Although an administrator may have certain powers to administer a statute, he or she lacks authority to supplement or amend duly enacted legislation

Although an administrator may have certain powers to administer a statute, he or she lacks authority to supplement or amend duly enacted legislation

Hazan v WTC Volunteer Fund, 2014 NY Slip Op 04103, Appellate Division, Third Department

A former emergency medical technician [EMT] went to World Trade Center site to offer assistance in the rescue and recovery efforts on September 11, 2001. He served as a volunteer at a triage center that was being established at the Chelsea Piers and sorting supplies and setting up a treatment area. The following day, EMT went to ground zero, using his emergency medical technician card and badge to gain access to the site and attempted to search for survivors. The EMT, however, was not registered or affiliated with any volunteer organization or agency during the course of these two days, and he did not aid in the rescue or recovery operations after September 12, 2001.

In March 2010, EMT registered his participation as a volunteer in the World Trade Center rescue, recovery and/or cleanup operations with the Workers' Compensation Board and filed this claim for workers' compensation benefits for injuries allegedly sustained as a result of his exposure to dust and toxins at the sites at which he served as a volunteer pursuant to Workers' Compensation Law Article 8-A. A Workers' Compensation Law Judge [WCLJ] found that EMT had sustained a compensable injury and awarded him certain benefits. The World Trade Center Volunteer Fund, however, sought review of the WCLJ's decision, contending that EMT t failed to meet the definition of "volunteer" because he did not provide proof that he was acting under the direction and control of a volunteer agency.

The Workers’ Compensation Appeal reversed the WCLJ's decision, finding that EMT did not meet the definition of "first response emergency services personnel" as set forth in the final revised Order of the Chair No. 967 issued by the Board's chair in 2006 and, thus he did not qualify as a volunteer. EMT appealed.

The Appellate Division overturned the Board’s determination in view of the legislative history of Article 8-A, several bills were circulated in the Legislature that defined a "volunteer rescue worker" as one who "rendered service under the direction and control of an authorized rescue entity." Significantly, said the court, r, such language is not included in Workers' Compensation Law Article 8-A, and "[t]he deletion of this explicit language from the version of [Workers' Compensation Law Article 8-A]; that finally passed is persuasive evidence that the Legislature rejected" the more restrictive definition of volunteer that originally was proposed.

Further, the Appellate Division said that to the extent that the Board has consistently relied upon the final revised Order of the Chair No. 9 in denying benefits to volunteers who were not affiliated with an authorized rescue entity or volunteer association, “we need note only that while Workers' Compensation Law §141 vests the Board's chair with certain powers to administer the provisions of the Workers' Compensation Law, it does not vest him or her with the authority to supplement or amend duly enacted legislation.”

Citing Russomanno v Leon Decorating Co., whatever the net effect of such orders may be, they "cannot overrule the statute itself," neither the statutory language nor the legislative history supports the Board's requirement that an individual be affiliated with an authorized rescue entity or volunteer agency in order to qualify as a volunteer and, hence, be eligible for the coverage afforded under the statute.

Accordingly, the Appellate Division held that the Board's decision denying EMTs application for benefits upon this particular ground cannot stand, although EMT must still satisfy the time, location and activity elements of Workers' Compensation Law Article 8-A in order to be entitled to benefits. The court then remitted the matter to the Board “for consideration of those issues and, more to the point, the sufficiency of claimant's proof thereon.”

Wrongfully obtaining and divulging confidential information from a department’s computer database

Wrongfully obtaining and divulging confidential information from a department’s computer database
2014 NY Slip Op 04421, Appellate Division, First Department

In this appeal the Appellate Division affirmed the termination of a police officer [Officer] but awarded the individual “back pay for the period in which he was suspended without pay beyond the 30 days permitted by Civil Service Law §75(3-a).”*

Following a disciplinary hearing, the hearing officer sustained three of the charges filed against Officer: that Officer wrongfully accessed and subsequently obtained confidential information from the agency's Computer System and which was not related to the official business of the Department; Officer did wrongfully divulge or discuss official Department business without permission or authority to do so; and that “with intent to obtain a benefit or deprive another of a benefit, ... [Officer] obtained confidential information” from the Computer System, which was not related to the official business of the Department and divulged said information to another police officer.

The Appellate Division rejected Officer’s argument that his actions did not constitute official misconduct because there is no evidence that he acted "with intent to obtain a benefit or deprive another person of a benefit" (see Penal Law §195.00[1]).

The court explained that the term “Benefit” means “any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary," citing Penal Law §10.00[17]. This "includes more than financial gain and can encompass political or other types of advantage."

Here, said the Appellate Division, it can be reasonably inferred that Officer intended to obtain a benefit for his fellow officer and friend within the meaning of the statute when he accessed confidential information in the computer system and confirmed for the friend the scope of the allegations of the complainant in the disciplinary investigation against him.

Under the circumstances, the Appellate Division held that “The penalty of termination is not so disproportionate to the offense as to be shocking to one's sense of fairness,” citing Kelly v Safir, 96 NY2d 32,

Officer, said the court, “betrayed his position of trust as [an individual] who was privy to very sensitive information, and breached his confidentiality agreement with the police department, which stated that the wrongful disclosure of information would not be tolerated by the department and that divulging or discussing official department business except as authorized, constituted prohibited conduct and might constitute official misconduct under Penal Law §195.00(1).

* The appointing authority conceded that Officer was entitled to back pay for the period of time for which he was suspended without pay in excess of 30 days.

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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 http://booklocker.com/books/7401.html

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Individuals applying for State Civil Service Examinations must use a new application form dated (6/14)

Individuals applying for State Civil Service Examinations must use a new application form dated (6/14)

Source: New York State Department of Civil Service General Information Bulletin No. 14-02

Scott DeFruscio, Director of Staffing Services, New York State Department of Civil Service has advised that the Department has revised its examination application, NYSAPP, to allow the Department to collect the necessary information to determine if disabled veterans are eligible for additional credits for subsequent open-competitive or promotion appointments, as provided for in an amendment to Article 5, §6 to the New York Constitution.

For more information on the amendment, see GIB #13-01.

Revisions have been made in the online application as well as the PDF version of the application available for candidate use from the Department’s web site. In addition, most special applications available to candidates from the Department’s web site have also been revised. It is anticipated that all special applications will be revised and reissued by the end of July 2014.

Agencies having any announced examinations requiring the use of a special application and need more specific information concerning the status of your agency’s special examination application, are requested to contact its Staffing Services Representative.

Candidates must use the new application dated (6/14) to apply for any future examinations. The Department requests that any copies of previous versions of State applications be destroyed and that agencies request a supply of new form using the information below.

Agencies requiring a supply of paper copies of Examination Applications should send an email to printshop@cs.ny.gov. Requesters should enter “Exam Application Order” in the subject line. The body of the email should include

:

1. The name of the person to whom the applications are to be sent;

2. The number of applications needed; and,

3. A mailing address where the applications should be sent.

The Department advises that when ordering copies of applications, agencies should allow three weeks for delivery.
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An administrative body may overrule its administrative precedent

An administrative body may overrule its own administrative precedent

2014 NY Slip Op 04550, Appellate Division, Third Department

In this appeal one of the issued concerned an administrative agency, the Workers’ Compensation Board, overruling its own precedent. The Appellate Division sustained the Board’s action, noting that in so doing:

1. The Board discussed its precedent at length and overruled it;

2. The Board was free to overrule its precedent given that it "set forth its reasons for doing so;" and

3. The Board had considered appropriate statutory and judicial authorities in concluding that its precedent should be overruled.

The Appellate Division said that the interpretation of the relevant Workers' Compensation Law presents a question "of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent" and thus it need not defer to the Board's reading of the statute. However, said the court, “We nevertheless agree with the Board's present interpretation thereof.”

Unemployment insurance claim filed by terminated employee may be denied on the basis of the findings of a disciplinary arbitrator under the doctrine of “collateral estoppel”

Unemployment insurance claim filed by terminated employee may be denied on the basis of the findings of a disciplinary arbitrator under the doctrine of “collateral estoppel”

2014 NY Slip Op 04546, Appellate Division, Third Department

An employee [Claimant] challenged his termination from his position in accordance with the disciplinary grievance procedure set out in the relevant collective bargaining agreement. After a full evidentiary arbitration hearing, at which Claimant was represented by counsel, the arbitrator determined that Claimant was guilty of the charges filed against him and that there was “just cause” for his dismissal from his position.

Claimant then applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board, adopting the arbitrator's findings of fact and denied Claimant's application for unemployment insurance benefits. The Board ruled that Claimant had lost his employment due to disqualifying misconduct within the meaning of the Unemployment Insurance Law.

Contending that the Board erred in giving “collateral estoppel effect" to the arbitrator's factual findings and that the Board's decision was not supported by substantial evidence, Claimant appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling explaining that where the record establishes that there was “a full and fair opportunity to litigate the issue of the conduct precipitating termination in an arbitration proceeding, the arbitrator's factual findings must be accorded collateral estoppel effect."

Here, said the court, a review of the record confirms that the Board properly took into account the arbitrator's factual findings regarding Claimant's conduct underlying the disciplinary charges filed against him and made an independent evaluation as to whether Claimant's behavior constituted “disqualifying misconduct” for the purposes of unemployment insurance.

Noting that the arbitrator had found Claimant guilty of fighting with a coworker – behavior that has been held to constitute “disqualifying misconduct” -- the Appellate Division said that substantial evidence supported the Board's finding that Claimant was disqualified from receiving unemployment insurance benefits under the circumstances and affirmed the Board’s decision.

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Disciplinary arbitration award remanded for reconsideration of the appropriate penalty to be imposed for a second time

Disciplinary arbitration award remanded for reconsideration of the appropriate penalty to be imposed for a second time

Social Services Employees Union v City of New York, 2014 NY Slip Op 04120, Appellate Division, First Department

In 2009 Supreme Court, New York County granted the Social Services Employees Union’s [Union] petition to confirm a disciplinary arbitration award that reinstated its member [Employee] to his former position and awarded him back pay and seniority.

The Appellate Division unanimously reversed the Supreme Court’s ruling, on the law, and remanded the matter to the arbitrator for a determination of an appropriate penalty * The Appellate Division explained that the arbitrator's "failure to give preclusive effect to Employee’s guilty plea of petit larceny" was irrational. The court noted that the arbitrator's award placed Employee back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility.

In reconsideration of the penalty to be imposed upon the remand, the arbitrator issued an arbitration award that directed Employee’s reinstatement “to a civil service position with certain limitations of responsibility, along with an award of full back pay, seniority and benefits.” Supreme Court granted the Union’s Article 75 petition to confirm this second arbitration award. The City appealed.

The Appellate Division again vacated Supreme Court’s action, holding that “The award issued upon remand by the arbitrator was irrational as it was not in accord with [its] directive that [the Union] member's criminal conviction mandated a finding of employee misconduct warranting a penalty.” Here, said the court, the reinstatement of Employee "to a civil service position with certain limitations of responsibility, along with an award of full back pay, seniority and benefits, effectively did not impose any penalty.”

The Appellate Division then remanded the matter to a different arbitrator for the purpose of setting an appropriate penalty, which, said the court, could be any penalty within the range of penalties available to the arbitrator to impose.

Judges Saxe and Freedman, dissented, indicating that, in their view, “the award was rational and complied with this Court's directions in its prior order in this matter.

In situations where an employee is charged with misconduct after he or she has been convicted of a crime involving the same unlawful action or activity, the accused individual may argue that "double jeopardy" bars his or her being subjected to administrative disciplinary action involving the same events that led to his or her conviction of a crime. 

Although the Double Jeopardy Clause in the Fifth Amendment to the U.S. Constitution prohibits anyone from being prosecuted twice for substantially the same crime and is typically raised as a "procedural defense" in a criminal proceeding, does not bar the filing administrative disciplinary charges against an individual against whom criminal charges have been filed involving the same event or events. 

Indeed, as the Appellate Division held in Kelly v Levin, 81 A.D.2d 1005, if an individual has been found guilty of criminal conduct in a criminal trial, a disciplinary hearing panel cannot find the individual not guilty of the same offense[s] in a subsequent administrative disciplinary action. 

Although an individual may be found not guilty of alleged criminal acts in a criminal action, he or she may be found guilty of such conduct in an administrative proceeding as there is a lesser standard of proof to be met in the case of an administrative action. In an administrative proceeding a person must be proved guilty of the acts or omissions alleged by "substantial evidence." In contrast, in a criminal trial "guilt beyond a reasonable doubt" must be proved by the charging party.

* See Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 A.D.3d 644

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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 http://booklocker.com/books/7401.html

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A school board must comply with its own rules and regulations, which have the force and effect of law

A school board must comply with its own rules and regulations, which have the force and effect of law

2014 NY Slip Op 05014, Appellate Division, Third Department

A former employee [Petitioner] of the school district filed a complaint with Board of Education alleging that the school superintendent, among others, had subjected her to unlawful discrimination and harassment. She further alleged that she was forced to retire from her position due to retaliation.

The Board, because the superintendent was allegedly involved in such unlawful activities, appointed independent counsel, MP, to investigate Petitioner's complaints. MP’s final report recommended that Petitioner’s complaint be dismissed. Petitioner then requested a copy of the full report and a hearing before the Board on her appeal challenging MP's findings. Her request for a hearing was refused and the Board only provided Petitioner with the three-page conclusion section of MP’s 73-page report

Petitioner initiated an Article 78 proceeding, seeking a court order compelling the Board to release MP’s full report to her pursuant to the Board's regulations and to hold an evidentiary hearing on her appeal of MP's findings.

Focusing on the issue concerning the releasing the full report, this aspect of Petitioner’s action was “in the nature of mandamus.”*  Such an action is initiated "to enforce a clear legal right where the public official has failed to perform a duty enjoined by law," and is available only "to compel a governmental entity or officer to perform a ministerial duty,”

Supreme Court had ruled that Petitioner had the right to a hearing before the Board and to a copy of the report, but directed the Board to submit the report for in camera** review by the court “given the confidential nature of the disclosures contained in it.” Supreme Court ultimately concluded that the report was "inappropriate for comprehensive redaction," and issued an order directing that only MP's truncated report be disclosed to Petitioner.

Petitioner appealed, contending that Supreme Court erred in failing to compel the Board to release MP’s full report to her in accordance with the Board's policies and regulations. The Appellate Division agreed, noting that the relevant Board regulations provided that "a written record of the investigation and any action taken will be established," and contemplates that the complainant would receive a copy of the complaint officer's [here MP’s] report. The court further noted that “it is well settled that absent a conflict with a statute, the rules and regulations promulgated by a board of education have the force of law and are binding upon it.”

Under the Board’s regulations Petitioner would have received both a copy of the complaint officer's report and all reports issued by the superintendent on either the investigation or the outcome of the proceeding. No report was issued by the superintendent, who in this instance was named as a respondent in Petitioner's complaint. Accordingly, MP prepared the written report of the investigation made at the Board’s request.

Although Petitioner argued that the Board regulations mandated full disclosure of MP's report, the Board contended that it correctly provided Petitioner with only the three-page conclusion section of MP’s 73-page report "because the regulation requires the release only of the superintendent's report."

The Appellate Division said that in its view, the Board's interpretation “is inconsistent with the language of the regulation, which is mandatory" and requires that both the complainant and those accused of wrongdoing "will have received at least one report pertaining to the investigation/outcome of the formal complaint prior to the Board holding a hearing on the matter.”

The court then observed that “Even assuming that [MP] was appointed to perform only the complaint officer's role — as opposed to the superintendent's role — in the adjudicatory structure set forth in the regulation, a complainant is entitled to a copy of the complaint officer's report under the regulation. Nevertheless, the Board failed to provide either [Petitioner] or this Court with a copy of the report.”

Supreme Court had concluded that the entirety of the report should not be released because it is "more or less a journal . . . full of conjecture and hearsay and all kinds of materials that were, maybe, proper for [MP] to consider in reaching her conclusions, but certainly didn't need to be put into that kind of report." The Appellate Division disagreed, stating that “The quality and style of the report, however, does not impact [Petitioner's] right to receive it under [the Board’s regulation].”

The bottom line: the Appellate Division ruled that “Under these circumstances, [Petitioner] has established both a clear legal right to relief and that the [Board’s] duty to disclose the report was nondiscretionary. Accordingly, [the Board] must be compelled to comply with the terms of [its regulation] and release the full [MP] report to [Petitioner]”

* The writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other ancient “common law” writs included the writ of prohibition -- issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority] used to challenge a person's right to hold a public or corporate office. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

** Latin for "in chambers." In this instance Supreme Court privately looks at MP’s report to determine what, if any, information may be revealed to a party or made public.
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If a preexisting dormant disease is aggravated by an accident, resulting in a disability that did not previously exist, the accident is responsible for the ensuing disability

If a preexisting dormant disease is aggravated by an accident, resulting in a disability that did not previously exist, the accident is responsible for the ensuing disability

2014 NY Slip Op 05007, Appellate Division, Third Department

A lieutenant with the Port Authority of New York and New Jersey [Lieutenant], applied for performance of duty and accidental disability retirement benefits in 2009, claiming that he was permanently incapacitated due to injuries to his back and right shoulder sustained as the result of a 2009 accident.

As to Lieutenant’s medical condition, his neurologist concluded that he suffered from a progressive narrowing of the spinal canal and, due to the 2009 accident, disc herniation was causing nerve root compression. In contrast, the Retirement Systems orthopedic surgeon concluded that the disc herniation and shoulder injury were degenerative in nature and caused by the early injuries and surgeries, rather than the 2009 accident, which had caused only a temporary exacerbation of Lieutenant's underlying arthritic condition.

The Hearing Officer recommended that Lieutenant 's applications be denied on the ground that he did not prove that his conceded disability resulted from the 2009 accident. Adopting the hearing officer’s findings and recommendation, the Comptroller denied Lieutenant’s application and he appealed.

The Appellate Division annulled the Comptroller’s determination, explaining that it has repeatedly held that "'when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability”

Although the Retirement System's expert speculated that Lieutenant had suffered a number of injuries prior to 2009, “It is undisputed that he returned to full duty” after those events and thereafter after he suffered an job-related injury in 2009.  As a result of the 2009 incident, in which Lieutenant suffered a torn rotator cuff in his right shoulder and pain in his right low back and right hip, he lost the ability to walk, and he never returned to work.

The Appellate Division noted that although Lieutenant’s previous injuries may have had resulted in some low level symptoms that he had learned to manage, there is no dispute that Lieutenant was not incapacitated prior to the 2009 incident. Although the System’s expert characterized the exacerbation of Lieutenant's underlying conditions after that point as temporary, he could not explain why Lieutenant's conceded disability had not resolved as of the date of the hearing, 3½ years after the accident.

Under these circumstances, said the court, the Comptroller's determination is not supported by substantial evidence and must be annulled.

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Employment opportunities for attorneys – New York City

Employment opportunities for attorneys – New York City

The  City of New York, has a number of positions for attorneys available.  Job Vacancy Notices are posted on the Internet at  https://a127-jobs.nyc.gov/jobsearch.html?category=LEG