judge Manuel J. Mendez annulled the City’s rules that resulted in the several previously “unallocated positions” being allocated to a salary grade. In the words of Judge Mendez, "the changes proposed and implemented by the [the City] resulted in not just grading but reclassification of job titles subject to the provisions of Civil Service Law §20 [36 Misc.3d 653].

Citing Corrigan v Joseph, 304 NY 172, 185 [1952], cert denied 345 US 924, the Appellate Division dismissed the City’s appeal, ruling that the City had promulgated the rules in question without complying with the procedures mandated by Civil Service Law §20 as they had been adopted without notice, without a public hearing, and without approval by the State Civil Service Commission.

* Civil Service Law §20.2, in relevant part, provides as follows: "Procedure for adoption of rules. Such rules, and any modifications thereof, shall be adopted only after a public hearing, notice of which has been published for not less than three days, setting forth either a summary of the subject matter of the proposed rules or modifications or a statement of the purpose thereof. Except for the city of New York, notice shall be given to any person or agency filing written request, such request to be renewed yearly in December, for notice of hearings which may affect such person or agency. Such notification shall be made by mail to the last address specified by the person or agency at least thirty days prior to the public hearing … The rules and any modifications thereof adopted by a city civil service commission or city personnel officer shall be valid and take effect only upon approval of the mayor or a deputy mayor designated in writing by the mayor, such designation to be filed in the offices of the state civil service commission, ... provided, however, that where the mayor, deputy mayor or city manager, or other authority, as the case may be, fails to approve or disapprove a rule or modification thereof within thirty days after the same has been submitted to him, such rule or modification thereof shall be deemed to be approved by him…."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03772.htm

Amending the qualifications for appointment to a position in the public service is a “Management Right” and is not a mandatory subject of collective bargaining

noreply@blogger.com (The Public Employment Law Press) — Wed, 29 May 2013 11:00:00 +0000

Amending the qualifications for appointment to a position in the public service is a “Management Right” and is not a mandatory subject of collective bargaining
Uniformed Firefighters Assn. of Greater N.Y., Local 94 v City of New York, 2013 NY Slip Op 03763, Appellate Division, First Department

State Supreme Court Judge Carol E. Huff denied the Uniformed Firefighters Association petition seeking to annul the New York City Board of Collective Bargaining’s (BCB), decision dismissing the Association’s improper practice complaint.

BCB had rejected the Association’s improper practice charge challenging the New York City Fire Department’s decision to change the job requirements for the position of fire company chauffeur without first negotiating the proposed change with the Association.

Sustaining the Supreme Court’s ruling, the Appellate Division said that BCB's determination was neither arbitrary and capricious, contrary to law, nor an abuse of discretion, explaining that the “ … Fire Department's decision to alter the job requirements for the position … was within the sound exercise of its managerial discretion.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03763.htm