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Saturday, May 23, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 23, 2015



Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending  May 23, 2015
Click on text highlighted in color  to access the full report


Embezzlement by Former Justice Court Clerk results in incarceration, repayment of $117,120

An audit investigation by State Comptroller Thomas P. DiNapoli results in the incarceration of a former town Justice Court clerk. The audit uncovered the embezzlement of $117,120 by Mary Jo Guyette, former Town of Potsdam Justice Court Clerk. The Comptroller’s audit report is posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2014/potsdamjc.pdf.

Guyette, 44, was sentenced to six months in jail, five years probation and ordered to pay $117,120 in restitution following her January guilty plea to grand larceny in the third degree and falsifying business records in the first degree, both felonies. Guyette admitted to altering court records so she could pocket the public funds from 2009 to 2013. Since the thefts, town officials have taken several steps to improve the court’s financial oversight. 
 
DiNapoli thanked District Attorney Mary Rain and the New York State Police for their work on this case.

According to DiNapoli’s audit, Guyette recorded receipts for $115,045 in the Justice Court’s computerized database, but failed to send the money to the town, include the payments in monthly municipal reports or notify the state Justice Court Fund of the income.  Auditors also identified a cash shortage of more than $2,000.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and fraud against the state’s retirement system and encourages the public to help fight fraud and abuse.

New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

 

Audits of political subdivisions of the State:

Town of Cohocton:

The town had a cash shortage of $38,136 in the clerk’s office: $29,322 from the tax collection account and $8,814 in clerk fees. Auditors identified numerous questionable deposits that were made into the tax account and may have been made by the clerk in an attempt to conceal the shortage in tax collections. The clerk was arrested in 2014, pled guilty to grand larceny and was sentenced to four months in jail and five years of probation and paid $36,000 restitution to the town. 


City of Yonkers:

The city’s proposed budget for the school district has a budget gap of $25.8 million. In addition, the city has appropriated $37.5 million, or approximately 52 percent of the available fund balance, in its general fund in the 2015-16 proposed budget. The city’s use of fund balance to close gaps in the budget decreases the fund balance that is available to cover unforeseen shortfalls in revenue or unexpected expenditures. The city will also have to increase rates for metered water and sewer rents by 31 percent and 50 percent, respectively, to realize additional amounts included in the proposed budget. The city’s proposed budget complies with the property tax levy limit.
http://www.osc.state.ny.us/localgov/audits/cities/2015/yonkers_br.pdf


Parkland Alienation

Auditors examined how municipalities complied with state laws when conveying parkland to a non-public entity or using public parkland for another purpose. Several municipalities did not comply with all of the statutory requirements, including one municipality that has not used the proceeds from its parkland alienation transaction to acquire new parkland or make capital improvements as required. Several others did not take steps to determine fair market value of the parklands alienated or replacement parcels.
http://www.osc.state.ny.us/localgov/audits/swr/2015/parkland/global.pdf


Mental health provider PSCH, Inc

Mental health provider PSCH, Inc. charged $152,680 in unsubstantiated or unallowable costs to the state Office of Mental Health (OMH) including alcohol and a sunset cruise at a conference at the Montauk Yacht Club Resort and Marina, and more than $22,000 for a staff picnic,

PSCH had a five-year, nearly $30 million contract with OMH to provide services and housing to persons with mental disabilities and substance abuse. The provider claimed $152,680 in costs that could not be substantiated or are not allowable under the contract, DiNapoli found. That included $31,908 for directors and executive staff to attend a two-day conference at the Montauk Yacht Club Resort and $22,901 for a staff picnic.  While at the resort, PSCH charged $10,723 for alcohol, $5,064 for extra guests, $13,378 for post-conference lodging and $2,743 for a sunset cruise, tips and gifts. PSCH also charged nearly $98,000 for other duplicate, unsubstantiated or inappropriate charges.  

In response to the Comptroller’s report and recommendations, OMH officials agreed to recover program overpayments where appropriate and ensure that PSCH staff receives training to recognize unallowable costs such as alcohol and entertainment.


Also released: eleven letter reports to the following municipalities:

Town of Amherst

Town of Clifton Park

Town of East Greenbush

Town of East Hampton

Town of North Hempstead

Town of Orangetown

County of  Onondaga

County of  Nassau

Village of Port Jefferson
             
Village of Round Lake

City of  Rensselaer

Friday, May 22, 2015

Designating an individual an “independent contractor” rather than an “employee” does not control the relationship of that individual to the employing entity



Designating an individual an “independent contractor” rather than an “employee” does not control the relationship of that individual to the employing entity
125 AD3d 1223

The Unemployment Insurance Appeal Board, ruled, among other things, that the New York State Office of Court Administration [OCA] is liable for unemployment insurance contributions on remuneration paid to a claimant [Worker] for unemployment insurance benefits.

While awaiting notification that her name was reachable on the eligible list for appointment to the position of “interpreter,” Worker was told she could submit an application to be put on OCA's registry of voucher paid interpreters from which interpreters are selected on an "as-needed basis."*

According to the decision, for years Worker received only sporadic assignments until in December 2009, she commenced working in the Bronx Family Court where she continued to work every day until March 2012. When Worker applied for unemployment insurance benefits, the Department of Labor found her to be an employee of OCA and, as such, found OCA liable for contributions on remuneration paid to Worker and others “similarly situated.” OCA objected on the ground that claimant was an independent contractor.

After a hearing, an Administrative Law Judge upheld the Department's initial determination. The Unemployment Insurance Appeal Board affirmed the Administrative Law Judge's decision.

OCA appealed the Board’s determination contending that the Board had:

1. Ignored the essential independence of per diem interpreters:

2. Relied on minor factors to find the existence of an employer-employee relationship; and

3. By its decision, the Board interfered with OCA's “constitutional mission to deliver services in a responsible and cost-effective manner and failed to defer to the judgment of the Chief Administrative Judge in assessing the operational needs of the Unified Court System.”

The Appellate Division said the existence of an employer-employee relationship "is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence." The court said that it found that substantial evidence supported the Board's decision that OCA exercised sufficient supervision, direction and control over Worker to establish an employer-employee relationship. However the court decline to extend this holding to others "similarly situated."

Further, the court found that the Board's decision “did not improperly interfere with the powers or duties of the Chief Administrative Judge in assessing the operational needs of the Unified Court System.” The Appellate Division explained that although the powers of the Chief Administrative Judge may be extraordinarily broad, his or her authority "does not exempt compliance with the Unemployment Insurance Law" and contrary to OCA's contention, the Board's decision does not impinge on any aspect of the functional or structural independence of the Judiciary.

Another argument advanced by OCA was that the Board had ignored its prior precedent in determining that Worker was an employee rather than an independent contractor. The Appellate Division said that the "prior determination" relied on by OCA was not made by the Board but by a reviewing examiner for the Department of Labor and, as such, the Board is not bound by it.

The Appellate Division modified the Supreme Court’s decision by reversing so much of the ruling that found that all persons “similarly situated” to Worker to be OCA employees and, as so modified, affirmed the lower court’s decision.

This suggests that where an employer contends that an applicant for unemployment insurance benefits is an independent contractor and not an employee, the Board must make a "case by case" evaluation of the applicant's eligibility for benefits and, further, make an assessment of any liability for employer unemployment insurance contributions on a case by case basis as well.

As to distinguishing between an employee and an independent contractor, the 20 factors being used by the IRS for this purpose 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 decision notes that in 2012 OCA employed approximately 300 staff interpreters and maintained a registry of 700 per diem interpreters.

The decision is posted on the Internet at:

Thursday, May 21, 2015

The court will sustain an administrative determination if the administrative body’s interpretation of the controlling statute is reasonable and the underlying factual findings are supported by substantial evidence


The court will sustain an administrative determination if the administrative body’s interpretation of the controlling statute is reasonable and the underlying factual findings are supported by substantial evidence
2015 NY Slip Op 519303, Appellate Division, Third Department

Supreme Court dismissed the petitioner's [Retiree] application seeking a review of a determination of State Comptroller denying Retireer's application for “incentive service retirement.”

On November 18, 2010, Retiree applied for the retirement incentive offered temporarily to certain public employees but the New York State and Local Employees' Retirement System [ERS] denied the application as untimely. ERS said that as Retiree's retirement would not become effective until after the open period for the incentive had passed.

The Appellate Division sustained the Supreme Court’s determination, noting that the controlling statute, in relevant part, provided that, "[f]or the purposes of retirement pursuant to this act, a service retirement application must be filed with the appropriate retirement system not less than [14] days prior to the effective date of retirement to become effective."*

Retiree’s employer Petitioner had adopted an open period for applications for the incentive from August 27, 2010 to November 24, 2010.

Following a hearing, the Hearing Officer upheld the denial of Retiree’s application and the Comptroller adopted that determination. In affirming Supreme Court’s holding sustaining the Comptroller’s decision the Appellate Division said "The Comptroller has exclusive authority to determine all applications for retirement benefits and the determination must be upheld if the interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence."

Here, said the court, the Comptroller interpreted the phrase "that is effective during the open period" to refer to an applicant's retirement. Accordingly, inasmuch as an application for the incentive must be filed not less than 14 days prior to an applicant's retirement date, the Comptroller determined that an application had to have been filed by November 11, 2010 for a retirement to be effective during the open period.

Although Retiree contended that the phrase refers to the application and not the retirement date, the Appellate Division said that it found “no error in Supreme Court's analysis, which deferred to the Comptroller's interpretation on the ground that it was based upon "his specialized knowledge and utilization of underlying operational practices."

As the court could not conclude that the Comptroller's interpretation was "irrational, unreasonable or inconsistent with the governing statute," it said that it would not be disturbed.

* Laws of 2010, Chapter 105,  Part B, §1 [h], in pertinent part, provides “For the purposes of retirement pursuant to this act, a service retirement application must be filed with the appropriate retirement system not less than fourteen days prior to the effective date of retirement to become effective, unless a shorter period of time is permitted under law.”

Further, Paragraphs 5 and 6 of the fiscal note submitted with the Bill appear to require the individual to:

 5. File an application for Service Retirement that is effective during the Open Period, and

 6. File written notification with the employer of the member on or before the 21st day prior to the end of the Open Period.

The decision is posted on the Internet at:

Inability to Work With a Particular Supervisor is Not a Disability

Inability to Work With a Particular Supervisor is Not a Disability
Generally, an employee who suffers from anxiety / stress depression as a result of working for a particular supervisor is not entitled to having a different manager as a reasonable accommodation to that disability.

Read more at: https://casetext.com/links/2ww9mkb0somr24pftydgba707




Probationary employee has the burden of showing his or her termination was made in bad faith or for an unlawful reason



Probationary employee has the burden of showing his or her termination was made in bad faith or for an unlawful reason 
2015 NY Slip Op 02220, Appellate Division, First Department

The Appellate Division sustained a Supreme Court’s dismissal of a probationary employee’s [Probationer] “motion to renew,” explaining that the lower court “properly determined that there was no basis to annul [the appointing authority’s determination to discontinue Probationer’s employment as an assistant principal

Probationer, said the court, failed to show that the appointing authority’s determination, upon reinvestigation and reconsideration, was made in bad faith, in violation of lawful procedure, or for a constitutionally impermissible purpose.

The decision is posted on the Internet at:

Wednesday, May 20, 2015

The State Constitution’s prohibition of gifts of public funds is not necessarily applicable in situations involving labor-management relations between public employees and public employers under the Taylor Law



The State Constitution’s prohibition of gifts of public funds is not necessarily applicable in situations involving labor-management relations between public employees and public employers under the Taylor Law
2015 NY Slip Op 03837, Appellate Division, Second Department

Introducing its decision in this appeal with the statement "Judicial review of an arbitrator's award is extremely limited," the Appellate Division explained that "A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a heavy burden, and must establish a ground for vacatur by clear and convincing evidence."*

In this action, Nassau County, the Appellant, asked Supreme Court to vacate an adverse arbitration award on the grounds that the award was against public policy. Supreme Court denied the County's motion and confirmed the arbitrator’s decision against the County, sustaining the arbitrator's award of $27,049.20 against Nassau.

The Appellate Division subsequently rejected the County’s appeal of the Supreme Court's ruling.

The court said that an arbitration award violates public policy “only where a court can conclude, without engaging in any extended fact-finding or legal analysis, that a law prohibits the particular matters to be decided by arbitration, or where the award itself violates a well-defined constitutional, statutory, or common law of this state," citing Reddy v Schaffer, 123 AD3d 935.

Addressing Nassau County's argument that the payment of public funds as damages for its breach of a contractual obligation under a collective bargaining agreement was prohibited by Article VIII, §1, of the New York State Constitution,** the Appellate Division rejected the County’s theory, citing Gagliardo v Dinkins, 89 NY2d 62.

In Gagliardo the Court of Appeals said “the constitutional prohibition on gifts of public funds is not necessarily subject to statutory definitions of terms or conditions of employment for purposes of governing labor-management relations between civil service employees and public or governmental employers under the Taylor Law.”

Finally, the Appellate Division found that the challenged arbitration award did not exceed a specifically enumerated limitation on the arbitrator's power, rejecting Nassau County’s argument to the contrary.

Accordingly, said the Appellate Division, Supreme Court properly denied the County’s petition to vacate the arbitration award and properly confirmed the award, entering judgment against Nassau in the principal sum of $27,049.20.

* Essentially, an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeded his or her power; or (4) the failure to follow the procedures of CPLR Article 75. In addition, an arbitration award may be vacated pursuant to CPLR §7511(b)(1)(iii) where "an arbitrator . . . exceeded his or her power," which includes those circumstances in which the award "violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

** Article VIII, 1, prohibits, in pertinent part, the making of a gift of public monies.

The decision is posted on the Internet at:

Tuesday, May 19, 2015

A claim that an employee organization has breached its duty of fair representation must be timely raised by the aggrieved individual



A claim that an employee organization has breached its duty of fair representation must be timely raised by the aggrieved individual
2015 NY Slip Op 03810, Appellate Division, Second Department

An employee organization’s duty of fair representation is the legal duty requiring the employee organization to represent every employee in the negotiating unit in good faith,  regardless of whether the employee is a member of the employee organization or not.

In Cox v Subway Surface Supervisors Association, et al., 69 AD3d 438, the Appellate Division noted that [1] the individual must be in the negotiating unit represented by the employee organization’s when the alleged breach of the employee organization’s duty of fair representation is alleged to have occurred;* and [2] the fact that the individual disagrees with the employee organization’s action or negotiating position does not, without more, constitute proof of the employee organization’s failure of its duty of fair representation.

In any event, a claim that the employee organization had breached its duty of fair representation must be timely filed.

In this action an arbitrator confirmed the decision to terminate the plaintiff's [Plaintiff] employment on October 10, 2008. The employee organization allegedly notified the Plaintiff or about on October 10, 2008 that it would not appeal the arbitrator's determination. 

Supreme Court found that the employee organization had demonstrated that the Plaintiff did not commence this action until 2010, significantly more than four months after Plaintiff’s claim for the alleged breach of the duty of fair representation accrued. Accordingly, Supreme Court dismissed Plaintiff’s petition as time-barred.

The Appellate Division affirmed the lower court’s determination, explaining that the employee organization had met its prima facie burden by establishing that the cause of action alleging that it breached its duty of fair representation was untimely and that  Plaintiff had failed to raise a triable issue of fact. 

Citing Guggenheimer v Ginzburg, 43 NY2d 268, the court further ruled that Supreme Court had  also properly granted that branch of the employee organization’s motion to dismiss Plaintiff’s amended complaint seeking to recover damages for discrimination "for failure to state a cause of action pursuant to CPLR 3211(a)(7)."

* To the same end, in Burnham and UFT, 28 PERB 4590, PERB ruled that the union's "duty of fair representation" runs only to employees; there is no such duty with respect to former unit members such as retirees. However, in Baker v Irondequoit CSD, 70 NY2d 314, the Court of Appeals held that a union's duty to process a former employee's grievance, under some circumstances, survives the employee's separation.

The decision is posted on the Internet at:


Monday, May 18, 2015

The Doctrine of Equitable Estoppel will not be applied where the individual had sufficient knowledge to bring a timely action



The Doctrine of Equitable Estoppel will not be applied where the individual had sufficient knowledge to bring a timely action
2015 NY Slip Op 04050, Appellate Division, First Department

Supreme Court dismissed the employee’s petition [Petitioner] seeking to annul the appointing authority’s termination of her employment as untimely.The Appellate Division affirmed the lower court’s ruling explaining that the appointing authority had made its “final determination” on March 7, 2011 and Petitioner had not made her demand for arbitration until after the expiration of the four-month statute of limitations.

The court cited Joseph Francese, Inc. v Enlarged City School Dist. of Troy, 95 NY2d 59. In Francese the Court of Appeals ruled that where the individual served a demand for arbitration within the applicable statute of limitations, the running of the Statute of Limitations is tolled.

The relevant statute, CPLR 204 (b), provides that “Where it shall have been determined that a party is not obligated to submit a claim to arbitration, the time which elapsed between the demand for arbitration and the final determination that there is no obligation to arbitrate is not a part of the time within which an action upon such claim must be commenced.”  

In addition Petitioner had contended that the doctrine of equitable estoppel should be applied to toll the period between Petitioner's termination and her demand for arbitration.

The Appellate Division disagreed, noting that the record indicated that Petitioner “knew or should have known of the proper mechanisms to challenge the appointing authority’s decision before the expiration of the statute of limitations.” As the Court of Appeals held in Zumpano v Quinn, 6 NY3d 666, “equitable estoppel did not apply where the plaintiff had sufficient knowledge to bring a timely action.”

The decision is posted on the Internet at:

Saturday, May 16, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 16, 2015



Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending May 16, 2015
Click on text highlighted in color to access the full report


Comptroller Di Napoli releases municipal audit reports for:

Carthage-West Carthage Water Pollution Control Facility
Both the clerk-treasurer and her deputy were able to perform all cash disbursement functions and have full access rights to record financial transactions in the accounting system with no oversight. Facility officials did not review bank reconciliations and bank statements and a comparison of canceled check images and online payments with approved abstracts.
http://www.osc.state.ny.us/localgov/audits/jointacts/2015/carthagewestcarthage.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

City of Long Beach
The significant revenue and expenditure projections in the proposed budget appear reasonable. The proposed budget, however, includes revenue related to the sale of real property and federal aid which may not be realized. In addition, appropriations for overtime may not be sufficient. Finally, metered water sales and sewer rents include a 2 percent rate increase which has not yet been adopted by the city council. The city’s proposed budget complies with the property tax levy limit. 
http://www.osc.state.ny.us/localgov/audits/cities/2015/longbeach_br.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release
 
Oneida Public Library District
The board did not audit each claim before payment or provide oversight of disbursements related to the district’s line of credit, payroll or petty cash. Additionally, no district official reviewed the processed payroll reports before disbursing payroll checks.
http://www.osc.state.ny.us/localgov/audits/libraries/2015/oneida.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

Village of Quogue
The justices did not ensure that court moneys were accounted for. The court did not properly prepare bank reconciliations or prepare an accountability analysis, resulting in excess funds in bail and fee accounts which could not be accounted for.
http://www.osc.state.ny.us/localgov/audits/villages/2015/quoguejc.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

and the

Shelby Volunteer Fire Company
The board does not ensure that all financial activity is properly recorded and reported and that money is properly accounted for. In addition, between April and November 2013, the fire company paid $10,714 to a vendor that was owned by the company president. 
 http://www.osc.state.ny.us/localgov/audits/firedists/2015/shelby.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release 


Comptroller and Attorney General report former Executive Director of a nonprofit organization sentenced
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman jointly announced that David Cohen, former executive director of the Metropolitan Council on Jewish Poverty (Met Council), has been sentenced to one year in jail. Cohen has also paid $650,000 in restitution to the Met Council. The joint investigation revealed that Cohen, together with former Met Council CEO William Rapfogel and other co-conspirators, stole approximately $9 million from the taxpayer-funded nonprofit organization as part of a 20-year grand larceny and kickback scheme. Cohen personally stole approximately $650,000 from the Met Council.
http://www.osc.state.ny.us/press/releases/may15/051115.htm?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051115release 

Audit of Empire State Development Corporation reveals advertising contract produced few “tangible results”
The Empire State Development Corporation (ESDC) spent $211 million on an advertising contract to promote economic development and tourism in New York state with no tangible results, according to an audit released by State Comptroller Thomas P. DiNapoli.



Friday, May 15, 2015

Loss of the license or other certification required for the performance of the duties of the position typically results in the termination of the individual’s employment



Loss of the license or other certification required for the performance of the duties of the position typically results in the termination of the individual’s employment
2015 NY Slip Op 04182, Appellate Division, Third Department

Although the loss of the license or the certification required to perform the duties of the position typically results in the termination of the individual’s employment, the courts have held that a termination for inability to produce proof of possession of a required license, permit or certificate is not a dismissal in the nature of discipline.*

However, an individual dismissed because he or she is unable to produce the required credentials to lawfully perform the duties of his or her position may also suffer another consequences following his or her termination - the Unemployment Insurance Appeal Board may determine that the Claimant was disqualified from receiving unemployment insurance benefits because he or she had  voluntarily left his or her employment “without good cause.”

In this instance Claimant had been employed as a full time heavy equipment operator by a municipality's highway department for more than four years . One of the conditions of his employment was that he maintain a valid commercial driver's license (CDL).

In the course of a traffic stop, Claimant “refused to submit to a breathalyzer test” and his CDL was automatically suspended as a result.

Although there was some discussion about Claimant’s continuing to work for the highway department as a laborer on a part-time basis, this did not occur and Claimant was unable to return to his job as a heavy equipment operator as a result of his CDL being suspended.

Claimant then applied for unemployment insurance benefits. Although Claimant’s application for unemployment insurance benefits was initially denied, on appeal an Administrative Law Judge ruled that Claimant was allowed to receive benefits. The Unemployment Insurance Appeal Board [Board], however, subsequently reversed this decision, concluding that Claimant was disqualified from receiving benefits because he had provoked his discharge.

Claimant appealed but the Appellate Division sustained the Board’s ruling. 

Citing Matter of Ramirez [Commissioner of Labor], 84 AD3d 1656 and other decisions, the court explained that applicants for unemployment insurance benefits “who have undertaken voluntary actions that have resulted in the forfeiture of their valid CDLs, a necessary condition of employment,” have been held to have provoked their discharge thereby disqualifying them from receiving unemployment insurance benefits.**

Rejecting Claimant’s argument to the contrary, the Appellate Division said that the appointing authority “was not obligated to offer [Claimant] a part-time position as a laborer,” following his termination from his heavy equipment operator position, citing Matter of Ramirez [Commissioner of Labor], 84 AD3d at 1657.

* See, for example, Matter of Cravatta v New York State Dept. of Transp., 77 AD3d 1399; Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110.

** An applicant for unemployment insurance benefits who has left his or her position “without good cause” is typically held ineligible for such benefits. [See Hawkins v Commissioner of Labor, 71 AD3d 1215}.

The decision is posted on the Internet at:

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 http://booklocker.com/books/5215.html

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 http://booklocker.com/books/5216.html

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

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 http://booklocker.com/books/3916.html

Caution:

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