A probationary teacher may be terminated from his or her position absent a showing that his or her dismissal was made in bad faith, in violation of law, or for a constitutionally impermissible purpose.

A probationary teacher may be terminated from his or her position absent a showing that his or her dismissal was made in bad faith, in violation of law, or for a constitutionally impermissible purpose

2015 NY Slip Op 03479, Appellate Division, First Department 

Supreme Court denied a probationary employee’s [Probationer] petition seeking to have the court annul the appointing authority’s decision to terminate Probationer’s services during her probationary period. The Appellate Division dismissed Probationer’s appeal of the Supreme Court’s ruling.

One of the arguments advanced by Probationer was that she had attained “tenure by estoppel” and thus was entitled to notice and hearing as a condition precedent to her dismissal from her position.

The Appellate Division held that Petitioner was not entitled to tenure by estoppel, explaining that Probationer, while serving an extension of her probationary appointment pursuant to an agreement providing for such an extension, had resigned from that position. The appointing authority subsequently reemployed Probationer as a teacher at a different school subject to a new three-year term of probation. This second probationary period was also extended pursuant to the terms of another agreement. The appointing authority then terminated Probationer’s employment before the expiration of this second extended term of probation.

Accordingly, said the court, Petitioner never taught beyond the expiration of the probationary terms of her employment with the school district, citing Juul v Board of Educ. of Hempstead School Dist. No. 1, Hempstead, 76 AD2d 837, aff’d 55 NY2d 648. The Appellate Division commented that Juul, a teacher, had agreed to forgo any claim to tenure in exchange for the extension of his probationary employment with the school district.

In contrast, the Appellate Division noted the decision in Matter of Gould v Board of Educ. of Sewanhaka Cent. High School Dist., 81 NY2d 446. In Gould the teacher was found to have attained tenure by estoppel “where she obtained tenure in her first position and taught beyond the two-year period of her probation in her second position.”

Finding that the appointing authority had not breached the second agreement extending Petitioner's probation at the second school, the court held that in the absence of a showing of bad faith, a violation of law, or a constitutionally impermissible purpose on the part of the appointing authority, Probationer could terminated from her probationary employment “for any reason or no reason at all.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03479.htm

_____________

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Employer has the burden of proving an individual cannot perform the essential functions of the position regardless of any reasonable accommodation provided

Employer has the burden of proving an individual cannot perform the essential functions of the position regardless of any reasonable accommodation provided

2015 NY Slip Op 03465, Appellate Division, First Department

Supreme Court granted the New York City’s Department of Sanitation’s [DOS] motion to dismiss the Article 78 petition filed by an applicant [Applicant] for employment with DOS alleging “disability-based” unlawful discrimination “for failure to state a cause of action.”

Applicant appealed and the Appellate Division unanimously reversed the lower court’s ruling.

Applicant claimed that DOS refused to hire him, notwithstanding he otherwise proved qualified for employment as a sanitation worker based solely on his having a psoriasis condition on his hands. This said the court “makes out causes of action for disability-based discrimination under the New York State and New York City Human Rights Laws.”

The State Human Rights Law required Applicant to plead that he could perform the essential functions of the job if he were afforded reasonable accommodation. Here, said the Appellate Division, Applicant’s complaint alleged that gloves would have constituted a sufficient accommodation to enable him to perform the work satisfied this requirement.

The court then explained that whether DOS was justified in considering Applicant’s psoriasis disqualified him for the position “on the grounds that the condition would have prevented him from performing the essential functions of the position" and “no accommodation (including gloves) would have obviated the interference” cannot be determined from the face of the complaint and the documentary exhibits annexed to it.

Although DOS had submitted evidence in support of its motion tending to show that Applicant's condition rendered him incapable of performing the job of a sanitation worker, its motion was not one seeking summary judgment and thus Supreme Court should have denied its motion to dismiss Applicant’s petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03465.htm

An employee, as an active participant in a work-related tragedy rather than as a bystander, is eligible for workers’ compensation benefits

An employee, as an active participant in a work-related tragedy rather than as a bystander, is eligible for workers’ compensation benefits

126 AD3d 1250

In this Workers’ Compensation case an employee [Claimant] alleged that she had  sustained a compensable work-related mental injuries after she responded to the suicide of a patient.

A Workers' Compensation Law Judge found Claimant had disabling depression, anxiety and posttraumatic stress disorder stemming from that incident. The Workers' Compensation Board affirmed, and the self-insured employer and its third-party administrator [Employer] controverted the Board’s decision and appealed.

The Appellate Division affirmed the Board’s ruling, explaining that psychological injuries caused by witnessing the aftermath of a suicide have been held to be compensable where "the claimant was an active participant in the tragedy," as opposed to a bystander, citing Wolfe v Sibley, Lindsay & Curr Co., 36 NY2d 505.

Here, said the court, a patient leapt from a window at the facility where Claimant worked.   Claimant was one of the first workers to reach the scene and, despite her lack of medical training, was directed by her supervisor to retrieve an oxygen tank for the patient.

In the words of the Appellate Divisions: “Claimant did so, but began to feel anxious and hyperventilate and ‘lost it’ altogether after she was ordered by facility officials not to speak to investigators about her prior interactions with the patient.”

This, said the court, constituted substantial evidence for the Board's finding that Claimant was indeed an active participant in the events surrounding the suicide and that the Board was free to, and did, “credit medical evidence indicating that [Claimant} developed disabling depression, anxiety and posttraumatic stress disorder as a result of the incident.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02533.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 25, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 25, 2015

Click on text highlighted in color to access the full report

New York State Comptroller Thomas P. DiNapoli announced office released audits of State Department and Agencies have been issued:

Department of Motor Vehicles

Posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093015/15s7.pdf

Department of Transportation

Posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093015/14s52.pdf

and the

Workers’ Compensation Board

Posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/093015/14s43.pdf

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

Town of Champion Great Bend Fire District – Controls Over Financial Operations (Jefferson County)
The district has not submitted the required annual financial reports to the Office of State Comptroller for the 2011 through 2013 fiscal years. The district did not submit its tax levy limit calculations for 2015 or the three prior years. Auditors calculated the levy limit for 2015 and found the district’s proposed 2015 tax levy exceeded the statutory limit by $4,394 and the board did not pass a resolution to override the limit.

Chenango County – Departmental Cash Receipts (2015M-21)
County officials have ensured cash receipts are properly collected, recorded and deposited. Department officials have implemented effective controls including issuing duplicate receipts, segregating key financial duties, performing monthly reconciliations and cross-checking their records with the monthly treasurer’s report.

Jefferson County Soil and Water Conservation District – Internal Controls Over Selected Financial Operations (2014M-171)

The board was not provided with the necessary financial reports and information to properly oversee operating and grant activities or to develop realistic or structurally balanced budgets. As a result, the district borrowed $669,000 from grant funds to help pay operating costs.

Village of Woodsburgh – Claims Processing and Information Technology (Nassau County)
The board did not perform an effective claims audit to ensure transactions were properly authorized and approved or claims were for proper village purposes. The board also did not adopt a comprehensive IT policy or establish procedures addressing crucial aspects of IT security.


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

Campbell-Savona Central School District – Budget Review (Steuben County)
The significant revenue and expenditure projections in the tentative budget are reasonable. The district consistently appropriates fund balance that is not needed to fund operations. Two of the district’s reserves totaling $1.14 million appear to be overfunded. The district’s tentative budget complies with the property tax levy limit.

Cortland City School District – Budget Review (Cortland County)
The district has overestimated appropriations for payroll, health insurance, retirement, debt and utilities by $3.2 million. After the district’s planned use of $500,000 in fund balance, the remaining unassigned fund balance is only $200,000, or 0.4 percent, of the ensuing year’s appropriations. The district’s preliminary budget complies with the tax levy limit.

Fort Edward Union Free School District – Financial Condition (Washington County)
Although the board adopted reasonable budgets that included realistic estimates based on historical or known trends, the district relied on the appropriation of fund balance to finance recurring expenditures and, as a result, the budgets were not structurally balanced. As of June 30, 2014, the district reported an unrestricted fund balance that totaled $35,463, or .33 percent, of the ensuing year’s budgeted appropriations. District officials have developed a multiyear financial plan to address current and long-term financial trends.
 
Glens Falls Common School District – Financial Condition (Warren County)
The board did not adopt structurally balanced budgets that funded recurring expenditures with recurring revenues for the general fund for 2012-13, 2013-14 or 2014-15 fiscal years. Furthermore, the district’s general fund operating cash balance decreased by approximately $370,000 in one year. As a result, the district had to issue a tax anticipation note to meet cash flow needs during the 2014-15 fiscal year.

West Seneca Central School District – Financial Condition (Erie County)
The district had no operating cash on hand and very little fund balance at the end of 2013-14 fiscal year. The district incurred significant operating deficits in fiscal years 2010-11 through 2012-13. In addition, the district issues short-term debt to provide temporary cash flow and has improperly used a total of $7.5 million in reserve fund cash to help with cash flow in fiscal years 2012-13 and 2013-14.



Audit finds an additional $150,000 was stolen by an official of the Town of Beekman

Former Beekman Comptroller Frederick D. Knapp Jr. pleaded guilty to grand larceny in the second degree last Friday in Dutchess County Court after an audit and investigation by State Comptroller Thomas P. DiNapoli uncovered a second theft of $150,000 in town funds, following an earlier admission by Knapp of stealing $390,000 while in office.

Posted on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2015/beekman.pdf

Fiscal Stress Scores for 17 cities released 
State Comptroller Thomas P. DiNapoli issued fiscal stress scores  for the 17 cities in New York that have fiscal years ending between March 31 and July 31.

Posted on the Internet at:: http://www.osc.state.ny.us/localgov/fiscalmonitoring/villagescities_stressed2014.htm

To search for a specific local government’s fiscal stress scores, visit:
http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsms.cfm
 

For an overview of Comptroller DiNapoli’s Fiscal Monitoring System, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

Audits find more than $500 Million in Medicare waste

State Comptroller Thomas P. DiNapoli’s audits identified a total of $513 million in improper Medicaid payments and untapped revenue opportunities over a four-year period, according to a report released Wednesday. Auditors identified another $361 million in questionable transactions that will require further review and actions to prevent overpayments or recover costs.

Posted on the Internet at: http://www.osc.state.ny.us/audits/15d1.pdf

Eleven individuals nominated, recommended for appointment or appointed to Governor Cuomo’s administration

Eleven individuals nominated, recommended for appointment or appointed to Governor Cuomo’s administration

Source: Office of the Governor

On April 23, 2015Governor Andrew M. Cuomo announced the following nominations for appointment, recommendations for appointment and individuals appointed to his administration with the Departments and Agencies indicated.

Gerrard P. Bushell will be nominated to serve as President and Chief Executive Officer of the Dormitory Authority of the State of New York. Mr. Bushell is an accomplished investment advisor who counsels some of the nation’s leading institutional investors on their private and public investment strategies. He is currently a Senior Relationship Advisor in BNY Mellon's alternative and traditional investment management businesses. Prior to joining BNY Mellon, he held a number of Senior Advisory roles, including Director in the Client and Partner Group at Kohlberg Kravis Roberts & Co. (KKR), Managing Director in Business Development at Arden Asset Management and Head of Institutional Sales at the Legg Mason affiliate ClearBridge Advisors (formerly Citi Asset Management). Gerrard has deep experience working in New York State Government, having served as a Senior Officer to New York State Comptroller H. Carl McCall, a sole trustee of the New York State Common Retirement Fund and a leading institutional investor. Mr. Bushell is a graduate of Columbia University, where he received a B.A., M.A. and Ph.D. in Political Sciences. This nomination requires Senate confirmation.

Jerry Boone will be nominated to serve as Commissioner of the Department of Taxation and Finance. His nomination replaces that of Kenneth Adams, who will return to the private sector in June. Mr. Boone currently serves as President and Commissioner of the Civil Service Commission, overseeing New York’s workforce as principal human resources partner and employee benefits manager for the Executive Branch of state government, which employs 150,000 people. He previously served as Managing Principal of Boone Consulting and, prior, was President and Founder of Pride Properties, LLC, owning a portfolio of rental and company-financed properties in the Mid South. He held a number of roles at Caesars Entertainment, Inc./Harrah’s Entertainment, Inc., from legal counsel to head of gaming operations at a major subsidiary, culminating in the role of corporate Senior Vice President and HR, Integration & Internal Communication Leader. He also served as Commissioner of the New Jersey Casino Reinvestment Development Authority and Solicitor General in the New York State Attorney General’s Office. Mr. Boone has a B.A. from Columbia University and a J.D. from Boston College Law School. This nomination requires Senate confirmation.

Sabrina Ty has been recommended to serve as President and CEO of the Environmental Facilities Corporation. This recommendation must be approved by the EFC Board of Directors. Ms. Ty most recently served as Special Counsel to the Commissioner in the Office of General Services, where she oversaw several of the Governor’s Enterprise initiatives for achieving savings, supervised the implementation of the Service-Disabled Veteran-Owned Business Program and managed the agency’s MWBE program. She previously served as Governor Cuomo’s Deputy Secretary for Legislative Affairs and, prior, held a number of positions for the New York State Assembly, culminating in Legislative Counsel to the Speaker. Ms. Ty has a B.A. from McGill University in Montreal and a J.D. from Albany Law School.

Margaret A. Tobin has been appointed Senior Vice President of Development for the Jacob K. Javits Convention Center in New York City. Ms. Tobin most recently served as Chief Financial Officer of Empire State Development, where she oversaw the $1.6 billion bond financing of World Trade Center 3. Ms. Tobin joined the Cuomo administration in 2012 as Executive Director of the New York Works Task Force, leading the Governor’s initiative to overhaul the capital investment process for New York State. In that role she led the development of New York State’s first-ever, 10-year, Statewide Capital Plan, coordinating $174 billion in capital investment across 47 agencies and authorities, and oversaw more than 600 projects valued at more than $1.5 billion, while achieving a 100% on-time, on-budget performance. During her distinguished career, Ms. Tobin has served as a Principal at Cherry Tree Development, as Executive Vice President of Development for Thor Equities, a Vice President of Development at Vornado Realty Trust, Executive Vice President and Chief Financial Officer for the Hudson River Park Conservancy, and Director of Economic Development for the Mayor’s Office of Finance & Economic Development. Ms. Tobin earned a B.A. from Vassar College and an M.B.A. from Stanford Business School.

Axel Bernabe has been appointed Assistant Counsel to the Governor with a focus on Health. Mr. Bernabe most recently served as a Partner with Constantine Cannon, P.C., where for over 10 years he specialized in healthcare, antitrust and complex commercial litigation, as well as on providing corporate compliance advice to companies in the healthcare and insurance industries. He previously served as an associate at Coudert Brothers, LLP, and articled with the Canadian Department of Justice. Mr. Bernabe has both a Bachelor of Laws (J.D. equivalent) and a Bachelor of Civil Laws from McGill University Faculty of Law, and a B.A. from the University of Ottawa.

Mehul J. Patel has been appointed Chief Operating Officer and Chief of Staff at Empire StateDevelopment. Mr. Patel currently serves as Chief of Staff at ESD and will be adding the COO role to his responsibilities. He previously served as Vice President of the Moynihan Station Development Corporation, working with public and private stakeholders to expand New York’s Penn Station into the historic James A. Farley Post Office Building. Prior to this role, he was a Senior Project Manager for The Hudson Companies and was a Senior Analyst at HR&A Advisors. Mr. Patel was recently named to the Global 40 Under 40 by Urban Land. He has a B.A. from Yale University and an M.S. from Columbia University.

Heriberto (Ed) Vargas has been appointed Director of Labor Relations for the Department of Labor. He is a veteran New York City labor leader with more than 30 years of experience working on economic, political and social justice issues affecting working families in New York State, nationally, and internationally. He previously served as a consultant to Amalgamated Life Insurance Company and as Assistant to the President of Workers United, SEIU. He also served as Director of Mobilization at UNITE HERE and in various posts at the former International Ladies Garment Workers Union (ILGWU). Mr. Vargas served in the US Air Force during the Vietnam War, from which he was honorably discharged as a Staff Sergeant. He attended Herbert H. Lehman College, City University of New York.

Shareema Abel has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for Homes and Community Renewal. She currently serves as Litigation Attorney in the Teacher Performance Unit of the New York City Department of Education, where she was lead counsel on disciplinary hearings of tenured pedagogues. She previously served as an Assistant District Attorney in Gangs/Major Case/Homicide Bureau of the Bronx County District Attorney’s Office. Ms. Abel has a J.D. from Hofstra University School of Law and a B.A. from Binghamton University.

Linda Donahue has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for the Division of Homeland Security and Emergency Services. Ms. Donahue currently serves as Senior Counsel for the New York City Law Department, where she litigated and managed federal civil rights class actions and wrongful conviction cases. She was previously a partner at Kostelantetz & Fink, LLP, and Counsel at Frankel & Abrams. Ms. Donahue has a J.D. from New York University School of Law and a B.A. in Social Work from Florida State University.

Nika Milbrun has been appointed Assistant Director of Constituencies for African American and Women’s Affairs for the Executive Chamber. Ms. Milbrun most recently served as Regional Field Director for Terra Strategies on behalf of the Democratic Congressional Campaign Committee. She previously was the Field Director for Dell Smitherman’s 2014 State Senate campaign and, prior, was a Special Assistant for the UN Child Rights & Business Workshop. She was also a Community Outreach Coordinator for the New York State Senate Democratic Conference. She served as Regional Field Organizer for One Nation Working Together as well as David Yassky's campaign for New York City Comptroller. Ms. Milbrun attended Baruch College.

Matthew L. Ossenfort has been appointed to serve on the State Workforce Investment Board. Mr. Ossenfort was elected Montgomery County Executive in November 2013. At 33, he is the youngest sitting county executive in New York State. He was born and raised in Amsterdam, attended Amsterdam City Schools and is a lifelong resident of Montgomery County. Upon graduation, he began work in the New York State Assembly, where he worked for various members in different capacities. In 2007, he became Chief of Staff to Assemblyman George Amedore. He is also the founding member and president of Habitat for Humanity Montgomery County NY. Prior to being elected as Montgomery County’s first Executive, he worked as a Senior Legislative Analyst with the New York State Senate. Mr. Ossenfort holds a Bachelor's Degree in Political Science and History from the University at Albany.

Internal Revenue Service’s requirements that apply to public employers

Internal Revenue Service’s requirements that apply to public employers

Source: The United States Internal Revenue Service

The Internal Revenue Service is offering a free “Compliance Self-Assessment Tool for Government Entities” on May 14, 2015; 2 p.m. (EST)

To Register click on: http://www.visualwebcaster.com/IRS/102153/reg.asp?id=102153

N.B. You will use this same link to attend the event.

The Self-Assessment Tool will assist public entities to:

Identify legal requirements that apply to public employers;

Recognize unique federal income, social security and Medicare taxes and public retirement system obligations;

Gain awareness of potential compliance issues; and

Understand the most common tax issues 
 

Probationary employee terminated after testing positive for cocaine

Probationary employee terminated after testing positive for cocaine

2015 NY Slip Op 03359, Appellate Division, Second Department

The New York City Transit Authority [Authority] terminated the employment of a subway conductor [Conductor] who was then serving as a probationary employee.

Conductor had sustained injuries in an off-duty motor vehicle accident and was absent from work for a period of more than 21 days. As a condition of returning to work, Conductor was required to undergo a medical evaluation, including the administration of a drug test. Conductor tested positive for cocaine and the Authority terminated his employment.

Conductor filed an Article 78 petition seeking a court order directing his reinstatement to his former position. Supreme Court denied Conductor’s petition and Conductor appealed the court’s dismissal of the proceeding.

The Appellate Division sustained the Supreme Court’s ruling. Citing York v McGuire, 63 NY2d 760,  the court explained that a probationary employee may be discharged without a hearing* and without a statement of reasons in the absence of any demonstration that the termination was in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law. Finding that Conductor failed to carry his burden of presenting competent proof of bad faith, illegal reasons, or a violation of statutory or decisional law, the court dismissed his appeal.

As to the Authority’s decision to terminate Conductor, the Appellate Division said that “the penalty of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness.”

* N.B. Where a probationary period has been set in terms of a minimum and a maximum period of probation, case law holds that if the appointing authority elected to terminate a probationary employee during his or her minimum period of probation, such an individual is entitled to a notice and hearing in the same manner as a tenured individual.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03359.htm

Unscrupulous conduct or gross dereliction of duty warrants the removal of an officer of a town, village and other political subdivisions of the State pursuant to Public Officers Law §36

Unscrupulous conduct or gross dereliction of duty warrants the removal of an officer of a town, village and other political subdivisions of the State pursuant to Public Officers Law §36

2015 NY Slip Op 02815, Appellate Division, Third Department

Public Officers Law §36 provides that certain officers of a political division of the State may be removed from his or her office for misconduct, maladministration, malfeasance or malversation in office.  Loosely defined, these terms are used to describe, respectively, [1] acting unlawfully; [2] administer or manage badly or inefficiently; [3] commission of an act that is unequivocally illegal; and [4] corrupt behavior while serving in a position of trust.

In this action to remove a public officer from his positions with a Village the Appellate Division explained that “To warrant removal, an official's misconduct must amount to more than minor violations and must consist of "self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust” constituting "unscrupulous conduct or gross dereliction of duty or conduct that . . . connotes a pattern of misconduct and abuse of authority."

Residents of the Village commenced this proceeding in the Appellate Division*seeking to remove the incumbent [Officer] from the public offices of Mayor and Village Manager pursuant to Public Officers Law §36. When Officer moved to dismiss the petition the court denied the motion. The Appellate Division then referred the matter to a Referee to conduct a hearing and report his findings and recommendations to the court.

In the course of the hearing the residents offered testimony from a Village Trustee, an Assistant District Attorney, two Village police officers and a Village employee, as well as submitting affidavits and other evidence to support their allegations.  In contrast, Officer, who was present and was represented by counsel during the hearing, offered no testimony or evidence on his own behalf.

Ultimately the Referee issued a report recommending the removal of Officer from his positions. When the residents moved to confirm the Referee's report, Officer cross-moved to disconfirm the report and dismiss the petition.

The Appellate Division confirmed the Referee's report, concluding that Officer’s conduct warranted his removal from the offices of Mayor and Village Administrator pursuant to Public Officers Law §36. The court commented that Officer’s actions "rise to the level of 'unscrupulous conduct or gross dereliction of duty or conduct that connotes a pattern of misconduct and abuse of authority.’"

* §36 provides, in pertinent part, that an application for such removal “may be made by any citizen resident of such town, village, improvement district or fire district … and shall be made to the appellate division of the supreme court held within the judicial department embracing such town, village, improvement district or fire district.”

The decision, which sets out the acts or omissions alleged to warrant Officer’s removal from office are set out in the decision of the Appellate Division which is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02815.htm

_____________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

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A disciplinary penalty consisting of a “51 days' forfeiture” deemed already served while on prehearing suspension without pay, found appropriate under the circumstances

A disciplinary penalty consisting of a “51 days' forfeiture” deemed already served while on prehearing suspension without pay, found appropriate under the circumstances 
2015 NY Slip Op 02913, Appellate Division, First Department 

Supreme Court annulled the New York City’s Police Commissioner finding an employee [Employee] of the New York City Police Department [NYPD] guilty of multiple disciplinary charges filed against Employee and the penalty imposed by the Commissioner: 51 days' forfeiture, deemed already served while on pretrial suspension.”

The Police Commissioner appealed and the Appellate Division unanimously reversed the lower court’s ruling “on the law” and reinstated the penalty set by the Commissioner.

The Appellate Division noted that Employee had been found guilty of multiple disciplinary charges stemming from a variety of circumstances by a hearing officer including:

Accessing police computer information for personal purposes,

Supplying a resident address different from that of her actual address to obtain more favorable insurance rates, and

Patronizing an unlicensed establishment that served alcohol.

The court also noted that Employee’s at the NYPD reflected two prior disciplinary matters, one of which stemmed from “a DWI arrest” and resulted in a penalty of, among other things, one year on “dismissal probation.”

Under the circumstances, said the Appellate Division, the penalty imposed by the Commissioner was not so disproportionate to Employee's offenses “as to be shocking to one's sense of fairness” and found no basis to disturb the penalty imposed on Employee.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02913.htm

_____________

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on

http://booklocker.com/books/7401.html

                                                            _____________

Rules and regulations of the Department of Civil Service reviewed.in accordance with §207 of the State Administrative Procedure Act

Rules and regulations of the Department of Civil Service reviewed in accordance with §207 of the State Administrative Procedure Act

Source: The New York State Register


§207 of the State Administrative Procedures Act, in pertinent part, provides that any rule adopted on or after its effective ion for the rule, provided that at a minimum every rule shall be initially reviewed no later than in the fifth calendar year after the year in which the rule is adopted, and, thereafter, every rule shall be re-reviewed at five-year intervals.

The April 15, 2015 issue of the New York State Register reports the publication of the Five Year review of certain existing rules and regulations set out in 4 NYCRR and the conclusion of the forty-five (45) day public comment period. No public comments were received regarding any of the rules and regulations listed below during this forty-five day comment period.

The rules and regulations reviewed were found to “have functioned consistent with the purposes underlying their adoption and are continued without modification:”

Adopted in 2000

1. Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service). The resolution added a new subdivision (vii) to paragraph (2) of subsection (b) of Rule 4.5 to provide for a probationary term for the position of “Thruway Maintenance Worker” of not less than 26 weeks nor more than 52 weeks.

2. Amendments to Chapter IV of 4 NYCRR (Regulations of the State Civil Service Commission [Commission’s Regulations]) A new §55.5 codified the long-standing Civil Service Commission practice of granting prior approval for certain examination rating keys, according to the conditions and standards set forth within such section, upon the request of the Civil Service Department’s Director of Examinations or his or her designee. The existing §§55.5 and 55.6 were renumbered §§55.6 and 55.7, respectively.

Adopted in 2005

Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service). The resolution added a new paragraph (viii) to subdivision (1) of subsection (b) of Rule 4.5 to provide for a probationary term for the positions of “University Police Officer 1” and “University Police Officer 1 (Spanish Language)” of not less than 52 weeks nor more than 78 weeks.

Adopted in 2010

Amendment to Chapter V of Title 4 of NYCRR (Regulations of the Department of Civil Service [President’s Regulations]). The resolution added a new paragraph to Rule 72.1 designating the Authorities Budget Office as a separate unit for suspension, demotion or displacement within the Department of State.

Individual’s right to due process in a disciplinary hearing was not violated when the complaining witness was absent from the hearing due to intimidation and feared to testify

Individual’s right to due process in a disciplinary hearing was not violated when the complaining witness was absent from the hearing due to intimidation and feared to testify

2015 NY Slip Op 03075, Appellate Division, First Department

The Commissioner of the New York State Department of Health adopted an Administrative Law Judge's recommendation to sustain the three charges alleging patient abuse and/or neglect by a certified nurse's aide [Aide]. The Aide appealed the Commissioner's determination but the Appellate Division sustained the Commissioner’s finding that the Aide was guilty of these three charges alleged in the notice of discipline.

The Appellate Division said that there was no basis for disturbing the ALJ’s determination with respect to the credibility of witnesses, citing Berenhaus v Ward, 70 NY2d 436.

The court found that there was substantial evidence in the record to support the ALJ’s findings including:

1. Consistent testimony from several witnesses;

2. Photographs of the patient’s bruises; and

3. The facility's clinical records.

Further, the Appellate Division said that the Aide’s right to administrative due process was not violated as the result of the patient's absence at the hearing as the record supports the ALJ’s finding that the patient was intimidated and was afraid to testify.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03075.htm

General Municipal Law §207-c Hearing Officer entitled to weigh conflicting medical opinions and determine which expert’s testimony to credit.

General Municipal Law §207-c Hearing Officer entitled to weigh conflicting medical opinions and determine which expert’s testimony to credit.

2015 NY Slip Op 03214, Appellate Division, Third Department

A correction officer [CO] at a county correctional facility sustained a concussion when he hit his head on a wall while attempting to restrain an inmate. Treated for symptoms attributed to a mild traumatic brain injury and post-concussive disorder, he began receiving benefits pursuant to General Municipal Law §207-c.*

Subsequently the County Sheriff [Sheriff] offered CO the opportunity to return to work on light duty status where he would be assigned to “a sitting job with no inmate contact and no lifting, pushing or pulling any objects in excess of two pounds.” CO refused to accept the light duty assignment and the matter was submitted to an administrative hearing in accordance with the relevant procedures set out in the collective bargaining agreement applicable to CO.

The Hearing Officer's recommendation: CO should be returned to light duty. The Sheriff adopted the Hearing Officer’s recommendation and ordered CO to report as assigned.** CO appealed the Sheriff’s decision.

The question before the Appellate Division: Was the Sheriff's determination supported by substantial evidence?

The Sheriff’s expert, a neuropsychologist, conducted an independent medical examination of CO that included a number of neuropsychological tests, had opined that CO could return to work, testifying that in his opinion”

1. CO had exerted "suboptimal effort" during the testing, and that he found nothing that would prohibit CO  from returning to work based on cognitive and psychological issues; and

2. After a follow-up examination of CO, Sheriff’s expert again opined that CO could return to work.

In contrast, CO’s, also a neuropsychologist, testified that CO displayed deficits in visual and mental processing, planning, language comprehension, attention, concentration and memory and in her opinion CO “was not able to work in the proposed light duty position.”

The Appellate Division explained that while CO’s expert did not agree with the Sheriff’s expert, the Hearing Officer was entitled to weigh the conflicting medical opinions and determine which expert’s testimony to credit.

Although CO had argued that the Sheriff’s expert’s opinion was based on unreliable test results and should not have been credited, the Appellate Division said that the Sheriff’s expert did not indicate that the test results were unreliable, but that the test results showed that CO's claims were unreliable.

The court dismissed CO’s appeal, holding that where the appointing authority’s determination is supported by substantial evidence, as it was in this case, it will not be disturbed.

* §207-c of the General Municipal Law provides for the payment of salary, wages, medical and hospital expenses of police officers and other law enforcement personnel suffering injuries or illness incurred in the performance of duties.

** §207-c 3 of the General Municipal Law provides, in pertinent part that in the event the individual is not eligible for or is not granted such accidental disability retirement allowance or retirement for disability incurred in performance of duty allowance or similar accidental disability pension and, in the opinion of such health authorities or physician, is unable to perform his regular duties as a result of such injury or sickness but is able, in their opinion, “to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty if the same is available and offered to him, provided, however, that such light duty shall be consistent with his [or her] status as a policeman...” [emphasis supplied].  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03214.htm

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Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 18, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 18, 2015

Click on the URL links highlighted in color to access the full report

State Departments and Agencies:

State Department of Education – Whitestone School for Child Development

For the three fiscal years ended June 30, 2013, auditors identified $154,563 in reported costs that did not comply with SED requirements and recommended such costs be disallowed. These ineligible costs included $115,296 in personal services costs and $39,267 in other than personal service costs.

URL link: http://osc.state.ny.us/audits/allaudits/093015/14s38.pdf

Department of Motor Vehicles – Case Advance Accounts

DMV has designed effective internal controls over accounts to ensure that funds are properly accounted for and payments are only made for appropriate business purposes. Tests showed these controls have generally operated as intended. However, auditors also found that DMV’s three cash advance accounts are overfunded in comparison to their apparent business needs.

URL link: http://osc.state.ny.us/audits/allaudits/093015/14s65.pdf

Department of Transportation – Lease and Permit Revenues

An initial report, issued in March 2013, determined DOT was not collecting all unpaid lease and permit fees. At the time of the audit, DOT was owed $6 million in lease and permit revenues, including $2.4 million between two and six years past due and another $1.4 million at least six years past due. DOT needed to improve communications between and guidance given to the units that issue permits and that bill permit holders. In a follow-up report, auditors determined that DOT implemented each of the four recommendations from the initial report.

URL link:  http://osc.state.ny.us/audits/allaudits/093015/15f1.pdf

DeVry College– Tuition Assistance Program

DeVry was overpaid $758,293 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include 14 students who received awards but had not demonstrated their academic preparedness for TAP awards. Twelve of these students did not have certificates of graduation, or the recognized equivalent of such a certificate, from a U.S. high school. The two other students had completed online study from a private school located in another state. Additional incorrect certifications include four students who did not meet the full-time requirements and three students who were not in good academic standing.

URL link:  http://osc.state.ny.us/audits/allaudits/093015/14t2.pdf

City Universityof New York – Time and Attendance for Public Safety Staff

Inadequate internal controls over time and attendance for public safety officers were identified. The overtime process could result in the payment of unauthorized and excessive overtime cost

URL link:  http://osc.state.ny.us/audits/allaudits/093015/13s65%20.pdf

Municipalities:

Village of Endicott – Budget Review

The significant revenue and expenditure projections in the tentative budget for the general, electric, library and parking funds are reasonable. The water and sewer funds’ tentative budgets are not balanced and include deficits of $257,000 and $155,000. Village officials plan to raise water and sewer rates to make up the difference. The village’s tentative budget exceeds the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/villages/2015/endicott_br.pdf

Village of Hempstead– Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. However, based on the 2015-16 proposed budget, the village will have exhausted 91 percent of its taxing authority. The village’s ability to rely on real property taxes as an increased revenue source in the future is limited. The village’s preliminary budget complies with the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/villages/2015/hempstead_br.pdf

City of Lackawanna– Police and Fire Department Work Hours

Police department overtime costs and overtime hours have steadily increased over the last several years. In addition, fire department time and attendance records were not always accurately maintained.

URL link:  http://www.osc.state.ny.us/localgov/audits/cities/2015/lackawanna.pdf

Town of Willing – Justice CourtOperations

The prior town justice did not accurately record and report money to the Justice Court Fund in a timely manner. Additionally, the prior justice did not prepare monthly bank reconciliations, properly account for bail money held by the court or accurately report fines and surcharges to the Department of Motor Vehicles.

URL link:  http://www.osc.state.ny.us/localgov/audits/towns/2015/willingjc.pdf

Town of Wright – Financial Operations

The board did not properly manage the town’s general fund balance from 2011 through 2014. As a result, the board accumulated general fund balance while raising taxes. However, beginning with the 2015 budget, the board plans to reduce the general fund balance to benefit taxpayers.

URL link:  http://www.osc.state.ny.us/localgov/audits/towns/2015/wright.pdf

School Districts

Alfred-Amond CSD – Financial Software Access and Monitoring

Although a previous audit recommended that the district adopt policies and procedures that restrict users’ financial software application permissions to only those functions that are necessary for their job duties, the district did not act on this recommendation. As a result, auditors identified 24 user accounts that had inappropriate or unnecessary access rights or permissions. Auditors also confirmed that the former district treasurer attempted to manipulate her paid leave accruals by adding 60 unauthorized sick days valued at approximately $10,000. District officials notified auditors that they discovered through an informal review of leave records that the former treasurer attempted to manipulate her paid leave records. District officials corrected the leave records, and the former treasurer did not receive any undue benefit.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/alfredalmond.pdf

Beachon City School District – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/beacon_br.pdf

Clhaarlotte Valley CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/charlottevalley_br.pdf

Chenango Valley CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/chenangovalley_br.pdf

East Moriches UFSD – Budget Review

The significant revenue and expenditure projections in the tentative budget are reasonable, except for appropriations for tuition fees for high school students, charter school tuition fees and social security and Medicare taxes. In addition, revenues from tuition payments received from other districts may be overestimated. The district’s preliminary budget complies with the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/eastmoriches_br.pdf

Eldred CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. However, the district’s proposed budget for health insurance is $164,625 higher than supporting documentation for health insurance estimates. The district’s preliminary budget complies with the property tax levy limit.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/eldred_br.pdf

Favius-Pompey CSD – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s preliminary budget complies with the property tax levy limit. 

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/fabiuspompey_br.pdf

Green Tech High Charter School – Resident Tuition Billing

Auditors found $306,175 in school district billings were not paid in a timely manner because resident school districts denied payment due to lack of proof of residency or other enrollment issues.

URL link:  http://www.osc.state.ny.us/localgov/audits/schools/2015/greentechcharter.pdf

Niagara-Wheatfild CSD – Financial Condition

A delay in state aid reimbursements for the Tuscarora Indian School has caused cash flow problems for the district. Without the aid, the district used general fund resources and cash flow borrowing to finance operations. The district has also issued a significant amount of short-term cash flow borrowing during the past three fiscal years.

URL link: http://www.osc.state.ny.us/localgov/audits/schools/2015/niagarawheatfield.pdf