News Archive: 7/1/05 - 12/31/05
12/15/05 - The Governor’s Office of Employee Relations (GOER) has issued a memorandum concerning State policy in the event of a strike by the New York City Transport Workers Union (TWU). A State Supreme Court judge issued a preliminary injunction on Tuesday against the TWU prohibiting workers from striking. Nevertheless, in the event of a strike and, as stated (in part) in the GOER memorandum: “Employees are expected to make whatever arrangements may be necessary for timely arrival at designated work stations. Appointing authorities may excuse tardiness without charge to leave credits where it is established that such tardiness was unavoidable or necessitated by emergency conditions. Each case must be considered on its own merits. Agencies may not excuse tardiness in anticipation of its occurrence. Absences, even though unavoidable, may not be excused. They must be charged to annual leave, personal leave, or other appropriate leave credits.” The memorandum also advises that appointing authorities may consider adjusting work schedules and directing employees to alternate work locations in certain circumstances.
12/7/05 - The Director of the Budget has issued Budget Bulletin D-1117, Retroactive Payment of 2003-04 Performance Advances for Managerial and Confidential (M/C) Employees. The bulletin, dated 12/6/05, authorizes payment of retroactive performance advances and other adjustments resulting from settlement of our lawsuit with the Governor's Office and Division of the Budget. (Click here to link to the bulletin.) As we indicated in our previous posting (below), the Comptroller’s Office expects that payments will be made in mid to late March 2006. Once specific pay dates are set, we will post them here.
12/5/05 - We have received a letter from Comptroller Hevesi (Click here to Read—requires Acrobat Reader™) advising us of the steps his Bureau of Payroll Services is taking in preparation for the payment of retroactive performance advances and other adjustments arising out of our lawsuit settlement with the Governor's Office and Division of the Budget. According to the Comptroller, an estimated 6,000 M/C employees are eligible for some level of retroactive salary adjustment. While many of these adjustments will be able to be processed automatically, an estimated 40% will require manual calculation. Based on current estimates of the remaining work involved, the Comptroller’s Office expects that payments will be made in mid to late March 2006. As soon as specific pay dates have been set, the Comptroller will notify us (projected for the end of December) and we, in turn, will notify you. Also, we expect that the Budget Bulletin authorizing payments will be available shortly. When it is, we will post a link to it.
11/21/05 - We have received many inquiries about when payments will be made arising out of settlement of the performance advances withholding lawsuit. Our discussions with the Governor's Office, Budget Division and Comptroller’s Office continue on a regular basis and, while we do not have a date when payments will begin, we can report that a lot of work has been accomplished by the Governor's Office, Budget Division and Comptroller's Office toward implementation of the settlement. The task is monumental and involves time-consuming, individual identification and calculation by the agencies and Comptroller's Bureau of Payroll Services. We estimate that thousands of active and retired M/Cs will be affected. But, settlement of the lawsuit is a fact and payments will follow. We will provide updates as soon as specific information is available.
11/17/05 - Active Employees-choose your health insurance plan option for 2006 by December 16, 2005. (No action is required if you wish to keep your current plan.) Information on plan choices and rates for 2006 is available from your agency/facility health benefits administrator or online at the Department of Civil Service Employee Benefits Division website. (Click here and select Choosing a Health Plan?) Retirees may change their health insurance option at any time, once every twelve months.
11/7/05 - Vacation exchange payments for M/C employees who elected to participate in the 2005 M/C Vacation Exchange Program will be made in a separate check dated November 23, 2005 for employees on the Institution payroll and November 30, 2005 for Administration payroll employees. The payment, which will be for up to 5 days vacation depending upon the number elected, is based on the salary in effect on October 1, 2005. For retirees and others who left their M/C position before October 1, the payment will be based upon the last salary they were earning at the time. The Vacation Exchange payment is taxable, but not pensionable.
11/3/05 - Enrollment in the 2006 Productivity Enhancement Program (PEP) began on October 1 and ends on November 25, 2005. The PEP program gives M/C employees in salary grades 17 and below the opportunity to exchange up to 3 days of their vacation and/or personal leave accruals in the calendar year in return for a credit of up to $400 toward the cost of their bi-weekly NYS health insurance premiums. To participate, eligible employees must have a minimum combined vacation/personal leave balance of at least 8 days (4 days, if part-time) remaining after forfeiture of the accruals. For information and an enrollment application: contact your agency personnel office. Online: click here for information, click here for an enrollment application.
11/3/05 - The 2006 Flex Spending Account enrollment period is nearing an end. Employees wishing to save on dependent care and non-reimbursed health care expenses have until midnight November 10, 2005 to apply. Click here for information and online enrollment.
11/1/05 - The State has decided not to request permission to appeal to the Court of Appeals in the Gilligan v. Stone lawsuit (performance advance withholding). We are engaged in discussions with the Governor's Office, Division of the Budget and State Comptroller's Office on the implementation plan and processing and payment schedule. We cannot provide specific information yet, as there are many details to be worked out. We do not yet know what the payment dates will be. We will keep you advised as the information becomes available.
9/30/05 - The State has until November 5 to file a motion directly with the Court of Appeals seeking permission to appeal.
9/28/05 - Gilligan v. Stone. The Appellate Division, by unanimous decision, has denied the State's motion for permission to appeal to the Court of Appeals in the Performance Advance lawsuit. The State has the option to request permission to appeal directly from the Court of Appeals. We will continue to post updated information.
9/15/05 - New York State reimburses its employees who travel based on the mileage allowance established by the Internal Revenue Service. By adhering to this allowance, reimbursements for mileage are not taxable to the employee. The Office of State Comptroller has issued a revision to its Travel Guidelines, noting that the IRS has made a special adjustment to the mileage rate for the final four months of 2005. Effective September 1, 2005, the rate will increase to 48.5 cents a mile for all business miles driven between September 1 and December 31, 2005.
9/2/05 - Our attorneys filed an affidavit with the Appellate Division yesterday opposing the State's motion for leave to appeal to the Court of Appeals. We have received a number of questions as to when a decision on the State's appeal motion can be expected. Our attorneys tell us that, although the court is under no time constraints as far as a decision on the motion is concerned, they expect the court will respond in a timely manner. They caution us, however, that there is still another level of appeal available. That is, if the Appellate Division denies the State's motion, the State can next petition the Court of Appeals directly for leave to appeal--a not-at-all unlikely possibility, unfortunately. We will continue to post updates here as additional information becomes available.
8/23/05 - The Attorney General filed a motion with the Appellate Division today, seeking leave to appeal to the Court of Appeals. Our attorneys are preparing papers, opposing the State's motion, for submission before the statutory return date (9/6/05). In its filing, the State contends that "the Court's decision is incorrect and, in view of its potential fiscal impact on the State, warrants review by the Court of Appeals." We disagree totally. We will post updates here as additional information becomes available.
7/28/05 - The September 2005 retiree cost-of-living adjustment (COLA) has been announced. The 2005 adjustment will be 0.60 percent, for a maximum annual increase of $288, or $24 per month. Payments are set at 50% of the cost-of-living index, calculated on the first $18,000 of retirement benefits or on the actual amount if less. The 2005 figure is based on a 3.15 percent rate of inflation for the period March 2004 – March 2005, rounded up to the nearest one-tenth of one percent. Further information is available on the Comptroller’s website: http://www.osc.state.ny.us/retire/retirees/permcola.htm
7/22/05 - Our attorneys served the Attorney General’s Office with a copy of the Appellate Division’s July 14, 2005 order and notice of entry on July 19. According to the CPLR (Civil Practice Law and Rules), the State will have until August 23 to move for permission to appeal. If the State does decide to seek permission to appeal, a stay of enforcement will be in effect while the motion is being considered. We do not yet have any information as to what the State plans to do. We will post updates here as additional information becomes available.
7/14/05 - Today, the Appellate
Division issued a unanimous decision in the State’s appeal of the December 2003
judgment we won in State Supreme Court directing the Budget Director to restore
the performance advances and merit awards that she had withheld from all M/C
employees in 2003. The Appellate Division panel ruled that the Budget Director
has the authority to suspend merit awards and to withhold individual advance
payments for performance reasons, but exceeded the withholding authority granted
her in the 2000 M/C pay bill (Laws of 2000, Chapter 68, Part B, Section 17.a)
when she directed the withholding of all performance advance payments in 2003.
In its decision, the panel stated that, under the Civil Service statute cited in
our lawsuit (CS Law Section 131.6), the Budget Director “has the authority to
promulgate rules and regulations to withhold employee performance advances for
various reasons, such as individual job performance, and even to determine or
limit the amount of such payments, but at no point is it indicated in that
statute or the M/C paybill that these payments could be abolished for any
reason, including the state’s fiscal condition.” The panel went on to state
that, inasmuch as the Budget Director had “no authority to create a rule out of
harmony with the statute,” she “exceeded her authority by withholding all
performance advancement payments.”
We do not know if the State will appeal. Since there is no right to an appeal in
a case like this when a decision is unanimous, the State will need the court’s
permission to file an appeal. It has 30 days to file a request with the Court of
Appeals. We are conferring with our attorneys on appropriate “next steps” and
will provide additional information as soon as it is available.
The full text of the appeal decision (Case No. 95375, Matter of Gilligan v Stone) is
available on the Appellate Division website at the following address:
http://decisions.courts.state.ny.us/ad3/Decisions/2005/95375.pdf
Background: On December 23, 2003, State Supreme Court Judge Thomas J. Spargo ruled in OMCE's lawsuit (Gilligan v Stone) that the Budget Director exceeded her authority in terminating the 2003 M/C performance advance and merit pay programs. He annulled her actions taken in Budget Bulletin D-1108 as "arbitrary and capricious and in excess of the Legislature's delegation of authority." He directed the Budget Director to implement the applicable provisions of the Civil Service Law (CSL) retroactive to April 1, 2003, thereby restoring the statutory performance advances provided for in CSL Section 131.6.c and reinstating the M/C merit pay program (CSL Section 130.8.b and Chapter 732 of the Laws of 1988, Section 13.3.a, as amended by Chapter 68 of the Laws of 2000, Section 9). As a result of this decision, performance advances will be payable retroactive to April 1, 2003 to eligible M/C employees who hold a position allocated to a salary grade in the competitive or non-competitive class and whose salary is below the job rate of their grade. With restoration of the merit pay program, all M/C employees irrespective of grade level or jurisdictional class will be eligible to be considered for a merit payment. On January 15, 2004, the State filed a notice of appeal, thereby placing a stay on implementation of the court decision until the appeals process is exhausted.