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Tuesday, December 06, 2016

Insubordinate and discourteous conduct


Insubordinate and discourteous conduct

OATH Administrative Law Judge Astrid B. Gloade recommended a 25-day suspension without pay as penalty after a job opportunity specialist was found guilty of refusing to interview clients on a number of occasions, was insubordinate, was discourteous to his supervisors, and was absent without leave.

NYC Office of Administrative Trials and Hearings, OATH Index No. 2340/16
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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Monday, December 05, 2016

Crediting allegations of sexual orientation-based discrimination in violation of the New York City Human Rights Law as suspension and demotion are, on their faces, adverse employment actions


Crediting allegations of sexual orientation-based discrimination in violation of the New York City Human Rights Law as suspension and demotion are, on their faces, adverse employment actions.

James v City of New York, 2016 NY Slip Op 07400, Appellate Division, First Department

Saturday, December 03, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 1, 2016


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 1, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

Robert Schusteritsch impersonated his deceased brother to collect his brother’s State retirement benefits 

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced today the conviction and sentencing of Robert J. Schusteritsch, 71, a resident of the state of Florida, for the crimes of grand larceny in the second degree, a class C felony, and criminal impersonation in the second degree, a class A misdemeanor, in Albany County Court.

Schusteritsch’s conviction comes after a joint investigation by the Office of the Comptroller and the Attorney General’s Office, which revealed that Schusteritsch stole over $180,000 in pension benefits issued by the
New York State and Local Employees Retirement System to his deceased brother, Martin Petschauer, between July 2008 and September 2015.

According to the Comptroller and Attorney General’s offices, Petschauer was a New York State pensioner who retired as Chief of the Pooling and Audit Review Section of the New York Metro Milk Marketing Area in approximately 1986.  He passed away on July 9, 2008.  At the time of Petschauer’s death, his pension benefits were being direct deposited into a bank account held in a trust for the benefit of Petschauer; Schusteritsch was the sole trustee for his brother and had exclusive access to the bank account.  
 
When Petschauer died, Schusteritsch concealed his brother’s death from the bank and the Retirement System and kept the trust account open to maintain the direct deposits.  He then routinely accessed the pension deposits and spent the money for his own benefit.   All told, Schusteritsch stole over $180,000 in pension benefits until the Retirement System discovered Petschauer’s death in October 2015. Further, when the Retirement System learned of Petschauer’s death and stopped paying benefits into the trust account, Schusteritsch called the Retirement System’s call center on
November 2, 2015, pretended he was Petschauer, and asserted that he was not actually dead, in an effort to maintain eligibility for the pension benefits.

This past summer, Schusteritsch was arrested in his home state of Florida and transported to Albany County, where he was arraigned on an indictment charging him with the crimes of Grand Larceny in the Second Degree, a class C felony, and Criminal Impersonation in the Second Degree, a class A misdemeanor.   On September 16, 2016, Schusteritsch pleaded guilty before Hon. Peter A. Lynch, Albany County Court, to the entire indictment.
 
Schusteritsch was sentenced by the Hon. Peter A. Lynch to six months in jail and five years’ probation, and signed a confession of judgment in the amount of $180,140.45 in favor of the
New York State and Local Employees Retirement System on December 2, 12016

"Today’s sentencing of Mr. Schusteritsch proves once again that stealing from New York State's pension system is risky business," said State Comptroller DiNapoli. "My office will continue to thwart pension thieves and protect our New York State & Local Retirement System in partnership with Attorney General Schneiderman." 

“Those who illegally obtain pension funds intended for someone else do so at the expense of hardworking New Yorkers who rely on their pension for a secure retirement,” said Attorney General Schneiderman. “Comptroller DiNapoli and I will continue our joint efforts to root out pension system theft and hold those responsible accountable.”

The case is the latest joint investigation under the Operation Integrity partnership of the Comptroller and Attorney General, which to date has resulted in dozens of convictions and more than $11 million in restitution.

Comptroller DiNapoli and Attorney General Schneiderman thanked the Charlotte County Sheriff’s Office in Florida for their assistance.

The Comptroller’s investigation was handled by the Division of Investigations working with the
New York State and Local Retirement System.

The case was prosecuted by Assistant Attorney General Benjamin S. Clark of the Criminal Enforcement and Financial Crimes Bureau. The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chief Stephanie Swenton.

The Attorney General’s investigation was conducted by Investigator Samuel Scotellaro, III and Deputy Chief Antoine Karam. Forensic accounting was performed by Meaghan Scovello, Associate Auditor. The Investigations Bureau is led by Chief Dominick Zarrella.  The Forensic Audit Section is led by Chief Auditor Edward J. Keegan.
 

The State Comptroller encourage anyone with information on alleged public corruption activities to contact the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.


New York State Comptroller’s auditors identify Medicaid overpayments made to Medicare providers

New York State’s Medicaid system made approximately $6.8 million in inappropriate payments, including $3.5 million for separately billed medical services that should have been covered by managed care plans, according to an audit released by State Comptroller Thomas P. DiNapoli. By the end of audit fieldwork, about $2.4 million of the overpayments were recovered.  

Additionally, auditors identified 15 Medicaid providers who were charged with or found guilty of crimes that violated the laws or regulations of a health care program. In addition, auditors found three providers who were involved in civil settlements. They advised DOH officials of the 18 providers and DOH terminated 14 of them from the Medicaid program. Another was also terminated from the program following the audit, according to DOH.  

New York’s Medicaid program, administered by the State Department of Health (DOH), is a federal, state, and locally funded program that provides a wide range of medical services to those who are economically disadvantaged or have special health care needs. DOH’s eMedNY computer system processes Medicaid claims submitted by providers for services rendered to Medicaid-eligible recipients and generates payments to reimburse the providers for their claims.

New York’s Medicaid system is vast and complex with plenty of opportunity for waste and abuse,” DiNapoli said. “My auditors found several cases in which the Department of Health’s eMedNY system failed to catch millions in overpayments. To its credit, the Department is working to recoup these overpayments and make adjustments to its processing systems to prevent these problems from reoccurring.”

DiNapoli’s office audits Medicaid payments on a routine basis to make sure claims are being paid appropriately and to determine if improvements are needed and whether money should be recovered because of errors, abuse or fraud. In 2015, DiNapoli’s auditors identified problems or irregularities with $223 million in payments.

DOH pays Medicaid providers through the fee-for-service method and the managed care plan method. Under the fee-for-service method, Medicaid pays health care providers directly for Medicaid-eligible services rendered to Medicaid recipients. Under the managed care plan method, Medicaid pays each managed care plan a monthly premium for each enrolled recipient and the plan arranges for the provision of services to its members. Plans typically have networks of participating health care providers that they reimburse directly for services provided to their enrollees. Generally, the costs of all services that plan enrollees require are covered by monthly premiums.

DOH uses eMedNY to make Medicaid payments to participating health care providers and managed care plans. The system is used to determine whether claims are eligible for reimbursement. For example, eMedNY will deny fee-for-service claims for services that are covered by a recipient’s managed care plan.

DiNapoli’s audit identified $3,521,562 in overpayments for 14,983 fee-for-service clinic claims that were inappropriate. The claims were processed on behalf of 3,504 recipients who were enrolled in a particular managed care plan. Auditors determined the services were covered by the plan and therefore, fee-for-service claims should not have been paid. A data entry error in eMedNY allowed clinic services for enrollees of this plan to be processed as fee-for-service. After being alerted to the issue, DOH immediately updated eMedNY to prevent future inappropriate payments.

DiNapoli’s auditors also found:

· $1,342,307 in overpayments for claims billed with incorrect information pertaining to other health insurance coverage that recipients had;

· $937,424 in overpayments for newborn claims that were submitted with incorrect birth weights;

· $389,813 in improper payments for inpatient, clinic, durable medical equipment, transportation, and eye care services;

· $333,504 in improper payments identified by the Centers for Medicare & Medicaid Services that DOH did not recover from providers;

· $260,330 in overpayments for inpatient claims that were billed at a higher level of care than what was actually provided; and

· $50,767 in improper payments for duplicate billings. 


DOH officials generally agreed with the audit recommendations and indicated that certain actions have been and will be taken to address them. DOH’s full response is included in the complete audit.


Other audits and reports issued
Auditors identified $16,699 in costs charged to the preschool special education programs that did not comply with SED’s requirements for reimbursement. The non-reimbursable costs included $5,394 in ineligible property expenses, $3,609 in ineligible food costs, $2,337 in ineligible costs for consultant services, $2,309 in non-program-related costs, and $3,050 in other non-reimbursable costs.
For the fiscal year ended June 30, 2014, auditors identified $13,201 in costs that were charged to the preschool special education programs that did not comply with SED’s requirements for reimbursement. The ineligible costs included $7,042 in other than personal service costs and $6,159 in personal service costs. 

State Education Department: Susan E. Wagner Preschool, Compliance with the Reimbursable Cost Manual (2015-S-100)
For the three fiscal years ended June 30, 2014, auditors identified $140,902 in reported costs that did not comply with SED’s requirements for reimbursement, including $81,370 in real estate taxes, $39,709 in unsupported or ineligible compensation costs for six employees; $18,650 in inadequately documented consultant costs; and $1,173 in ineligible staff food costs.
Auditors examined 138,962 individual high-risk PTF Credit payments totaling more than $75.9 million. They identified 31,924 questionable payments totaling almost $8 million for follow-up evaluation and appropriate action, including: 25,567 payments totaling $5,480,752 due to calculation errors; 3,998 payments totaling $1,621,590 where either the homeowner or property was not eligible for the STAR property tax exemption; and 2,052 payments totaling $818,766 to deceased homeowners.

Friday, December 02, 2016

An 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.


An 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.

However, said the Appellate Division, “because the full record is now before this Court, this Court will retain jurisdiction to decide the proceeding on the merits in the interest of judicial economy.”

The Appellate Division then ruled that “Under the circumstances presented here, the penalty of dismissal from the petitioner's employment with the school district was not so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion,” explaining "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" and neither the Supreme Court nor the Appellate Division have any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed.

The test applied: Is the penalty imposed “shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals," the so-called Pell standard [Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222].

Reported: 2016 NY Slip Op 08083, Appellate Division, Second Department


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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
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Failure to obtain the consent of her employer's workers' compensation carrier to her settlement of a third-party action barred her from receiving further benefits.


Failure to obtain the consent of her employer's workers' compensation carrier to her settlement of a third-party action barred her from receiving further benefits.
 
Shiner v SUNY At Buffalo, 2016 NY Slip Op 07738, Appellate Division, Third Department

Thursday, December 01, 2016

Bureau of Justice Statistic's Victimization Unit Chief receives Young Career Award


Bureau of Justice Statistic's Victimization Unit Chief receives Young Career Award

The Bureau of Justice Statistics' (BJS) Victimization Unit Chief Lynn Langton received the 2016 White-Collar Crime Research Consortium (WCCRC) Young Career Award at the American Society of Criminology Conference in New Orleans, Louisiana.
 
This award recognizes outstanding contributions to scholarship on white-collar crime by persons early in their professional career. Select members of the WCCRC, which was founded by and is partially maintained by the White Collar Crime Center, choose recipients based on a single work or for a series of contributions.

 

Making false statements to investigators concerning alleged misconduct


Making false statements to investigators concerning alleged misconduct

OATH Administrative Law Judge John B. Spooner recommended termination of employment of a child protective specialist found guilty of coercing a former agency client into housing a friend, mading false statements to investigators, and accessing confidential records without authorization.  

NYC Office of Administrative Trials and Hearings, OATH Index Nos. 1342/16 and  1904/16, [recommendations adopted by the appointing authority]. 

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Wednesday, November 30, 2016

Tests applied by the courts in determining if a demand to arbitrate a grievance pursuant to the terms of a collective bargaining agreement should be granted


Tests applied by the courts in determining if a demand to arbitrate a grievance pursuant to the terms of a collective bargaining agreement should be granted
Locust Valley Central School District v Benstock, 2016 NY Slip Op 07299, Appellate Division, Second Department [Matter #1]
Locust Valley Central School District v Locust Valley Teachers' Association 2016 NY Slip Op 07299, Appellate Division, Second Department [Matter #2]

The relevant collective bargaining agreement [CBA] between Locust Valley Teachers' Association [LVTA] and the Locust Valley Central School District [School District] provided that either party had the right to submit a grievance to arbitration in the event the grievance was not resolved by the School District. The CBA defined a "grievance" as "a claimed violation, misinterpretation or inequitable application [of a] provision of th[e] Agreement."

LVTA filed a grievance against the School District concerning the School Districts commencing a plenary action* against a teacher formerly employed by the School District. The former teacher was a member of the LVTA and presumably in the collective bargaining unit represented by LVTA.

In the plenary action, the School District sought, under a "faithless servant" theory,** the forfeiture of all compensation earned by the former teacher pursuant to the CBA during a period of time in which the teacher allegedly engaged in certain criminal conduct. That conduct ultimately resulted in the teacher's plea of guilty to several criminal charges.

In an action (Matter #1) and a related proceeding pursuant to CPLR article 75 to permanently stay arbitration of a grievance (Matter #2), the School District in Matter #2 appealed from an order of the Supreme Court which denied its petition seeking a stay of arbitration and granted LVTA’s motion to compel arbitration of the grievance.

The Appellate Division affirmed the Supreme Court’s ruling in Matter #2.

The court explained that the determination of whether a dispute between a public sector employer and employee is arbitrable is subject to a two-prong test.

The court must first if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. In the event it finds no such prohibition, the court must review the relevant collective bargaining agreement between the parties and determine if they, in fact, agreed to arbitrate the particular dispute.

Citing Board of Educ. of Watertown City School Dist. [Waterman Edu. Assn.], 93 NY2d 132, the Appellate Division said that in examining the collective bargaining agreement, must "merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [agreement]." If there is such a relationship, said the Appellate Division, "the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the . . . provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them."

In determining whether a matter is arbitrable, however, the court may not "consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute."

Finding that the School District had not identified any statutory, constitutional, or public policy prohibition against arbitrating the grievance, the Appellate Division affirmed the Supreme Court’s decision. In the words of the Appellate Division, the fact that “the grievance concerns the right of the School District to bring a plenary action seeking the equitable forfeiture of compensation paid to the teacher under the CBA establishes “a reasonable relationship between the grievance and the CBA.”

* A lawsuit where the merits are fully investigated and discussed and the decision is not based on another lawsuit.

** The "faithless servant doctrine" states that an individual owing a duty of fidelity to a principal and who is faithless in the performance of his or her services generally cannot recover his or her compensation or other consideration that would be otherwise available to that individual [Murray v Beard, 102 NY 505]. See, also, http://publicpersonnellaw.blogspot.com/2010/02/applying-faithless-servant-doctrine.html

The decisions in Matter #1 and Matter #2 are posted on the Internet at:

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

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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