Republican Senate Campaign Committee agrees to cooperate and comply with the Moreland Commission’s investigation

Republican Senate Campaign Committee agrees to cooperate and comply with the Moreland Commission’s investigation

Source: Office of the Governor

On November 27, 2013, Jeremy Creelan, Special Counsel To The Governor and Senior Advisor on Ethics issued the following statement:

“The Republican Senate Campaign Committee has agreed to cooperate and comply with the Moreland Commission’s investigation. They join the Democratic Assembly Campaign Committee, which had previously agreed to comply. The Governor believes cooperation is by far the preferred course of action, vital to restoring the trust of the people of New York State, whose confidence was rightfully shaken after a slew of indictments in the Legislature last year.

”This cooperation belies the remaining holdouts’ theory justifying their non-compliance; namely separation of powers. If the Moreland Commission, empowered as Deputy Attorneys General, can investigate the Assembly and Senate as a whole for Election Law compliance, they can investigate individual members for the same compliance. Without a credible theory of non-compliance, the public will assume there is something to hide and that hurts everyone.”

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The label assigned by the parties to the relationship between them does not determine if it is that of an employer-employee or as an independent contractor

The label assigned by the parties to the relationship between them does not determine if it is that of an employer-employee or as an independent contractor
Mowry v DiNapoli, 2013 NY Slip Op 07794, Appellate Division, Third Department

John M. Mowry, Esq. served as the attorney for the Mexico Central School District [Mexico CSD] from 1974 until his retirement in 2002. In addition, Mr. Mowry served as the attorney for the Village of Mexico during roughly that same time frame, served as an attorney for other public entities and maintained a private law practice.

In 2010, eight years after his retirement, Mr. Mowry received a letter from the New York State and Local Employees’ Retirement System [ERS] informing him that, based upon a review of his relationship with both the school district and the Village, he had incorrectly been reported as an employee rather than as an independent contractor. Accordingly, said ERS, Mr. Mowry’s salary and credited service were being removed from his records and, as a result, his annual benefit amount had been reduced and he was responsible for certain overpayments and arrears. 

Following an administrative hearing, the Hearing Officer determined that Mr. Mowry failed to sustain his burden of proof that he was an employee of the school district or the Village and denied his application for salary and service credits. The Comptroller accepted the Hearing Officer's findings and conclusions and Mr. Mowry filed an Article 78 petition challenging the Comptroller's decision.

The Appellate Division decided that the Comptroller's determination that Mr. Mowry was not an employee of the Mexico CSD was not supported by substantial evidence, noting that, among other things:

1. The school board routinely engaged in discussions about whether to retain Mr. Mowry's services as an employee or an independent contractor and the board continually chose the former because it was more cost effective for the school district.

2. There was no written contract with Mr. Mowry and the Mexico CSD and the assistant superintendent directed him as to what work needed to be completed and when services were to be performed.

3. The assistant superintendent and school board reviewed Mr. Mowry's work for its sufficiency and the president monitored Mowry's performance and conducted annual performance evaluations.

4. Mr. Mowry was paid every two weeks by paycheck, from which income taxes, Social Security, Medicare and health insurance premiums were deducted, and he received a W-2 form annually.

5. Mr. Mowry’s appointment as an employee of the school district was recognized by the County Department of Civil Service as a "School Attorney" — an exempt position in the Classified Service.

6. Mr. Mowry took an oath of office annually and the school district maintained a personnel file on him.

7. Although Mr. Mowry “did not have set hours,” the assistant superintendent testified that he was available on an as-needed basis and, even if he did not perform work for the school district during a pay period, he would receive a paycheck for that pay period nonetheless.

In contrast, said the court, ERS relied on the testimony of the school district treasurer, who testified that she had no knowledge about how Mr. Mowry received work assignments, the nature of his work duties or his relationship with either the school board or the superintendent, or whether he was ever evaluated. Thus, said the Appellate Division, it could not conclude that the Comptroller's determination with respect to the school district was supported by substantial evidence.

The Appellate Division, however, reach a different result with respect to Mr. Mowry’s employment by the Village of Mexico. The court noted that Mr. Mowry admitted that he served in the capacity of Village Attorney as an independent contractor prior to 1994 and that he was thereafter placed on the payroll pursuant to his request for the sole purpose of accruing retirement benefits. Further, the Village clerk treasurer testified that there was no reason for the change in status other than Mr. Mowry's request and that, other than the fact that his pay was reported to the Retirement System, there was no substantive change in his relationship to the Village.

The court explained that the label assigned by the parties to the employment relationship between them is not determinative of whether an employer-employee relationship or independent contractor status exists. In this instance the Appellate Division said that there was substantial evidence to support the Comptroller's determination that Mr. Mowry was an independent contractor and not an employee of the Village.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07794.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 24, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 24, 2013 Click on text highlighted in color  to access the full report Comptroller DiNapoli Releases Municipal Audits New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of   the Town of Almond; the Town of Big Flats; the Town of Conesus; the Town of Ellenburg; the Town of Ellicott; the Essex County; the Town of Laurens; the Town of Lincoln; the Town of Minetto; the Town of Mount Pleasant; the Town of New Baltimore; the Rush Fire District; the Town of Stanford; the Town of Wawarsing; and  the Village of Woodridge. DiNapoli: State Agency Overtime Tops $462M; Could Hit Record $600M by Year End State agencies spent more than $462 million on overtime in the first nine months of 2013, a jump of $65 million over the same period in 2012, State Comptroller Thomas P. DiNapoli announced Tuesday. DiNapoli Shareholder Resolution Calls on AT&T to Disclose Surveillance Requests The $160.7 billion New York State Common Retirement Fund has filed a shareholder resolution at AT&T Inc. asking the company to disclose how often and what consumer information it has shared with U.S. or foreign governments, New York State Comptroller Thomas P. DiNapoli announced Wednesday. The resolution will be voted on at the company’s 2014 annual meeting scheduled for late April. New York State Common Retirement Fund’s Marjorie Tsang Named Woman of the Year Marjorie Tsang, director of strategic research and solutions for the New York State Common Retirement Fund, received the Woman of the Year Award from New York Women Executives in Real Estate (WX). The award was presented at WX’s annual gala on Thursday night following an introduction by New York State Comptroller Thomas P. DiNapoli. DiNapoli: Audit Reveals Fiscal Stress in City of Fulton The city of Fulton has spent down its rainy day funds to dangerously low levels, leaving city officials little cushion to manage unforeseen expenses, according to an audit released Friday by State Comptroller Thomas P DiNapoli. Earlier this year, DiNapoli’s fiscal stress monitoring system identified the city as one of nine communities in “moderate stress.” NYS Common Retirement Fund Announces Second Quarter Results The New York State Common Retirement Fund’s estimated rate of return for the second quarter ending September 30, 2013 was 4.61 percent, increasing the Fund’s value to an estimated $160.4 billion, according to New York State Comptroller Thomas P. DiNapoli. DiNapoli: Tax Collections Slightly Above Projections Tax collections increased $2.7 billion, or 7.6 percent, to $38.6 billion through Oct. 31 compared to the same period last year, but total receipts were $133.6 million below the Division of the Budget’s most recent projections, according to the October cash reportreleased Friday by New York State Comptroller Thomas P. DiNapoli.

New York State Department of Labor regulations concerning unemployment insurance applications amended

New York State Department of Labor regulations concerning unemployment insurance applications amended

Source: Sharon Berlin, Esq., Chair, Employment Relations Committee, NYSBA Municipal Law Section

Ms. Berlin advises that the New York State Department of Labor has amended its regulations addressing processing unemployment applications, 12 NYCRR 472.12.

Section 472.12, among other things, sets out:

1. The deadline for an employer to respond to a DOL request for employee information (which now may be shorter than 10 calendar days);

2. The methods by which the DOL can communicate requests for information (which include letter, electronic communication, fax, the State Information Data Exchange System (SIDES), mail, private delivery service, phone or any other DOL approved method);

3. New criteria regarding the adequacy of the contents of an employer’s response; and

4. Sets out potential consequences of an untimely or inadequate response, which include that the employer’s account may be charged for an overpayment even for the first untimely response unless the employer provides good cause for the failure. The DOL is given the authority to relieve an employer of charges that are the result of a DOL error or a disaster emergency as declared by the Governor.

Ms. Berlin notes that the employer’s response will be deemed received by the DOL on the date indicated by the date stamp on an incoming document.

Ms. Berlin, a partner at Lamb and Barnosky, LLP, may be reached via e-mail at: snb@lambbarnosky.com
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Educator disciplined after making statements such as "hey, baby," "how you doing baby?," and "you good baby" to underage female student

Educator disciplined after making statements such as "hey, baby," "how you doing baby?," and "you good baby" to underage female student

2013 NY Slip Op 07811, Appellate Division, First Department

A disciplinary arbitrator found a male teacher [Teacher] guilty of violating the Chancellor of the New York Department of Education’s Regulation A-421 by making statements such as "hey, baby," "how you doing baby?," and "you good baby" on multiple occasions to his underage female student. The penalty imposed by the arbitrator: a fine in the amount of $1,500 to be withdrawn in equal installments from Teacher's paychecks over a twelve month period.

Although the New York City Department of Education has sought to have Teacher terminated from his position, the arbitrator declined terminating the employee and imposed the $1,500 fine instead.

Teacher file an Article 75 petition in Supreme Court seeking a court order vacating and annulling the arbitration award. Supreme Court dismissed Teacher’s petition.

The Appellate Division, affirming the dismissal of Teacher’s petition by the Supreme Court, ruled that the penalty imposed was “not so excessive and disproportionate to the offense as to be shocking to one's sense of fairness.”

The court also noted that the arbitrator had explicitly found [1] the student’ testimony credible and [2] the Teacher’s testimony to be not credible and [3] that determinations of a hearing officer involving the credibility of a witness are "largely unreviewable.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07811.htm
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Transcript of employer’s interview with police officers introduced as evidence at an administrative disciplinary hearing.

Transcript of employer’s interview with police officers introduced as evidence at an administrative disciplinary hearing.

OATH Index No. 2316/13

The New York City Fire Department filed disciplinary charges against a firefighter after he was arrested for criminal possession of cocaine, contending that the firefighter had engaged in conduct that brought reproach or reflected discredit on the Department.

In the course of the hearing the Department introduced into evidence transcripts of the Fire Department’s interviews of the arresting officers. The firefighter objected, contending that this action constituted “an end-run around the sealing of criminal records” as they were derived from police reports and records that were sealed at the conclusion of the criminal proceeding against him, which criminal action was dismissed.

Noting that “the interviews were conducted a day before the records were sealed in the criminal proceedings,” OATH Administrative Law Judge Astrid B. Gloade denied the firefighter’s objection, explaining that OATH “has declined to preclude evidence prepared by agency investigators that contained references to or summaries of information culled from subsequently sealed police records where the investigators obtained that information prior to entry of a sealing order.”

Judge Gloade said that the interviews fell within the purview of material gathered by the Department in the course of preparing a disciplinary case and were not prepared by or for a criminal investigation or prosecution.” Accordingly, said Judge Gloade, the interview transcripts were not official records subject to seal under the Criminal Procedure Law.

Finding that the firefighter guilty of having possessed cocaine, Judge Gloade recommended termination as the penalty.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2316.pdf

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Administrative Law Judge applies the Doctrine of Collateral Estoppel to establish employee’s guilt of charges of misconduct

Administrative Law Judge applies the Doctrine of Collateral Estoppel to establish employee’s guilt of charges of misconduct

OATH Index #2272/13

A Human Resources Administration public benefits fraud investigator pled guilty to federal charges for fraudulently obtaining Section 8 housing benefits.

The employee had earlier pled guilty in federal court to a felony, admitting that she failed to disclose her HRA employment to HUD and received $62,376 in Section 8 public assistance to which she was not entitled. 

OATH Administrative Law Judge Alessandra F. Zorgniotti ruled that pursuant to the doctrine of collateral estoppel, the employee’s guilty plea conclusively establishes the underlying facts of the criminal charge of federally funded program fraud.

The decision notes that the disciplinary charges of misconduct were amended to include the employee’s guilty plea.

Noting that Mayoral Executive Order No. 105 Section 5(b) mandates dismissal of an employee who commits a crime that either involves moral turpitude or bears on the employee’s fitness to perform his job, unless compelling mitigating circumstances exist, the Judge Zorgniotti said that “[I]ntentional fraud and theft of government benefits are crimes of moral turpitude that invariably lead to termination of employment,” and that defrauding HUD is an act of moral turpitude.”

Further, the ALJ said that “Not only is respondent’s crime one of moral turpitude, it bears directly on her fitness to perform the job of a fraud investigator. Respondent engaged in conduct that she is responsible for preventing, namely public assistance fraud.”

Finding that the employee failed to present any mitigating circumstances for her actions. Judge Zorgniotti sustained the disciplinary charges filed against the employee and as the penalty to be imposed, recommended her termination from employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2272.pdf

Pension Board's ignoring a long-standing interpretation of law addressing eligibility for certain retirement benefits ruled arbitrary and capricious

Pension Board's ignoring a long-standing interpretation of law addressing eligibility for certain retirement benefits ruled arbitrary and capricious

Richter v Kelly, 2013 NY Slip Op 07803, Appellate Division, First Department

The New York City Police Pension Fund's Medical Board examined an applicant for Accidental Disability Retirement [ADR], a police surgeon, and certified that this disability was the result of an accidental injury received in the performance of police duty, pursuant to General Municipal Law §207-k, the so-called Heart Bill. 

§207-k provides that in the event of an impairment of health is caused by a diseases of the heart that results “in total or partial disability or death to a paid member of the uniformed force of a paid police department or fire department who successfully passed a physical examination on entry into the service of such respective department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

The Board of Trustees of the Police Pension Fund, however, reversing a policy established by years of practice and internal memoranda, denied the police surgeon’s application on the ground that the Heart Bill did not apply to a police surgeon.

The Appellate Division, however, annulled the Board's decision and affirmed  a Supreme Court decision granting the police surgeon’s application for ADR benefits pursuant to.§207-k.

The court noted that in 1993 the City’s Assistant Corporation Counsel had written to the Pensions Section that the Corporation Counsel’s office “has interpreted the Heart Bill to apply to police surgeons.”

Rejecting Board's arguments is support of its claim that the Heart Bill did not apply to police surgeons, the Appellate Division said that “neither the title of General Municipal Law §207-k ("Disabilities of policemen and firemen in certain cities") nor the reference in the statute to ‘police officers’ creates ambiguity as to whether the statute applies to police surgeons.” Further, said the court, the Board did not show that a literal reading of the statute would frustrate its purpose.

Accordingly, the Appellate Division ruled that the Board was bound by the Medical Board's determination of regarding the police surgeon’s disability and cannot now seek "clarification" of the Medical Board's determination, explaining that in the absence of credible medical evidence that police surgeons disabling heart condition was not related to her service as a police surgeon, the Board’s determination to deny her ADR benefits under the Heart Bill lacks a rational basis and is arbitrary and capricious.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07803.htm
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Court annuls an educator’s unsatisfactory annual performance rating after finding the rating arbitrary and capricious and lacking a rational basis.

Court annuls an educator’s unsatisfactory annual performance rating after finding the rating arbitrary and capricious and lacking a rational basis.

2013 NY Slip Op 51868(U), Supreme Court, New York County, Judge Michael D. Stallman [Not selected for publication in the Official Reports] 

A tenured teacher [Educator] at a New York City public school received an overall unsatisfactory rating (U-rating) for the school year. Educator appealed his U-rating to the Chancellor's Committee. Following hearings, the Chancellor's Committee recommended that Educator’s U-rating be sustained.

The Chief Academic Officer, as the Designee for Chancellor Dennis M. Walcott, denied Educator's appeal, stating that “the appeal of [the Educator’s] rating of Unsatisfactory' for the period … has been denied and the said rating is sustained as a consequence of [Educator's] failure to demonstrate professional growth

Educator responded by filing an Article 78 petition seeking a court order annulling the U-rating.

In the words of State Supreme Court Judge Michael D. Stallman, “The issue presented is whether [the New York City Department of Education] acted arbitrarily and capriciously in determining that [Educator] should receive an overall U-rating based on three incidents (and related unsatisfactory comments), even though [Educator] received otherwise satisfactory comments in his annual professional performance review and satisfactory ratings in all his formal classroom observations.”

The Judge Stallman said that the Chancellor's Committee found that Educator failed to follow protocol, but not for the specific reason set forth in "the disciplinary letter," i.e., that petitioner did not request a personal day two days in advance. Rather, said the court, the Committee found that Educator did not follow protocol by not reporting to the Assistant Principal of Organization that he might need a Personal Business Day the next day, even though he had informed his immediate supervisor that he might not be able to work on that day.

Further, the court found there was uncontroverted testimony that Educator's daughter suffered an illness the night before Educator's absence. Thus, said the court, Educator could not have given two days' advance notice and, therefore, the determination that Educator failed to follow school protocol was taken without regard to the facts, and thus was arbitrary and capricious.

Accordingly, said the court, Educator’s overall U-rating for the school year must be evaluated based on only two incidents and the issue presented is whether these incidents constitute a rational basis for an overall U-rating for the entire school year.

The Department of Education did not claim that criteria exists for determining whether one or two unsatisfactory comments on a teacher's annual professional performance review may justify an overall U-rating nor did the Human Resources Handbook, "Rating Pedagogical Staff Members" contain any criteria on that issue. Further, the court explained, the Department “offer no explanation as to why [Educator], who received otherwise satisfactory comments in his annual performance review and satisfactory ratings in all his formal classroom observations, warranted a U-rating for the entire school year.

Although substantiated misconduct in the workplace, such as a lack of civility in dealings with school personnel and supervisors, or insubordination, may support an overall U-rating, the Department did not contend that the incidents giving rise to the U-rating themselves were so egregious as to warrant an overall U-rating.

Judge Stallman also noted that the Chancellor's letter denying Educator’s appeal was “at odds” with the circumstances here in that Chancellor appears to fault the Educator for not having demonstrated "professional growth" while Educator’s ”U-rating for the entire year is based on three separate incidents, with no documented recurrences.” The absence of further similar, documented incidents, said the court, would suggest improvement in Educator's conduct, i.e., "growth."

While “disciplinary letters” placed in Educator's file warned Educator that "this may lead to further disciplinary action, including an unsatisfactory rating which may result in your termination," Judge Stallman ruled that “to the extent that the overall U-rating was imposed as a penalty, based on the documented incidents, the overall U-rating is so disproportionate to [Educator’s] behavior on three isolated incidents as to shock the judicial conscience,” explaining that the overall U-rating for the entire school year was given “because of one absence, one lateness, and two words.”

Judge Stallman held that the determination of the Chancellor sustaining Educator's U-rating "based on three incidents … was arbitrary and capricious” and granted Educator’s petition and annulling the U-rating.

The court said it was not remanding the matter to the Department as “Remand is not warranted because this is not a situation where the U-rating was annulled due to procedural deficiencies in the review process that are capable of being corrected upon remand.”

In his “Conclusion,” Judge Stallman said that the Department “offered no explanation as to why two incidents in the face of otherwise satisfactory ratings and satisfactory comments are sufficient to warrant an overall U-rating. The lack of an explanation under these circumstances renders the determination arbitrary and capricious and lacking a rational basis. To the extent that [Educator’s] overall U-rating was imposed as a disciplinary measure, the overall U-rating was a penalty so disproportionate to the subject incidents that it shocks the judicial conscience.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_51868.htm

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Reassignment of unit work to nonunit employees an improper practice under the Taylor Law

Reassignment of unit work to nonunit employees an improper practice under the Taylor Law

Monroe County v New York State Pub. Empl. Relations Bd., 2013 NY Slip Op 07362, Appellate Division, Fourth Department

The Monroe County Deputy Sheriff's Association, Inc. [MCDS] filed an improper practice charge with the Public Employment Relations Board [PERB] alleging the Monroe County Sheriff's Office [Sheriff's Office] assigned non-MCDSA members to perform certain security screening work at the Monroe County Jail and the Monroe County Correctional Facility that had previously been performed exclusively by MCDSA members.

Following a hearing, the Administrative Law Judge [ALJ] determined that the Sheriff’s Department had violated Civil Service Law §209-a (1)(d) by assigning the duties of security screening at the jail and at the correctional facility to non-MCDSA employees. The Sheriff’s Department appealed but PERB denied the exceptions it filed and affirmed the ALJ's decision.

According to PERB’s ruling, the Sheriff’s Office had violated Civil Service Law §209-a (1)(d), in that [1] the work in question had been reassigned to non-MCDSA members, [2] that the reassigned tasks were substantially similar to those previously performed by MCDSA members, and [3] that the qualifications for the job at issue had not changed significantly

The Sheriff’s Office filled a CPLR Article 78 petition challenging PERB’s decision.

The Appellate Division sustained PERB’s determination, indicating that it was supported by substantial evidence, rejecting the Sheriff’s Office’s “public policy” argument. The court then provided for the enforcement of PERB’s order.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07362.htm
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Police officer terminated after being found guilty of possessing and ingesting cocaine

Police officer terminated after being found guilty of possessing and ingesting cocaine
2013 NY Slip Op 07262, Appellate Division, First Department

The Appellate Division confirmed the disciplinary penalty imposed on a New York City Detective – termination from the force - found guilty of possessing and ingesting cocaine.

The court said that there was substantial evidence supporting finding the detective guilty of the charges, including a positive random drug test results, and there was no basis for  “disturbing the Hearing Officer's credibility determinations.”

Citing Trotta v Ward, 77 NY2d 827, the Appellate Division said that the penalty imposed did not shock its sense of fairness as the detective "is accountable to the public for the integrity of the Department."

The Appellate Division also noted that it had considered the individual’s concerns about the impact his disciplinary termination has on his retirement benefits and found them “unavailing.” Section 13-173.1 of New York City’s Administrative Code requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07262.htm

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A municipality may rescind its decision to defend and indemnify an employee being sued for acts or omission that occurred performing official duties if the individual fails to cooperate

A municipality may rescind its decision to defend and indemnify an employee being sued for acts or omission that occurred performing official duties if the individual fails to cooperate
Lancaster v Incorporated Village of Freeport, 2013 NY Slip Op 07652, Court of Appeals

The Court of Appeals ruled that a municipality, here the Village of Freeport, may withdraw from its defense and indemnification obligations otherwise required under provisions of the Freeport Village Code §130-6 adopted pursuant to Public Officers Law §18* in the event current and former municipal officials and officers being sued in a civil action decline to accept a reasonable settlement offer. Further the court said that “First Amendment concerns with respect to the settlement's nondisclosure clause do not warrant a different conclusion.”

However, §130-6 of the Code provided that the Village's duty to defend and indemnify "shall be conditioned upon: . . . the full cooperation of the employee in the defense of such action or proceeding against the Village based upon the same act or omission"

According to the decision, the Freeport Board of Trustees authorized the Village to defend and indemnify the employees named in the civil action and retained separate counsel to represent the Village and employees in the litigation.

Subsequently the Village's counsel began settlement negotiations with the plaintiffs and an agreement whereby the plaintiffs would dismiss the actions against the Village in return for $3,500,000 paid over six years. In addition, the settlement agreement included a “nondisparagement clause” and required the employees to "agree not to ever interfere, nor challenge or criticize the terms of either Stipulation [of Settlement] in any manner."

The employees’ counsel indicated that, in his opinion, “the nondisparagement clause constituted a "concerted effort by the Village and the plaintiffs to silence any comment by [the employees] in this matter of public concern, particularly as to those who hold public office, is misguided at best and could be construed as a threat to [the employees’] First Amendment rights.” The employees’ suggest revisions “to avoid even the impression of an effort to impinge on anyone's right to express themselves or to coerce any public official from fulfilling his/her responsibilities.”

The Village's counsel replied indicating that: the proposed settlement did not violate employees' free speech rights; the settlement was advantageous for employees §18; and refusal would be patently unreasonable and a breach of their duty to cooperate under the Public Officers Law** and Village Code.

The employees refused to settle. The Board subsequently met in executive session and resolved to withdraw providing for the employees’ defense and indemnification. However, the employees continued to litigate the actions at their own expense and subsequently initiated a “hybrid Article 78 proceeding and declaratory judgment action seeking a judgment (1) vacating the withdrawal; (2) directing [the Village] to provide a defense; and (3) declaring invalid the Village's disclaimer of any further obligation to defend [the employees].”

Supreme Court denied the petitions and dismissed the proceedings, rejecting the employees’ arguments that “the Village had infringed their First Amendment rights, improperly withdrawn the defense and indemnification for lack of cooperation, or violated the Open Meetings Law.” The Appellate Division sustained the Supreme Court ruling and the Court of Appeals affirmed.

The Court of Appeals rejected the employees’ argument that (1) the Village violated their free speech rights by withdrawing the defense and indemnification; (2) their refusal to settle did not constitute a failure to cooperate justifying revocation of the defense and indemnification under Public Officers Law §18; and (3) the Board violated the Open Meetings Law by withdrawing the defense and indemnification in executive session.

The Court of Appeals said that the employees had advance two argument: [1] the requirement of a nondisparagement clause was an impermissible prior restraint on free speech, and [2] penalizing the employees for refusing to refrain from criticizing the settlement was unconstitutional retaliation. The court found neither argument persuasive.

The court noted that the evidence does not show the Village to have actively sought to restrict the employees’' speech. If, on the other hand, were there. for example, that as part of the settlement, the Village induced the plaintiffs to include the nondisparagement clause in the settlement with employees, said the court, this might be a different case.

The Court of Appeals explained that the plaintiff’s inclusion of the nondisparagement clause in the settlement offer was not a prior restraint on speech as plaintiff was a private party and entitled to offer settlement on whatever terms it saw fit. Had employees accepted the settlement and breached its terms, only the plaintiff, not the Village, could have sued to enforce it.

As the employees’ claim that the Village's "threat" to withdraw the defense and indemnification a prior restraint on speech, the Court of Appeals noted that "[T]he First Amendment prohibits government officials from encouraging the suppression of speech in a manner which can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request." Here, however, the reason the Village threatened to withdraw funding was to end the litigation and save public funds, rather than to suppress speech.

The court also observed that the withdrawal of it obligation to provide for the employees’ defense and indemnification was not a prior restraint on speech but rather a response to employees' failure to cooperate. It was not a restraint on what petitioners could say in the future as the employees were free to continue litigating and criticize the settlement as they pleased.

The Court of Appeals affirmed the lower courts’ decisions, Judge Pigott dissenting.

* Presumably the same ruling would control with respect to officers and employees of the State as the employer seeking “defense and indemnification” pursuant to §17 of the Public Officers Law in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the officer or the employee was acting within the scope of his or her public employment or duties

.

** §17.5 of the Public Officers Law provides, in pertinent part, “The duty to defend or indemnify and save harmless prescribed by this section shall be conditioned upon: … (ii) the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the public entity based upon the same act or omission, and in the prosecution of any appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07652.htm
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Police Department's policy of requiring a police officer who discharges a firearm causing death or personal injury to submit to a Breathalyzer test sustained

Police Department's policy of requiring a police officer who discharges a firearm causing death or personal injury to submit to a Breathalyzer test sustained

Patrolmen's Benevolent Association of the City of New York, Inc., v New York City Police Department, Raymond W. Kelly, Police Commissioner, US Circuit Court of Appeals, 2^nd Circuit, Docket No. 12-3089

The Patrolmen's Benevolent Association of the City of New York, Inc., appealed the District Court’s granting summary judgment dismissing its petition challenging the New York City Police Department’s [NYPD] administration of a Breathalyzer test to any officer whose discharge of his firearm within New York City results in death or injury to any person.

The Circuit Court of Appeals denied the PBA’s appeal, holding that such testing “is reasonable under the special needs doctrine" and that [the PBA’s] Fourth Amendment challenge "fails as a matter of law.”

The “Special Needs” Doctrine is an exception to the Fourth Amendment's protection against unreasonable searches and seizures. Typically when law enforcement seek to discover evidence of criminal wrongdoing, “reasonableness” generally requires the officer first obtaining of a judicial warrant supported by probable cause.

The court said that “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance” and “[w]arrantless, even suspicionless, searches can be constitutionally reasonable where 'special needs, beyond the normal need for law enforcement' are present." However, warrantless, suspicionless searches is “closely guarded” and a court must conduct a “close review of the scheme at issue” in light of “all the available evidence” to determine its “primary purpose.”

The tests applied by the Circuit Court in holding that the “Special Needs Doctrine” applied in this instance were:

1. Sobriety is a fitness-for-duty condition of employment with the NYPD and a sobriety determination serves special needs distinct from criminal law enforcement, specifically, personnel management of, and maintaining public confidence in, the NYPD;

2. NYPD's interest in these special needs is not compatible with the warrant requirement applicable to criminal investigations; and

3. NYPD's interest in these special needs sufficiently outweighs the privacy interests of tested police officers as to render warrantless, suspicionless testing constitutionally reasonable.

The court’s conclusion: these special needs “greatly outweigh officers' reduced expectation of privacy with respect to alcohol testing at the time of any firearms discharge causing death or personal injury,” thereby rendering warrantless, suspicionless testing constitutionally reasonable as a matter of law.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/8f207a1c-113c-4011-b240-6e49dc649f4e/2/doc/12-3089_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8f207a1c-113c-4011-b240-6e49dc649f4e/2/hilite/

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Employee demoted after being found guilty of misconduct

Employee demoted after being found guilty of misconduct

2013 NY Slip Op 07363, Appellate Division, Fourth Department

In this action an employee asked the Appellate Division to annul a determination by the appointing authority finding the employee guilty of specified acts of misconduct and demoting the employee to a lower grade position.

The court rejected the employee's claim that the appointing authority’s determination was not supported by substantial evidence, explaining that substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," citing 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176.

Further, said the Appellate Division, the penalty imposed by the appointing authority, demotion, “is not so disproportionate to the offense[s] as to be shocking to one's sense of fairness, and thus does not constitute an abuse of discretion as a matter of law."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07363.htm
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Applying the Doctrine of Primary Jurisdiction

Applying the Doctrine of Primary Jurisdiction

Marsico v Armstrong, 2013 NY Slip Op 07487, Appellate Division, Second Department

Education Law §2510(2) provides that “Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued [emphasis supplied].*

The Board of Education abolished Business Education teacher positions in accordance with Education Law §2510(2) and then established a preferred eligible list pursuant to Education Law §2510(3) for use in the event a vacancy became available and the Board elected to fill the position.

Donna Marsico was granted tenure as a Business Education teacher by the Board effective September 1, 1994. Upon the abolishment of her positions, the Board placed Marsico’s name on the appropriate preferred list as “the most senior teacher for rehiring purposes.” The Board, however, later concluded that Marsico’s service with the school district as an Adult Education teacher from 1993 to 2007 should not have been considered in determining her seniority for placement on the preferred list.

The Board then adopted a resolution establishing a new preferred eligible list listing the names of two other teachers as having greater seniority in the tenure area than Marsico. One of those teachers was later appointed from the preferred list.

Marsico filed a petition pursuant to CPLR Article 78 [1] seeking a review of the resolution establishing the new preferred eligible list, [2] seeking an order to compel the Board to restore “her reinstatement rights pursuant to the initial preferred eligible list” and [3] directing the Board to appoint her to the position to which the other teacher had been appointed.

The Board moved to dismiss Marsico’s petition based upon the doctrine of primary jurisdiction.** Supreme Court granted the Board’s motion to the extent that it  “stayed the proceeding and referred the matter to the Commissioner of Education”

The Commissioner subsequently decided Marisco’s administrative appeal challenging the Board's several determinations and agreed with the Board, dismissing her administrative appeal on the merits. [Decisions of the Commissioner of Education, Decision 16,158].***

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The Supreme Court then denied Marisco’s petition and dismissed the proceeding.

The Appellate Division reversed the Supreme Court’s ruling explaining that “Under the particular circumstances of this case, the Supreme Court either should have dismissed the petition upon the [Board’s] motion, pursuant to the doctrine of primary jurisdiction or, upon the Commissioner's determination of the administrative appeal, should have permitted Marsico to amend her petition so as to seek review of the Commissioner's determination and to join the Commissioner as a party.”

As Supreme Court elected to await the Commissioner's determination rather than dismiss the petition, the Appellate Division remitted the matter Supreme Court “to permit Marsico to amend her petition and join the Commissioner as a party and, thereafter, for a determination of the amended petition.”

* In contrast, in the event positions in the competitive class in the classified service are abolished [educators are in the unclassified service], §80.1 of the Civil Service Law provides that the incumbents of such positions shall be laid off “in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition positions occurs [emphasis supplied]. §80-a(1) of the Civil Service Law so provides for employees in the noncompetitive class employed by the State as the employer[emphasis supplied].

** The doctrine of primary jurisdiction may be applied by a court in order to permit an administrative agency an initial opportunity to decide an issue in a case in which the court and the agency have concurrent jurisdiction.

*** The Commissioner's decision is posed on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16158.htm

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07487.htm

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

=====================

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Employee has a duty of loyalty to the appointing authority

Employee has a duty of loyalty to the appointing authority

56 N.Y.2d 656

An employer is sometimes confronted with a situation in which an employee’s duty of loyalty to the employer is called into question or there appears to be a conflict of interest with respect to the employee’s performance.

In this action, the employee sued the agency after it had discharged him for “disloyalty and conflict of interest.”

At the time of his dismissal, the employee served as an associate counsel to the agency. The agency alleged that while its employee, the individual was also actively assisting one of the organizations that the agency was established to regulate.

In the words of the Court of Appeals, “Given the nature of the attorney-client relationship and petitioner's position as associate counsel to [agency] ... it cannot be said that reports of [the employee's] active assistance to two public interest lobbying groups regulated by the [agency] were an improper basis for the [agency's] decision to terminate petitioner's employment (cf. Arnett v Kennedy, 416 U.S. 134; Cooper v Johnson, 590 F.2d 559). Nor was petitioner entitled to a due process hearing* inasmuch as he never alleged that there was public dissemination of the reasons for his dismissal. Finally, petitioner, a nontenured employee, has demonstrated no procedural violation in the manner in which his employment was terminated.”

* Presumably the court was referring to a "name clearing hearing."
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Retirement System not required to explain the tax implications of its response to an employee’s question

Retirement System not required to explain the tax implications of its response to an employee’s question

Hauser v. Comptroller, 83 A.D.2d 649

From time to time Personnel Officers receive questions from employees that may require extensive analysis or speculation because of the fact that there may be different results depending on the course of action followed by the employee. It seems that as long as the answer is correct, the Court will not impose an unreasonable burden on the administrator to explain the implications of the answer.

The case arose when a retiree sought to change the basis for his retirement from “service retirement” to “ordinary disability” retirement.

Max Hauser contended that the Employees’ Retirement System should have advised him of the possible federal tax benefits were he to elect “ordinary disability” retirement rather than the service retirement option.

In rejecting the argument, the Court indicated that the information given Hauser regarding the amount of benefits was correct and “to require the Retirement System to advise every applicant of the tax implications of their retirement would impose an unreasonable burden on the system”.
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 16, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 16, 2013

Click on text highlighted in color  to access the full report

DiNapoli Announces New In–State Private Equity Investment Through Softbank Capital

On Friday, November 15, 2013 State Comptroller Thomas P. DiNapoli Friday announced the New York State Common Retirement Fund’s In–State Private Equity Program investment in The Dodo Inc., a start–up website focusing on animal issues, through investment manager SoftBank Capital.

DiNapoli: Former Fire District Treasurer Accused of Stealing More Than $50,000

The former Crystal Beach Fire District treasurer was arrested Thursday, November 14, 2013 for allegedly stealing and spending more than $50,000 of public funds on tanning, TV and shopping sprees, according to State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of the

Northern Onondaga Public Library District and the

Town of Sidney.

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli announced Wednesday, November 13, 2013 the following audits have been issued:

Plaza College;

Dowling College;

Mercy College;

Department of Health;

New York State Energy Research and Development Authority;

State University of New York Farmingdale State College; and the

State Education Department.
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Employee terminated after being found guilty of “excessive absence”

Employee terminated after being found guilty of “excessive absence”
2013 NY Slip Op 07430, Appellate Division, First Department

The Appellate Division sustained the termination of a Senior Court Officer [Appellant] employed by the Unified Court System following a disciplinary hearing. The hearing office determined that that Appellanthad engaged in misconduct by missing 197 days of scheduled work assignments in the course of a 14-month period and recommended that he be dismissed from his position.

The appointing authority adopted the findings and recommendation of the hearing officer and terminated Appellant. .

The Appellate Division sustained the appointing authority’s decision, noting that substantial evidence supported the hearing officer’s determination.

Noting that Appellant’s absences “were not caused by his psychological disorders,” court said that the penalty imposed by the appointing authority, termination, did not shock its sense of fairness, citing Dickinson v NYS Unified Court System, 99 AD3d 569.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07430.htm
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Replacement of a 55-year-old Webmaster by a younger “web guru” in course of a business reorganization did not constitute a violation of the ADEA

Replacement of a 55-year-old Webmaster by a younger “web guru” in course of a business reorganization did not constitute a violation of the ADEA

Source: Employment Law Daily - a Wolters Kluwer publication

Decision summarized by Majorie Johnson, J.D.

A 55-year-old website coordinator who was laid off during a restructuring in which his employer adopted a web-based multimedia marketing model, and hired a younger “web guru” to rebuild the website with the latest technology, could not advance his ADEA and state law claims of age bias, a federal district court in New York ruled. Dismissing the employee’s pro se claims on summary judgment, the court held that the disparity in age between him and his “replacement,” standing alone, was insufficient to prove age discrimination.

The full text of Ms. Johnson’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/no-age-bias-when-55-year-old-webmaster-replaced-by-younger-web-guru-in-restructuring-failed-to-advance-age-bias-claims/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29
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Audits issued by New York State Comptroller Thomas P. DiNapoli posted on the Internet

Audits issued by New York State Comptroller Thomas P. DiNapoli posted on the Internet

Source: Office of the State Comptroller

On November 13, 2013 the State Comptroller issued the following audit reports.

Click on text highlighted in color  to access the full report

Statewide Travel Audits:
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities: 

State University of New York Farmingdale State College, Selected Employee Travel Expenses (2012-S-137)
Auditors selected one State University of New York Farmingdale State College employee with travel expenditures totaling $212,573 for audit. Most of the travel expenses were appropriate. However, college officials could not provide documentation to support 21 travel charges totaling $8,386.

State Education Department, Selected Employee Travel Expenses (2012-S-97)
Auditors examined the travel expenses of three State Education Department employees with outliers in the areas of train fare and fuel expense. They also reviewed and considered the possible tax implications of travel and work locations for one of the three employees. In total, auditors examined $100,908 in travel costs associated with these three individuals. Auditors found the travel expenses for two of the three SED employees selected for audit adhered to state travel rules and regulations. 

However, the travel expenses for one employee implicated the Internal Revenue Service "tax home" rules for 2009 and are taxable as income. As a result, the travel reimbursements made to the employee were reported to the taxing authorities and an amended W-2 was issued.

Tuition Assistance Program, Plaza College (2011-T-2)
Auditors determined that Plaza College was overpaid $549,316 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include 18 students who received awards but did not meet the requirements for full-time status, nine students who did not maintain good academic standing, and four students who did not meet the requirements for accelerated TAP. Many of these disallowances result from Plaza students enrolling in courses not required for their programs of study.

Tuition Assistance Program, Dowling College (2012-T-2)
Auditors determined that Dowling College was overpaid $191,020 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include five students who received awards but did not meet the requirements for full-time status, four students who did not maintain good academic standing, two students who were not credited with their awards, and one student who had not declared a major by the beginning of her junior year.

Tuition Assistance Program, Mercy College (2012-T-3)
Based on a preliminary sample of certification transactions, auditors determined that Mercy College’s certification procedures were appropriately designed and were substantially complied with during the audit period. Auditors therefore concluded that there is a low risk that a significant number of students certified by Mercy College for TAP were not eligible for awards. Nonetheless, tests did disclose 14 awards totaling $25,011 that school officials certified in error.

Department of Health, Unnecessary Managed Care Payments for Medicaid Recipients with Medicare (Follow-Up ) (2013-F-15)
An initial audit report, issued in April 2012, examined whether inappropriate Medicaid payments were made for selected providers who also received payments from Medicare. For the two year audit period ended Dec. 31, 2011, auditors determined that, although DOH implemented the new automated crossover system to reduce Medicaid overpayments, it was flawed. As a result, auditors identified potential and actual overpayments of $100,387 for 12,715 duplicate claims. In a follow-up, auditors found the DOH and Office of the Medicaid Inspector General officials have made progress in correcting the problems identified in the initial report. However, improvements are still needed.

New York State Energy Research and Development Authority, Compliance With Executive Order 111: Agency Energy Efficiency Goals and Practices (2012-S-159)
E.O. 111 required that, by 2010, all affected state agencies (ASEs) seek to achieve a reduction of their energy consumption by 35 percent as compared to 1990 levels. NYSERDA was designated the lead entity responsible for coordinating implementation and assisting other ASEs to fulfill their responsibilities under the order.

Auditors found NYSERDA made significant efforts to provide guidance, and to directly and indirectly assist ASEs in meeting their energy reduction goals, but was deficient in its oversight and monitoring of the statewide progress toward the goal, and these deficiencies likely hampered the effort's outcomes. As a result no one can be certain what was accomplished on a statewide basis and whether program goals were achieved by anyone except a few select agencies that chose to comply.

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Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related

Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related
2013 NY Slip Op 07254, Appellate Division, First Department

A number of statutes providing disability retirement include a rebuttable presumption that the claimed disability was incurred in the performance of the applicant’s official duties. For example, General Municipal Law §207-kk provides that with respect to a disability “caused by cancer” by certain firefighters constitutes “presumptive evidence that [the cancer] was   incurred in the performance and discharge of duty unless the contrary be   proved by competent evidence.”

In this appeal a New York City police officer, [Applicant] challenged the denial of her application for World Trade Center [WTC] accidental disability retirement benefits based on her claim to have suffered the disability as defined by Retirement and Social Security Law §2(36) as a result of a qualifying condition is presumed to be caused by his or her exposure at the WTC site.

One of arguments advanced by Applicant was that Supreme Court “improperly” shifted the burden of proof to her.

The Appellate Division ruled that the lower court had not shifted the burden of proof to her, explaining that Applicant “was not entitled to the statutory WTC presumption that her condition or impairment of health was incurred in the performance and discharge of duty” because, she failed to demonstrate that she was present at the WTC site and she failed to demonstrate a qualifying WTC condition as defined by Retirement and Social Security Law.*

The Appellate Division said that there was credible evidence that Applicant “was not present at the World Trade Center (WTC) site during the requisite time period” in that the appointing authority had shown that ”there were no contemporaneous records, roll call or command logs, records of the Medical Division, or exposure logs, indicating that [Applicant] was present at the WTC site.”

* Further, §13-252.1 of New York City’s Administrative Code was amended by adding a new provision, §13-252.1[1], the so-called “World Trade Center Law.” This amendment established a rebuttable presumption that "any condition or impairment of health . . . caused by a qualifying World Trade Center condition" as defined in the Retirement and Social Security Law, "shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident . . . unless the contrary be proved by competent evidence."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07254.htm
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