Use of hearsay evidence in an administrative disciplinary proceeding

Use of hearsay evidence in an administrative disciplinary proceeding

OATH Index No. 1944/12

A New York City Health and Hospital Corporation facility filed disciplinary charges against its manager of building services alleging that the manager had engaged in sexual contact with a patient suffering from dementia.

The patient did not testify, but his prior statements, which indicated he had consented to the sexual contact and received $5 afterward, were taken in evidence as admissible hearsay after OATH Administrative Law Judge Tynia D. Richard found them to be reliable and probative as the hospital’s security videos substantiated the patient’s hearsay statements and contradicted accused employee’s testimony.

Judge Richard sustained the charges and recommended that the manager be terminated from his position, commenting that the individual’s prior positive performance record and long tenure did not mitigate against imposing the penalty of dismissal for such serious misconduct. 

Hearsay testimony, which typically is barred from testimony in a criminal trial, is permissible in an administrative hearing. Indeed, in some instances the statute providing for the due process hearing specifically excuses compliance with or the application of the technical rules of evidence. For example, Civil Service Law §75.2 provides that “compliance with technical rules of evidence shall not be required,” while §3020-a.3.c(C) of the Education Law states “rules and procedures for the conduct of hearings ... shall not require compliance with technical rules of evidence.”

As the court said in Gray v Adduci, 73 NY2d 741, "it is well settled that hearsay is admissible in administrative hearings and may form the basis of an adverse determination."  

Despite its admissibility as competent evidence, however, an employee may not be found guilty of charges solely on the basis of hearsay. As the court explained in Brown v Ristich, 36 NY2d 183, some "real evidence" is required. "Real evidence" can be “direct,” that is evidence which standing alone establishes the facts at issue, or “circumstantial.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1944.pdf

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An educator’s tenure rights are not sacrosanct and should yield to administrative decisions based on economics and sound educational policy

An educator’s tenure rights are not sacrosanct and should yield to administrative decisions based on economics and sound educational policy

Educator, a tenured foreign language teacher, taught .8 Full Time Equivalent [FTE] French, for which she is state certified, and .2 FTE Spanish, for which she is not certified.* The Board notified her that her full-time teaching assignment would be reduced to a .6 FTE part-time position. The Board then hired a new teacher to teach German on a .2 FTE basis.

Supreme Court dismissed Educator’s application seeking a review a decision of the Board of Education, contending that the Board acted in an arbitrary and capricious manner by reducing Educator's teaching assignment and hiring another teacher without first attempting to shuffle the schedules of other teachers in the school district, including the most senior teacher[Senior] in the foreign language tenure area who was certified to teach German.

The Appellate Division held that Supreme Court correctly found that the Board's determination was not arbitrary, capricious or unlawful explaining that school districts are granted "sufficient latitude within the law to manage their affairs efficiently and effectively," including the ability to consolidate and abolish teaching positions for financial reasons.

The decision also noted that in the event a teaching position is consolidated or abolished, the Education Law requires that "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

Citing a number of decisions including Chambers v Board of Educ. of Lisbon Cent. School Dist., 47 NY2d 279, the Appellate Division said that to comply with the statute, “a board of education must, if possible, make schedule adjustments and shuffle teachers within the same tenure area to retain a district's most senior teachers.” 

However, the court noted, tenure rights are not sacrosanct and "should yield to decisions based on economics and sound educational policy." In such situations the board of education bears the burden of proving that it was impossible to adjust schedules to retain the more senior teacher, and this burden can be met with proof that proposed schedules are "not educationally or financially feasible."

Educator contended that the Board could have shuffled schedules by having Senior teach .8 FTE French and .2 FTE German** and giving .2 FTE French classes to Educator, resulting in Senior  having a full-time schedule and Educator with .8 FTE schedule, eliminating the need to employ a new teacher to teach .2 FTE German.

The court said that the Board considered this schedule arrangement, but found it educationally unsound and not logistically feasible. In addition to considering Senior’s self-professed incompetency to teach German, the Board considered the difficulty or impossibility of scheduling Educator to teach classes in both the middle school and high school, considering the differences in starting and ending times, different bell schedules in the two buildings and travel time between the two buildings.

Although the Board had not meet its burden of proving the impossibility of "schedule shuffling" based on the logistical problems, the Appellate Division concluded that the Board met its burden overall.

Although it would have been legally possible for Senior to teach German as she was certified in that language, the record supports the Board's assertion that it would not have been educationally sound to adjust the schedules as Educator suggested considering the fact that Senior had not taught German in 20 years and was admittedly incompetent to teach it.

Given this educational reason and the Board's economic reasons for reducing the number of French classes, the Appellate Division ruled that Supreme Court correctly found that the Board complied with Education Law §3013 and its determination was not arbitrary or capricious.

* Teacher taught .2 FTE Spanish which although outside her area of certification was permitted by Department of Education regulations.

** The most senior teacher, although certified to teach German, “self-professed [her] incompetency to teach German” as she had only a few sections of German throughout her career, the last of which was in 1991, and has taught French exclusively since then.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01122.htm

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US Department of Labor – Decisions of the Administrative Review Board

US Department of Labor – Decisions of the Administrative Review Board

January 2013

Case summaries and links to the decisions for the Board’s January 2013 decisions are posted on the Internet at:

http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/01_2013.HTM

A FOIL request seeking the names of a public retirement system’s retirees may be denied by the custodian of the records as exempt from disclosure

A FOIL request seeking the names of a public retirement system’s retirees may be denied by the custodian of the records as exempt from disclosure

Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2013 NY Slip Op 01117, Appellate Division, Third Department

The Empire Center for New York State Policy, [Policy] a nonprofit corporation, operates a website "aimed at educating and informing the general public about government spending."

In 2012, Policy filed a Freedom of Information Law* [Public Officers Law Article 6 (FOIL)] request seeking an updated database containing information pertaining to the Teachers’ Retirement System's [Retirement] retired members. Such request sought the same information that System had provided to Policy in previous years pursuant to FOIL requests, including the name of each retiree.

Retirement furnished most of the requested information, but refused to disclose the names of the retirees to whom the information corresponded, contending that "such information is exempt from disclosure under Public Officers Law §89(7)."

Public Officers Law §89(7), in pertinent part, provides: “Nothing in this article shall require the disclosure of the home address of … a retiree of a public employees' retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees' retirement system … provided however, that nothing in this subdivision shall limit or abridge the right of an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to article fourteen of the civil service law, to obtain the name or home address of any … retiree of such employer, if such name or home address is otherwise available under this article.”

Citing the foregoing provisions of law, Policy contended that the plain language of Public Officers Law §89(7) exempts from disclosure only the home address, not the name, of a retiree. Noting that the statute makes a clear distinction between retirees and beneficiaries, Policy further argued that to read the term "beneficiary" to include a "retiree" would both deprive the word "retiree" of its own meaning and render the first clause of the provision superfluous.

Although conceding that “Well-settled principles of statutory construction lend support to the interpretation advanced by Policy,” the Appellate Division said that it was bound by the Court of Appeals' decision in Matter of New York Veteran Police Association. v New York City Police Dept. Art. I Pension Fund (61 NY2d 659 [1983]).

In Veterans Police Association the Court of Appeals interpreted Public Officers Law §89(7) as exempting from disclosure both the names and home addresses of retirees of a public employees' retirement system.

Policy attempts to distinguish its FOIL request from that relevant in Veterans by contending that the Veteran’s FOIL request was for both the names and the addresses of the retirees, whereas its request here was for the names only.

The Appellate Division ruled that the Retirement System properly denied Policy's FOIL request for the names of its retired members, noting that the First Department, relying on Veterans, reached this same conclusion in addressing a similar FOIL request by Policy for the names of the retirees of the New York City Police Pension Fund (see Empire Ctr. for N.Y. State Policy v New York City Police Pension Fund, 88 AD3d 520, 521 [2011], lv dismissed, 18 NY3d 901 [2012]).

* The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute [see, for example, Education Law, §1127 - Confidentiality of records and §33.13, Mental Hygiene Law - Clinical records; confidentiality], are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise properly within the ambit of the several exceptions to disclosure permitted by FOIL.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01117.htm

Bath Volunteer Fire Department not a public agency for the purpose of contractor's paying prevailing wages pursuant to Labor Law §220

Bath Volunteer Fire Department not a public agency for the purpose of contractor's paying prevailing wages pursuant to Labor Law §220*
M.G.M. Insulation, Inc. v Gardner, 2013 NY Slip Op 01017, Court of Appeals

The Bath Volunteer Fire Department [BVFD], a not-for-profit fire corporation under Not-for-Profit Corporation Law §1402, historically operated from a building owned by the Village of Bath.

After BVFD determined that the facility was no longer adequate for its needs and the Village declined to build it a new firehouse, BVFD commissioned a feasibility study and obtained its own financing for the construction of a new facility. Ultimately BVFD acquired land and in 2006 employed R-J Taylor General Contractors, Inc. (Taylor) as the general contractor to build the facility. Taylor subsequently hired a number of subcontractors to construct the various portions of the firehouse.

Following an investigation, the Department of Labor (DOL) issued an opinion letter, concluding that the firehouse project was a public work subject to the prevailing wage law and ultimately an administrative hearing was held on the question of the applicability of the prevailing wage law to the firehouse project.**

A DOL Hearing Officer subsequently determined that the project was subject to the prevailing wage law, concluding that the firehouse project satisfied both prongs of the so-called Erie County test for prevailing wage law applicability, (see Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532, affd 63 NY2d 810), holding that volunteer fire corporations such as BVFD are the "functional equivalent[s]" of municipal corporations and are therefore "covered entities" under Labor Law §220.

In the alternative, the Hearing Officer said that even if a volunteer fire corporation did not generally satisfy the public entity test, the protection services agreement between BVFD and the Village of Bath satisfied the first prong of the test and, because the Village authorized and supported the firehouse project, and the object of the project entailed provision of fire protection services for the community, the project satisfied the "public works" requirement.

The Court of Appeals disagreed with the Hearing Officer’s determination on both theories, holding that BVDF was not a public agency as contemplated by the statute nor was any other public entity a party to the 2006 contract. Accordingly, said the court, the prevailing wage law did not apply with respect to this project.

Had the Legislature intended to include volunteer fire corporations under the statute, said the court, it could easily have done so, explaining that in 2007, the Legislature expanded the statute's coverage to include contracts involving other types of entities [see Labor Law § 220(2)], but only when it can be shown they were acting on behalf of the public entity, citing New York Charter School Association v Smith, 15 NY3d 403, at 410.

  

* N.B. The court said that “Indeed, certain volunteer fire department contracts may fall under the prevailing wage law based on the 2007 “amendment language” of Labor Law §220(2) but at the time of contract relevant in this litigation, i.e., 2006, “the 2007 amendment of the prevailing wage law did not exist.”

** Once the subcontractors learned of the DOL's determination, work on the project halted. In December 2006, BVFD agreed to indemnify Taylor and its subcontractors against any liability resulting from their failure to pay the prevailing wages, and construction resumed and the project was completed.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01017.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending February 24, 2013 [Click on text highlighted in bold to access the full report] 


Independent Review of State Pension Fund Finds DiNapoli’s Reforms Highly Effective

New York State Comptroller Thomas P. DiNapoli Tuesday released an independent review of the New York State Common Retirement Fund (Fund) that found it is well–run, operates with an industry–leading level of transparency and invests effectively on behalf of its members. The review by Funston Advisory Services, required as part of robust oversight reforms pushed by DiNapoli, determined the Comptroller is fulfilling his fiduciary responsibilities and that Fund employees act within ethical and professional standards.

A.G. Schneiderman and Comptroller Dinapoli Announce Guilty Pleas Of Former Senator Shirley Huntley’s Co–Defendants

Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli Wednesday announced that the co–defendants in the case of former New York Senator Shirley L. Huntley have pleaded guilty for their roles in an illegal member item theft scheme and a cover up. Patricia Savage, Senator Huntley’s aide and president of Parent Workshop, a bogus nonprofit, and Lynn Smith, Senator Huntley’s niece and the treasurer of Parent Workshop, pleaded guilty today to the felony of Attempted Grand Larceny in the Third Degree, and agreed to pay $29,950 in restitution to the state of New York, the full amount of taxpayer dollars they had stolen. A third co–defendant, David Gantt, pleaded guilty to the charge of Falsifying Business Records in the Second Degree.

New York State Common Retirement Fund Announces Third Quarter Results

The New York State Common Retirement Fund’s (Fund) rate of return for the third quarter ending December 31, 2012 was 1.74 percent, according to New York State Comptroller Thomas P. DiNapoli. The Fund’s estimated value at the end of the third quarter was $152.9 billion, near its historical high.

DiNapoli: Yonkers Challenged by School Finances, Declining Property Values

The City of Yonkers has persistently faced significant budget gaps which have caused the city to draw down its fund balance. Recent declines in state aid, property values and growing school demands have added to the city’s financial challenges, according to a report released Wednesday by New York State Comptroller Thomas P. DiNapoli. Yonkers officials have started making tough choices needed to bring the City’s budget into structural balance. The report is the latest in a series of fiscal profiles on cities across the state released by the Comptroller’s office.

DiNapoli: Syracuse’s Fiscal Condition Challenged by Systemic Problems

The City of Syracuse is confronted by a large number of vacant and tax–exempt properties, low rates of home ownership and decreased home values, according to a report released Wednesday by State Comptroller Thomas P. DiNapoli. The rating agencies credit Syracuse for having a relatively strong financial position, but caution the City is susceptible to adverse economic conditions. The report is the latest in a series of fiscal profiles DiNapoli will issue on cities across the state.

Qualcomm Implements Industry–Leading Political Spending Disclosure Policy; DiNapoli Commends Action

Qualcomm Incorporated and the New York State Common Retirement Fund (Fund) were pleased to announce Friday that following informative discussions, the Fund has decided to withdraw the lawsuit it filed on January 2, 2013. Qualcomm will implement a revised political spending disclosure policy which is now available on its website.

Governor Cuomo introduced 30-day amendments to the Executive Budget

Governor Cuomo introduced 30-day amendments to the Executive Budget

Among the measures introduced by Governor Cuomo having a direct effect on public employees of the State are the following:

1. Implement teacher evaluation system in New York City. Under the Governor’s leadership, the state passed a comprehensive teacher evaluation system for every district across New York State. Though 99 percent of districts were able to reach an agreement on a plan with their local teacher unions, submit it to the state, and have their plan approved by the State Education Department before their January deadline, New York City failed to so. As a result, it lost $240 million in state aid and is in danger of losing additional funds if an evaluation system is not in place this year.

In the event the City and its collective bargaining units fail to reach agreement on a teacher evaluation system by the end of May, an expedited arbitration process, led by the Commissioner of Education, will occur. Following hearings and a review of evidence, the Commissioner, by June 1^st, will make a final, written determination on the structure of a teacher evaluation system for New York City schools. This legislation will ensure that New York City students and educators will not see another school year go by without the timely feedback, professional development, and accountability that a robust teacher evaluation plan will provide.


2. Expand availability of the Stable Pension option. The stable pension contribution rate for local governments and schools, submitted as part of the Executive Budget, will provide a new tool for local governments to access the long-term savings from Tier VI and have greater predictability in their fiscal planning. Given the positive response to this proposal from sectors who asked to take advantage of the program but were not initially included, the Governor would expand eligibility to include BOCES and three local public hospitals – Nassau University Medical Center, Westchester Medical Center, and Erie County Medical Center. The county sponsors of the three hospitals included in this amendment, as well as their taxpayers, have a direct interest in financial condition of these institutions and, therefore, the stable pension option is a viable approach to meeting local fiscal demands.

3. Provide retraining funds for state employees. The Executive Budget included a $5 million appropriation to be used to retrain State employees impacted by 2012-13 and 2013-14 facility closures at OMH, OPWDD, DOCCS and OCFS. Funding would be available to retrain employees for which comparable State positions could not be found nearby their current work location. This amendment reduces the radius to 25 miles, allowing the funds to be used to help a larger number of impacted employees.

The entire list of 30-day amendments is available at http://budget.ny.gov  

The Governor said that his 2013-14 Executive Budget and Management Plan builds on two years of balanced, fiscally responsible budgeting and invests in economic development, education reform, rebuilding after Superstorm Sandy, provides support to local governments and school districts, and includes no new taxes or fees. The budget is required to be passed by April 1.

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Matter of Beck-Nichols, Adrian, and Luchey v Bianco, 2013 NY Slip Op 01015, Court of Appeals

These three appeals stem from a residency policy that required employees of the School District of the City of Niagara Falls, New York (the District) hired or promoted after the policy's effective date, March 1, 1994, to reside in the City of Niagara Falls (Niagara Falls or the City), and maintain residency there during their employment.

The policy's implementing regulations define "residency" as "an individual's actual principal domicile* at which he or she maintains usual personal and household effects."

Essentially all three individual had signed affirmations signifying their understanding that they were required to become domiciled with in the City  in accordance with the District’s residency policy. Subsequently the District's School Board, after an investigation, concluded that three employees were not domiciled in Niagara Falls and terminated their respective employments with the District.

Supreme Court, in an Article 78 action involving two of the three employees,** characterized the District’s policy's definition of residency as creating a "vague and ambiguous" standard which, coupled with the Superintendent's failure to develop adequate procedures and guidelines, "resulted in varied and subjective interpretations leading to disparate results." The court held that the residency requirement was unenforceable, and that any termination of the two individuals involved in this phase of the litigation based on it was therefore arbitrary and capricious. Supreme Court directed the reinstatement of the two individuals with full back pay and benefits.

Different panels of the Appellate Division considered these appeals. One panel reversed the Supreme Court’s judgment as to one of the individuals (92 AD3d 1272), holding that the District established that the individual was not domiciled in Niagara Falls, and therefore the Board's determination was not arbitrary and capricious. The Court of Appeals affirm this ruling.

A second panel sustained the Supreme Court’s ruling with respect to the second individual without opinion (92 AD3d 1276) which ruling the Court of Appeals reversed.

The Court of Appeals explained that a residency policy for municipal workers serves "the legitimate purpose of encouraging city employees to maintain a commitment and involvement with the government which employs them by living within the city [citations omitted]."

Addressing the implementing regulations, the court noted that the regulation define "residency" as "an individual's actual principal domicile at which he or she maintains usual personal and household effects." This definition, said the court, may be criticized for redundancy or surplusage, but not ambiguity. The word "domicile" alone is enough to convey the sense that the Board mandates that District employees live in Niagara Falls "with intent to make it a fixed and permanent abode."

As to “administrative due process” issues advanced by the individuals, the Court of Appeals pointed out that the regulations “provide for notifying employees of the residency policy upon initial appointment and promotion; give employees six months after appointment to come into compliance, and allow the Board, in its discretion, to extend this grace period for another six months; provide for a "seven-day letter" to afford an employee the opportunity to respond to allegations of non-compliance; include a hardship waiver; and exempt non-administrative employees hired prior to the policy's effective date, subject to certain conditions.”

The regulations, said the court, “also include detailed forms to carry out the policy. These forms, in one way or another, call for employees to acknowledge that they have read, understand and agree to fulfill their responsibilities under the policy.”

As to claims advanced by two of the individual’s contending that they were entitled to pre-termination hearings in the nature of a disciplinary proceeding as a condition precedent to their termination, the Court of Appeals indicated that it had previously held that a residency requirement defines eligibility for employment, and so is "unrelated to job performance, misconduct or competency." Thus said the court, the individuals were not entitled to a pre-termination hearing such as set out Education Law  §§2509(2), 3020 or 3020-a, which deal with teacher discipline, explaining that in this instance “due process mandates only notice and some opportunity to respond.”

Finally, the court addressed the proper standard for judicial review in these cases, concluding that the standard is whether the Board's determination was arbitrary and capricious or an abuse of discretion. 

Conceding that this standard is ‘an extremely deferential one,” the Court of Appeals said that "The courts cannot interfere [with an administrative body's exercise of discretion] unless there is no rational basis for [its] exercise . . . or the action complained of is arbitrary and capricious, [a test which] chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact," citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222," [emphasis supplied by the court].

The bottom line: the Court of Appeals held that in Beck-Nichols the judgment of the Appellate Division should be reversed, with costs, and the petition dismissed; in Adrian, the order of the Appellate Division should be affirmed, with costs; and in Luchey, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

* In Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385, a case involving which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother, the Court of Appeals explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."

** Supreme Court transferred the petition filed by the third individual, Luchey, to the Appellate Division, which ruled in favor of the former employee. The Court of Appeals reversed this determination by the Appellate Division.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01015.htm

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Matter of Beck-Nichols, Adrian, and Luchey v Bianco, 2013 NY Slip Op 01015, Court of Appeals

These three appeals stem from a residency policy that required employees of the School District of the City of Niagara Falls, New York (the District) hired or promoted after the policy's effective date, March 1, 1994, to reside in the City of Niagara Falls (Niagara Falls or the City), and maintain residency there during their employment.

The policy's implementing regulations define "residency" as "an individual's actual principal domicile* at which he or she maintains usual personal and household effects."

Essentially all three individual had signed affirmations signifying their understanding that they were required to become domiciled with in the City  in accordance with the District’s residency policy. Subsequently the District's School Board, after an investigation, concluded that three employees were not domiciled in Niagara Falls and terminated their respective employments with the District.

Supreme Court, in an Article 78 action involving two of the three employees,** characterized the District’s policy's definition of residency as creating a "vague and ambiguous" standard which, coupled with the Superintendent's failure to develop adequate procedures and guidelines, "resulted in varied and subjective interpretations leading to disparate results." The court held that the residency requirement was unenforceable, and that any termination of the two individuals involved in this phase of the litigation based on it was therefore arbitrary and capricious. Supreme Court directed the reinstatement of the two individuals with full back pay and benefits.

Different panels of the Appellate Division considered these appeals. One panel reversed the Supreme Court’s judgment as to one of the individuals (92 AD3d 1272), holding that the District established that the individual was not domiciled in Niagara Falls, and therefore the Board's determination was not arbitrary and capricious. The Court of Appeals affirm this ruling.

A second panel sustained the Supreme Court’s ruling with respect to the second individual without opinion (92 AD3d 1276) which ruling the Court of Appeals reversed.

The Court of Appeals explained that a residency policy for municipal workers serves "the legitimate purpose of encouraging city employees to maintain a commitment and involvement with the government which employs them by living within the city [citations omitted]."

Addressing the implementing regulations, the court noted that the regulation define "residency" as "an individual's actual principal domicile at which he or she maintains usual personal and household effects." This definition, said the court, may be criticized for redundancy or surplusage, but not ambiguity. The word "domicile" alone is enough to convey the sense that the Board mandates that District employees live in Niagara Falls "with intent to make it a fixed and permanent abode."

As to “administrative due process” issues advanced by the individuals, the Court of Appeals pointed out that the regulations “provide for notifying employees of the residency policy upon initial appointment and promotion; give employees six months after appointment to come into compliance, and allow the Board, in its discretion, to extend this grace period for another six months; provide for a "seven-day letter" to afford an employee the opportunity to respond to allegations of non-compliance; include a hardship waiver; and exempt non-administrative employees hired prior to the policy's effective date, subject to certain conditions.”

The regulations, said the court, “also include detailed forms to carry out the policy. These forms, in one way or another, call for employees to acknowledge that they have read, understand and agree to fulfill their responsibilities under the policy.”

As to claims advanced by two of the individual’s contending that they were entitled to pre-termination hearings in the nature of a disciplinary proceeding as a condition precedent to their termination, the Court of Appeals indicated that it had previously held that a residency requirement defines eligibility for employment, and so is "unrelated to job performance, misconduct or competency." Thus said the court, the individuals were not entitled to a pre-termination hearing such as set out Education Law  §§2509(2), 3020 or 3020-a, which deal with teacher discipline, explaining that in this instance “due process mandates only notice and some opportunity to respond.”

Finally, the court addressed the proper standard for judicial review in these cases, concluding that the standard is whether the Board's determination was arbitrary and capricious or an abuse of discretion. 

Conceding that this standard is ‘an extremely deferential one,” the Court of Appeals said that "The courts cannot interfere [with an administrative body's exercise of discretion] unless there is no rational basis for [its] exercise . . . or the action complained of is arbitrary and capricious, [a test which] chiefly relates to whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact," citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222," [emphasis supplied by the court].

The bottom line: the Court of Appeals held that in Beck-Nichols the judgment of the Appellate Division should be reversed, with costs, and the petition dismissed; in Adrian, the order of the Appellate Division should be affirmed, with costs; and in Luchey, the order of the Appellate Division should be reversed, with costs, and the matter remitted to Supreme Court for further proceedings in accordance with this opinion.

* In Longwood Cent. School Dist. v Springs Union Free School District, 1 NY3d 385, a case involving which of two school districts must bear the educational costs for children who, immediately before their placement in foster care, lived in a homeless shelter with their mother, the Court of Appeals explained: "Within the general scheme of Education Law §3202, this Court and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (see Matter of Newcomb, 192 NY 238, 250 [1908])."

** Supreme Court transferred the petition filed by the third individual, Luchey, to the Appellate Division, which ruled in favor of the former employee. The Court of Appeals reversed this determination by the Appellate Division.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01015.htm

Public entities may have monies being held in the State Comptroller's Abandoned Property Fund

Public entities may have monies being held in the State Comptroller's Abandoned Property Fund

The State’s Abandoned Property Law requires banks, insurance companies, utilities, and other businesses to turn dormant savings accounts, unclaimed insurance and stock dividends, and other inactive holdings over to the State. If there has been no activity in the account for a set period of time, usually between two and five years, the money or property is considered unclaimed or abandoned. Although Section 1402 of the Abandoned Property Law has a $20 threshold for such listing, the Comptroller uses a "$50 threshold” for the listings on his Internet website.

In these times of financial difficulties, every penny counts -- so below is a sample listing of various public entities currently listed as having monies being held by the State Comptroller in the Abandoned Property Fund and which may be claimed by the rightful owner. The Comptroller's dedicated web site for making such searches is at: http://www.osc.state.ny.us/ouf/index.htm    

How much money is being held in the Fund? Twelve Billion Dollars, give or take a few million.

A search of the Comptroller web site at for “nys dep” resulted in 15 matches, included those listed below. 

	Name	Address	Reported By
	NYS DEPARTMENT OF STATE CERTIFICATION UNIT	123 WILLIAM ST NEW YORK NY 10038	ROPES & GRAY LLP
	NYS DEPARTMENT OF STATE DIVIS	99 WASHINGTON AVENUE, 6TH FLR ALBANY NY 12231	STATE FARM FIRE & CASUALTY CO
	NYS DEPARTMENT OF TAXATION AND FINANCE	P O BOX 4127 BINGHAMTON NY 13902	NATIONAL FINANCIAL SERVICES LLC

Other public employers and employee organizations are listed by the Comptroller as having monies being held in the Abandoned Property Fund as well, although it may take some detective work as the organization’s “official name” may not be the one being used by the depositing organization. 

For example, a search for “County of” resulted in 129 matches such as:

	COUNTY OF COLUMBIA	PO BOX 458 HUDSON NY 12534	EMPIRE BLUE CROSS & BLUE SHIELD
	COUNTY OF CORTLAND	60 CENTRAL AVE PO BOX 5590 NY 13045	NATIONWIDE RETIREMENT SOLUTIONS
	COUNTY OF DUCHESS DE	60 MARKET ST POUGHKEEPSIE NY 12601	TELECHECK SERVICES INC

A search by county name is also possible, such as the following results using the search term “Yates Co”-

	YATES CO DEP OF SOCI	110 COURT ST PENN YAN NY 14527	SUBURBAN PROPANE PARTNERS LP
	YATES CO DEPT SOCIAL	110 COURT STREET PENN YAN NY 14527	AMERIGAS PROPANE LP
	YATES CO FIRE DEPT	227 E MAIN ST PENN YAN NY 14527	PEARSON EDUCATION INC
	YATES CO MENTAL HEALTH CLINIC	431 LIBERTY ST PENN YAN NY 14527	TRAVELERS INDEMNITY CO
	YATES CO SOIL WATECONSERVATION	110 COURT STREET PENN YAN NY 14527	MERCHANTS MUTUAL INSURANCE CO

A search for 'BOCES' resulted in 26 matches, some of which are listed below.

	BOCES	SUITE 102 900 WATERVLIET SHAKER RD ALBANY NY 12205	VERIZON WIRELESS
	BOCES	ATTN VAL WARD 435 GLENWOOD RD BINGHAMTON NY 13905	NEW YORK TELEPHONE CO
	BOCES	1126 BALDHILL RD HORNELL NY 14843	COCA COLA ENTERPRISES INC
	BOCES	1086 EAST MAIN STREET SCHRUB OAK NY 10588	AT&T CORP
	BOCES	CAYUGA-ONONDAGA BOARD OF COOPE P O BOX 4 51 SYRACUSE NY 13208	TIME WARNER ENTERTAINMENT CO L P

while a search using “school district” resulted in the following “hits:”

	SCHOOL DISTRICT GREE	10 GRAY AVE GREENWICH NY 12834	SHAKLEE U S LLC
	SCHOOL DISTRICT NO 3 5 LANGLEY	BUSINESS OFFICE 4875 222ND STREET	EDUCATIONAL TESTING SERVICE
	SCHOOL DISTRICT NORT	5355 W TAFT RD N SYRACUSE NY	NEW YORK TELEPHONE CO
	SCHOOL DISTRICT NUMBER 42	BUSINESS OFFICE 22225 BROWN AVENUE	EDUCATIONAL TESTING SERVICE

and there were four matches for “union free school” –

	UNION FREE SCHOOL DI	480 CLAY PITTS RD EAST NORTHPORT NY 11731	HEWLETT PACKARD CO
	UNION FREE SCHOOL DI	TOWN OF GREENBURGH BOARD OF ED 360 BROAD WAY HASTINGS NY 10706	PRUDENTIAL INSURANCE CO OF AMERICA
	UNION FREE SCHOOL DIST 1	399 KNOLLWOOD RD APT 103 WHITE PLAINS NY 10607	AETNA LIFE INSURANCE & ANNUITY CO
	UNION FREE SCHOOL DISTRICT 4 BOARD EDUCATION	27 FARRAGUT AVE HASTINGS ON HUDSON NY 10706	CHEMTURA CORP

Searching  for “Town of” produced 366 matches, including:

	TOWN OF ALDEN	2240 SOUTHWESTERN BLVD WEST SENECA NY 14224	CITIBANK NEW YORK STATE
	TOWN OF ANDES HIGHWAY DEP	PO BOX 246 ANDES NY 13731	HSBC FINANCE CORP
	TOWN OF ARIETA	PO BOX 37 PISECO NY 12139	CDW LLC
	TOWN OF ASHFORD	9377 ROUTE 240 WEST VALLEY NY 14171	EDP RENEWABLES NORTH AMERICA L

while a search for “Town clerk” produced 2 matches:

	TOWN CLERK - WATER &SEWER USUA	TOWN OF GREENPORT HUDSON NY 12534	NEW YORK TELEPHONE
	TOWN CLERK GREENBURGH	PO BOX 810 STONE RIDGE NY 12484	CITIBANK NA NATIONAL COMPLIANCE GRP

A search using the term “village of” resulted in 155 matches including:

	VILLAGE OF	JOE MARASCO 27 WEST AVE SPENCERPORT NY 14559	EXCELLUS HEALTH PLAN INC
	VILLAGE OF ADDISON	PO BOX B ADDISON NY 14801	TIME WARNER ENTERTAINMENT CO L P
	VILLAGE OF ALFRED	WATER DEPARTMENT 7 WEST UNIVERSITY STREE T ALFRED NY 14802	ALFRED UNIVERSITY
	VILLAGE OF ALTAMONT	PO BOX 643 ALTAMONT NY 12009	GALLS LLC

Public employee organizationshaving funds held by the Comptroller include:

	CSEA LOCAL 1000 AFSCM	143 WASHINGTON AVE CAPITON ST ALBANY NY 12224	STATE OF CALIFORNIA
	CSEA LOCAL 407	10 RAILROAD PL CAPITAL DISTRICT DSO SARATOGA SPRINGS NY 12866	MARRIOTT INTERNATIONAL INC
	CSEA LOCAL 431	61 LAKE ST TUPPER LAKE NY 12986	COCA COLA REFRESHMENTS USA INC
	CSEA LOCAL 667	PO BOX 903 TROY NY 12181	MARRIOTT INTERNATIONAL INC
	CSEA LOCAL 8	PO BOX 480 CARMEL NY 10512	VERIZON NEW YORK INC

and

	POLICE BENEVOLENT AS	112 STATE ST STE 1212 ALBANY NY 12207	UNITED STATES LIFE INSURANCE CO
	POLICE BENEVOLENT ASSN INC	NYC TRANSIT POLICE DEPARTMENT CO MR RICH ARD A DIENST NEW YORK NY 10279	CITIBANK N A
	POLICE BENEVOLENT ASSOC	CITY OF WHITE PLAINS PO BOX 68 WHITE PLAINS NY 10603	SAM ASH MUSIC CORPORATION
	POLICE BENEVOLENT ASSOC TOWN	BOX 89 ARRONK NY 10504	BANKERS TRUST CO