An employer may be required to provide an individual with a name clearing hearing if it has publicly disclosed stigmatizing material concerning the individual

An employer may be required to provide an individual with a name clearing hearing if it has publicly disclosed stigmatizing material concerning the individual
2015 NY Slip Op 04890, Appellate Division, Third Department

After a probationary teacher [Probationer] was terminated from her employment by the School District she commenced an action against a number of school administrators and board members [Defendants] alleging that Defendants had maliciously published defamatory statements about her and that her due process rights were violated by Defendants' failure to provide her with a name-clearing hearing.

Supreme Court granted Probationer's application to annul the School Board's determination denying her a name-clearing hearing and ordered such hearing to be provided.

Addressing Probationer’s due process claim, the Appellate Division said that Supreme Court erred in annulling the Board's determination and granting plaintiff a name-clearing hearing. The court explained that where "a government employee is dismissed for stigmatizing reasons that seriously imperil the opportunity to acquire future employment, the employee is entitled to an opportunity to refute the charge [or charges]" at a name-clearing hearing if the employer publicly disclosed the stigmatizing reasons or if there is a likelihood of future dissemination of such reasons.”  

Probationer had requested a name-clearing hearing “to specifically defend against and address the assertions” by school officials concerning her termination or her relations with students that had been made part of her personnel file. However, said the court, Probationer’s allegations as to the stigmatizing content of such material did not include any further allegations that Defendants and the Board had publicly disclosed those letters or their contents.

Further, said the Appellate Division, Probationer’s assertion that she was seeking relief in the form of removal of the statement of reasons letter from her personnel file was sufficient to apprise the Board of an allegation that there was a likelihood that such a letter or its content might disseminated. Members of the Board, however, said that, before deciding to deny Probationer’s request for a name-clearing hearing the Board determined that the statement of reasons set out in the letter had been and would remain confidential.

Thus, the court concluded, “given that [Probationer] did not allege that Defendants and the Board had publicly disseminated any stigmatizing materials and considering the evidence supporting the conclusion that [Probationer’s] allegation that the statement of reasons letter was in [Probationer's]  personnel file was factually incorrect, there is no basis to disturb the Board's denial of a name-clearing hearing.

Turning to Probationer's action alleging statements made by certain school officials had subjected her to "ostracism and rejection" in the community, the Appellate Division, after explaining the relevant law, held that “Given that defendants do not challenge the jury's determinations that [certain school officials] made the respective statements and that they were defamatory” and remanded the case for a new trial to determine damages, if any, “based upon proof of harms limited to those that can be linked by proximate cause to the two slanderous statements.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04890.htm

NYS Employees’ Retirement System benefits are based on the member’s job title at the time of his or her retirement

NYS Employees’ Retirement System benefits are based on the member’s job title at the time of his or her retirement

2015 NY Slip Op 04555, Appellate Division, Third Department

In 2008, aNew York State Correction Officer [Officer] retired from his position and began collecting service retirement benefits pursuant to Retirement and Social Security Law Article 14. Some four years later Officer requested that he be granted service retirement benefits pursuant to Retirement and Social Security Law Article 15, contending that “other correction officers … had been granted service retirement under Article 15.”

After an administrative hearing, the Hearing Officer concluded that Officer was not eligible for Article 15 service retirement benefits and the Comptroller adopted the Hearing Officer’s decision, in which he included a supplemental conclusion of law, and denied the Officer’s request for Article 15 retirement benefits. Officer appealed the Comptroller’s decision.

The Appellate Division confirmed the Comptroller’s determination, noting that “The Comptroller has exclusive authority to determine all applications for retirement benefits and the determination must be upheld if the interpretation of [the] controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence."

Retirement and Social Security Law §600 (a) (2) (a) provides that "[m]embers in the uniformed personnel in institutions under the jurisdiction of the [D]epartment of [C]orrections and [C]ommunity [S]upervision of New York [S]tate" are excluded from Retirement and Social Security Law Article 15 benefits.”

A representative from the New York Stateand Local Employees' Retirement System testified that retirement benefits are based upon an applicant's job title at the time of the individual’s retirement, and Officer admittedly retired from service from the position of correction officer.

While Officer argued that the denial of his request for Article 15 service retirement benefits was irrational based upon the fact that other correction officers were granted such benefits, the Appellate Division said the record reflects that those officers had “transferred to civilian job titles prior to retirement.”

The court’s conclusion: The Comptroller's determination that Officer was ineligible for Article 15 service retirement benefits is consistent with the applicable statutory provision and supported by substantial evidence and will not be disturbed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04555.htm

Guidelines for the promulgating of rules and regulations by an administrative agency

Guidelines for the promulgating of rules and regulations by an administrative agency

Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., Court of Appeals, 2015 NY Slip Op 05514

In this case the Court of Appeals addresses the separation of powers doctrine in cases where a legislative body delegates to an administrative agency the power to “fill in the details” of the legislation by adopting rules and, or, regulations. 

The basic standard: the rules or regulations adopted by an administrative agency to implement a statute may not be inconsistent with the statutory language nor inconsistent with the underlying purposes of the legislation authorizing the promulgation of such rules or regulation.

The genesis of the case was the New York City Taxi & Limousine Commission’s [TLC] efforts to replace the Checker cab -- "the iconic taxi of yesteryear "– with “an iconic Taxi of Tomorrow” [ToT] by adopting certain rules setting new standards for such vehicles.

An association of medallion owners and an individual owner of a taxi fleet commenced a combined CPLR Article 78 proceeding and declaratory judgment action, seeking to invalidate the ToT rules and obtain a related declaration. The complaint alleged, among other things, that the TLC lacked authority to enact the ToT rules and violated the separation of powers doctrine in doing so.

Supreme Court held that the TLC had exceeded its authority under the City Charter and had violated the separation of powers by intruding in the City Council's domain. The court then declared that the ToT rules were invalid [42 Misc 3d 324]. The Appellate Division reversed the Supreme Court’s decision [see 121 AD3d 21].

Citing Boreali v Axelrod, 71 NY2d 1, the Court of Appeals affirmed the Appellate Division’s ruling.

The court said that the issues of delegation of power and separation of powers overlap and are often considered together, noting that “if an [administrative] agency was not delegated the authority to enact certain rules, then it would usurp the authority of the legislative branch by enacting those rules,” explaining that “[t]he constitutional principle of separation of powers . . . requires that the [l]egislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies." Further, said the court, “as long as the legislature makes the basic policy choices, the legislation need not be detailed or precise as to the agency's role.”

In Boreali, the Court of Appeals set out four "coalescing circumstances" that are non-mandatory, somewhat-intertwined factors for courts to consider when determining whether an administrative agency has crossed the hazy "line between administrative rule-making and legislative policy-making:"

1. Did the agency do more than "balanc[e] costs and benefits according to preexisting guidelines," but instead made "value judgments entail[ing] difficult and complex choices between broad policy goals" to resolve social problems?”

2. Did the agency merely fill in details of a broad policy or "wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance?"

3. Was the legislature unsuccessfully in reaching reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve?

4. Whether the agency must use its special expertise or competence in the field to develop the challenged rules or regulations.

In this case the Court of Appeals concluded that “[g]iven the broad statutory powers granted to the TLC to set policy as guided by enumerated safeguards and guidelines, the New York City Taxi & Limousine Commissiondid not exceed its authority or intrude on the City Council's domain in violation of the separation of powers doctrine by enacting the ToT rules.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05514.htm

Termination as "a final agency action” is effected when the letter of dismissal is delivered to the officer or employee

Termination as "a final agency action” is effected when the letter of dismissal is delivered to the officer or employee
2015 NY Slip Op 04892, Appellate Division, Third Department

An internal investigation by the Division of State Police concerning missing evidence resulted in misconduct charges being filed against a State Trooper [Trooper] for allegedly failing to obey a lawful order to truthfully answer questions and knowingly making a false entry in official records. The Division of State Police Hearing Board found Trooper guilty of the two charges and recommended a penalty consisting of a 60-day suspension without pay, a one-year disciplinary probation period and a letter of censure.

Trooper, however, was shown a determination already signed by the Superintendent of State Police imposing the penalty of termination from his employment and was told that he had 10 minutes in which to resign or he would be terminated.

Trooper resigned but subsequently commenced a CPLR Article 78 proceeding seeking to be reinstated. Supreme Court transferred the matter to the Appellate Division for review of the question of  “substantial evidence” supporting the findings of the Hearing Board with respect to Trooper's being found guilty of the charges filed against him.

Initially the Appellate Division considered the question of the Trooper’s resignation, commenting that a resignation "would ordinarily be beyond [its] review,” but noting “exceptions exist where . . . the resignation was allegedly ineffective and involuntary,"* citing Melber v NYS Education Department, 71 AD3d 1216.

As it was undisputed that the Superintendent had signed a written decision terminating Trooper’s employment, which document was shown to him and Trooper was told that he had 10 minutes to accept an "option" of resigning, the Appellate Division ruled that “under the narrow circumstances” of this case Trooper was effectively terminated by a final agency action when he was handed the signed termination document.

Turning to the merits of the issue of “substantial evidence,” the court sustained the hearing panel’s determination as to Trooper’s guilt with respect to the charges filed against him, explaining that “credibility determinations are for the administrative factfinder when conflicting proof is presented.”

Although Trooper offered explanations “for some of the many discrepancies” in his testimony, the Appellate Division said that “this created a credibility question which was resolved against him” and substantial evidence supports the administrative determination.

As to the penalty imposed by the Superintendent, the court said “we have observed that ‘a State Trooper holds a position of great sensitivity and trust and a higher standard of fitness and character pertains to police officers than to ordinary civil servants," citing Bassett v Fenton, 68 AD3d at 1387-1388. The court said that the penalty imposed, termination, did not shock its sense of fairness in view of findings of Trooper’s “repeated false statements where the underlying matter implicated missing evidence, together with [Trooper’s] failure to accept responsibility even when confronted with contrary documentary proof.”

* Concerning the issue obtaining an "involuntary resignation," in Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals  pointed out that threatening to do what the appointing authority had a right to do -- in this instance filing disciplinary charges against the employee if the employee did not submit his resignation from his position -- did not constitute coercion so as to make the resignation involuntary.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04892.htm

_____________

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

_____________

The 2015 edition of the Discipline Book

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

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

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

Click on text highlighted in color  to access the full report

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

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

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

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

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

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

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

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

2015 NY Slip Op 04949, Appellate Division, First Department

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

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

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

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

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

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

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

The decision is posted on the Internet at:

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

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

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

2015 NY Slip Op 05402, Appellate Division, First Department

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

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

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

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

The decision is posted on the Internet at:

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

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

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

2015 NY Slip Op 05243, Appellate Division, Third Department

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

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

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

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

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

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

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

The decision is posted on the Internet at:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The decision is posted on the Internet at:

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

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

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

2015 NY Slip Op 04944, Appellate Division, First Department

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

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

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

The decision is posted on the Internet at

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

Department of Civil Service Rule Making Activities

Department of Civil Service Rule Making Activities

NYS Register - June 24, 2015 Rule Making Activities

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

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

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

Assessment of Public Comment

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

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

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

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

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

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

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

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

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

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

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

2015 NY Slip Op 04550, Appellate Division, Third Department

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

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

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

The decision indicates that Lawyer:

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

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

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

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

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

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

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

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

The decision is posted on the Internet at:

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

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

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

2015 NY Slip Op 04940, Appellate Division, First Department

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

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

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

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

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

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

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

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

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

The decision is posted on the Internet at:

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

Hearsay evidence

Hearsay evidence

Ohio v Clark, No. 13-1352, Decided  June 18, 2015

As the Court of Appeals observed in Matter of Gray v Adduci, 73 N.Y.2d 741, hearsay evidence can be the basis of an administrative determination,

In Willis v New York State Liquor Authority, 118 AD3d 1013, the Appellate Division noted that:

[1] “The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible” and 

[2] “Hearsay evidence may constitute substantial evidence if sufficiently relevant and probative and may, under appropriate circumstances, form the sole basis for an agency's determination, unless it is seriously controverted.”

Indeed, in Doctor v New York State Office of Alcoholism & Substance Abuse Services, 112 A.D.3d 1020, the court said that hearsay evidence alone may constitute substantial evidence in an administrative hearing.

In contrast, hearsay testimony is typically barred in a criminal trial.

Paul Rothstein, Professor of Law, Georgetown University Law Center, addressed the use of hearsay in a criminal trial in his review of Ohio v Clark,* a decision recently handed down by the United States Supreme Court. His analysis is posted on the Internet at https://casetext.com/posts/a-comment-on-the-supreme-courts-decision-in-ohio-v-clark.

In response to an inquiry, “Does not Ohio v Clark suggest a weakening, if not the eventual demise, of the prohibition against the use of “hearsay” in criminal actions?”, Professor Rothstein explained:

"The hearsay rule and its exceptions still apply as an additional filter, but the states are free to make exceptions to the hearsay rule. As long as the exceptions are not used to let in "testimonial" hearsay (i.e. statements made/obtained at the time with a primary purpose to make/get evidence for prosecution) against a criminal defendant, which would violate the confrontation clause, the evidence would be admissible.

"In many situations, the new approach to the confrontation clause (beginning with Crawford in 2004) lets LESS hearsay in. The previous approach (a case called Roberts) allowed hearsay in, if it was within a traditional hearsay exception, even if it was testimonial. Evidence even if within a traditional hearsay exception is now inadmissible under the confrontation clause if it is testimonial"

* In Ohio v Clark, addressing an appeal from a criminal conviction, the U.S. Supreme Court held that “In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing L. P.’s statements at trial.” At the time the statements at issue were made L.P. was a three-year old child.

Administrative decision adversely affecting employee that considered allegations not set out in the charges vacated

Administrative decision adversely affecting employee that considered allegations not set out in the charges vacated
2015 NY Slip Op 04764, Appellate Division, First Department

Supreme Court’s denial of a probationary teacher’s [Probationer] the petition to [1] annul the Board of Education’s [BOE] determination sustaining the Probationer’s an unsatisfactory rating (U-rating) as a teacher for the 2006-2007 school year, and [2] dismissing the proceeding, was unanimously reversed, on the law, by the Appellate Division. The Appellate Division then vacated Probationer’s U-rating for the 2006-2007 school year and remanded the matter to the BOE for “further proceedings consistent” with its ruling.

After discussing the events leading to Probationer’s U-rating, the court noted:

1. Probationer was informed that her file would be reviewed for a determination of whether her services as a probationary teacher would be discontinued and whether her teaching license would be terminated as of the close of business on July 15, 2007 “.based on professional attitude and professional growth; attention to records and reports; unsatisfactory classroom performance; poor planning and preparation; skill in adapting instruction to the individual needs of the students; evidence of pupil growth in knowledge and skills;" and

2. This letter constituted the charging document that was the basis of the ensuing hearing.

In particular the Appellate Division noted “missing from the charging document was any mention of excessive absences.”

An “officially designated” committee, composed of three members, conducted a review of [1] the decisions to issue Probationer’s U-rating for the 2006-2007 school year; to discontinue her probationary service; and [2] to revoke her New York City teaching certificate.

The majority of the committee concurred as to the recommendation to discontinue Probationer’s probationary service. However, said the Appellate Division, "[r]ecognizing that [Probationer] is young and inexperienced and that she had to take over a new class, which may have been more of a challenge than she could handle," the committee "reached unanimous non-concurrence on the recommendation to terminate all license(s)/certificate(s) held by [Probationer]."

Ultimately Probationer was advised that a "reviewed the report of [the committee] concerning the recommendation that all your teaching certificate(s)/licenses be terminated . . . and that your probationary service as a Teacher of Common Branches be discontinued," and the recommendation had been sustained. The Appellate Division noted that this determination was made “notwithstanding the unanimous view” of the committee that the recommendation to terminate all [Probationer’s] licenses/certificates … should not be adopted.”

One of the elements referred to in this “ultimate” ruling was the Probationer’s alleged “excessive absence” not withstanding, as the Appellate Division pointed out, no mention of  alleged excessive absences were setout in the “charging document.”

Probationer sought judicial relief in a prior proceeding which resulted in a Supreme Court concluding that the petition to review the termination of Probationer's probationary employment was time-barred. However the court granted Probationer’s petition to the extent of annulling the unsatisfactory rating and the revocation of Probationer’s teaching license. The court then remanded the matter for a new hearing on Probationer’s unsatisfactory rating and the imposition of a penalty.*

Supreme Court, in this earlier proceeding, also ruled the Probationer had not been provided with adequate notice that absenteeism was a basis for BOE’s taking adverse action against her and thus that its reliance on Probationer’s attendance record in making a final determination violated due process.

Nevertheless, on remand, BOE again relied on “evidence of absenteeism,” as did Supreme Court in upholding Probationer’s U-rating in the proceeding giving rise to this appeal.

The Appellate Division said that Supreme Court in this second Article 78 proceeding acted in a manner that was arbitrary and capricious, explaining that “While the evidence of pedagogical deficiency — apart from the evidence of absenteeism — might, by itself, be sufficient to warrant the U-rating, that is for [BOE] to decide.”

The Appellate Division ruled that if on remand BOE “declines to sustain [Probationer’s] unsatisfactory rating, [BOE] is free to reconsider the termination of her probationary employment.”

However, in the event BOE sustains the unsatisfactory rating, it is precluded from imposing the penalty of revocation of Probationer’s teaching license because the judgment in the first Article 78 proceeding directed that the penalty, if any, should be something less than revocation of Probationer's license, and BOE did not appeal from that judgment.

Noting that “it is significant that the wrongful admission of evidence in this case occurred after a specific direction from [Supreme Court] that evidence of absenteeism was not authorized, based on the charges,” the Appellate Division again remand the matter to BOE for its reconsideration of Probationer’s performance rating for the 2006-2007 school year “based solely on the evidence related to the charges of which [Probationer] received proper notice.”

* The Supreme Court’s decision in that action is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2012/2012_22316.htm

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

http://www.nycourts.gov/reporter/3dseries/2015/2015_04764.htm

_____________

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

_____________

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

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

Click on text highlighted in color  to access the full report

Son left father’s body in morgue in order to steal his father's pension and social security payments  

On June 14, 2015State Comptroller Thomas P. DiNapoli announced the pending sentencing of a Queens man for concealing his father’s death so he could continue to unlawfully collect pension payments electronically deposited into a checking account in the name of his father. Christopher Bunn is expected to make restitution full on based upon his guilty plea in October to grand larceny in the third degree, a Class D felony, and petit larceny. Bunn has already served six months in federal prison related to his arrest.

Bunn’s father was a designated beneficiary collecting retirement benefits that were not transferable upon his death. State Comptroller DiNapoli said that “Mr. Bunn left his deceased father’s body unclaimed at the Nassau County morgue for more than a year so he could steal his pension and social security payments.”

The Comptroller thanked District Attorney Brown and the Social Security Inspector General for their partnership and continued commitment to protecting public funds.”

Special Agent in Charge Edward J. Ryan, Office of the Inspector General, Social Security Administration said that “It is illegal to conceal or fail to report deaths to continue receiving someone else’s Social Security benefits. I am gratified by the State Comptroller’s pursuit of justice in this case.”

Queens District Attorney Richard A. Brown said that Christopher Bunn’s actions was “robbing the New York pension system and the federal government of tens of thousands of dollars in unlawfully obtained benefits. My office will continue to pursue and prosecute individuals who abuse the system for their own benefit.”            

This is one of a series of investigations by DiNapoli’s office that have led to criminal convictions and recovery of unlawful retirement payments. In 2011, DiNapoli’s investigation of a double-dipping former Rome police officer resulted in the recovery of almost $90,000. DiNapoli’s 2012 investigation of double-dipping at the Troy Housing Authority led to two guilty pleas and the recovery of almost $70,000 in unlawfully paid pension earnings. In 2015, DiNapoli’s work with the Attorney General’s Office resulted in a two- to six-year prison sentence of a Florida resident for defrauding the system of over $100,000 and pending indictments of two New Jersey residents for stealing over $100,000 in pension funds. Most recently, in May 2015, a retired Suffolk County police officer was convicted in Nassau County of defrauding the pension system of more than $465,000 and ordered to pay full restitution.  

Since taking office in 2007, DiNapoli has committed to fighting public corruption and fraud and encourages the public to help fight fraud and abuse.  Allegations of fraud involving New York taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us  or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236. 

A Ticking Clock for Job Benefits

New York State Comptroller Thomas P. DiNapoli’s “op-ed,” A Ticking Clock for Job Benefits, was published in The Albany Times Union on June 16, 2015. The Comptroller urges the state Legislature to act on his proposal to create an optional investment pool to help fund retire health insurance and other post employment benefits (OPEB).

The text of the Comptroller “op-ed” is posted on the Internet at:

http://www.timesunion.com/tuplus-opinion/article/A-ticking-clock-for-job-benefits-6328455.php

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

Village of Brookville
http://www.osc.state.ny.us/localgov/audits/villages/2015/brookville.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Village of Canajoharie 
 http://www.osc.state.ny.us/localgov/audits/villages/2015/canajoharie.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Fairport Public Library 
http://www.osc.state.ny.us/localgov/audits/libraries/2015/fairport.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Revena-Coneymans-Selkirk Community Library
http://www.osc.state.ny.us/localgov/audits/libraries/2015/ravenacoeymansselkirk.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Rockland County Department of Social Services

http://www.osc.state.ny.us/localgov/audits/counties/2015/rocklandco.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

and the Town of Saugerties 
http://www.osc.state.ny.us/localgov/audits/towns/2015/saugertiesjc.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release
 

New York State Comptroller Thomas P. DiNapoli announced his office completed audits at the following school districts:

Cheektowaga-Maryvale UFSD
http://www.osc.state.ny.us/localgov/audits/schools/2015/cheektowagamaryvale.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Corinth CSD 
 http://www.osc.state.ny.us/localgov/audits/schools/2015/corinth.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Millbrook CSD
http://www.osc.state.ny.us/localgov/audits/schools/2015/millbrook.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

and the Mount Morris CSD 
 http://www.osc.state.ny.us/localgov/audits/schools/2015/mountmorris.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease