A NYC police officer “not in service” on the effective date of his or her retirement or vesting of retirement benefits forfeits the pension portion of his or her retirement allowance

A NYC police officer “not in service” on the effective date of his or her retirement or vesting of retirement benefits forfeits the pension portion of his or her retirement allowance

2013 NY Slip Op 51252(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

The Administrative Code of the City of New York requires a member of the NYC Police Retirement System to "be in service" on the effective date of his or her retirement or vesting of retirement benefits in order to be eligible for a retirement allowance. If the employee is not "in service" on that date, he or she forfeits the pension portion his or her retirement allowance.*

In this Article 78 proceeding a New York City police officer [Officer] asked the court to annul the termination of his employment as a New York City Police Department [NYPD] Police Officer following a disciplinary hearing. Officer's disciplinary termination was effective prior to a final determination regarding his application for disability retirement by the NYC Police Pension System's Board of Trustees .

In 2009 NYPD filed disciplinary charges and specifications against Officer for allegedly receiving a bribe, a violation of Penal Law §200.10, in that in 2007 Officer had accepted $400 from an acquaintance in exchange for helping him recover a car which was in NYPD custody. In 2010, NYPD filed additional disciplinary charges against Officer for allegedly failing an integrity test conducted by the Internal Affairs Bureau [IAB] involving Officer’s alleged not having properly invoiced property and allegedly not having notified IAB of the possible misconduct of other police officers.

In October 2010, Officer, who had suffered a stroke and heart attack earlier that year, applied for disability retirement under the so-called Heart Bill.** NYPD's Medical Board approved Officer’s application. However, in February 2011, Officer agreed to defer the application and final determination by the NYC Police Retirement System's Board of Trustees until the resolution of the disciplinary charges then pending, or upon "the Police Commissioner's approval of either a Negotiated Settlement or the disposition pursuant to trial."

The disciplinary hearing was conducted in July 2011 and Officer was found guilty of soliciting and accepting a bribe, and based on petitioner's plea of guilty to failing the integrity test by failing to voucher property, failing to safeguard that property and other misconduct such as transmitting a radio signal with the intent to conceal from the NYPD the existence of the property, failing to report misconduct related to the taking of the property, attempting to cover up the improper handling of the property, and trying to cover up the incident by initially failing to provide accurate information about it at an official NYPD interview.

The hearing officer recommended that Officer be terminated from his position. The Commissioner of Police accepted the hearing officer’s findings and recommendation and terminated Officer from his position.

As Officer’s termination was prior to the effective date of his retirement, he became ineligible to receive pension portion of his retirement benefits. In ruling on Officer’s CPLR Article 78 petition, Supreme Court Judge Barbara Jaffee sustained the forfeiture of the pension portion of Officer's retirement allowance, commenting that this was “a risk he took by engaging in the misconduct at issue.”

In reviewing an administrative agency's determination as to whether it is arbitrary and capricious under CPLR Article 78, said the court, the test is whether the determination "is without sound basis in reason and . . . without regard to the facts.” Further, the determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record."

Here, given the charges and findings, which rest on the credibility determinations of the hearing officer, it cannot be said, as a matter of law, that respondents' decision to terminate petitioner's employment was arbitrary and capricious.

As to the penalty imposed, Judge Jaffeet, citing Matter of Pell, 34 NY2d at 222, said that the standard for reviewing a penalty imposed after a hearing is whether the punishment imposed "is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." 

Judge Jaffee noted that “NYPD may not terminate employee in order to prevent employee from collecting [a] disability pension, [the] pension may be denied as unintended consequence of [the] termination if [the] termination [was] made in good faith." However, the fact that Officer was terminated "after his application for disability retirement had been provisionally approved” by Medical Board did not show bad faith as Officer's disciplinary investigation was not completed until after Medical Board's determination and prior to any action being taken by the Retirement System's Board of Trustees.

Accordingly, Judge Jaffee denied Officer’s petition and dismissed the action.

* §13-240 of the New York City Administrative Code, which concerns the New York City Police Pension Fund, address the termination of membership or discontinuance of service. It provides, in pertinent part,  “Should a member discontinue city-service except by death or retirement, he or she shall be paid such part of the amount of the accumulated deductions standing to the credit of his or her individual account in the annuity savings fund as he or she shall demand.” Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804 [181 A.D.2d 412] decided with Barbaro v NYC Employees' Retirement System, [181 A.D.2d 437] addresses a similar situation involving members of the NYC Sanitation Workers' Retirement System.

** See General Municipal Law §207-k

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_51252.htm
. 

Appellate Division reconsiders the disciplinary penalty imposed on an employee after finding the employee would not lose pension rights

Appellate Division reconsiders the disciplinary penalty imposed on an employee after finding the employee would not lose pension rights
Kennedy v. Bennett, 26 AD3d 334; reconsidered and revised, 31 AD3d 764; motion for leave to appeal denied, 7 NY3d 718

Brian M. Kennedy was found guilty of two of the three charges of misconduct filed against him and dismissed him from the New York Division of State Police.

The Appellate Division decided that substantial evidence supported the hearing officer’s findings that Kennedy was guilty of two of the charges filed against him but that the penalty imposed by the appointing authority, dismissal, “was so disproportionate to the offenses as to be shocking to one's sense of fairness,” citing Matter of Pell v Board of Education of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

State Police filed a petition seeking “leave to appeal” this unanimous decision by the Appellate Division to the Court of Appeals or, in the alternative, approval to reargue the case before the Appellate Division.

The Appellate Division denied the Division of State Police’s request to appeal the ruling to the Court of Appeals but granted its motion to reargue the matter.

This time the court unanimously decided that “the penalty imposed by the [appointing authority] is not so disproportionate to the offenses as to be shocking to one's sense of fairness” as Kennedy, who had not yet achieved 20 years of service, “will not lose his pension as a result of this termination,” citing Retirement and Social Security Law Section 381-b[b][3].*

However, there are situations where the employee’s termination could result in a forfeiture of the individual’s retirement allowance.

For example, Section 13-173.1 of the Administrative Code of the City of New York requires an employee subject to its provisions to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.

The Court of Appeals addressed the impact of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System. Waldeck and Barbaro challenged the forfeiture of their retirement benefits on the ground that they had not been advised of the effective dates of their respective discharges from employment after being found guilty of disciplinary charges filed against them. Both Waldeck and Barbaro had been terminated prior to their intended dates of voluntary resignation. Did this meant that they could not vest their retirement benefits and thus those benefits would, in effect, be forfeited? In a word -- yes!

The Court of Appeals said that Section 13-173.1 of the Administrative Code contains no requirement that employees receive notice of their discharge from employment, nor does any other statutory source and thus the fact that neither Waldeck nor Barbaro were aware that they had been terminated prior to the effective date of their respective resignations "has no relevance to the effective date of termination from employment under Section 13-173.1."

According to the decision, “there is no legislative requirement for notice affecting the effective date of discharge for purposes of determining whether a pension has vested within the meaning of Section 13-173.1 of the Code.”

Castro v Safir, 291 AD2d 212, is another case in which one of the issues before the court concerned the forfeiture of a retirement allowance.

Castro was terminated from his position following his "second arrest." According to the decision, Castro was discharged after he had applied for ordinary disability retirement but before he was actually retired for disability. The Appellate Division ruled that Castro had forfeited his disability retirement allowance as he was discharged before he retired on ordinary disability, i.e., he was not in service on the effective date of his retirement.

* Retirement and Social Security Law Section 381-b[b][3] provides as follows: (3) Upon attainment of the mandatory retirement age without completion of twenty years of such service, each such member shall receive a pension which, together with an annuity for such years of service as provided in paragraph four of this subdivision, shall be equal to one-fortieth of his final average salary for each year of creditable service in such division. Every such member shall also be entitled to an additional pension equal to the pension for any creditable service rendered while not an employee of the division as provided under paragraphs three and four of subdivision a of section three hundred seventy-five of this article. This latter pension shall not increase the total allowance to more than one-half of his final average salary.
NYPPL

Additional member service credit in a public retirement system is not available to a retired public employee upon reemployment unless he or she discontinues receiving his or her retirement allowance

Additional member service credit in a public retirement system is not available to a retired public employee upon reemployment unless he or she discontinues receiving his or her retirement allowance

Regan v DiNapoli, 2016 NY Slip Op 00415, Appellate Division, Third Department

C. Murray Regan served as a teacher and, in that capacity, he was a member of the New York State Teachers' Retirement System [TRS] for over 30 years when, in January 1998, he simultaneously began to serve as an elected town supervisor. In this latter capacity, he was also a member of the New York Stateand Local Retirement System [ERS].

Regan was subsequently advised by a representative of ERS that he could retire from teaching and continue to accrue service credit in the ERS "[a]s long as [he] continue[d] as an elected official." Regan then retired from teaching in July 1998 and began collecting his retirement allowance from the TRS while continuing to receive his salary as a town supervisor.*

Regan was unsuccessful in his bid for reelection as town supervisor in 2001 and applied for ERS retirement benefits. ERS, however, denied his application, finding that he had not yet accrued the required minimum amount of service credit. In 2004, Regan regained elective office, this time as a village justice and served in that position for eight years during which period he received both his TRS retirement allowance and a village justice's salary. During this time period the ERS sent him annual updates indicating, among other things, that he was also accruing service credit.

Regan decided not to seek reelection to his position as a village justice for the term starting in 2012 and again applied to ERS for retirement benefits. Again, ERS rejected his application, this time explaining that he was ineligible for retirement benefits and its prior advice and updates had been erroneous because, upon acceptance of his position as an elected village justice in 2004, he had not suspended receipt of his TRS pension benefits. Accordingly, said ERS, he did not resume accruing service credit in ERS.**

After exhausting his administrative remedies in an unsuccessful attempt to overturn the denial of his application for additional ERS service credit, Regan nitiated and Article 78 proceeding only to have Supreme Court deny his request for additional service credit and dismiss his petition. Regan appealed the Supreme Court’s ruling to the Appellate Division.

Regan contended that Civil Service Law §150 permits him to receive both his TRS retirement allowance and his salary as an elected official while simultaneously accruing service credit toward an ERS retirement allowance. However, the Appellate Division said it could not agree based upon its review of the language of the statute and the legislative intent behind it.

The court explained that “As relevant here, Civil Service Law §150 generally prohibits receipt of both a public pension and a salary as a public official or employee, but also provides an exception for public pensioners who become elected officials — such as [Regan].”

Although the Appellate Division said that it agreed that this exception allowed Regan to receive a salary as an elected official without suspending his TRS retirement allowance, it noted that Civil Service Law §150 “makes no express mention of service credit” and, instead, refers only to pension benefits that have already been "awarded or allotted." 

Further, noted the court, the legislative history of the measure indicates that the original purpose behind the exception for public pensioners who subsequently become elected officials was to encourage continued civic engagement by "allow[ing] a retired public employee to seek elected public office and continue to receive his/her public pension benefits." Thus, said the court, in its view, “the statute allows public pensioners to continue receiving the benefits they have already earned while also serving in paid elective office, but it does not provide for the accrual of additional credit for new or greater pension benefits.”

Regan also advanced the argument that ERS should be “equitably estopped from denying him additional service credit because his career decisions were based, in part, upon incomplete advice and erroneous information provided by ERS employees regarding his ability to earn such credit.”

The Appellate Division rejected Regan theory of equitable estoppel, explaining that the doctrine of equitable estoppel generally cannot be invoked against a state agency unless “there has been a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reliance thereon.”

Noting that ERS “readily conceded that mistakes were made regarding the information provided to [Regan],” the court said it found no evidence in the record that any of those mistakes rise above the level of "erroneous advice [given] by a government employee[, which] does not constitute the type of unusual circumstance contemplated by the exception" to the doctrine.

* §150 of the Civil Service Law mandates the suspension of the “pension and annuity”  being paid to a retiree less than 70 years of age by a public retirement of this State except as otherwise permitted by §§101, 211, and 212 of the Retirement and Social Security Law, and by §503 of the Education Law, upon the employment of the retiree in “any office, position or employment in the civil service of the state or of any municipal corporation or political subdivision of the state to which any salary or emolument is attached, except jury duty or the office of inspector of election, poll clerk or ballot clerk under the election law, or the office of notary public or commissioner of deeds, or an elective public office.”

** The court noted that Retirement and Social Security Law §40(c)(9), provides that a retired public employee entitled to public pension benefits who subsequently accepts a new public service position is considered to be an active member of the retirement system only if the pension benefits to which he or she is entitled are suspended during his or her active membership.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00415.htm

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

Castro v Safir, 291 A.D.2d 212

An employee may elect to retire from his or her position when charges of incompetency or misconduct have been, or are about to be, filed against the individual.

4 NYCRR 5.3(b), which applies to officers and employees of the State as the employer in the Classified Service and employees of certain other public entities, provides, in pertinent part, that "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Many local civil service commission and county personnel officers have promulgated a local law, rule or regulation similar to 4 NYCRR 5.3(b).

In certain situations an individual who seeks to retire after he or she is terminated from his or her position as the result of being found guilty of disciplinary charges may find that he or she has forfeited the pension portion of his or her retirement allowance to which he or she may have otherwise been entitled.*

In Castro, the basic issue involved the result of his disciplinary termination from his position prior to the effective date of his retirement. If he had been lawfully so dismissed from the position, any pension benefits to which he would have otherwise been entitled would be forfeited pursuant to §13-173.1 of the New York City Administrative Code.**

Castro sued the Department contending that it had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had earlier found Castro eligible for ordinary disability retirement.***

The Appellate Division ruled that Castro had forfeited his pension benefits as he had been dismissed from his position for cause before he effective date of his retirement on ordinary disability and thus he was not in service on the effective date of his retirement, a ruling  consistent with the Court of Appeals' holding in its Waldeck and Barbaro rulings.

In Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System, the Court of Appeals said that §13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits.

Sometimes a disappointed retiree, as did Castro, alleges his or her termination constituted the employer acting in bad faith.

In Cipolla v Kelly 26 A.D.3d 171, the Appellate Division held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [that the individual’s] termination [from his or her position was made] in bad faith.”

* The decision in Blair v Horn, 2008 NY Slip Op 32581(U), not selected for publication in the Official Reports, suggests that a court could deem a retirement to be the equivalent of a resignation within the meaning of 4 NYCRR 5.3(b) [See  http://www.nycourts.gov/reporter/pdfs/2008/2008_32581.pdf].

** §13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her pension benefits.

*** According to the decision, Castro was terminated from his position after he had applied for ordinary disability retirement but before he was actually retired for disability.

The Castro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_00697.htm

Imposing the penalty of termination on an employee found guilty of misconduct following a disciplinary hearing overturned as "shocking to the conscience of the court"

A police officer was found guilty of misconduct after a disciplinary hearing. The Police Commissioner imposed the penalty of  dismissal. The Appellate Division modified the penalty imposed on the Petitioner by the Commissioner that resulted in the officer's termination and the forfeiture of his retirement benefits "on the law" and remanded the matter to the Commissioner "for determination of a lesser penalty."

Petitioner had admitted to the theft of $20 from an undercover officer illegally parked near a hydrant and acting intoxicated in the course of an integrity test* targeting Petitioner's partner. Evidence supported the finding that Petitioner also made false statements in the course of an official investigation in violation of the Police Department's Patrol Guide.

Although the Appellate Division concluded that there was no basis to disturb the credibility determinations of the Hearing Officer, it found that "under the circumstances presented here," the penalty of termination and forfeiture of [Petitioner's] pension "shocked the court's conscience and sense of fairness" and thus violated the so-called Pell Doctrine.**

The court opined that the question of whether a penalty is so disproportionate to the misconduct as to shock the conscience requires a case by case factual analysis and found mitigating factors that required it to vacate  the penalty of dismissal and the deprivation of Petitioner's right to his accrued pension. The Appellate Division characterized such a disciplinary penalty as an "affront to our sense of fairness" and "shock[s] the conscience" by the Appellate Division.

Considering mitigating factors, the majority of the court,*** conceding that Petitioner's conduct was "troubling," concluded that Petitioner's misconduct "was an aberration from his otherwise exemplary career," noting that Petitioner:

1. Had nearly twenty years of police service with the Police Department, prior to which he served in the United States Army for eight years where he was a sergeant in the military police, receiving an honorable discharge;

2. During his tenure with the Police Department, Petitioner had no formal disciplinary history, and received a total of 38 medals for "Excellent Police Duty" and "Meritorious Police Duty;" and

3. The loss of Petitioner's pension would work a financial hardship on his wife, who is diagnosed with cancer, and their now 10-year-old daughter.

* An integrity test places a police officer in a lifelike scenario to ascertain whether the officer would act in accordance with the law and Police Department policies.

** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, generally referred to as the "Pell Doctrine."  Essentially the Pell Doctrine instructs that any permissible disciplinary penalty may be imposed on an employee found guilty of one or more disciplinary charges and specifications by an appointing authority or arbitrator unless the court finds that, considering the circumstances underlying the disciplinary action, such a penalty is "shocking to one's sense of fairness."

*** Judges Richter and Kern dissented in part in a memorandum by Judge Richter, concluded that in view of Petitioner's "on-duty theft of money and his subsequent false statements, both of which are offenses involving moral turpitude, the penalty of termination is not so disproportionate to the offense as to shock one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06568.htm

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A Reasonable Disciplinary Penalty Under the Circumstances

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli’s office announced that the New York State Employees’ Retirement System is recalculating the pension of a former director at the state Department of Correctional Services (DOCS) after an investigation by his office found that he took Fridays off for 17 years at taxpayer expense.

Howard Dean, 66, of Locke, N.Y., pleaded guilty last year to second degree grand larceny and is awaiting sentencing by Oneida County Judge Barry Donalty. On Tuesday, Judge Donalty postponed Dean’s sentencing to May 10. The case is being prosecuted by Oneida County District Attorney Scott D. McNamara.

Meanwhile, the Comptroller’s office has cut Dean’s annual state retirement benefit by nearly $4,000 and is seeking recovery of $13,500 in pension payments made since his 2008 retirement, based on his admission that he was paid for 17 years of Fridays that he did not work.

“This recalculation and the prosecution sends a key message to any abuser entrusted with public funds: we will find you, we will hold you accountable and we will make you pay,” DiNapoli said. “My office will not tolerate abuses of the state pension system. When a person commits fraud which boosts their pension benefits, we will aggressively seek to cut their payments to account for their theft to the full extent of the law.”

DiNapoli is pushing proposed legislation to elevate official misconduct to a felony and force public officials to pay penalties of up to twice the amount gained by their crimes.

An investigation and audit by DiNapoli and the State’s Inspector General’s office found that Dean defrauded the state of nearly $500,000 in unearned salary and improper perks while serving as director of the DOCS Food Production Center in Rome, N.Y.

Dean freely admitted to auditors that he did not work Fridays for 17 years and the investigation concluded that he had the support of senior management in many of his improprieties. Since then, DOCS has indicated that it has improved internal controls and trained staff to identify fraud and abuse.

The State Comptroller encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud, corruption or abuse of taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint by mail complaint by writing to: Office of the State Comptroller, Investigations Unit, 14th Floor, 110 State St., Albany, NY 12236 or online by e-mail at investigations@osc.state.ny.us .

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 2, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 2, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Town clerk pleads guilty to attempting to increase her ERS retirement benefits 

On August 30, 2017, Springport Town Clerk Deborah Waldron pleaded guilty in Aurelius Town Court to official misconduct and attempted computer trespass, and agreed to resign for her attempts to boost her state retirement benefits by using a town computer, State Comptroller Thomas P. DiNapoli said. 

Waldron, 62, a 25-year town employee, was initially charged in May following an investigation by the Comptroller, New York State Police and the Cayuga County District Attorney’s office. Her actions were exposed during the Comptroller’s review of Springport’s monthly retirement reports. When DiNapoli’s office re-calculated her actual hours and benefits, it prevented Waldron from receiving extra money she did not earn. 

"This case is a warning to any public employee who falsifies retirement records: You are risking arrest and tarnishing your reputation," DiNapoli said. "I hope this case will deter others who attempt to defraud the New York State and Local Retirement System. I thank Cayuga County District Attorney Jon E. Budelmann for partnering with us to protect our retirement system." 

Since taking office in 2007, DiNapoli has committed to fighting public corruption 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. Review prior cases at http://www.osc.state.ny.us/investigations/index.htm.

Employer contributions on behalf of employees will decrease for the State's 2017-2018 fiscal year

Employer contribution rates for the New York State and Local Retirement System (NYSLRS) in State Fiscal Year 2018-19 will decrease from State Fiscal Year 2017-18, New York State Comptroller Thomas P. DiNapoli announced today.

The estimated average contribution rate for the Employees’ Retirement System (ERS) will decrease from 15.3 percent of payroll to 14.9 percent of payroll. The estimated average contribution rate for the Police and Fire Retirement System (PFRS) will decrease from 24.4 percent to 23.5 percent of payroll. 

"We’ve had strong recent investment returns that have helped keep rates stable," DiNapoli said. "Stable rates are very important to our employers and provide the predictability they need to plan for their future budgets. Prudent management helps keep New York State’s pension fund one of the strongest and best funded in the country and allows our public workforce to retire with security."

The investment rate of return was 11.48 percent as of March 31, 2017, the end of the fiscal year for the state pension fund.

Employer rates are determined based on actuarial assumptions recommended by the Retirement System’s Actuary and approved by DiNapoli. A copy of the Actuary’s report can be found here.

In 2015, the Actuary conducted a review of the Systems’ economic and demographic experience for the prior five years. The Actuary proposed assumptions and methods for the actuarial valuations, which were adopted by DiNapoli. Based on that report, DiNapoli lowered the assumed rate of return in 2015 from 7.5 percent to 7 percent. The median assumed rate of return among public pension funds is 7.5, according to a February 2017 brief issued by the National Association of State Retirement Administrators.

In 2012, DiNapoli began providing employers with access to a two-year projection of their annual pension bill six weeks earlier than in previous years. Employers use this projection for preparation of their local budgets.

Projections of required contributions vary by employer depending on factors such as retirement plans, salaries and the distribution of their employees among the six retirement tiers. 

There are more than 3,000 participating employers in ERS and PFRS, and 335 different plan combinations.

Payments based on the new rates are due by Feb. 1, 2019, but may be pre-paid by Dec. 15, 2018.

In April, the Pew Charitable Trusts public policy foundation ranked New York’s pension system as the third best funded retirement system among states.

Read the report, or go to: http://osc.state.ny.us/retire/word_and_pdf_documents/reports/actuarial_assumption/aa_2017.pdf.

See a chart of historical employer contribution rates, visit: http://osc.state.ny.us/pension/images/emplyr_contribution_rates.pdf.
 

Bipartisan Moreland Act Commission formed by Governor Cuomo to investigate public corruption

Bipartisan Moreland Act Commission formed by Governor Cuomo to investigate public corruption

Source: Office of the Governor

On July 2, 2013, Governor Andrew M. Cuomo announced the formation of the “Commission to Investigate Public Corruption” pursuant to the Moreland Act [Executive Law §6*] and Executive Law §63(8)** to probe systemic public corruption and the appearance of such corruption in state government, political campaigns and elections in New York State.

Attorney General Eric Schneiderman announced he will appoint the members of the Commission as Deputy Attorneys General,*** giving the Commission broad-based authority to investigate all matters that “involve public peace, public safety, and public justice.”

Under the Executive Order, the Commission will also have the power to subpoena and examine witnesses under oath as well as subpoena any necessary records. The Governor’s action follows several recent proven and alleged incidents of corruption and misconduct by public officials that have shown that current laws are inadequate and reforms are necessary to guard against abuses, ensure accountability in government, address the need for reform in our campaign finance laws, and restore the public’s confidence and trust in state government and state elections.

The Commission to Investigate Public Corruption will be tasked with thoroughly reviewing the adequacy of existing state laws, regulations and procedures involving unethical and unlawful misconduct by public officials, and the electoral process and campaign finance laws. The Commission will also examine whether existing laws have been fairly and vigorously enforced, and what changes must be made to such enforcement. During the Commission’s investigation, it will also review recent instances of reported misconduct by officials to determine causes and adequacy of laws and enforcement tools to more effectively prevent and punish this kind of misconduct in the future. The Commission is directed to make recommendations to toughen and improve existing laws and procedures.

Areas where the Commission will focus its investigation include but are not limited to:

*  Criminal statutes for corruption and misconduct by public officials, such as bribery laws

*  Campaign financing including but not limited to contribution limits and other restrictions; disclosure of third-party contributions and expenditures; and the effectiveness of existing campaign finance laws.

* Compliance of outside organizations and persons with existing lobbying laws, including but not limited to organizations engaged in lobbying and other efforts to influence public policies and elections, and the effectiveness of such laws.

* Adequacy and enforcement of the State’s election laws and electoral process including: the structure and composition of the State and County Boards of Elections, the Board of Elections’ enforcement, and the effectiveness of and compliance with existing election laws.

During its investigation, the Commission is mandated to promptly communicate any evidence of violations of existing law to the appropriate law enforcement agencies, including the Attorney General. In such cases, the State Police will make jurisdictional referrals to the Attorney General where appropriate.

The Commission will issue a preliminary report on its initial findings and recommendations by December 1, 2013.

The Commission’s Co-Chairs are Kathleen Rice, William J. Fitzpatrick, and Milton L. Williams, Jr.,

Ms. Rice became the Nassau County District Attorney in 2006. Rice served as an Assistant United States Attorney in Philadelphia. Rice began her career as a prosecutor in the Brooklyn District Attorney’s Office, where she prosecuted cases of domestic violence, sexual assault and armed robbery, and later, murder cases. D.A. Rice is a graduate of the Catholic University of America and Touro Law School.

Mr. Fitzpatrick has served as Onondaga County's District Attorney [D.A.] for the past 28 years. Prior to serving as D.A., he was a defense attorney. In 2007 D.A. Fitzpatrick was appointed as the New York State representative to the National District Attorney's Association, and he was elected Secretary in 2011. In 2010, New York State Chief Judge Jonathan Lippman appointed D.A. Fitzpatrick to the New York State Permanent Sentencing Commission. He is a graduate of Syracuse University and Syracuse University Law School.

Mr. Williams, Jr. is a partner in the law firm Vladeck, Waldman, Elias & Engelhard as a partner in January 2009. Prior to joining the firm, Mr. Williams was a Deputy General Counsel and the Chief Compliance Officer at Time Inc. Before working at Time, Mr. Williams was in private practice, and served as an Assistant United States Attorney in the Southern District of New York. Prior to becoming a federal prosecutor, Mr. Williams was an Assistant District Attorney in the New York County District Attorney’s Office. He is a graduate of Amherst College and the University of Michigan Law School in Ann Arbor.

The members of the Commission are J. Patrick Barrett, Richard Briffault, Daniel J. Castleman, Derek P. Champagne, Eric Corngold, Kathleen B. Hogan, Nancy Hoppock, Seymour W. James, Jr., David Javdan, Robert Johnson, David R. Jones, Lance Liebman, Joanne M. Mahoney, Gerald F. Mollen, Makau W. Mutua, Benito Romano, Frank A. Sedita III, P. David Soares, Kristy Sprague, Betty Weinberg Ellerin, Peter L. Zimroth,  and Thomas P. Zugibe.

The Commission’s staff includes Regina Calcaterra, Executive Director; Danya Perry, Chief of Investigations; Kelly Donovan, Chief Counsel; and John Amodeo, Legislative Director

Special advisors to the Commission include Joseph A. D'Amico, Superintendent of the New York State Police; Raymond W. Kelly, Police Commissioner of the City of New York; and Barbara Bartoletti, Legislative Director for the League of Women Voters of New York.

Robert M. Morgenthau, District Attorney for New York County from 1975 to 2009, will serve as Special Counsel to the Commission.

* §6 of the Executive Law provides that “The governor is authorized at any time, either in person or by one or more persons appointed by him for the purpose, to examine and investigate the management and affairs of any department, board, bureau or commission of the state. The governor and the persons so appointed by him are empowered to subpoena and enforce the attendance of witnesses, to administer oaths and examine witnesses under oath and to require the production of any books or papers deemed relevant or material. Whenever any person so appointed shall not be regularly in the service of the state his compensation for such services shall be fixed by the governor, and said compensation and all necessary expenses of such examinations and investigations shall be paid from the treasury out of any appropriations made for the purpose upon the order of the governor and the audit and warrant of the comptroller.

 “Notwithstanding any inconsistent provision of any general, special or local law, charter, administrative code or other statute, service rendered by a person appointed by the governor pursuant to this section shall not constitute or be deemed state service or re-entry into state service under the civil service law, the retirement and social security law or under any charter, administrative code, or other general, special or local law relating to a state or municipal retirement or pension system so as to suspend, impair or otherwise affect or interfere with the pension or retirement status, rights, privileges and benefits of such person under any such system or to interfere with the right of such person or his beneficiary to receive any pension or annuity benefits or death benefits by reason of the selection of any option under any such system.”

** §63 of the Executive Law sets out the general duties of the “attorney-general.”

*** All members of the Commission are attorneys licensed to practice in New York State as are a number of the members of the Special Advisers to the Commission and a numbers of those serving on the Commission's staff
.

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system
Battisti v City of New York, 2014 NY Slip Op 07065, Appellate Division, First Department

Anthony Battistiwas found guilty of misconduct after a disciplinary hearing and terminated from his employment with the New York City Police Department [NYPD]. He appealed NYPD’s determination and asked Supreme Court to [1] vacate the disciplinary action and [2] direct that NYPD “credit [him] with certain days withheld from the calculation of his service for pension purposes.”

Supreme Court transferred so much of Battisti’s petition that challenged the disciplinary determination to the Appellate Division and denied that part of Battisti’s petition that sought an order directing that he be credited with “certain days withheld from the calculation of his service for pension purposes.”

With respect to Battisti’s challenge to the disciplinary hearing proceeding, the Appellate Division held that “Substantial evidence supports the findings of the Assistant Deputy Commissioner for Trials that [Battisti] was guilty of the proffered charges,….”*

Addressing Battisti’s claims with respect his entitlement to member service credit in the retirement system, the court noted that in the course of the Battisti’ disciplinary action he was suspended without pay for a total of 99 days.

The initial 30-day suspension followed disciplinary charges that alleged that he had "knowingly associated with …. an individual reasonably believed to have engaged in criminal activity.” A second 69-day suspension without pay followed after the disciplinary charges were amended based on criminal charges filed against him as a result of an arrest in another jurisdiction.

Battisti argued that because Civil Service Law §75(3-a), as well as Administrative Code of City of NY §14-115, cap suspensions without pay of public employees awaiting hearing and determination of disciplinary charges at 30 days, he is entitled to be credited with 69 days of member service credit and thus is eligible for a retirement allowance based on his total member service.

NYPD’s answer on this point indicated that it had issued a check to Battisti reflecting its internal determination that he had been improperly suspended without pay for 39 days and was entitled to compensation for those days. This left just 60 days of suspension without pay. Further, said the Appellate Division, NYPD did not dispute the fact that all days for which a member of NYPD is paid are to be included in the calculation of time for purposes of all benefits, including pension.

The Appellate Division concluded that, assuming arguendo, that the NYPD properly suspended petitioner without pay for two 30-day periods based on distinct offenses resulting in 60 days of suspension without pay, based on NYPD's calculations it appears that Battisti had completed twenty years of creditable service as of the effective date of his termination.

Finding that NYPD had not set forth any legal basis for its subsequent internal determination to treat nine of the 39 days that had been credited to Battisti as suspensions without pay, notwithstanding the limit set by Civil Service Law §75(3-a), the Appellate Division ruled that “[a]bsent such explanation for excluding the nine days from the calculation of creditable service, the determination to deny [Battisti] a pension was arbitrary and capricious in that it was taken "without regard to the facts."

*The court said that Battisti’s“arguments concerning [a witness’s] credibility and motive to lie at the [disciplinary] hearing are beyond the review of this Court,” citing, Berenhaus v Ward, 70 NY2d 436.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07065.htm

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Topics Addressed in NYPPL

NYPPL has summarized and posted almost 6,000 decision. Listed below are the captions of the most frequently accessed postings.

Abolishing a position for economic reasons

Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer

Acquiring tenure in the position by tenure by "operation of law," sometimes referred to as tenure by estoppel or tenure by acquiesce

Actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

Administrative due process in disciplinary actions

Administrative tribunal may not rely on evidence not in the record in arriving at its decision

Admitting evidence of prior disciplinary action taken against the charged party

Alcoholism as a defense in a disciplinary action

Amending disciplinary charges "to conform with the testimony" given by a witness in the course of the disciplinary hearing

Anatomy of an administrative disciplinary decision

Appeals involving efforts to remove a member of a school board from office

Appeals to the Commissioner of Education seeking to remove members of a Board of Education for alleged misconduct or alleged neglect of duty

Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate

Application for retirement benefits must be timely delivered to and received by the retirement system to be operative

Application seeking the removal of an employee of a School District

Applying the Pell Doctrine in a disciplinary action

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer

Appointing authority’s neglecting to make a timely designation of an individual to serve in lieu of the appointing authority in a §75 disciplinary action is a fatal omission

Arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power

Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division

Assessing the appropriate penalty to be imposed for unprofessional and disrespectful language in the workplace

Assigning law enforcement personnel to perform light duty while receiving benefits pursuant to §207-c of the General Municipal Law

Attempting to avoid disciplinary action

Authority of the arbitrator

Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates

Burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party

Challenging a decision to terminate a probationary teacher's employment

Challenging an employee's termination during his or her disciplinary probation period

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Claiming the affirmative defense of "privilege"

Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions

Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction.

Common procedural errors or omissions that will bar the Commissioner of Education's considering the merits of an appeal

Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence

Conducting disciplinary hearings in absentia

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

Considering the employee's personnel history is setting a disciplinary penalty

Constructive discharge from the position as the result of unlawful acts of discrimination

Counseling memorandum issued to an employee

Court's review of an administrative decision made after an adversarial hearing is limited to considering if the decision is supported by substantial evidence

Credit the opinion of one medical expert over that of another medical expert when reviewing an application for disability retirement

Deficiencies in the performance review process of a probationary teacher that were not merely technical undermined the integrity and fairness of the process

Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Demanding an employee submit his or her resignation from his or her position

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

Determining an appropriate disciplinary penalty under the circumstances

Determining an educator's seniority for the purposes of layoff

Determining if an administrative agency's decision is arbitrary and capricious

Determining if an employee is eligible for accidental disability retirement benefits

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits

Determining seniority and tenure area of teachers in the event of the abolishment of positions

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement

Determining the amount of the General Municipal Law §207-a (2) supplement payable to a firefighter upon his or her retirement for disability because of a work related injury or disease

Determining the appropriate procedure to be followed when filing disciplinary charges against a police officer of a town

Determining the disability benefits due a firefighter as the result of a work-related injury can be complex

Determining the impact of performing light, limited or restricted duty on applications for disability retirement benefits

Determining the status and rights of an employee in the public service terminated from his or her employment

Difficulties result following the appointment of a teacher to an “unauthorized tenure area”

Disability not a defense to charges of excessive absence from work

Disciplinary action follows employee's disrespectful and intimidating behavior towards

superiors

Disciplinary actions pursuant to Education Law §3020-a processed consistent with compulsory arbitration standards

Disciplinary charges must be served on the target of the disciplinary action on or before the expiration of the period set by the controlling statute of limitations

Disciplinary hearing officer may not consider disciplinary charges and specifications not preferred against an employee

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing

Disciplinary hearing postponed “without prejudice” pending successful completion of a probationary period with another agency

Disciplinary hearings held in absentia

Disciplinary penalty imposed, termination, held reasonable under the circumstances

Disciplinary probation

Discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer

Dismissing an employee before he or she has completed his or her probationary period

Distinguishing between an individual's "domicile" and his or her "residence"

Doctrine of Abatement: applied in a criminal action

Doctrine of Collateral Estoppel bars relitigating an issue raised and decided by a judicial tribunal in a prior action or proceeding involving the same parties but does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

Doctrine of primary jurisdiction

Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award

Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?

Due process consideration in the event an employee is terminated from his or her probationary period

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers

Educator seeking to overturn an unsatisfactory annual performance rating must meet is very high standard of proof

Educator terminated for a continuing pattern of inappropriate behavior involving students

Educator terminated for doing exactly what he was permitted and encouraged to do by his employer

Educator's unsatisfactory performance rating for the academic year supported by the "detailed descriptions" of educator's difficulties in the classroom in the record

Eligibility for workers’ compensation benefits based on work-related stress

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism

Employee has the burden of proving alleged misconduct by the arbitrator prejudiced his or her rights or the integrity of the process

Employee may be subjected to disciplinary action for misusing his or her sick leave accruals

Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees

Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident

Employee served with disciplinary charges alleging he was "singing on the job"

Employee suspended for one year without pay after failing to comply with school directives

Employee terminated following the loss of the license required to perform the duties of the position

Employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Employee’s misuse of employer’s email results in dismissal

Employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing officer to resolve

Employee’s use of the employer's electronic equipment - disciplinary action being taken against an employee

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Employer's payment of employer contributions towards an employee's health insurance premiums discontinued during the employee's disciplinary suspension without pay

Employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex

Employment history of an employee found guilty of one or more disciplinary charges may be considered in setting the disciplinary penalty to be imposed

Essentials of challenging an employee disciplinary action where compulsory arbitration is involved

Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority

Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law

Exceptions to the Doctrine of Exhaustion of Administrative Remedies

Exceptions to the general rule that only the union or the employer may demand that an issue be submitted to arbitration

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error

Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority

Failure of the individual to timely execute his or her oath of office upon election to a public office results in the position becoming vacant by operation of law

Failure to comply with emergency leave regulations

Failure to honor a known policy of the employer can constitute disqualifying misconduct for the purpose eligibility for unemployment insurance benefits

Federal and State laws, rules and regulations control affecting public sector officers and employees engage in partisan political activities

Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry

Filing disciplinary charges against an employee where the absence is due to an injury or disease

Findings of fact in support of the appointing authority’s decision to terminate an employee required to survive the employee’s judicial challenge seeking reinstatement to his or her former position.

Findings of fact made by a §75 hearing officer are given collateral estoppel effect in considering a terminated individual's application for unemployment insurance benefits

Fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits

Firefighter Rule bars police officer from suing his or her employer or a coworker for injuries suffered while on duty

Forfeiture of employee retirement contributions made to a New York State public retirement system

Freedom of speech

General Municipal Law §207-a(2) salary supplement becomes payable by the employer upon a firefighters retirement with accidental or line of duty disability benefits

Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration

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

Hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing

Hearsay testimony may be admitted in evidence in an administrative hearing

History of misconduct and other factors considered by the hearing officer in recommending termination of employment

If an employee engaged in repeated acts constituting disloyalty to the employer, forfeiture of compensation and benefits is warranted under the Faithless Servant Doctrine

If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Imposing a greater disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Inability to satisfactorily perform the duties of the position due to an alleged disability

Individual cannot be found guilt of misconduct not charged in the notice of discipline

Individual has no property interest in his or her former employment once he or she is discharged

Individual is disqualified from receiving unemployment insurance benefits if he or she lost his or her employment as a result of acts constituting a felony

Individual is not deemed permanently disabled if undergoing a reasonably safe surgical procedure would permit the individual to perform the duties of his or her position

Individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations

Individual's General Municipal Law §207-c benefits may be discontinued where the decision to do so is supported by substantial evidence

Individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

Individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing

Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Installing Global Positioning System equipment in devices use by employees during work

Insubordinate and discourteous conduct

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

Judicial review of determinations made after a hearing denying a police officer's application for General Municipal Law §207-c disability benefits

Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Layoff of seasonal employees constituted a termination of employment for the purposes of Public Authorities Law §2629(2)(a)

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Maintaining a proper chain of custody of evidence to be used in a disciplinary action

Making false statements concerning the employee's performance of his or her duties

Making false statements to investigators concerning alleged misconduct

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New

York State public employer

Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit

Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Motions to have an administrative law judge recuse himself or herself from presiding at a disciplinary hearing

Name clearing hearings

Negotiating disciplinary procedures for City ofSchenectady police officers held a prohibited subject of collective bargaining

New York City employee found guilty of used his employer's telephone and computer equipment for his political campaign while at work

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

New York State and Local Retirement System member has only 30 days following the “date of payability” of his or her retirement allowance to change his or her retirement option

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony was unsupported by reliable documentary evidence

OATH disciplinary hearing held in absentia

Obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny."

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education

Optional Retirement Plan

Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes

Party seeking to modify an arbitration award must comply with the relevant provisions of Article 75 of the Civil Practice Law and Rules

Penalty of dismissal imposed on educator ruled shocking to its sense of fairness

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty

Petitioner's appeal from a Board of Education's seniority determination for the purposes of layoff dismissed for failure to make "proper service" on all the parties

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

Plausibility Standard

Police confrontations with mentally impaired citizens and inmates

Police detective who did not properly discharge his duties not entitled to a defense or indemnification by the employer in a lawsuit in which he or she is a defendant

Police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e

Police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

Police officer terminated following being found guilty of downloading and possessing child pornography

Police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

Police offices and firefighters applying for accidental disability retirement benefits must demonstrate that his or her incapacity was the "natural and proximate result of an accident" within the meaning of §363[a][1] of the Retirement and Social Security Law

Presumption that an accident that occurred in the course of employment arose out of that employment

Probationary employee has the burden of showing his or her termination was unlawful

Probationary employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position

Processing an application for accidental disability retirement

Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority

Public officer threatening to do something that he or she may lawfully due does not constitute coercion

Public policy prohibits an employer from bargaining away its right to remove employees meeting the plain and clear statutory requisites for termination

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination

Redacting the name of a party in an administrative disciplinary action from the decision

Refusing to accept the resignation submitted by an employee

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Removing a judge from his or her office

Removing a school official for an alleged unauthorized disclosure of confidential information

Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office

Removing a volunteer firefighter from his or her position

Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery

Requiring an educator submit to a medical examination to determine his or her ability to perform the duties of his or her position

Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71

Retirement

Right to a disciplinary hearing survives the individual’s resignation or retirement from the position

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors

Rule of three

Running for public office

Salary reduction upon reassignment to another position in the course of an agency reorganization is not a disciplinary action requiring notice and hearing

School Board asks the Commissioner of Education to remove the president of the school board from the position

School board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

School board seeks to remove a sitting member from the board for alleged "official misconduct"

School district’s decision to abolish a position and have a BOCES assume performing the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2)

School employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education pursuant to Education Law §310

Seniority for the purposes of layoff and reinstatement from a preferred list set out in "settlement agreement"

Sick leave

Sleeping on duty

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Spoliation of evidence

Statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease

Stipulation of settlement cannot withdrawn from the stipulation on the basis that it had "improvidently" agreed to it

Stipulation waiving rights to a disciplinary hearing and agreement to resign from the position may not disqualify the individual for Unemployment Insurance benefits

Summarily removing public officers and employees from their positions

Summarily terminating a federal officer holding a term appointment from his or her position

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Teacher fined $10,000 after subjecting student to corporal punishment

Tenure area determinations upon the abolishment of a position or positions

Tenure by estoppel

Tenured employee who resigns from his or her position and is subsequently reemployed by his or her former employer in the same title is not automatically entitled to tenure in the position

Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim

Terminated educator alleges that her employer breached the employment agreement and negligently terminated her

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Terminating a "long-time" provisional employee

Terminating a teacher during his or her probationary period

Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Termination of a public officer from his or her position by operation of law

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

Termination of employment following extended absence without approval

Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”

Test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position

Unemployment Insurance Appeal Board may reject an application for unemployment insurance benefits based on its finding the Claimant's employment was terminated due to disqualifying misconduct

Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement

Unless it is shown that a performance evaluation was arbitrary and capricious, or made in bad faith, the court will not substitute its judgment for that of the appointing authority

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Use of excessive and inappropriate force on juvenile residents at a facility

Use of video surveillance recording in disciplinary actions

Withdrawing a resignation delivered to an appointing authority

Zero tolerance drug policy