Temporary appointments

Temporary appointments

130 A.D.2d 72, affirmed 72 N.Y.2d 986

§64.3 of the Civil Service Law provides that “Notwithstanding the provisions of subdivisions one and two of this section, the civil service department or municipal commission having jurisdiction may authorize a temporary appointment, without examination, when the person appointed will render professional, scientific, technical or other expert services (1) on an occasional basis or (2) on a full-time or regular part-time basis in a temporary position established to conduct a special study or project for a period not exceeding eighteen months. Such appointment may be authorized only in a case where, because of the nature of the services to be rendered and the temporary or occasional character of such services, it would not be practicable to hold an examination of any kind.”

However, §64.2, which provides for “Temporary appointments from eligible lists,” states that ”A temporary appointment for a period not exceeding three months may be made without regard to existing eligible lists. A temporary appointment for a period exceeding three months but not exceeding six months may be by the selection of a person from an appropriate eligible list, if available, without regard to the relative standing of such person on such list. Any further temporary appointment beyond such six month period or any temporary appointment originally made for a period exceeding six months shall be made by the selection of an appointee from among those graded highest on an appropriate eligible list, if available.”

When Suffolk County dismissed its consulting firm supervising the construction of a sewer project, the State and Federal governments threatened to cut off funds unless the County provided for the required supervision of the project.

Relying on §64.3 of the Civil Service Law, which provides for temporary appointments without examination, the County hired an inspection staff without making such appointments from available eligible lists. The Court found that such lists could have been used for the appointments.

Holding that exceptions to the general civil service policy of filling vacancies in the classified service from appropriate eligible lists is to be strictly construed, the court declared the §64.3 appointments unlawful.

Although §64.3 permits appointments without the use of eligible lists, such appointments are authorized only in exceptional cases. Significantly, the provision requires that it would not be practical to hold an examination of any kind to fill the vacancy. The court's finding that suitable eligible lists were already available proved to be a critical consideration as it obviated any argument that it would not be practical to hold such tests.
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Applying the doctrine of res judicata

Applying the doctrine of res judicata 

2014 NY Slip Op 02005, Appellate Division, Second Department

When the employee [Plaintiff] filed a lawsuit alleging that he had been the victim of unlawful discrimination, Supreme Court dismiss the complaint on the ground that the action was barred by the doctrine of res judicata.*

The Appellate Division affirmed the Supreme Court’s ruling.

Plaintiff was served with disciplinary pursuant to Civil Service Law §75, alleging various types of work-related misconduct, and he was suspended for 30 days without pay. After a hearing, an administrative law judge upheld several of the charges and recommended that the plaintiff be suspended for a period of 30 days, to be satisfied by the prehearing suspension he had already served.

While the disciplinary charges were pending, Plaintiff commenced an action in the Supreme Court alleging defamation and intentional infliction of emotional distress. Supreme Court granted Plaintiff’s employer’s motion for summary judgment dismissing the complaint, which order was affirmed by the Appellate Division in Bayer v City of New York, 60 AD3d 713.

Plaintiff subsequently filed another action in Supreme Court, this time alleging age discrimination and the creation of a hostile work environment in violation of Executive Law §296. Supreme Court granted Plaintiff’s employer’s motion to dismiss the complaint in the instant action on the ground that the action was barred by the doctrine of res judicata.

Explaining that "Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding."

Further, said the court, "The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims," citing Pondview Corp. v Blatt, 95 AD3d 980.

The test applied to determine if an action is ripe for application of the doctrine of res judicata is a pragmatic one, involving an analysis of how the facts are related as to time, space, origin or motivation, whether they form a convenient trial unit and whether treating them as a unit conforms to the parties' expectations or business understanding. Further, to apply the doctrine there must have been a final judgment on the merits in the prior proceeding.

Finding that Plaintiff’s causes of action arose out of the same transaction or series of transactions as those raised in the initial action. Further, said the court, as Plaintiff commenced his second action, during the pendency of the first action, all of the causes of action asserted here could have been raised in the initial action.

The bottom line: The Appellate Division held that notwithstanding the fact that the causes of action and legal theories alleged in this action are different from those alleged in the initial action, and some of the defendants are different, the Supreme Court properly granted the employer's motion to dismiss the complaint on the ground that the instant action was barred by the Doctrine of res judicata.

* Applying the Doctrine of Res Judicata bars a claim that has either been litigated or that could have been litigated from being litigated again.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02005.htm
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State audits released by New York State Comptroller DiNapoli

State audits released by New York State Comptroller DiNapoli

Click on text highlighted in color to access the full report

On April 17, 2014, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

New York City Department of Environmental Conservation: Controls Over Computers (Follow-Up) (2013-F-27)
An initial audit report, issued in January 2012, found that the department did not place enough priority on ensuring that computer assets were properly controlled and appropriately used. Auditors concluded that these weak management practices increased the risk that equipment may be misappropriated, or used for personal use. In a follow-up, auditors found the department has made some progress in addressing the issues identified in the initial report, but additional improvements are still needed. Of the four prior recommendations, one has been implemented, two have been partially implemented, and one has not been implemented.

State Department of Health: Medicaid Payments for Medicare Part A Beneficiaries (Follow-Up) (2013-F-16)
An initial audit report issued in September 2010 identified $14 million in potential Medicaid overpayments for claims pertaining to 2,564 individuals enrolled in both Medicaid and Medicare. Auditors recommended the Department of Health (DOH) improve its detection of Medicare Part A coverage for Medicaid recipients and prevent improper payments. In a follow-up, auditors found DOH has made considerable progress in correcting the problems identified in the initial audit report. This included the recovery of approximately $22.6 million in Medicaid overpayments. Of the initial report’s four recommendations, three were implemented and one was not implemented.

State Department of Health, Medicaid Program: Improper Payments for Ancillary Services Provided During Hospital Inpatient Admissions (2012-S-160)
Ancillary services refer to health care services provided in the home, medical offices, clinics, and other freestanding sites. Medicaid claims for ancillary services are processed by eMedNY, DOH's automated claims processing and management information system. Claims are subject to various edits – automated controls within eMedNY – designed to pay Medicaid claims in accordance with Medicaid reimbursement policies. During the audit period, eMedNY identified 9,821 improper ancillary service claims totaling about $1 million that were paid and reported to DOH officials. However, at the time of audit fieldwork, DOH had not taken actions to recover these improper payments. In addition, Medicaid paid $368,000 for about 6,600 improper ancillary service claims for recipients who were also covered by Medicare.

Office of Mental Health, New York Psychiatric Center: Controls Over State Resources (Follow-Up) (2013-F-22)
The New York State Psychiatric Institute, established in 1895, is one of two clinical research facilities administered by the Office of Mental Health. The institute conducts clinical trials and research studies relating to the treatment of mental illness. An initial audit report, issued in January 2011, found institute management had not always provided adequate control over state resources. Auditors found insufficient controls to ensure institute employees performed state work commensurate with their pay, and the institute was not taking steps to ensure it was receiving fair compensation for use of its facilities by Columbia University. In a follow-up, auditors found institute officials have made some progress in addressing the issues identified in the initial report, but additional improvements are needed. Of the seven prior recommendations, one has been implemented and six have been partially implemented.

State Department of Transportation: Oversight of Grants (Follow-up) (2013-F-29)
An initial report, issued in July 2011, examined the Department of Transportation’s (DOT) oversight of grant activity. Auditors found that the monitoring performed by the Freight and Passenger Rail Bureau and the Aviation Bureau could be improved with more effective analysis of available data, and through more effective communication and information sharing within the DOT and with other state agencies that also provide grant funding. In a follow-up, auditors found DOT has made progress in correcting the problems identified in the initial report. Of the eight prior audit recommendations, three recommendations have been implemented and five recommendations have been partially implemented. DOT is awaiting implementation of a new statewide grants management system, scheduled for April 2014, which it believes will address several of the remaining issues. 
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Terminated noncompetitive class employee having less than five years of service entitled to back pay and benefits under the terms of a collective bargaining agreement

Terminated noncompetitive class employee having less than five years of service entitled to back pay and benefits under the terms of a collective bargaining agreement

2014 NY Slip Op 02061, Appellate Division, Second Department

The Board of Education adopted the recommendation of a Civil Service Law §75 hearing officer finding the employee [Petitioner] guilty of misconduct and terminating her employment as a teacher's aid without back pay and employment benefits.

Petitioner initiated an Article 78 action challenging the Board’s decision in which she claimed, among other things, that she was entitled to certain back pay and employment benefits.

The Appellate Division held that Supreme Court had properly granted that branch of the Petitioner’s claim that sought an award of back pay and employment benefits.

The court explained that while Petitioner had less than the five years of continuous service which would ordinarily be required for her to be entitled to the protections of Civil Service Law §75,* the collective bargaining agreement between the School District and Petitioner's union extended the protections afforded by Civil Service Law §75 to noncompetitive class employees who had three years of service.

The court held that “as the Supreme Court determined,” once the arbitrator found that Petitioner satisfied the tenure requirements under the collective bargaining agreement, she was entitled to the protections of Civil Service Law §75, including back pay and benefits for any period of suspension in excess of 30 days, up to the date of the disciplinary determination by the appointing authority terminating her employment.

* See Civil Service Law §75[1][c]), which provides, in pertinent part, that an employee “holding a position in the non-competitive class … who since his [or her] last entry into service has completed at least five years of continuous service in the non-competitive class ….” is covered by the provisions of §75.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02061.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Statute providing for a “presumption” that a disabling condition was incurred in the performance of duty to be read narrowly

Statute providing for a “presumption” that a disabling condition was incurred in the performance of duty to be read narrowly

Anonymous v Kelly, 2014 NY Slip Op 02141, Appellate Division, First Department

Rejection of Anonymous’ application for accidental disability retirement benefits was affirmed by Appellate Division, vacating a ruling by Supreme Court remanding the matter to the Retirement System’s Board of Trustees.

The court said that Supreme Court “incorrectly found that [Anonymous] was entitled to the presumption of General Municipal Law §207-p, thereby improperly shifting the burden of proof as to causation to the employer.

General Municipal Law §207-p provides, in pertinent part, that "any paid member of a . . . police department . . . who successfully passed a physical examination upon entry into the service of such department who contracts HIV [parenthetical omitted], tuberculosis or hepatitis, will be presumed to have contracted such disease as a natural or proximate result of an accidental injury received in the performance and discharge of his or her duties . . ., unless the contrary be provided by competent evidence."

Although Anonymous did not suffer from any of the three diseases named in the statute, Supreme Court found that his "illness was the type that the 207-p presumption was intended to cover."

However, said the Appellate Division, “the plain language of the statute makes it clear that the presumption is only applicable to the three named diseases.” Accordingly, said the court, it was Anonymous' burden to prove that his condition was caused by an accidental line-of-duty injury, not the employer’s burden to demonstrate that his condition was not caused by an accidental line-of-duty injury.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02141.htm

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

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Official misconduct

Official misconduct

OATH Index Nos. 1679/13, 1680/13, 1681/13

Two job center directors and a deputy director were charged with improperly transferring cases from other job centers in order to increase their own center’s job placement statistics.

The employees admitted that they participated in the scheme but that they did so under pressure of meeting agency-wide goals. OATH Administrative Law Judge John B. Spooner found that the employees had violated agency rules.

Judge Spooner denied the employees’ motion to dismiss a portion of the charges as time-barred, finding respondents’ conduct fell within the crimes exception to the 18-month limitations period in §75 of the Civil Service Law, i.e, the employees had committed the crimes of official misconduct and computer tampering.

ALJ Spooner recommended dismissal of charges that respondents violated the Conflicts of Interest Law since there was no proof that they gained a private or personal advantage from the transfers.

As to the penalty to be imposed, the ALJ recommended termination of employees’ employment as their participation in the scheme for as long as three years “was an egregious violation of the trust placed in them as managers, as well as their fundamental responsibility as civil servants.”  

The decision is posted on the Internet at: 

http://archive.citylaw.org/oath/10_Cases/13-1679.pdf

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Former Lt. Gov. Ravitch to Address Fiscal Challenges Facing Local Governments

Former Lt. Gov. Ravitch to Address Fiscal Challenges Facing Local Governments

Former New York State Lieutenant Governor Richard Ravitch will deliver a talk on “The Fiscal Challenges Facing Local Governments” for the 2014 Edwin L. Crawford Memorial Lecture on Municipal Law, to be held at Albany Law School on Tuesday, April 22, 2014, at 4:00 p.m.

The event, hosted by the law school’s Government Law Center (GLC), will also include a book signing for Ravitch’s new book, So Much to Do: A Full Life of Business, Politics, and Confronting Fiscal Crises.

Ravitch, an attorney who served as the state’s 75th lieutenant governor from 2009 to 2010, has served as chair of the New York State Urban Development Corporation, HRH Construction Corporation, the Metropolitan Transportation Authority and Bowery Savings Bank. He has also served as co-chair of the Task Force on the State Budget Crisis, which analyzed the fiscal sustainability of six states, including New York.

The lecture is free and open to the public.

To register, or for more information, contact agunn@albanylaw.eduor telephone 518-445-2329.

The GLC established the Edwin L. Crawford Memorial Lecture on Municipal Law in 1996 to honor the memory of Edwin L. Crawford, former executive director of the New York State Association of Counties. The program strives to educate and promote dialog on important and timely issues affecting local governments.

The Crawford Lecture was originally endowed with a generous grant from Saratoga Associates. This year’s program is also being co-sponsored by the New York State Association of Counties, the Association of Towns of the State of New York, and the New York State Conference of Mayors.
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Employee’s purported unresponsive answers to interrogatories used as a defense in disciplinary action

Employee’s purported unresponsive answers to interrogatories used as a defense in disciplinary action

OATH Index No. 876/14

The employer moved to preclude the employee from offering a defense to disciplinary charges based upon employee’s purported unresponsive answers to interrogatories.

OATH Administrative Law Judge Faye Lewis denied the employer’s motion explaining that interrogatories are an extraordinary discovery device, permissible only upon application for good cause shown.*

Under OATH’s rules of practice, the failure to comply with a discovery order may result in sanctions, including preclusion of evidence. Here, however, Judge Lewis found that the employee did not fail to comply with a discovery order. Rather, said the ALJ, the employee voluntarily answered the interrogatories, albeit not to employer’s satisfaction.

* Although Civil Service Law Section §75 does not provide for discovery in connection with a disciplinary hearing, Education Law §3020-a provides for demanding a “bill of particulars”. A contract disciplinary procedure negotiated pursuant to the Taylor Law may provide for “discovery.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/14-876md.pdf
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Nonresident attorney's right to practice law in New York State

Nonresident attorney's right to practice law in New York State

Schoenefeld v. State of New York, et al., USCA, 11-4283-cv

The U.S. District Court, Northern District of New York, held that Section 470 of the Judiciary Law, which requires nonresident attorneys to maintain an “office for the transaction of law business” within the state of New York in order to practice in New York courts, places an impermissible burden on Ms. Schoenefeld’s fundamental right to practice law and that the state “failed to establish either a substantial state interest advanced by [the statute], or a substantial relationship between the statute and that interest” [Schoenefeld v. New York, 907 F. Supp. 2d 252, (N.D.N.Y. 2011)].

The State appealed and the U.S. Circuit Court of Appeals, Second Circuit, certified the following question to the State’s Court of Appeals:

Under New York Judiciary Law Section 470, which mandates that a nonresident attorney maintain an "office for the transaction of law business" within the state of New York, what are the minimum requirements necessary to satisfy that mandate?

The Circuit panel retained jurisdiction to decide the case “once we have the benefit of the views of the New York Court of Appeals or once that court declines to accept certification."

The Second Circuit Court’s ruling is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/7ad54af4-96b8-488a-b70c-22bc07f8de82/7/doc/11-4283_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/7ad54af4-96b8-488a-b70c-22bc07f8de82/7/hilite/
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Perceived disability

Perceived disability
Widomski v. Orange County Community College*
Source: Justica Daily Summaries- Education

Plaintiff filed suit against OCCC, alleging claims of discrimination on the basis of a "perceived disability" and retaliation in violation of Title II of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq.

The district court concluded that plaintiff, who was enrolled in OCCC's medical Laboratory Technology program, failed to establish that OCCC perceived his shaking hands to substantially limit a major life activity, and granted the motion for summary judgment in favor of OCCC as to the ADA discrimination claim.

The district court also granted summary judgment in favor of OCCC on the retaliation claim because plaintiff had not presented any evidence that OCCC's good faith belief that plaintiff had falsified documents was a legitimate, non-discriminatory reason for the disciplinary referral.

The court concluded that plaintiff failed to demonstrate that OCCC perceived him as having an impairment that substantially limited a major life activity; plaintiff failed to demonstrate that OCCC's explanation for its decision to bring disciplinary proceedings against him was pretext for retaliation; and plaintiff's remaining arguments were without merit.

Accordingly, the court affirmed the judgment of the district court.

* USCA, 2^nd Circuit. The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5e9e16b6-b8c0-43c6-b8d8-4adfffde611b/6/doc/13-1367_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5e9e16b6-b8c0-43c6-b8d8-4adfffde611b/6/hilite/
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