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Saturday, December 20, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 20, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 20, 2014
Click on text highlighted in color  to access the full report

DiNapoli: Audit Reveals Theft of Cash, Questionable Spending by Minetto Volunteer Fire Department Chief

The chief of the Minetto Volunteer Fire Company in Oswego County spent nearly $6,000 in public funds on personal purchases such as guns and motorcycle parts, according to an audit released Friday by State Comptroller Thomas P. DiNapoli. The audit revealed a total of $22,000 in misused funds, questionable spending and missing cash.

Buffalo Business Delivers $9 Million Investment Gain to the State Pension Fund

AccuMED, a manufacturer located in Buffalo, has generated an estimated $9 million investment gain for the New York State Common Retirement Fund, New York State Comptroller Thomas P. DiNapoli announced Tuesday. The investment was made through the Fund’s In-State Private Equity Program, which is designed to make profitable investments in New York state-based companies.

DiNapoli: New York City’s Financial Outlook Improving

New York City’s revised four-year financial plan shows substantially smaller out-year gaps than projected by the city in June 2014, mostly because of higher tax revenues and lower projected pension and debt service costs, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Former Le Roy Fire Dept. Treasurer Pleads Guilty in $46,000 Theft of Public Funds

The former treasurer of the Le Roy Fire Department and the Le Roy Fireman’s Benevolent Association pleaded guilty Tuesday to stealing nearly $46,000 in public funds, much of which he spent on gambling at upstate casinos, according to audits and an investigation by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Announces State Contract & Payment Actions for November 2014

State Comptroller Thomas P. DiNapoli announced Tuesday his office reviewed over 2,000 contracts valued at $2.1 billion and approved nearly 1.2 million payments worth nearly $8.9 billion in November. His office also rejected 166 contracts and related transactions valued at $348 million and more than 1,700 payments valued at more than $3.9 million due to fraud, waste or other improprieties.

Friday, December 19, 2014

An award of back pay plus $200,000 in compensatory damages, plus interest, sustained as reasonably related to the wrongdoing and comparable to other awards for similar injuries

An award of back pay plus $200,000 in compensatory damages, plus interest, sustained as reasonably related to the wrongdoing and comparable to other awards for similar injuries
State Div. of Human Rights v Steve's Pier One, Inc., 2014 NY Slip Op 08445, Appellate Division, Second Department

In a ruling dated October 12, 2011, the Commissioner of the New York State Division of Human Rights adopted the recommendation and findings of an administrative law judge.

The administrative law judge found that the complainant was subjected to a hostile work environment because of his gender and was constructively discharged from his employment because of his gender. 

The complainant's employer, Steve's Pier One, Inc., [and others] and their respective owner, Joseph Genova, individually, were found liable for the sexual harassment. The Commissioner awarded the complainant damages in the principal sums of $3,248, plus interest at the rate of 9% per year from June 30, 2001, for back pay, and $200,000, plus interest at the rate of 9% per year from October 11, 2011, in compensatory damages for mental anguish and humiliation.

The Appellate Division sustained the Commissioner's determination and award, holding that the Commissioner's ruling was supported by substantial evidence on the record considered as a whole.

The court also held that substantial evidence also supported the Commissioner's determination that Genova, as the owner and general manager of the restaurant where the complainant was employed at the time, is individually liable for the discrimination, explaining that the amendment of the complaint to add Genova as an individual respondent after the statute of limitations had expired was not unreasonable or unfair, inasmuch as the claims against him "related back" to those asserted in the original complaint against his restaurant.

As to the award of compensatory damages in the amount of $200,000, plus interest, the Appellate Division ruled that the award was reasonably related to the wrongdoing, was supported by substantial evidence, and was comparable to other awards for similar injuries. Likewise, the court said that substantial evidence supported the Commissioner's award of back pay with interest and was appropriate.

The decision is posted on the Internet at:

Thursday, December 18, 2014

Availability of the “faithless servant doctrine” to deny benefits set out in a collective bargaining agreement

Availability of the “faithless servant doctrine” to deny benefits set out in a collective bargaining agreement
Union-Endicott Cent. Sch. Dist. v Peters, 2014 NY Slip Op 08533, Appellate Division, Third Department

Joanne Peters, a teacher by the Union-Endicott Central School District, attempted to retire from her position after allegations surfaced that she had stolen District property.

This appeals is the latest in a series* and as relevant here concerns the question of Peters' being entitled  to receive retiree health insurance benefits provided for in a collective bargaining agreement under the  circumstances of her departure from employment with the District.

The District terminated Peters effective July 1, 2007 and that, as a result, she was not entitled to retiree health benefits. The Union-Edicott Teachers Association [ETA] and Peters grieved the District's determination under the CBA and demanded binding arbitration of it.

The District and the ETA stipulated that the arbitrator would first assess whether the District's determination had violated the terms of the CBA. If the arbitrator found a violation, he would then be obliged to decide whether Peters' right to retiree health insurance benefits was impacted by the "faithless servant doctrine."**

The arbitrator issued an opinion and award finding that the District had violated the terms of the CBA and that the faithless servant doctrine was inapplicable. The arbitrator went on to state that he "believe[d] the District's claims [were] better suited for a lawsuit than a grievance arbitration proceeding."

The District then moved for leave to amend their complaint to assert causes of action invoking the faithless servant doctrine, seeking to both bar Peters' receipt of retiree health insurance benefits and recover damages for the value of the benefits that she had already received [Proceeding #1] .

The District also commenced a second proceeding, Proceeding #2, seeking to vacate the arbitration award or stay its enforcement until issues regarding the applicability of the faithless servant doctrine in action No. 1 had been resolved.

Supreme Court, among other things, declined to vacate the arbitration award or prevent it from going into effect, denied leave to amend the complaint in action No. 1 and granted the ETA leave to intervene in that action. The District appeals in proceeding Nos. 1 and 2, and the District and Board appeal in action No. 1.

The Appellate Division sustained the Supreme Court's declining to vacate the arbitration award, explaining that is not warranted as "It is well established that an arbitrator's award is largely unreviewable." and “Vacatur of an arbitration award is only appropriate where 'it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.'"

The court concluded that the arbitrator “had reviewed the relevant case law, noted that the CBA was silent on the issue of whether the "faithless servant doctrine" restricted an employee's right to contractual benefits, and determined that to apply the doctrine would impermissibly "add to or alter the terms of" the CBA.” The Appellate Division said that arbitrator, “in no uncertain terms,” indicated  that he was "declin[ing] to apply" the doctrine, commented that the arbitrator's dictum that the District's arguments were 'better suited for a lawsuit than a grievance arbitration proceeding,' ... did not undermine his thoroughly explained holding that the faithless servant doctrine did not impact Peters' right to receive retiree health insurance benefits under the CBA.

The Appellate Division said it perceived no reason to vacate the arbitration award.”

As to the motion of District and the Board for leave to amend their complaint, the legal issue as to whether the faithless servant doctrine applied was placed squarely before the arbitrator and the parties to the arbitration had a full and fair opportunity to litigate it. Despite the fact that the arbitrator held the doctrine to be inapplicable, the proposed amended complaint in action No. 1 seeks to raise precisely the same issue. The court said that the faithless servant doctrine flowed from the contractual relationship between employer and employee. As the arbitrator found that CBA does not permit the doctrine to be used, there is no separate ground for its application and the District and the Board are barred by collateral estoppel from advancing an issue that was actually decided by the arbitrator.

As Supreme Court did not explicitly confirm the award, the Appellate Division modified that court's order accordingly

* Other decisions by the Appellate Division involving these parties: Matter of Peters v Union-Endicott Cent. School Dist., 77 AD3d 1236, and Matter of Union-Endicott Cent. School Dist. [Endicott Teachers' Assn.], 59 AD3d 799.

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

The decision summarized above is posted on the Internet at:

Wednesday, December 17, 2014

Determining if an individual is an employee or an independent contractor of an entity

Determining if an individual is an employee or an independent contractor of an entity
Lustgarten (New York Psychotherapy & Counseling Ctr.--Commissioner of Labor), 2014 NY Slip Op 08538, Appellate Division, Third Department

Samuel H. Lustgarten, a psychiatrist, provided services for clients of New York Psychotherapy and Counseling Center (NYPCC) for approximately 10 years. After his employment ended, he applied for unemployment insurance benefits. The Department of Labor initially determined that claimant was an employee of NYPCC and that NYPCC was liable for contributions based on remuneration paid to Lustgarten and others similarly situated.

NYPCC objected, contending that Lustgarten was an independent contractor. An Unemployment Administrative Law Judge sustained the initial determination that Lustgarten was eligible for unemployment insurance benefits, which decision was affirmed by the Unemployment Insurance Appeal Board.

NYPCC appealed the Board's determination, which ruling was sustained by the Appellate Division.
The court explained that "Whether there exists an employee-employer relationship is a factual question to be resolved by the Board and we will not disturb its determination when it is supported by substantial evidence in the record.” With respect to medical professionals, the pertinent inquiry is whether the alleged employer exercised overall control over the work performed."

In this instance the record revealed that NYPCC [1] referred the patients to Lustgarten and scheduled their initial appointments; [2] paid Lustgarten an hourly wage for the time he treated the patients and [3] billed the patients for the services provided by Lustgarten.

Further, said the court, Lustgarten was paid by NYPCC regardless of whether it was reimbursed by the patients or their health plans.

Additionally Lustgarten worked in an office provided by NYPCC on NYPCC's premises for which he only paid a nominal weekly fee of $9.87 and would generate a treatment record that is accessed by NYPCC's doctors and staff. 

Affirming the Board's determination, the Appellate Division decided that substantial evidence in the record supported the Board's determination that NYPCC retained sufficient overall control over the work performed by Lustgarten [and those similarly situated] to establish an employee-employer relationship despite other proof in the record that could support a contrary result.

To assist in determining whether an individual is an employee under the common-law rules, the IRS has identified 20 characteristics as guidelines in determining whether sufficient control is present to establish an employer-employee relationship. 

Not every factor is applicable in every situation, and the degree of importance of each factor varies depending on the type of work and individual circumstances. In any event, all relevant factors are considered in making a determination as to the status of an individual as an employee or an independent contractor and no one factor is decisive.

The 20 factors being used by the IRS are:

1. Instructions. An employee must comply with instructions about when, where, and how to work. Even if no instructions are given, the control factor is present if the employer has the right to control how the work results are achieved.

2. Training. An employee may be trained to perform services in a particular manner. Independent contractors ordinarily use their own methods and receive no training from the purchasers of their services.

3. Integration. An employee's services are usually integrated into the business operations because the services are important to the success or continuation of the business. This shows that the employee is subject to direction and control.

4. Services rendered personally. An employee renders services personally. This shows that the employer is interested in the methods as well as the results.

5. Hiring assistants. An employee works for an employer who hires, supervises, and pays workers. An independent contractor can hire, supervise, and pay assistants under a contract that requires him or her to provide materials and labor and to be responsible only for the result.

6. Continuing relationship. An employee generally has a continuing relationship with an employer. A continuing relationship may exist even if work is performed at recurring although irregular intervals.

7. Set hours of work. An employee usually has set hours of work established by an employer. An independent contractor generally can set his or her own work hours.

8. Full-time required. An employee may be required to work or be available full-time. This indicates control by the employer. An independent contractor can work when and for whom he or she chooses.

9. Work done on premises. An employee usually works on the premises of an employer, or works on a route or at a location designated by an employer.

10. Order or sequence set. An employee may be required to perform services in the order or sequence set by an employer. This shows that the employee is subject to direction and control.

11. Reports. An employee may be required to submit reports to an employer. This shows that the employer maintains a degree of control.

12. Payments. An employee is generally paid by the hour, week, or month. An independent contractor is usually paid by the job or on straight commission.

13. Expenses. An employee's business and travel expenses are generally paid by an employer. This shows that the employee is subject to regulation and control.

14. Tools and materials. An employee is normally furnished significant tools, materials, and other equipment by an employer.

15. Investment. An independent contractor has a significant investment in the facilities he or she uses in performing services for someone else.

16. Profit or loss. An independent contractor can make a profit or suffer a loss.

17. Works for more than one person or firm. An independent contractor is generally free to provide his or her services to two or more unrelated persons or firms at the same time.

18. Offers services to general public. An independent contractor makes his or her services available to the general public.

19. Right to fire. An employee can be fired by an employer. An independent contractor cannot be fire so long as he or she produces a result that meets the specifications of the contract.

20. Right to quit. An employee can quit his or her job at any time without incurring liability. An independent contractor usually agrees to complete a specific job and is responsible for its satisfactory completion, or is legally obligated to make good for failure to complete it.

Additional information concerning the status of an individual as an employee or as an independent contractor is posted on the Internet at: 
The Lustgarten decision is posted on the Internet at:

Tuesday, December 16, 2014

Due process considerations involving employees on leave of absence pursuant to CSL §71 as the result of a work related injury or disease or CSL §72 as the result of an injury or disease not related to employment

Due process considerations involving employees on leave of absence pursuant to CSL §71 as the result of a work related injury or disease or CSL §72 as the result of an injury or disease not related to employment
Allen v City of New York, 2014 NY Slip Op 08369, Appellate Division, First Department

The Appellate Division affirmed a Supreme Court's ruling that the City of New York violated Lionel Allen, then on workers' compensation leave pursuant to §71, when it terminated him from such leave.
Initially the City had terminated Allen pursuant to Civil Service Law §73, However, terminating an employee pursuant to Civil Service Law §73 is permitted only in the event the individual is on leave as the result of a disability resulting from non-occupational injuries or disease pursuant to §72 of the Civil Service Law.

The City then rescinded Allen's termination under color or §73 and terminated petitioner pursuant to Civil Service Law §71, which provides for leaves of absence in the event an employee suffers and injury or disease within the meaning of the Workers' Compensation Law. resulting from occupational injuries, retroactive to the original termination date.

The Appellate Division ruled that such action, taken without providing Allen any further opportunity to be heard, violated due process, rejecting the City's argument that the requirements for notice and opportunity to be heard are substantively identical with regard to the two sections and that Allen failed to make the requisite showing of mental and physical fitness for his position in response to the initial notice of intent to terminate him from his position.

In the words of the Appellate Division, “Even assuming that this is true, certain differences between the two provisions — including that 'section 71 affords greater procedural protections and opportunities for reinstatement (Matter of Allen v Howe , 84 NY2d 665, 673 [1994])-— as well as practical differences in petitioner's position at the time he was notified pursuant to each section, dictate that the process provided failed to satisfy basic requirements of fairness.”

The court also rejected the City's argument that even if Allen's due process rights were violated, “the [Supreme] court should still have ordered a hearing to determine whether [Allen] was fit to return to duty on the originally designated date of termination,” explaining that doing so would have effectively nullified the Supreme Court's due process holding.

The Appellate Division than commented that “Having vacated [the City's] determination terminating [Allen's] employment [pursuant to §73], there is no basis for the medical examination, pursuant to Civil Service Law §71, for an employee seeking reinstatement after being 'separated from the service by reason of a disability.'"

Some additional elements to consider when determining the rights of employees place on §§71 or 72. leave.

In Duncan v NYS Developmental Center, 63 NY2d 128, the Court of Appeals held that the appointing authority, at its discretion, may terminate an employee on §71 leave after he or she has been absent for one year or longer [or two years or longer in the event the employee's §71 disability leave resulted from an assault sustained in the course of his or her employment]. 
§73 of the Civil Service Law applies in cases where the employee is absent because of an injury or disease not related to work for a consecutive period of one or more years pursuant to §72 of the Civil Service Law. In contrast, §71 of the Civil Service Law provides for absences resulting from job related injuries and diseases and the Court of Appeals has held that an employee who has been cumulatively absent on §71 leave for a period year or two years or more, as the case may be, depending on the rules of the civil service commission having jurisdiction*, may be terminated from his or her position pursuant to §71 itself.

Both §§71 and 73, however, set out post-termination procedures for the purpose of considering applications for reinstatement submitted by an employee terminated pursuant to §§71 and 72, respectively, within one year following the end of their disability.

* See, for example, 4 NYCRR 5.9, which provisions apply to employees of the State of New York as the employer in the classified service.

The Allen decision is posted on the Internet at:

Monday, December 15, 2014

National Publication Names NYS’s Tax Policy Director “Person of the Year”

National Publication Names NYS’s Tax Policy Director, Deputy Commissioner Robert Plattner, “Person of the Year”
Source: New York State Department of Taxation and Finance
A national publication has honored the NYS Tax Department’s policy chief with its annual Person of the Year Award for his vital role in the passage of sweeping corporate tax reform.
State Tax Notes, the preeminent publication on state tax issues, honored Deputy Commissioner Robert Plattner, the Tax Department’s Director of the Office of Tax Policy and Analysis, with this prestigious recognition in its December 15th edition.
The national publication presents the award each December to an individual or organization that had the most influence on state tax policy and practice during the past year.  In addition to “Person of the Year,” State Tax Notes recognized Mr. Plattner in an additional award category as “Administrator of the Year.” 
State Tax Notes chose Mr. Plattner for the awards “for spearheading the multi-year effort that led to reform.”  That reform has received accolades for making the law fairer and simpler, modernizing it to reflect the current marketplace, and enhancing the State’s business climate. 
The work on reform began within the agency, but then entered a phase of extensive discussions with the corporate community and other constituencies.  With critical support from Governor Andrew M. Cuomo and his Tax Reform and Fairness Commission, the reform legislation was included in the Governor’s Executive Budget for 2014-15, and signed into law shortly thereafter. 
The reforms promote fairness and help businesses invest with confidence, while ensuring a stable and predictable revenue flow for New York State.  As a result, it is easier and less expensive for businesses to comply with their tax responsibilities, and more likely that state revenues will result from voluntary compliance, rather than costly audits.   
The changes received widespread support from numerous organizations, including the Partnership for New York City, the Business Council of New York, the Tax Foundation, and the Securities Industry and Financial Markets Association.

Calculating a teacher's seniority for layoff and preferred eligible list purposes

Calculating a teacher's seniority for layoff and preferred eligible list purposes 
Decisions of the Commissioner of Education, Decision No. 16,686

An educator [Teacher A] challenged the actions of the School District in calculating her seniority for layoff and  preferred eligibility list  purposes. Teacher A claimed that this miscalculation resulted in her loss of an opportunity to be recalled to a full-time leave replacement substitute teaching position and asked the Commissioner to declare that she had greater seniority to another teacher, Teacher B, and to direct the District "to immediately transfer her to the relevant full-time leave replacement position and correct her place on the seniority list. 
The Commissioner noted that due to budgetary constraints, the School District had abolished both Teacher A's and Teacher B's positions in the elementary tenure area.

Although the Commissioner dismissed Teacher A's appeal on procedural grounds,* the decision notes that "Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits."

The Commissioner said that prior to Teacher A's appointment as a probationary teacher she had served in various capacities as a per diem substitute teacher in the district. The District had credited Teacher B with 8.97794 years of seniority and had credited Teacher A with 8.44 years of seniority. Teacher A alleged that District incorrectly calculated her seniority by failing to include time served as a "regular and consistent substitute."

Teacher A contended that based on the actual duties performed while serving as a per diem substitute in the elementary tenure area, she should be provided seniority credit for time served as a per diem substitute. The District, in contrast, argued that it had accurately calculated Teacher A's seniority, which should not include periods of time during which Teacher A served as a temporary per diem substitute.

The Commissioner explained that "It is well settled that service as a full-time regular substitute teacher entitles such teacher to seniority credit, when such service immediately precedes a probationary appointment." However, said the Commissioner, it is also clear that “an ‘itinerant’ or per diem substitute assigned on a temporary, as-needed basis does not accumulate seniority.”

In addition, the Commissioner observed that it is the nature and continuity of the particular substitute assignment that determines whether or not such service was regular, and therefore sufficient to warrant seniority credit.

While Teacher A was properly granted seniority credit for the period in which she served as a full-time leave replacement or regular substitute teacher in one particular class, the Commissioner said that the record reflected that other specific substitute service for which Teacher A sought seniority credit was, by its nature, per diem. 
Although Teacher A was required to report to one of the School District's elementary schools, the fact that Teacher A served in certain classrooms for a few days or a week at a time on an as-need basis does not change the fundamental nature of her position as a per diem substitute position. Accordingly, although Teacher A's substitute service may have been regular and consistent within the school building, because she substituted for various teachers, in various capacities, and for various time periods, the Commissioner said that the School District had  properly omitted Teacher A’s per diem substitute service when calculating her seniority.

* The most significant omission was A's failure to name B as a necessary party as B's rights could be adversely affected were A to prevail in her appeal,

The decision is posted on the Internet at:


Selected reports and information published by New York State's Comptroller during the Week Ending December 14, 2014

Selected reports and information published by New York State's Comptroller during the Week Ending December 14, 2014
Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli Thursday released a report, “Preserving and Expanding Affordable Housing Opportunities,” that summarizes his recent series of audits of affordable housing programs and highlights recommendations for improving New York’s well-intentioned efforts.

DiNapoli Releases Report on Environmental Funding in New York State

The Department of Environmental Conservation (DEC) has experienced staff cuts and constrained funding since 2003 while its responsibilities have grown, according to a report released Wednesday by New York State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of the Baldwinsville Public Library, City of Lockport, Town of Saranac, and the West Corners Fire Company.

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 435 page handbook reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on


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