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Saturday, August 27, 2016

Selected reports issued by the Office of the State Comptroller during the week ending August 28, 2016

Selected reports issued by the Office of the State Comptroller during the week ending August 28, 2016
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

[Internet links highlighted in color]

City University of New York - Administration of Fellowship Leaves

Borough of Manhattan Community College - Controls over bank accounts

New York State Insurance Fund – Examination of outstanding premiums owed to the New York State Insurance Fund

Office of Information Technology Services - Effectiveness of the Information Technology Transformation

State Education Department - Oversight of School Fire Safety Compliance

State Education and Health Departments – Oversight of Student Immunization in Schools

$2.95 Million Settlement With Hospital Group For Improperly Delaying Repayment of Medicaid Funds

Preet Bharara, the United States Attorney for the Southern District of New York, Scott J. Lampert, Special Agent in Charge of the New York Field Office of the U.S. Department of Health and Human Services, Office of Inspector General, Eric Schneiderman, New York State Attorney General, and Thomas P. DiNapoli, the New York State Comptroller, announced a $2,950,000 settlement of a civil fraud lawsuit against Beth Israel Medical Center d/b/a Mount Sinai Beth Israel, St. Luke’s-Roosevelt Hospital Center d/b/a Mount Sinai St. Luke’s and Mount Sinai Roosevelt, and Continuum Health Partners, Inc. for willfully delaying repayment of over $ 800,000 in Medicaid overpayments. The settlement resolves claims under the federal False Claims Act and the New York State False Claims Act. The report is posted on the Internet at:

State Contract and Payment Actions for July 2016 

State Comptroller Thomas P. DiNapoli announced his office approved 1,462 contracts valued at $1.72 billion and approved more than 1.7 million payments worth nearly $6.3 billion in July. His office also rejected 167 contracts and related transactions valued at $370 million and 1,183 payments valued at more than $5.1 million due to fraud, waste or other improprieties. The report is posted on the Internet at:

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to, by filing a complaint online at or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Friday, August 26, 2016

Selected case summaries concerning public employee retirement benefit posted on the Internet by Justia

Selected case summaries concerning public employee retirement benefit posted on the Internet by Justia

Click on text highlighted in blue to access full decision

New retirement options offered eligible retirees benefit actuarially equivalent in value to the previous pension 
Lenander v. Dep't of Retirement Sys., Washington Supreme Court, Docket 92671-9;

In 2000, the Department of Retirement Systems (DRS) created a new option for eligible retirees in which the retiree could opt for a pension that would allow a surviving spouse to continue to receive monthly pension benefits at the same amount after the retiree's death. To make this pension actuarially equivalent in value to the previous pension, the DRS provided for a greater reduction in the retiree's monthly benefits.

In 2010, the DRS adopted rules that modified the degree of the actuarial reduction. Appellant Tim Lenander challenged the changes to the reduction, arguing that the changes violated the statutory scheme and impaired his contract right to a lower reduction in his pension payment.

The Supreme Court found Lenander's arguments unavailing, holding that the DRS acted within its authority in amending the survivor benefit actuarial reduction regulations as set forth under former WACs 415-02-380 (2010) and 415-103-215 (2010).

In amending these regulations, the DRS did not violate the contract clause of article I, section 23 of the Washington Constitution. Consequently, the Court held that the DRS did not infringe on Lenander's right to an "actuarial equivalent" survivor benefit, and that Lenander did not suffer substantial impairment to his pension contract rights.

Excluding specified items from the calculation of retirement income to avoid inflating income to increase the employee’s retirement allowance 
Marin Ass'n of Pub. Employees v. Marin Cnty. Employees Retirement Ass'n., California Court of Appeals, Docket A139610

To combat the practice known as “pension spiking,” by which public employees use various stratagems to inflate their income and retirement benefits, the County Employees Retirement Law, was amended, effective 2013, to exclude specified items from the calculation of retirement income. The trial court concluded application of the new formula to current employees did not amount to an unconstitutional impairment of the employees’ contracts. The court of appeal affirmed, holding that the Legislature did not act impermissibly by amending Government Code section 31461.

While a public employee does have a “vested right” to a pension, that right is only to a “reasonable” pension; it is not an immutable entitlement to the most optimal formula of calculating the pension.

The Legislature may, prior to the employee’s retirement, alter the formula, thereby reducing the anticipated pension, as long as the modifications do not deprive the employee of a “reasonable” pension. The Legislature did not forbid the employer from providing the specified items to an employee as compensation, only the purely prospective inclusion of those items in the computation of the employee’s pension.

The ADA and Internet compliance

The ADA and Internet compliance
Source: United States Department of Justice

Although courts are still in the process of determining if the Americans with Disabilities Act [ADA] applies to material posted on the Internet, the United States Department of Justice (DOJ) has made it clear that it interprets the ADA as applicable to websites.

Many municipalities and school districts have taken the initiative and are making its website “user friendly” for individuals with disabilities and the World Wide Web Consortium, an international developer for open standards for the Web, advocates making websites usable by the disabled even if regulations are still in the drafting stage.

Websites should be accessible to disabled users through features permitting easier navigation and that interface with available assistive technologies such as not limiting access time for activities, oral communication to trigger program functions and appropriate controls for all operations.

It is expected that public entities will soon be required to make certain that its electronic publications are ADA compliant. Advocates for the disable believe that the sooner municipality and school district websites are accessible to the disabled the better.

The Department of Justice has posted information addressing such compliance with the ADA on the Internet at

Thursday, August 25, 2016

Hearing officer considers failed efforts at “progressive discipline” in setting disciplinary penalty

Hearing officer considers failed efforts at “progressive discipline” in setting disciplinary penalty
OATH Index No. 1721/16

The New York City Human Resources Administration (HRA) served disciplinary charges against Carey Bryant, a clerical associate, alleging Bryant was guilty of being late to work excessively, several instances of discourtesy, threatening and disruptive conduct, and making a false statement in a supervisory conference.

OATH Administrative Law Judge ALJ Noel A. Garcia held that HRA proved that Bryant was late on 53 occasions, had engaged in discourteous conduct on three occasions, was disruptive during a training class, and made a false statement during a supervisory conference.

Judge Garcia, however, found that HRA failed to prove its allegations that Bryant had engaged in other instances of discourteous conduct. The ALJ explained that HRA did not provide any corroboration to support the statements it alleged Bryant had made nor did not specify Bryant’s words or actions it alleged were discourtesy or threatening.

The ALJ requested and received Bryant’s personnel history.* The record indicated Bryant had been served with disciplinary charges on a number of occasions resulting, respectively in [1] a 5-day suspension without pay for using obscene and abusive language directed towards a supervisor; [2] a 10-day suspension  without pay for using “obscene and abusive language, oral threats and discourteous conduct; [3] a 45-day suspension without pay for using abusive language, discourteous conduct, making oral threats, insubordination, and failing to comply with time and leave regulations; and, ultimately, [4] a 60-day suspension without pay for using obscene or abusive language, making oral threats, and discourteous conduct.

Judge Garcia found that Bryant had repeatedly engaged in discourteous, threatening and unprofessional conduct. Despite accepting longer and longer suspensions for such behavior, Bryant conduct did not improve. Further, said the ALJ, “Even when [Bryant] admitted at trial to making statements that undermined his superiors, or to making inappropriate comments regarding potential workplace violence, [Bryant] never took any responsibility for any of his actions, or expressed any regret.

According, due to Bryant’s poor disciplinary history and his continued unwillingness to follow agency rules or behave in a professional manner, Judge Garcia recommended Bryant’s termination from his position as the appropriate penalty for his misconduct.

* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if [1] the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and [2] the employee is given an opportunity to submit a written response to any material he or she deemed “adverse” contained in the record or an opportunity to offer “mitigating circumstances.”

The decision is posted on the Internet at:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on

Wednesday, August 24, 2016

Determining “continuous residency” for the purpose of qualifying for public office or employment

Determining “continuous residency” for the purpose of qualifying for public office or employment
Glickman v Laffin, 2016 NY Slip Op 05842, Court of Appeals

Candidates seeking election to the New York State Senate must meet the five-year New York State residency requirement and the one-year Senate District residency requirement as set out in Article III, §7 of the New York State Constitution. In addition, such candidates must meet the provisions of Election Law §1-104 in which the term "residence" is defined as "that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return.”*

The Court of Appeals said the primary issue presented by this appeal as whether Steven Glickman, a candidate for the office of State Senator, satisfies the State Constitution's five-year residency requirement that candidates for legislative office are required to satisfy.

In view of Glickman's 2014 registration to vote in Washington, D.C., the court said that his Washington, D.C. registration to vote in that jurisdiction “precludes him, as a matter of law, from establishing continuous residency in New York within the meaning of the Constitution” at this time.

The court explained that residency is typically a factual question and depends on the intent of the individual. As was held in Matter of Ferguson v McNab, 60 NY2d 598, the crucial element for electoral residency purposes “is that the individual must manifest an intent, coupled with physical presence ….” Further, said the court, “according to the record of the 1938 Constitutional Convention, the intent behind the residency requirement was to “ensur[e] that legislative representatives have contemporaneous familiarity and involvement with the issues facing the state and the community they represent.’”

The Court of Appeals the observed that although a person is permitted to have more than one residence, he or she is not permitted to have more than one electoral residence. As Washington, D.C. law provides, in part, that an individual “who attests that he or she ‘[h]as maintained a residence in the District for at least 30 days preceding the next election and does not claim voting residence or right to vote in any state or territory’” is a “qualified elector.’”

Accordingly, when Glickman registered to vote in Washington, D.C., he was required to attest that Washington, D.C. was his sole electoral residence and that he did not maintain voting residence in any other state. In the words of the Court of Appeals, “[t]hese factors clearly demonstrate that Glickman broke the chain of New York electoral residency which did not recommence until he registered to vote in New York in 2015.

Thus, concluded the Court of Appeals, Glickman cannot claim continuous New York residency for the past five years as required by the State Constitution.

* This definition demonstrates that the distinction between an individual’s “residence or residences” and that individual’s “domicile.” Frequently the term residence is used when domicile would be the accurate descriptive term. Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have but one domicile at a given time, regardless of he or she actually is living at such domicile, until the individual designates another place as his or her domicile [see Matter of Newcomb, 192 NY 238 at 250 (1908)]. "It is the fixed and permanent home of the elector from which the Constitution, as well as the Election Law, contemplates that the elector shall register and vote." As the court indicated in Weiss v Teachout, 120 AD3d 701, as used in the Election Law, and presumably in the State Constitution, the term ‘residence' is being used to denote an individual's legal status that is more accurately described as his or her “domicile."

The decision is posted on the Internet at:

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

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on:

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on


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