The 2015 edition of the Discipline Book

The 2015 edition of this concise guide to disciplinary actions involving public officers and employees in New York State is now available in an electronic [e-book] edition. For more information click on http://thedisciplinebook.blogspot.com/

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Click on text highlighted in color  to access the full report

Georgia resident charged with sealing over $200,000 in pension benefits

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one-count indictment charging Richard L. Cook III, 57, a resident of Atlanta, Ga., with the crime of Grand Larceny in the Second Degree, a class C felony, in Albany County Court. Cook is charged with stealing over $200,000 in pension payments from the New York State and Local Employees Retirement System paid to his deceased mother, Yvonne Powell, a New York State pensioner who died in 2009.

http://www.osc.state.ny.us/press/releases/june15/062215.htm?utm_source=weeklynews20150628&utm_medium=email&utm_campaign=062215release

Former clerk-treasurer convicted of stealing $50,000 of the village’s funds

Former Village of Riverside clerk-treasurer Kristina Johnson was sentenced to jail time for repeatedly stealing village funds to cover her household expenses. State Comptroller Thomas P. DiNapoli announced Johnson was sentenced to 60 days in jail, five years probation and ordered to pay full restitution of $50,000 to the village.

http://www.osc.state.ny.us/press/releases/june15/062415.htm?utm_source=weeklynews20150628&utm_medium=email&utm_campaign=062415release

ERISA provisions do not apply to government retirement plans insofar as its prohibition against “assignment and alienation” of benefits is concerned

ERISA provisions do not apply to government retirement plans insofar as its prohibition against “assignment and alienation” of benefits is concerned

2015 NY Slip Op 04949, Appellate Division, First Department

The husband [Son] and his former spouse [Daughter-in-Law] stipulated in a settlement, incorporated by reference, but not merged, into the judgment of divorce, whereby Daughter-in-Law waived her rights to receive payments as the designated beneficiary of her former mother-in-law's New York City Employees' Retirement System [NYCERS] pension plan.

Supreme Court granted Son’s motion to, among other things, direct Daughter-in-Law“to disgorge payments she received as the beneficiary of Son’s mother’s NYCERS pension plan. Daughter-in-Law appealed but the Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that Daughter-in-Law’s reliance on her argument that the waiver violated the Federal Employee Retirement Income Security Act's (ERISA) anti-alienation provision* was misplaced as 29 USC § 1003[b][1] provides that “The provisions of this subchapter shall not apply to any employee benefit plan if ,,, (1) such plan is a governmental plan” as defined in 42 USC §1002(32).** 

As NYCERS is a government plan of a political subdivision of a State, the provisions of ERISA cited by Daughter-in-Law in support of her claim did not apply. Thus, said the Appellate Division, Supreme Court “correctly applied standard principles of contract interpretation to the stipulation, as it [was] a settlement agreement in a divorce action.”

The provision in question, titled "Retirement Funds," said the court, evinced an intent to waive the parties' rights to each other's retirement funds. Further, noted the Appellate Division, the clause in which Daughter-in-Lawwaived her right to such benefits included her waiver of "any and all pension funds set up during the marriage in [Daughter-in-Law’s] name by . . . a member of [Son’s] family." This language, said the court, evinced a related intent by Daughter-in-Law to waive her rights to Son's relatives' retirement funds, including her rights to her former mother-in-law's NYCERS pension benefits.

* 29 USC § 1056[d][1] provides that “Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.”

** 42 USC §1002, Subdivision 32, provides that the term “governmental plan” means a plan established or maintained for its employees “by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04949.htm

Employee must exhaust available administrative remedies unless he or she can demonstrate that such action would be futile

Employee must exhaust available administrative remedies unless he or she can demonstrate that such action would be futile

2015 NY Slip Op 05402, Appellate Division, First Department

A member of the College’s faculty [Petitioner] was not reappointed as an assistant professor by the College. Petitioner filed an Article 78 petition seeking a court order annulling the College’s decision not to continue her employment. Supreme Court dismissed Petitioner’s action.

Petitioner appealed but the Appellate Division sustained the lower court’s ruling, explaining that the relevant collective bargaining agreement governing an employee’s employment with the College provided for a three-step grievance and arbitration procedure. As Petitioner did not to avail herself of this procedure, the Appellate Division explained that she was precluded from seeking relief under Article 78 of the CPLR as she had not exhausted her administrative remedies.

In addition, the Appellate Division noted that Petitioner failed to establish that arbitration, which could result in referral to a three-member committee of faculty members drawn from a panel jointly chosen by the Chancellor and the union pursuant to terms and conditions set out in the collective bargaining agreement, would be futile.

Finally, the Appellate Division rejected Petitioner’s contention that the Chancellor's academic judgment as to her scholarly record and the College’s failure to secure meaningful funding does not constitute an "agency policy" that would render her resorting to her administrative remedies futile.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05402.htm

Public employees cannot be required to surrender their legal right to their continued receipt of retirement benefits otherwise provided by law

Public employees cannot be required to surrender their legal right to their continued receipt of retirement benefits otherwise provided by law

2015 NY Slip Op 05243, Appellate Division, Third Department

Upon reaching the age of 70 the New York State Constitution, Article VI, §25(b) and Judiciary Law §115 requires Supreme Court justices to apply for certification to continue their services on the Supreme Court bench.

In October 2013, the Administrative Board of the Courts of New York State [Board] adopted a new policy that "no judge henceforth certificated for service as a Justice of the Supreme Court pursuant to Judiciary Law §115 may receive, concurrent with receipt of a salary for such service, a retirement allowance for prior judicial service within the Unified Court System." In December 2013, Justice Gerald E. Loehr and certain of sitting Justices [Justice Loehr] were informed of their need to comply with the new policy and that approval for certification would therefore be conditioned on such compliance.

Justice Loehr filed an Article 78 petition and an action for declaratory judgment seeking, among other things, a declaration that the Board’s policy that certificated justices not receive such pension benefits during such employment was illegal, a ruling annulling approval of Justice Loehr's recertification being contingent upon suspension of such pensions during such employment and a declaration that Justice Loehr is not subject to such policy.

Supreme Court granted the Board’s motion to dismiss Justice Loehr's complaints, declared the policy to be neither illegal nor unconstitutional and Justice Loehrappealed.

The Appellate Division reversed Supreme Court’s ruling and held that the Board’s policy violated Retirement and Social Security Law §212, Judiciary Law §115 (3) and NY Constitution, Article V, §7. The Appellate Division explained that as relevant in this action Retirement and Social Security Law §212(1) provides that "there shall be no earning limitations under the provisions of [Retirement and Social Security Law § 212] on or after the calendar year in which any retired person attains age [65]."

The court said that the language of Retirement and Social Security Law §212 explicitly allows New York public employees — including justices of the Supreme Court — to retire in place and continue to work while collecting their state pension, rejecting the Board’s argument that §212(1) implicitly permits state employers, including the Board, to require employees to bargain away their legal right to the continued receipt of retirement benefits is unpersuasive. Indeed, noted the Appellate Division, “the plain language of §212(1) grants this right to public employees without mention of employers or an employer's discretion to condition recertification upon suspension of a statutory right.

Noting that the history of Retirement and Social Security Law §212 supports the conclusion that the Legislature intended to give certain pension rights to public employees and those rights are not subject to their employer's preferences, the Appellate Division said that it “cannot discern a rational argument for the proposition that a Supreme Court justice's pension-taking falls under the category of necessity when determining a justice's eligibility for certification” and declared that the Board's policy was "illegal and contrary to law.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05243.htm

Some issues to be mindful of when filing and prosecuting an appeal before the Commissioner of Education

Some issues to be mindful of when filing and prosecuting an appeal before the Commissioner of Education

Appeal of Guilaine Leger-Vargas, Decisions of the Commissioner of Education, Decision No. 16,771

Guilaine Leger-Vargus, a disappointed candidate in the 2012 annual election to a school board, alleged that certain school officials had engaged in conduct prior to the election that interfered with her campaign and the election.

Among the remedies Ms. Leger-Vargas sought by in her appeal to the Commissioner of Education was the removal of certain members of the school board and the school superintendent and the “reprimand and fine of [certain] district officials and employees.”  

The Commissioner said that the appeal must be dismissed and the application denied, noting, among others, the following procedural difficulties:

1.  Ms. Leger-Vargas submitted newspaper articles as exhibits to her petition.  The Commissioner said that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein” and such articles will not be considered “for the veracity of their content.”

2. Ms. Leger-Vargas’ reply to the school district’s answer may respond to new material or affirmative defenses set forth in the answer and is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition. The Commissioner said that those portions of a reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer will not be considered.

3. To the extent that a reply also addresses other appeals pending before the Commissioner, the Commissioner said that “such submission is improper and those portions will not be considered….”

4. Regarding Ms. Leger-Vargas’ memorandum of law, the Commissioner said that a memorandum of law should consist of arguments of law and may not be used to add belated assertions or exhibits that are not part of the pleadings.

5. As to the relief sought by Ms. Leger-Vargas, the Commissioner said that, to the extent that she seeks to have the Commissioner reprimand and fine district employees, there is no provision in the Education Law authorizing the imposition of a reprimand or the imposition of a fine of a board member, a school officer or a member of the school district staff's by the Commissioner of Education. The Commissioner observed that the board of education has the sole authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner of Education.

Turning to the merits of Ms. Leger-Vargas' appeal, the Commissioner explained that to invalidate the results of a school district election, the petitioner seeking have such results declared invlid must establish not only that irregularities occurred, but also a probability that any such irregularities actually affected the outcome of the election. 

However, noted the Commissioner, “It is well settled that mere speculation as to the possible existence of irregularities provides an insufficient basis on which to annul election results.

Additionally, in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief.  On this record, said the Commissioner, Ms. Leger-Vargas “has not established that an irregularity occurred or that the outcome of the election was affected by the alleged actions of [school officials].” 

Addressing a number of other issues raised by Ms. Leger-Vargas in her appeal, the Commissioner pointed out that:

To the extent that Ms. Leger-Vargas raises claims in her appeal that do not arise under the Education Law, such as acts of alleged defamation and slander, the Commissioner of Education lacks jurisdiction over such claims and, therefore, need not address them.

To the extent that Ms. Leger-Vargas seeks “an apology” from  a school board member, an officer or employee of the school district, the Commissioner lacks authority to order a member board of a education, a school officer or school district employee to do so.

To the extent that Ms. Leger-Vargas raised claimed violations of the Freedom of Information Law (FOIL), §89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner of Education.

The Commissioner, noting that Ms. Leger-Vargas’ appeal must be dismissed and her application for removal of certain school officers and officials denied, said “the parties are reminded that public officials and employees can and should avoid unnecessary contention, particularly by ensuring that their actions cannot be interpreted as offensive to any specific individual or group.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16771

Dismissed probationary employee has the burden of showing that the decision leading to his or her termination was made in bad faith

Dismissed probationary employee has the burden of showing that the decision leading to his or her termination was made in bad faith

2015 NY Slip Op 04944, Appellate Division, First Department

A probationary correction officer [Probationer] challenged his employer’s decision to terminate him from his position. Supreme Court dismissed Probationer’s Article 78 petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that Probationer’s “unsupported assertions” that his employer, the New York City Department of Correction, improperly terminated his probationary employment are insufficient to satisfy his burden of establishing that his dismissal was made in bad faith.

The court said that “[m]ere conclusory allegations of bad faith based on speculation are not sufficient.”

The decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2015/2015_04944.htm

Department of Civil Service Rule Making Activities

Department of Civil Service Rule Making Activities

NYS Register - June 24, 2015 Rule Making Activities

The following “ERRATUM” was published in the New York State Register dated June 24, 2015

A Notice of Adoption, I.D. No. CVS-20-14-00003-A, pertaining to Jurisdictional Classification, published in the June 3, 2015 issue of the State Register inadvertently failed to include an assessment of written comments received on the proposed rule.

The Department of Civil Service apologizes for any inconvenience this may have caused. The Assessment of Public Comment is published below in its entirety:

Assessment of Public Comment

At a public meeting held on April 8, 2014, the New York State Civil Service Commission amended Appendix 2 to 4 NYCCR by approving the placement of 230 positions of Empire Fellow in the non-competitive jurisdictional class. Following publication of the Notice of Proposed Rule Making, a public comment in opposition to the proposed rule amendment, dated June 30, 2014, was received from the New York State Public Employees Federation, AFL-CIO, (PEF).

Article V, section 6 of the State Constitution requires that appointments in the classified service of the State shall be “made according to merit and fitness, to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive...” The Legislature has defined a number of exceptions where competitive examination in not practicable, such as contained in Civil Service Law section 42, which authorizes the filling of positions in the non-competitive jurisdictional class. Non-competitive class positions typically require candidates to meet minimum qualifications consisting of academic credentials or training and/or relevant work experience.

Empire Fellow positions are two-year term-limited appointments for highly skilled professionals who possess a bachelor’s degree or higher with three years of professional work experience and who demonstrate leadership capacity and a desire to make a significant contribution to enhancing New York State government operations. The Empire Fellows undertake special projects as assigned and report directly to State agency executive management or serve in the Office of Governor. Empire Fellows may be cycled through several different assignments during their fellowships and take part in a structured graduate-style training program focusing on areas of public administration/management including human resources, budgeting and community engagement/press relations.

PEF asserts that Fellows perform duties analogous to promotion-level competitive class positions such as Environmental Analyst 3 and Program Operations Specialist 5. PEF also claims, that based upon unverified anecdotal evidence, two Fellows had performed the same duties as competitive Senior Attorneys.

After review of the public comment, the State Civil Service Commission has determined to adopt the amendment as originally proposed. Commission decisions in such matters are based upon iinformation provided by the appointing authority (here, the State Office of General Services), as well as comments from professional staff of the Department of Civil Service Divisions of Classification and Compensation and Staffing Services. Department staff advised the Commission that Fellows will work on highly sensitive and cross-functional matters for agency heads and the Executive Chamber.

The variety and nature of these projects are not amenable to competitive examinations, which may be limited to specific career-oriented test rubrics.

The promotion-level competitive class titles cited in PEF’s comment reference certain analytical and policy development duties in narrow fields, but these titles remain fundamentally distinct from the role of the Fellows program, which is intended to introduce and cultivate future generalist managers and leaders from outside of State service. As such, Fellows must enter State government at a relatively high level, rather than progressing through a competitive career ladder of successive promotion examinations. Further, the Fellows serve two-year term appointments and do not expect and cannot obtain tenure that ordinarily accompanies a permanent appointment from an eligible list established after a competitive examination.

Therefore, the unique and varied duties, high-level reporting relationships of the positions, along with the personal characteristics required of successful candidates and the limited nature of the appointments, render competitive examination impracticable for Empire Fellow positions. Candidates’ merit and fitness can be properly assessed through a non-competitive evaluation, which includes established minimum qualifications and a rigorous selection process featuring individualized resume reviews. 

Accordingly, the Commission continues to find that the Empire Fellow positions belong in the non-competitive jurisdictional class and the subject amendment to Appendix 2 of 4 NYCRR has been approved for final adoption.

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

2015 NY Slip Op 04550, Appellate Division, Third Department

A law firm [Firm] appealed a decision of the Unemployment Insurance Appeal Board [Board] which assessed Firm for additional unemployment insurance contributions after ruling that a claimant [Lawyer] for unemployment insurance benefits for eligible for such benefits.

Lawyer had been retained as a "contract attorney" by the Firm to perform document review services in conjunction with the litigation of a class action lawsuit. After his assignment ended, Lawyer applied for unemployment insurance benefits and . The Unemployment Insurance Appeal Board ruled that Lawyer was the Firm’s employee and assessed it for additional unemployment insurance contributions as a result.

The Appellate Division affirmed the Board’s decision explaining that "Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence." Citing Matter of LaValley, 120 AD2d 1498, the court said that "in cases where the rendering of professional services is involved, an employment relationship can be found where there is substantial evidence of control over important aspects of the services performed other than results or means."

The decision indicates that Lawyer:

1. was paid an agreed-upon hourly rate and required to work at least 45 hours a week, but not more than 50 hours per week;

2. was given specified hours each day to report to his assigned work station;

3. was required to take a daily unpaid 30 minute lunch break and was occasionally required to report to work on weekends;

4. was allowed to take unpaid days off, provided that he requested the time off in advance;

5. received daily assignments from an associate attorney employed by the Firm and who supervised Lawyer’s work; and

6. assisted in the litigation by providing written memoranda summarizing deposition testimony, work that included Lawyer's attendance at meetings with attorneys from other firms involved in the litigation.

These elements, said the Appellate Division, constituted “substantial evidence” supporting the Board's decision that the Firm retained sufficient overall control of Lawyers services to establish an employment relationship, despite evidence in the record that could support a contrary conclusion.

Significantly, the court commented that “The fact that [Lawyer] signed a written agreement designating him as an independent contractor does not compel a different result, citing Matter of Joyce, 116 AD3d 1132.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04550.htm

Employer has the burden of proving that the disciplinary charges filed against the employee were timely served

Employer has the burden of proving that the disciplinary charges filed against the employee were timely served

2015 NY Slip Op 04940, Appellate Division, First Department

The disciplinary hearing officer found that the tenured teacher [Teacher] was guilty of two of three sets of charges and imposed the penalty of termination from his position.

Teacher appealed and Supreme Court granted his petition to vacate a hearing officer's award to the extent of annulling the portion of the award that sustained a third set of charges against Teacher and imposed the penalty of termination. The court remanded the matter to Teacher’s employer, the New York City Department of Education (DOE) for the imposition of an appropriate lesser penalty.

On appeal, the Appellate Division “unanimously affirmed” the Supreme Court’s action.

The Appellate Division said that there was nothing in the record to support Teacher’s claim that his due process rights were violated as the result of his having been provided with the third set of charges after having been served the first two sets of charges. The court explained that Teacher had more than 10 days before he offered testimony with respect to those charges, and he did not object to DOE's request for consolidation of all of the charges against him.

In addition, observed the Appellate Division, “[e]ven though DOE did not specify the precise sections of the Penal Law allegedly violated, the allegations in the three specifications fairly apprised” Teacher of the basis the alleged misconduct underlying the charges filed against him. As the Court of Appeals held in Matter of Block v Ambach, 73 NY2d 323, "in the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him and to allow for the preparation of an adequate defense."

Notwithstanding this, the Appellate Division said that Supreme Court did not exceed its authority in finding that the third set of charges against Teacher was time-barred.*

Although DOE had requested that hearing officer to take judicial notice of two sections of the Penal Law and repeatedly characterized Teacher's conduct as "criminal," the hearing officer did not find that Teacher’s conduct as alleged in the third set of charges constituted a crime. Thus there was no basis triggering the three year exception regarding timeliness set out in Education Law §3020-a(1) and DOE had the burden of establishing that the charges served on Teacher were timely.

As the DOE essentially conceded at the disciplinary hearing that the first and second set of charges against Teacher do not support the penalty of terminating Teacher's employment with DOE, The Appellate Division concluded that Supreme Court correctly remanded the matter to DOE for the imposition of an appropriate lesser penalty.

* See Education Law §3020-a(1). Disciplinary charges against a teacher must be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04940.htm