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Monday, March 30, 2015

Employer not liable for its employee’s off-duty misconduct outside the scope of his or her employment or not in furtherance of the employer’s business


Employer not liable for its employee’s off-duty misconduct outside the scope of his or her employment or not in furtherance of the employer’s business
2015 NY Slip Op 02560, Appellate Division, First Department

The Administrator of the Estate of an individual shot by an off-duty New York City police officer after a "road rage" related altercation sued the City for alleged negligent training and instruction of the officer involved in the incident.

Supreme Court held that the off-duty police office’s act of shooting the decedent as the result of “road rage” was a private, intentional act that occurred outside the scope of his employment as a police officer.

The Appellate Division agreed, ruling that any alleged deficiencies in the City's training and instruction of its police officers could not have been the  proximate cause of the decedent's injuries.

In another case involving alleged off-duty misconduct, Jane Doe v New York City Department of Education, 2015 NY Slip Op 02433, it was undisputed that a teacher and a student had engaged in unlawful sexual intercourse after school hours. The Appellate Division, however, rejected the student’s argument that the New York City Board of Education was vicarious liable for the teacher’s misconduct as the alleged sexual intercourse with the student was not in furtherance of school business and was outside the scope of the teacher's employment.

The decision is posted on the Internet at:

The Doe decision is posted on the Internet at:


Sunday, March 29, 2015

Those concerned with employment related litigation in the public sector may be interested in some of the LawBlogs listed by Justia


Those concerned with employment related litigation the public sector may be interested in some of the LawBlogs listed by Justia

Justia currently tracks the readership of 6,098 Lawblogs in 74 subcategories, ranking the most popular based on the number of visits to the Blawg from the BlawgSearch search engine and directory listing pages. For example,
 
“Administrative Law” Blawgs are listed at:

“Employment Law” Blawgs are listed at:

 “Government Law” Blawgs are listed at:

In addition, Blawgs with a “New York State” Focus are listed at:

Featured Blawgers are chosen by editorial selection of the BlawgSearch team.

Saturday, March 28, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 28, 2015


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 28, 2015
Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases School Audits New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the:






New York State Comptroller Thomas P. DiNapoli and Bronx Borough President Ruben Diaz Jr. encouraged Bronx residents to search for forgotten money belonging to them at Bronx Borough Hall. More than 444,000 accounts valued at nearly $245 million are owed to Bronx residents.

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

 How much money is being held in the Fund? There are 31 million unclaimed funds accounts statewide valued at $13 billion.

 Readers are able to search for and claim money held in the Abandoned Property Fund with the Comptroller’s user friendly online claiming system or by calling the toll-free call center at 1-800-221-9311 to speak with English or Spanish-speaking representatives from 8:00 a.m. through 4:30 p.m.



State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Thomas Capuano, the former Commissioner of the Department of Public Works of the city of Rensselaer Department of Public Works, for teaming with two DPW employees to divert $46,000 from the city by pocketing the cash from scrap metals acquired as part of their jobs with the city.



Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Roger Burlew, former Highway Superintendent for the Town of Erin, in a public corruption case involving the theft of more than $65,000 in goods and services from the town. Burlew entered a guilty plea before The Honorable James Hayden in Chemung County Court to the charge of Grand Larceny in the Second Degree, a Class C Felony. As part of a plea agreement, Burlew will be sentenced to six months of incarceration and a period of five years of probation. Burlew will also pay $65,000 in restitution to cover the cost of what was stolen.



New York State Comptroller Thomas P. DiNapoli announced that United States Steel Corporation has agreed to the New York State Common Retirement Fund’s request that it publicly report its corporate political spending. As a result of the agreement, the Fund withdrew a shareholder proposal it had filed for consideration at the Fortune 500 company’s annual meeting. The Fund holds approximately 907,577 shares of U. S. Steel with an estimated value of $20 million.

Friday, March 27, 2015

Some guidelines followed by courts in deciding appeals from adverse out-of-title employee grievances


Some guidelines followed by courts in deciding appeals from adverse out-of-title employee grievances
New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 2015 NY Slip Op 02543, Appellate Division, Third Department

Civil Service Law §61(2) provides, in relevant part, that "no person shall be assigned to perform the duties of any position unless he [or she] has been duly appointed, promoted, transferred or reinstated to such position in accordance with [the statute] and the rules prescribed thereunder. An out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time"

A Safety and Security Officer 2 (SSO2), a salary grade 15 position, was advised that he would assume the duties of the Chief Safety and Security Officer (CSSO), a salary grade 20 position, at the facility upon the incumbent CSSO’s transfer to another facility. SSO2 was also told that he would be serving as the "Acting Chief" at that facility, an unofficial job title is not formally recognized by the Department of Civil Service.

The SSO2, alleging that he had performed the duties ordinarily assigned to the CSSO, filed an out-of-title work grievance seeking additional compensation for the duties he performed in his capacity as the facility's CSSO. Ultimately, the grievance proceeded to Step 3 to be considered by the Governor’s Office of Employee Relations [GOER].

Based on the limited duties listed in SSO2’s grievance form, the Division of Classification and Compensation of the Department of Civil Service (C & C) recommended that GEOR deny the grievance based on its finding that the work SSO2 was performing, in the absence of the CSSO, “either fell within the duties of an SSO2 or were a reasonable and logical outgrowth of those duties.

GOER adopted C & C’s recommendation and SSO2 initiated a CPLR Article 78 proceeding seeking a court order annulling GOER's determination. Supreme Court dismissed SSO2’s application, which ruling was appealed to the Appellate Division.

The Appellate Division affirmed the lower court’s decision. Citing CSL §61(2) the court explained that “An employee is not necessarily performing out-of-title work by fulfilling some overlapping functions of an absent supervisor, if those functions are substantially similar to duties listed in the classification standard for the employee's title.” In determining if the prohibition against out-of-title work has been violated, courts look "at the similarities between the duties assigned and those customarily performed by the employee, the extent to which the employee exercised the full range of duties of the higher level position, and whether the duties actually performed could be characterized as a reasonable extension of the employee's in-title duties."

Confining its review of the list of tasks performed by SSO2 set forth in his grievance form and not considering the expanded list of duties recited in the SSO2's underlying petition and SSO2’s affidavit in support his claim, the Appellate Division said that it must decide this matter based on the record that was before GOER and C & C. Finding that such record provided a rational basis for GOER's determination and that GOER’s determination was not arbitrary or capricious, the Appellate Division dismissed SSO2’s appeal.

SSO2 also contended that C & C and GOER acted arbitrarily and irrationally by deciding his grievance differently than that of another Safety and Security Officer 2 who was assigned to serve as the Acting CSSO at a different facility. However, this other Safety and Security Officer 2 asserted on her grievance form that she performed many more of the CSSO duties and stated that she, among other things,” supervised all 28 employees of her safety department across all three shifts.”

Considering this enhanced information, said the court, the record substantiates GOER’s' assertions that the facts presented by those two individuals were different, rationally leading to different outcomes.

The decision is posted on the Internet at:

Thursday, March 26, 2015

The employer may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence


The employer may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence
2015 NY Slip Op 02474, Appellate Division, Second Department

The Fire District’s Board of Commissioners rejected the recommendation of a hearing officer and denied a firefighter’s application for benefits pursuant to General Municipal Law §207-a(2).

The Appellate Division sustained the Board’s decision, explaining that it was entitled to make a finding contrary to the hearing officer's recommendation as long as substantial evidence supported the determination. The court said that the Board was free to credit the expert of the Fire District over the firefighter's expert so long as testimony of the Fire District's expert was consistent and supported by the medical evidence.

Noting that judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence, the Appellate Division said that "Substantial evidence means more than a mere scintilla of evidence, and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides."

Further, said the court, "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]” and the courts may not weigh the evidence or reject the choice made by the administrative agency where “the evidence is conflicting and room for choice exists."

Finding that the Board's determination was supported by substantial evidence, the Appellate Division confirm the Board’s rejection of the firefighter’s application for GML §207-a(2) benefits.

The decision is posted on the Internet at:


Disability Benefits 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 similar statutes providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html


Wednesday, March 25, 2015

Disciplinary action based on alleged sexual misconduct


Disciplinary action based on alleged sexual misconduct
2015 NY Slip Op 02418, Appellate Division, First Department

A former teacher [FT] was served with disciplinary charges pursuant to Education Law §3020-a alleging that he “hugged and kissed another teacher at least once a week for two months, despite her continually communicating to him that she did not want him to do this.” This unwanted contact escalated in a later encounter. The arbitrator found FT guilty of sexual misconduct towards another teacher and FT was terminated from his employment.

FT then filed an Article 75 petition seeking to vacate the arbitration award. Supreme Court denied FT’s motion and granted FT’s employer’s cross-motion to dismiss FT's petition and confirmed the arbitration award. The Appellate Division unanimously affirmed the lower court’s ruling, noting that the teacher had told FT several times that she did not want to meet with him and wanted no further contact.

The court held that the hearing officer “reasonably found” that under these circumstances that FT’s asking to embrace the teacher, and telling her to keep things between themselves also constituted misconduct in violation of the [employer’s] sexual harassment policies.”

The Appellate Division ruled that in consideration of the “egregious nature” of FT’s misconduct and the hearing officer's conclusion that FT did not credibly display remorse or an appreciation for the seriousness of his actions, the penalty of termination was appropriate notwithstanding FT's twenty-year satisfactory employment history

In another case involving alleged sexual misconduct, Jane Doe v New York City Department of Education [DOE], 2015 NY Slip Op 02433, it was undisputed that a substitute teacher [ST] and ST’s infant student plaintiff [Plaintiff] had unlawful sexual intercourse at a motel after school hours. The court, however, dismissed Plaintiff’s vicarious liability claim against DOE because ST's alleged conduct was not in furtherance of school business and was outside the scope of his employment.

The court also dismissed Plaintiff’s negligent supervision claim, explaining that the misconduct occurred after school hours and off school premises and that Plaintiff “failed to present evidence sufficient to raise a triable issue of fact that school authorities had specific knowledge or notice of [ST’s] misconduct or that [ST's] misconduct could reasonably have been anticipated.” Although there was evidence that ST drove Plaintiff and others home from school in violation of a Chancellor regulation, this, said the court, was insufficient to raise an issue of fact as to whether DOE had actual or constructive notice of sexual misconduct.

The decision is posted on the Internet at:

The Doe decision is posted on the Internet at:

_____________

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
_____________

Tuesday, March 24, 2015

Any action to terminate a disability retirement allowance then being received by a NYC police officer must be approved by the NYC Police Pension Fund's Board of Trustees


Any action to terminate a disability retirement allowance then being received by a NYC police officer must be approved by the NYC Police Pension Fund's Board of Trustees
2015 NY Slip Op 02011, Appellate Division, First Department

A former New York City Police Department police officer on disability retirement [DR] was discovered performing construction work while claiming to be disabled. as the result of a lengthy NYPD investigation, including videotaped observations showing DR performing construction work on a daily basis without apparent difficulty.

Based on the NYPD reports, the Police Pension Fund's Board of Trustees remanded DR's disability application to the Medical Board for reconsideration. The Medical Board concluded that DR's condition had improved dramatically, and recommended disapproval of his disability application and the Board of Trustees voted to place DR on a list of candidates eligible to become police officers.*

Subsequently DR became medically disqualified for the position after he tested positive for cocaine.and the City's Law Department advised the Police Pension Fund that DR was no longer disabled and was no longer eligible for reinstatement to the position of police officer. The Fund's Board of Trustees, however, did not act on this information and the Fund's Director of Pension Payroll simply informed DR that his disability pension benefit would be suspended.

DR filed an Article 78 petition to annul the Director's suspension of DR’s accidental disability retirement [ADR] benefits, contending that the suspension of his disability was arbitrary and capricious. In the alternative, DR sought his reinstatement as a police officer. Supreme Court dismissed the petition in its entirety, finding that "the determination of the Medical Board that [DR] was no longer disabled was supported by ample evidence derived from physical examinations and contained in the medical records reviewed."

The Appellate Division explained that like Supreme Court, "[it] reject[ed] [DR's] challenge to the Medical Board's determination that [DR] is no longer disabled, since that determination is supported by ’some credible evidence’ and ‘was not arbitrary and capricious."

However, it reversed the Supreme Court’s dismissal of DR’s petition, finding that the "suspension" or revocation of DR's disability benefits by the Police Pension Fund was without statutory authority, because “it was not directed by the Board of Trustees," finding that "[t]he last determination issued by the Board in this matter was that[DR] was not disabled and should be returned to work as a police officer" took place prior to DR’s testing positive for cocaine, which made him ineligible to return to duty.

The City appealed the Appellate Divisions ruling that any action to terminate a disability retirement allowance then being received by a NYC police officer must be approved by the NYC Police Pension Fund's Board of Trustees to the Court of Appeals, which rejected the City’s argument that because DRr was no longer entitled to ADR benefits, ceasing to pay the benefits was a "purely ministerial act" and affirmed the Appellate Division’s order annulling the termination of DR's pension benefits**.

The Court of Appeals said that the "Appellate Division correctly held that the ADR benefits can be terminated only by the trustees of the Police Pension Fund, who have not taken the necessary action," explaining, in pertinent part:

However well justified a reduction or termination of benefits may be in this case, the Board of Trustees has to do it. There might be cases in which the impropriety of paying benefits is so obvious that Pension Fund employees can simply stop paying, without either advance approval or ratification from the board; this might be true, for example, if the statute said on its face, "No benefits shall be paid to any beneficiary who has a positive drug test." But the application of the confusing safeguards statute to this case is something the trustees must address. Of course the trustees should weigh the advice of the City's Law Department in deciding the question, but the decision is theirs, subject to appropriate judicial review.

On remand to the Board of Trustees the City moved to terminate DR's ADR benefits retroactively to July 2007, when his ADR benefit was suspended by the Police Pension Fund. 

There was a tie vote (6 in favor of termination of benefits and 6 against termination of benefits. The City took the position that the tie vote meant that the benefits had not been reinstated by the Board of Trustees and DR commenced another action seeking to compel the City to retroactively restore his ADR benefits.

Supreme Court denied the petition to the extent DR sought reinstatement of the ADR benefits but granted the petition to the extent DR sought reinstatement to the position of police officer. Both DR and the City appealed.

The Appellate Division said it agreed with the City that Supreme Court erred in granting that part of DR's petition seeking his reinstatement to the position of police officer as Supreme Court’s direction to reinstate DR to his position of police officer was inconsistent with Administrative Code §13-254, in that DR rendered himself unqualified by reason of a positive drug test for cocaine, a fact not known to the Trustees at the time they directed that petitioner's name be placed on the civil service list of persons eligible to be a police officer.

In contrast, the Appellate Division rejected the City's contention that the Police Pension Fund's July 2007 termination of DR's ADR benefits remains in effect until a majority of the Board of Trustees votes to reinstate his ADR benefits. Such position said the court is contrary to its prior decision and order that explicitly "restore[d] said benefits" and noted that the Court of Appeals affirmed that determination.

While the Appellate Division said that “like the Court of Appeals,” it found this case "very troubling" because DR's pension benefits should have been reduced or terminated once he tested positive for cocaine, the statute makes clear that any action under the statute must be taken by the Board of Trustees. 

The bottom line: As DR forfeited his right to be placed on the "preference list" for appointment to the position of police officer when he disqualified himself by testing positive for cocaine, the Board of Trustees must now make a determination with respect to DR's entitlement to ADR benefits. 

Here said the court, the Board has two options under the law:

1. Terminate DR’s ADR benefits; or

2. Reduce DR’s ADR benefits.

Absent Board action, DR is to receive ADR benefits retroactive to July 18, 2007, the date of the improper termination of benefits by the Police Pension Fund.The Appellate Division then remanded the matter to the Board of Trustees “for immediate action consistent with this decision and order.”

* New York City's Administrative Code (see §§ 13-202[a], [b]; 13-216[a], [b]; 13-254), provides that a disability pensioner found able to work could be required to return to City service.

** See 16 NY3d 561.

The Decision is posted on the Internet at:


Disability Benefits 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 similar statutes providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

Monday, March 23, 2015

An employer’s failure to make an individualized assessment of a disabled applicant’s particular abilities to perform the duties of the position required constitutes unlawful discrimination


An employer’s failure to make an individualized assessment of a disabled applicant’s particular abilities to perform the duties of the position required constitutes unlawful discrimination
Brentwood Union Free School Dist. v Kirkland, 2015 NY Slip Op 02121, Appellate Division, Second Department

In an appeal challenging a determination by the Commissioner of the New York State Division of Human Rights, made after a hearing before an administrative law judge who found that the Brentwood Union Free School District, unlawfully discriminated against the complainant, the Appellate Division explained that the scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the New York State Division of Human Rights is supported by substantial evidence* in the record. Further, said the court "Courts may not weigh the evidence or reject the Division's determination where the evidence is conflicting and room for choice exists."

Here there was substantial evidence in the record to support a conclusion that Brentwood unlawfully discriminated against the complainant by denying him employment based solely on his membership in a class of persons with the same condition, chronic obstructive pulmonary disease, instead of upon an individualized assessment of his particular abilities.

While Brentwood did offer some evidence at the hearing that the complainant's condition may have prevented him from performing the duties of the job in a reasonable manner, the decision points out that Brentwood did not have this information at the time it made its determination not to employ the complainant.

In any event, said the Appellate Division, “this evidence merely conflicted with other evidence in the record indicating that the complainant's disability did not render him incapable of performing the duties of the job in a reasonable manner" and “it is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses.”

The Appellate Division confirmed the findings of the Division and its award of damages in the principal sums of $66,488 for back pay, and $5,000 in compensatory damages, with interest at the rate of 9% from June 14, 2012, for mental anguish and humiliation to the complainant.

* The Court said that substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact . . . . More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt"

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2015/2015_02121.htm



Saturday, March 21, 2015

Recent appointments to Governor Cuomo’s administration


Recent appointments to Governor Cuomo’s administration
Source: Office of the Governor

On March 21, 2015 Governor Andrew M. Cuomo announced five appointments to his administration

Elizabeth De León Bhargava has been appointed Deputy Secretary for Labor. Ms. Bhargava previously served as First Deputy Chief of Staff for New York City Council Speaker Melissa Mark Viverito and, prior, as Deputy Commissioner for the Neighborhood Development Division of the New York City Department of Small Business Services, where she was responsible for the city's Business Improvement Districts, the largest network in the country investing more than $100 million in programs and services throughout NYC. Before working for the City, she was Associate Commissioner for the New York State Department of Labor and Assistant Deputy Counselor for the New York State Attorney General. Ms. Bhargava has a B.A. from Binghamton University and a J.D. from the State University of New York at Buffalo School of Law


Rose Rodriguez has been appointed Chief Diversity Officer. She has served the State in a variety of executive and management roles, most recently as Special Assistant to the Commissioner and Director of Workforce Development at the New York State Department of Labor, where she spearheaded several agency efforts linked to the Governor’s initiatives including the Buffalo Billion, The New NY Bridge, and the New NY Bronx Works partnership. Prior to joining the administration, she served as Vice President for Policy and Programs at the Committee for Hispanic Children and Family, Inc., as Senior Advisor and Director of Constituent Services for Senator Hillary Rodham Clinton, and at the US Department of Housing and Urban Development as Deputy Director in the Office of Community Planning and Development. She served in the cabinet of Governor Mario Cuomo as the Executive Director of the Office of Hispanic Affairs and Chairperson for the Governor’s Hispanic Advisory Board. Ms. Rodriguez has a B.S. from Fordham University and a J.D. from Fordham University School of Law


Jorge Montalvo has been appointed Deputy Secretary of State for Economic Opportunity where he will advise and support the Secretary of State in the management of the Department of State and will be responsible for assisting in formulating agency policy and implementing program plans related to the $60 million Community Service Block Grant, the Division of Consumer Protection and the Cemeteries Division, among other State programs. Mr. Montalvo will continue to serve as Director of the New York State Office for New Americans and will also continue to oversee the Regional Economic Development Councils Opportunity Agenda and the Empire State Fellows program. Mr. Montalvo previously served as Director of Strategic Policy Initiatives for the New York State Consumer Protection Board. Before joining the State, he served as Policy and Public Affairs Officer for the New York City Economic Development Corporation and Corporate Relations and Volunteerism coordinator for the NYC 2012 Olympic Bid Committee. Mr. Montalvo has a B.A. in chemistry from Dartmouth College.

Matthew Fernandez Konigsberg
has been appointed Special Counsel to the Secretary for Ethics, Risk and Compliance at the Department of State. Mr. Konigsberg previously served as an associate at Foran Glennon focusing on first-party property coverage, subrogation recovery, casualty/liability defense matters, as well as other types of commercial litigation. Before joining Foran Glennon, he served as Assistant Corporation Counsel for the New York City Law Department, where he held a hybrid position as a pre-trial and trial attorney. He also served as pro bono Legal Counsel for the Rockland County Board of Advisors for ASPIRA of New York, Inc, a Hispanic non-profit organization working to foster educational excellence and civic responsibility among young Latinos. In this role, he counseled the Rockland County Board on diverse legal issues arising out of ASPIRA’s Rockland operations. He is also Deputy Regional President of the Hispanic National Bar Association - Region II, serving on its Judiciary Committee, and has served as Judiciary Co-Chair of the Puerto Rican Bar Association. Mr. Konigsberg has a B.A. from University of Wisconsin-Madison and a J.D. from Rutgers School of Law - Newark.

Angel Santana has been appointed the Governor’s Bronx Regional Representative. Mr. Santana previously served as Director of Community Affairs and, prior, Community Liason for State Senator Jose M. Serrano. He has a B.A. from Mount Saint Mary College and is currently pursuing an M.P.A. at Columbia University.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 21, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 21, 2014
Click on text highlighted in color  to access the full report

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

Village of Franklinville,  
 

City of Olean, and  

Walworth-Seely Public Library.


Leading the Way in Transparency As Sunshine Week comes to an end, we are proud that U.S. PIRG, a non-profit consumer group, has ranked New York one of 14 ‘leading states’ in providing online access to government spending, thanks to Comptroller DiNapoli's transparency website, Open Book New York. A testament to his commitment for continuous improvement to transparency, 2015 marks the first time New York has scored an ‘A-’. Read the full report online at: Following the Money 2015.


DiNapoli: Former Riverside Village Clerk Pleads Guilty in $50,000 Theft Former Riverside clerk-treasurer Kristina Johnson will do jail time and pay $50,000 in restitution after admitting Friday to repeatedly pilfering village coffers to pay for white water rafting and dating through Match.com, State Comptroller Thomas P. DiNapoli announced Friday.


DiNapoli: Former Treasurer Arrested in Tupper Lake Fire Department Theft Former Tupper Lake Volunteer Fire Department Treasurer Timothy J. Brown was arrested on grand larceny charges Monday after allegedly stealing up to $20,000 as he spiraled into credit card debt.


DiNapoli: State Tax Collections Slightly Stronger Than Exepcted in February But Remain Volatile Tax collections of $4.9 billion in February were $21.6 million above the state’s latest estimates, according to the monthly cash report released Wednesday by New York State Comptroller Thomas P. DiNapoli. Through 11 months of the fiscal year, tax collections were $636.6 million higher than originally projected, and $19 million higher than the latest estimates.

Friday, March 20, 2015

Denial of tenure


Denial of tenure
2015 NY Slip Op 02193, Appellate Division, First Department

A member of a college faculty [Petitioner] filed an Article 75 action challenging an arbitration award that sustained the college’s decision to deny awarding Petitioner tenure. Supreme Court granted the college’s cross motion to confirm the arbitration award, which decision was unanimously affirmed by the Appellate Division.

The Appellate Division explained that an arbitrator's award will not be vacated "unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power."

Here, said the court, Petitioner has not carried her "heavy burden" in claiming that the arbitrator's decision upholding the college’s determination that tenure was not warranted based on the lack of scholarly publication was "totally irrational." The court noted that Petitioner's claim that the college did not provide adequate notice of any alleged deficiencies is unavailing, as the college's bylaws, as well as the relevant collective bargaining agreement, provided notice that “publication requirements were rigorous and progressive.”

Further, according to the decision, the college had sent Petitioner a “letter of concern” approximately five months before the tenure process, one year before her appeal, and fifteen months before the college president issued her final determination. This, said the court, “provided adequate notice” explaining that as stated by the arbitrator, the fact that Petitioner "may not have received notice prior to [receiving a letter of concern] was based on her own [earlier] misstatements as to her publications...."

In addition, the Appellate Division held that college president’s evaluation of the quality and quantity of Petitioner's publications was a proper exercise of academic judgment, citing Pauk v Board of Higher Educ. of City of N.Y., 62 AD2d 660, affirmed 48 NY2d 930.

Concerning another issue, the court said that the record “provides no basis for a finding that [the college] denied [Petitioner] tenure in retaliation for her harassment claim against a department chair.”

The decision is posted on the Internet at:


Thursday, March 19, 2015

Taxpayer identity theft

Taxpayer identity theft
Source: Internal Revenue Service

The United States Internal Revenue Service [IRS] stops and flags suspicious or duplicate federal tax returns that falsely represent your identity, such as your name or social security number. If the IRS suspects tax ID theft, the agency will send a 5071C letter to your home address. If you receive this letter, verify your identity at idverify.irs.gov or call the toll-free number listed in the letter. 

If you are a victim of state tax ID theft, contact your state's taxation department or comptroller's office about the next steps you need to take. 

Adjustments to a disabled firefighter’s salary and supplements to his or her disability retirement allowance paid pursuant to GML §207-a[2]


Adjustments to a disabled firefighter’s salary and supplements to his or her disability retirement allowance paid pursuant to GML §207-a[2]
2015 NY Slip Op 02134, Appellate Division, Second Department

General Municipal Law §207-a[1] guarantees a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the "full amount of his [or her] regular salary or wages until [the] disability . . . has ceased.”. If, however, a permanently disabled firefighter is granted an accidental disability retirement allowance pursuant to Retirement and Social Security Law §363, a performance of duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c, or a "similar accidental disability pension provided by the pension fund of which he [or she] is a member," the municipality is obligated to pay "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."*

In Mashnouk v City of Newburgh, 55 NY2d 80, the Court of Appeals held that the provisions of §207-a[2] includes "prospective salary increases given to active firefighters subsequent to the award and therefore firefighters receiving §207-a benefits were to receive the benefits of the negotiated salary increases."

Disabled retired firefighters [DRF] who became disabled as a result of injuries they sustained in the performance of their duties were receiving performance-of-duty disability retirement allowances from the New York State Retirement System pursuant to Retirement and Social Security Law §363-c, as well as supplemental benefits from the employer in the amount of the "difference between the amounts received under [their] allowance[s] . . . and the amount of [their] regular salary or wages" pursuant to General Municipal Law §207-a[2].

However, the employer entered into a new Taylor Law [Civil Service Law Article 14] contract with its firefighters' union pursuant to which the salaries paid to active firefighters were temporarily decreased from the levels set forth in the previous contract by 5% for the period from January 14, 2011, through June 30, 2013, and by 3% for the period from July 1, 2013, through December 31, 2013. On January 21, 2011, the City notified the DRFs that the supplemental benefits they received pursuant to General Municipal Law §207-a[2] would be reduced in accordance with the new contract.

The DRFs commenced a proceeding pursuant to CPLR Article 78 in the nature of mandamus** to compel the employer to continue to pay supplemental benefits at the level that was in effect before the commencement of the new contract. Supreme Court dismissed their petition, which decision was sustained by the Appellate Division.

The Appellate Division explained that General Municipal Law §207-a guarantees a firefighter who is disabled in the performance of his or her duties entitlement to, among other benefits, the continued payment by his or her municipal employer of the "full amount of his [or her] regular salary or wages until [the] disability . . . has ceased." If, however, a permanently disabled firefighter is granted an accidental disability retirement allowance pursuant to Retirement and Social Security Law §363, a performance of duty disability retirement allowance pursuant to Retirement and Social Security Law §363-c, or a "similar accidental disability pension provided by the pension fund of which he [or she] is a member," the municipality is obligated to pay only "the difference between the amounts received under such allowance or pension and the amount of his [or her] regular salary or wages."

Citing Farber v City of Utica, 97 NY2d 476, the court said that the amount of such a disabled firefighter's regular salary or wages under §207-a[2] "is calculated based on the current salary of an active firefighter at the same grade the [firefighter] held upon retirement." Thus, the term "regular salary or wages" as employed in General Municipal Law §207-a[2] includes salary increases given to active firefighters following the award of the disability retirement allowance or pension as well as the benefit of longevity pay increases provided to active firefighters’

The Appellate Division then ruled that "regular salary or wages" also includes salary decreases applied to active firefighters and thus the DRFs failed to establish a "clear legal right" to the relief they sought.

* Such fireman shall continue to receive this supplement until such time as he or she shall have attained the mandatory service retirement age applicable to him or her or shall have attained the age or performed the period of service specified by applicable law for the termination of his or her service. Further, this supplement to the retirement allowance benefit is limited to firefighters; police officers are covered by Section 207-c of the General Municipal Law, which does not provide for the payment of the difference between the police officers retirement allowance and his or her "Section 207-c benefit."

** In addition to "mandamus" and "certiorari," CPLR Article 78 provides for the modern version of two other "ancient writs:" the writ of quo warranto [by what authority] and the writ of prohibition [a superior court barring the consideration of a matter by a lower court].

The decision is posted on the Internet at:

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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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Wednesday, March 18, 2015

A "global settlement contract" that, among other things, settled the underlying grievance renders the appeal pending before the court moot


A "global settlement contract" that, among other things, settled the underlying grievance renders the appeal pending before the court moot
2015 NY Slip Op 519109, Appellate Division, Third Department

A deputy sheriff injured his back during a foot pursuit in the course of his employment and received full pay for eight days of missed work immediately after the incident pursuant to General Municipal Law §207-c, as well as intermittent days during the next several months but ultimately was told that his benefits pursuant to General Municipal Law §207-c had been terminated. The deputy’s union filed a grievance on behalf of the deputy "and all similarly situated uni[on] members," charging a violation of the collective bargaining agreement between union and the County and demanded that the matter be submitted to arbitration.

The County filed a petition pursuant to CPLR §7503(b) seeking a stay of arbitration. Supreme Court granted the County’s application and the union appealed. While this appeal was pending before the Appellate Division, the deputy sheriff and union entered into a "global settlement contract" that, among other things, settled the deputy’s General Municipal Law §207-c claim, whereupon the County contended the appeal was moot and sought to have the appeal dismissed.

The Appellate Division agreed with the County that the “global settlement contract” rendered the union’s appeal moot, explaining that “In the absence of an exception to the mootness doctrine — that is, where an issue is likely to recur, presents novel or significant questions, or typically evades appellate review — ‘an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment.’"

In so ruling, the Appellate Division said that it was “unpersuaded by [the union’s] contention that it was not a party to the settlement and that similarly situated employees represented by [the union] would be affected by the outcome of this appeal.”

The court pointed out that the parties "are now operating under the terms of an expired contract, limiting the potential for similar disputes in the future." Further, said the Appellate Division, the union “participated in the grievance procedures that led to the settlement, and by means of its counsel's representation of both [the union] and the deputy throughout the proceedings, may also have been apprised of the terms of the agreement that ‘fully, finally and globally’ settled the claim.

Dismissing the union’s appeal, the Appellate Division ruled that the settlement contract contained no provisions reserving any issues for appeal and the record was devoid of any indication that there are similarly situated employees who lost benefits available to them pursuant to General Municipal Law §207-c.

The decision is posted on the Internet at:

Tuesday, March 17, 2015

On March 17, 2015 Governor Andrew M. Cuomo announced the following five appointments to his administration.


On March 17, 2015 Governor Andrew M. Cuomo announced the following five appointments to his administration.
Source: Office of the Governor


Seth Agata, Esq., has been nominated to serve as Chairman of the Public Employment Relations Board. Most recently, he served as Counsel to the Governor and, prior, as First Assistant Counsel and Assistant Counsel. Before joining the Governor’s staff, Mr. Agata served as Assistant Secretary for Program and Policy and as Senior Associate Counsel in the Office of Counsel to the Majority for the New York State Assembly. He was also Assistant Counsel Program and Counsel Staff in the Assembly. He served as Counsel for Investigations in the Office of State Comptroller, Assistant District Attorney for Columbia County, a trial examiner in the New York City Office of Collective Bargaining and was in private law practice in New York City and Columbia County. He is a co-author of The History of the New York Court of Appeals, 1932-2003 (Columbia U. Press, 2006) and has written articles on other topics, as well. Mr. Agata graduated from the New York State School of Industrial and Labor Relations at Cornell University as well the Cornell Law School. This nomination requires Senate confirmation.

Michael Weisberg has been appointed Chief Information Security Officer and Deputy Commissioner of Information Technology Services, with a special focus on cyber security. Most recently, Michael was CIO and Director of Information Technology for a consulting firm in Richmond, Virginia. Prior to that, Michael worked at the U.S. Federal Reserve as their Senior Information Security Architect, where he developed and published security architectures and designs, and advised Senior Federal Reserve Officers and management on security technologies and practices. In addition, he was the Vice President for Information Security for Bank of America and served as an Information Security Consultant. He is the Director of the Cyber Security program in the School of Professional and Continuing Education at the Sage Colleges. Mr. Weisberg has a Bachelor of Science from RPI and holds several industry recognized certifications, including Certified Information Systems Security Professional (CISSP) and Certified Scrum Master.

Johannah Chase has been appointed Assistant Secretary for Education. She previously was a consultant at Bank Street College of Education, where she worked with senior leadership on developing their strategic plan. Prior to that, Ms. Chase held a number of roles at the New York City Department of Education, most recently serving as Chief Executive Officer of the Office of Special Education and Chief Operating Officer of the Division of Students with Disabilities and English Learners. She also served as a Senior advisor on special education reform, Chief of Staff of the Division of School Support & Instruction and Associate Director of the Division of School Support & Instruction. She was also an eighth grade English and Math teacher in New York City for three years. Ms. Chase has a B.A from Cornell University and an M.S. in Teaching from Pace University.

Lisa Black has been appointed Director of Intergovernmental Affairs for the Department of Homeland Security and Emergency Services. She previously held a number of roles at the New York City Department of Homeless Services, most recently serving as Assistant Commissioner and, prior, Acting Deputy Commissioner, Director of Government Relations, and Acting Director of Communications and External Affairs. She also held a number of roles working in leadership in the New York State Senate for 14 years. Ms. Black has a B.A. from the College of Saint Rose.

Brian Shea has been appointed Upstate Director of Intergovernmental Affairs for the Department of Homeland Security and Emergency Services. He held a number of roles in the Office of Assemblywoman Donna A. Lupardo. Most recently, he served as Chief of Staff where he oversaw all office operations, legislative initiatives and external communications. Prior to that, he served as Clerk to the Assembly Committee on Children & Families and Legislative Director to the Assemblywoman. Mr. Shea has a B.A. in Political Science from Binghamton University.


The appointing authority rather than the Commissioner of Education determines if a school employee should be subjected to disciplinary action


The appointing authority rather than the Commissioner of Education determines if a school employee should be subjected to disciplinary action
Appeal of L.J., on behalf of his daughter A.J. regarding employee discipline, Decisions of the Commissioner of Education, Decision No. 16,722

The parent-petitioner in this appeal challenged a determination of the superintendent of schools regarding certain alleged conduct toward his daughter by district employees. 

The Commissioner dismissed the appeal for a number of technical reasons but indicated that had the appeal been properly before him “To extent that petitioner seeks my intervention in obtaining an apology, he is in effect asking that I engage in some form of discipline against district staff.”

Citing Appeal of J.K., Decisions of the Commissioner, Decision No. 14,705 and Appeal of Lloyd, Decisions of the Commissioner, Decision No. 14,303, the Commissioner pointed out that it is the board of education that has the authority and responsibility to determine whether disciplinary action against a district employee is warranted, not the Commissioner of Education.

The decision is posted on the Internet at:

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


Dismissed probationary employee has the burden of showing that his or termination was made in bad faith
2015 NY Slip Op 00896, Appellate Division, Second Department

The appointing authority terminated a probationary employee [Individual] and Individual filed a petition in Supreme Court seeking a review of his dismissal from the position. Supreme Court denied the petition and Individual appealed.

The Appellate Division said that "The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."*

In this instance, said the court, Individual failed to satisfy his burden of presenting competent proof that his termination was improper. Further, observed the Appellate Division, “The record demonstrates that the [Individual’s] performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith.”

Accordingly, ruled the Appellate Division, Supreme Court properly denied Individual’s CPLR Article 78 petition.

* Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

Monday, March 16, 2015

Disciplinary penalty imposed modified in view of individual’s long service with the agency


Disciplinary penalty imposed modified in view of individual’s long service with the agency
2015 NY Slip Op 02008, Appellate Division, First Department

The Appellate Division, First Department, sustained the dismissal of a New York City police officer, [Officer] finding that substantial evidence supported the determination that Officer was guilty of numerous violations demonstrating his inability to conform his conduct to police department regulations.

The court rejected Officer’s contention that the hearing officer improperly relied on hearsay evidence in finding him guilty of engaging in a verbal and physical domestic dispute. Rather, said the court, the hearing officer's determination was based on Officer’s inconsistent statements in that his testimony at the hearing differed from statements he gave during an investigative interview and the hearing officer's credibility findings are entitled to deference.

As to the issue of the hearing officer considering hearsay evidence, the Appellate Division pointed out that “an administrative tribunal can rely upon credible hearsay evidence to reach its determination,” citing Muldrow v NYS Department of Corrections and Community Supervision, 110 AD3d 425.

As to the penalty imposed, termination, which implicitly denied Officer his vested interest to a retirement allowance,* the court held that dismissing Officer from the police force was not shocking to one's sense of fairness, explaining that Officer was brought up on five separate charges based on events that occurred over a three-year period and he was found guilty of nine of the specifications charged following a hearing.

However, Officer’s long service and the fact that he was a decorated officer with eighteen years of service who often received high ratings on department evaluations served as mitigating factors in determining an appropriate penalty to be imposed. Notwithstanding the fact that Officer was previously disciplined for insubordination and placed on "one-year dismissal probation," the Appellate Division said that given Officer’s service and awards the penalty should be modified “solely to the extent of permitting Officer to apply for vested interest retirement benefits.”

* The Administrative Code of the City of New York provides that an employee may forfeit his or her retirement allowance under certain circumstances. For example, Section 13-173.1 of the Administrative Code requires a member of the City’s Employees’ Retirement System to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the member is not "in service" on that date, he or she forfeits his or her retirement benefits. The Court of Appeals addressed the provisions of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.

The decision is posted on the Internet at:

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

Saturday, March 14, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 14, 2015


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 14, 2015
Click on text highlighted in color  to access the full report

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



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



Comptroller DiNapoli & A.G. Schneiderman Announce State Prison Sentence for Florida Woman in $120,000 Pension Fraud Case
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Friday announced the conviction and sentence of Graycelia Cizik, 64, a resident of Polk County, Florida. Cizik pleaded guilty on January 21, 2015 to a one-count Indictment charging her with the crime of Grand Larceny in the Second Degree, a class C felony. Friday, she was sentenced to 2 to 6 years in state prison by Supreme Court Judge Roger D. McDonough in Albany County Court. Cizik also agreed to a judgment in favor of the New York State and Local Employees Retirement System in the amount of $121,772.72.


DiNapoli & Schneiderman Announce Sentencing of Former Met Council Insurance Broker
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Monday announced that Joseph Ross, the former insurance broker for the Metropolitan Council on Jewish Poverty (“Met Council”), has been sentenced to 18 months in jail. Ross also paid $534,000 in restitution to the Met Council and agreed to a judgment against him in the amount of $956,000 in favor of the Met Council. The joint investigation revealed that Ross, together with former Met Council CEO William Rapfogel and other co-conspirators, stole approximately $9 million from the taxpayer-funded nonprofit organization as part of a 20-year grand larceny and kickback scheme. Ross personally stole $1.5 million from the Met Council.


DiNapoli: Wall Street Bonuses Edge Up in 2014
The average bonus paid in New York City’s security industry rose by 2 percent to $172,860 in 2014, according to an estimate released Wednesday by New York State Comptroller Thomas P. DiNapoli. Even though the industry was slightly less profitable in 2014, it added 2,300 jobs in New York City, the first year the industry has added jobs since 2011.


DiNapoli: Medicaid Redesign Presents Opportunities and Risks
The state’s efforts to limit Medicaid spending are showing measurable progress with annual growth at less than 2 percent. Still, state spending on Medicaid is projected to rise by nearly $700 million a year over the next four years and improving the quality of care for Medicaid patients remains a challenge after more than two decades of reform, according to a report released Thursday by New York State Comptroller Thomas P. DiNapoli.


DiNapoli Expands State Spending Transparency on OpenBookNewYork.com
New York State Comptroller Thomas P. DiNapoli announced Tuesday that New Yorkers can now trace state spending back to the funding source or program on openbooknewyork.com, an easy-to-use search tool for the public to see how their tax dollars are being spent. This is the fifth expansion of the website, building on DiNapoli’s commitment to increasing government transparency.


DiNapoli Announces Results of General Obligation Bond Sale: $329,225,000 Awarded
State Comptroller Thomas P. DiNapoli Tuesday awarded three series of New York State General Obligation Bonds totaling $329,225,000 through a competitive sale. Specifically, the sales were $142,555,000 of Series 2015A Tax-Exempt Bonds, $5,640,000 of Series 2015B Taxable Bonds and $181,030,000 of Series 2015C Tax-Exempt Refunding Bonds.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

Caution:

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