Saturday, January 30, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending January 30, 2016


Selected Reports issued by the Office of the State Comptroller during the week ending January 30, 2016
Click on text highlighted in color to access the full report

Former Security Director of the Monroe County Water Authority Pleads Guilty to Felony Charge in Elaborate Bid-Rigging Case
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Robert Wiesner, the former Security Director for the Monroe County Water Authority, for working with others to rig the bidding process for a multi-million dollar public works contract in Monroe County. Wiesner entered a guilty plea before The Honorable Dennis M. Kehoe in Monroe County Court to the class “E” felony charge of Combination in Restraint of Trade and Competition in violation of General Business Law §§ 340 and 341, also known as a violation of New York State’s Donnelly Act.


82
School Districts in Fiscal Stress
Eighty-two school districts have been designated as fiscally stressed under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. The scoresare based on the evaluation of 672 school districts with fiscal years ending on June 30, 2015.


Municipal audits released

Clifton Park Water Authority – Water charges

Cortland County Industrial Development Agency – Project management

Middle Country Public Library – Treasurer

Otsego CountyCost of temporary housing


School Audits
 
Chazy Union Free School District – Payroll

Dobbs Ferry Union Free School District – Reserve funds

Haldane Central School District – Budget transfers and information technology

Randolph Academy Union Free School District – Financial management

Saranac Central School District – Payroll

South Seneca Central School District– Financial management

Governor Cuomo announced three appointments to the New York State Department of Financial Services


Governor Cuomo announced three appointments to the New York State Department of Financial Services
Source: Office of the Governor

On January 29, 2016 Governor Andrew M. Cuomo announced three appointments to the New York State Department of Financial Services [DFS]. Earlier Governor Cuomo nominated Maria Vullo, Esq. to serve as the Superintendent of DFS.

DFS is charged with protecting consumers and markets in
New York State from fraud and financial crises, as well as reforming the regulation of financial services to keep pace with dynamic changes within the industry. It was created in 2011 by the merger of the State’s Banking and Insurance Departments.

Matthew L. Levine, Esq. has been appointed Executive Deputy Superintendent for Enforcement. In this role he will guide the Department's enforcement actions to ensure that regulated parties are held accountable for unlawful business practices, coordinating with other senior staff and law enforcement agencies under the direction of the Superintendent.

Mr. Levine is a former federal prosecutor and trial lawyer with significant experience in matters involving the financial markets and health care fraud. He has also represented clients in private practice, most recently as the founding principal of his own law firm in
New York City. For nearly a decade, he served as an Assistant U.S. Attorney, first in the U.S. Attorney’s Office for the District of Columbia and later in the U.S. Attorney’s Office for the Eastern District of New York. There, he served as Acting Chief of the Business & Securities Fraud Section and supervised a group of federal prosecutors conducting major securities fraud and other white-collar prosecutions. Before becoming a federal prosecutor, he worked in private practice as a Litigation Associate at the New York City office of Paul, Weiss, Rifkind, Wharton & Garrison, where he represented corporate and individual clients in civil and criminal matters.

Mr. Levine clerked for the United States District Judge Barefoot Sanders in
Dallas, Texas. He earned his J.D. at Columbia School of Law and a B.A. in Government at Lehigh University.

Richard A. Loconte, Esq. has been appointed Executive Deputy Superintendent for Communications and Strategy at DFS.
Mr. Loconte brings with him more than 20 years of experience in communications and public policy. Since 2008, he was the Deputy Head of Government Affairs & Associate General Counsel at AIG, Inc. There, he represented AIG before regulatory agencies and other government bodies on legislative and regulatory issues related to the insurance industry and the broader financial services sector, and was instrumental in reestablishing the company's federal government affairs office in Washington, DC.

From 2005 - 2008, he was the Deputy Executive Director for the Association for a Better New York (ABNY), where he oversaw the organization’s communications, administrative functions, and legal matters. Prior to his time at ABNY, he was the Director of Public Affairs at the Grand Central Partnership. Mr. Loconte has also held roles at the New York City Department of Finance and the New York City Department of Consumer Affairs. He earned his J.D. from
Brooklyn Law School and a B.A. in Political Science from Fordham University.

Jennifer L. Smith, Esq. has been appointed Special Assistant to the Superintendent at DFS. Most recently, Ms. Smith was an attorney at Skadden, Arps, Slate, Meagher & Flom LLP, where she worked with former Chief Judge Judith S. Kaye on various commercial and appellate matters. While at Skadden, she also served as Assistant Counsel to the Commission on Judicial Nomination and has handled multiple pro bono matters, including representation of domestic violence victims and representation of a client seeking executive clemency through the Department of Justice’s 2014 Clemency Project.

Prior to her time at Skadden, she was a Trial Attorney for Bolan Jahnsen Dacey, and Greenberg Traurig, where she litigated civil matters. She also developed a program with Sanctuary for Families to provide legal services to homeless and battered women and their children at the New York City Department of Homeless Services Prevention Assistance & Temporary Housing (PATH).

Ms. Smith earned her J.D. at Benjamin N. Cardozo School of Law, an M.A. in Organization and Leadership from
Columbia University, Teachers College, and a B.A. in English and Anthropology & Sociology from Lafayette College. She received the Empire State Counsel Award from the New York State Bar Association in 2013 and 2014.

Friday, January 29, 2016

Additional member service credit in a public retirement system is not available to a retired public employee upon reemployment unless he or she discontinues receiving his or her retirement allowance


Additional member service credit in a public retirement system is not available to a retired public employee upon reemployment unless he or she discontinues receiving his or her retirement allowance
Regan v DiNapoli, 2016 NY Slip Op 00415, Appellate Division, Third Department

C. Murray Regan served as a teacher and, in that capacity, he was a member of the New York State Teachers' Retirement System [TRS] for over 30 years when, in January 1998, he simultaneously began to serve as an elected town supervisor. In this latter capacity, he was also a member of the New York Stateand Local Retirement System [ERS].

Regan was subsequently advised by a representative of ERS that he could retire from teaching and continue to accrue service credit in the ERS "[a]s long as [he] continue[d] as an elected official." Regan then retired from teaching in July 1998 and began collecting his retirement allowance from the TRS while continuing to receive his salary as a town supervisor.*

Regan was unsuccessful in his bid for reelection as town supervisor in 2001 and applied for ERS retirement benefits. ERS, however, denied his application, finding that he had not yet accrued the required minimum amount of service credit. In 2004, Regan regained elective office, this time as a village justice and served in that position for eight years during which period he received both his TRS retirement allowance and a village justice's salary. During this time period the ERS sent him annual updates indicating, among other things, that he was also accruing service credit.

Regan decided not to seek reelection to his position as a village justice for the term starting in 2012 and again applied to ERS for retirement benefits. Again, ERS rejected his application, this time explaining that he was ineligible for retirement benefits and its prior advice and updates had been erroneous because, upon acceptance of his position as an elected village justice in 2004, he had not suspended receipt of his TRS pension benefits. Accordingly, said ERS, he did not resume accruing service credit in ERS.**

After exhausting his administrative remedies in an unsuccessful attempt to overturn the denial of his application for additional ERS service credit, Regan nitiated and Article 78 proceeding only to have Supreme Court deny his request for additional service credit and dismiss his petition. Regan appealed the Supreme Court’s ruling to the Appellate Division.

Regan contended that Civil Service Law §150 permits him to receive both his TRS retirement allowance and his salary as an elected official while simultaneously accruing service credit toward an ERS retirement allowance. However, the Appellate Division said it could not agree based upon its review of the language of the statute and the legislative intent behind it.

The court explained that “As relevant here, Civil Service Law §150 generally prohibits receipt of both a public pension and a salary as a public official or employee, but also provides an exception for public pensioners who become elected officials — such as [Regan].”

Although the Appellate Division said that it agreed that this exception allowed Regan to receive a salary as an elected official without suspending his TRS retirement allowance, it noted that Civil Service Law §150 “makes no express mention of service credit” and, instead, refers only to pension benefits that have already been "awarded or allotted." 

Further, noted the court, the legislative history of the measure indicates that the original purpose behind the exception for public pensioners who subsequently become elected officials was to encourage continued civic engagement by "allow[ing] a retired public employee to seek elected public office and continue to receive his/her public pension benefits." Thus, said the court, in its view, “the statute allows public pensioners to continue receiving the benefits they have already earned while also serving in paid elective office, but it does not provide for the accrual of additional credit for new or greater pension benefits.”

Regan also advanced the argument that ERS should be “equitably estopped from denying him additional service credit because his career decisions were based, in part, upon incomplete advice and erroneous information provided by ERS employees regarding his ability to earn such credit.”

The Appellate Division rejected Regan theory of equitable estoppel, explaining that the doctrine of equitable estoppel generally cannot be invoked against a state agency unless “there has been a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reliance thereon.”

Noting that ERS “readily conceded that mistakes were made regarding the information provided to [Regan],” the court said it found no evidence in the record that any of those mistakes rise above the level of "erroneous advice [given] by a government employee[, which] does not constitute the type of unusual circumstance contemplated by the exception" to the doctrine.

* §150 of the Civil Service Law mandates the suspension of the “pension and annuity”  being paid to a retiree less than 70 years of age by a public retirement of this State except as otherwise permitted by §§101, 211, and 212 of the Retirement and Social Security Law, and by §503 of the Education Law, upon the employment of the retiree in “any office, position or employment in the civil service of the state or of any municipal corporation or political subdivision of the state to which any salary or emolument is attached, except jury duty or the office of inspector of election, poll clerk or ballot clerk under the election law, or the office of notary public or commissioner of deeds, or an elective public office.”

** The court noted that Retirement and Social Security Law §40(c)(9), provides that a retired public employee entitled to public pension benefits who subsequently accepts a new public service position is considered to be an active member of the retirement system only if the pension benefits to which he or she is entitled are suspended during his or her active membership.”

The decision is posted on the Internet at:

Thursday, January 28, 2016

Police confrontations with mentally impaired citizens and inmates


Police confrontations with mentally impaired citizens and inmates
An AELE publication [© 2016 by Ashley Torres and AELE; 60 pages]

Americans for Effective Law Enforcement [AELE] has published a study addressing confrontations with mentally impaired citizens and inmates entitled “Accommodating the Violent: Analyzing Title II of the Americans with Disabilities Relevant to Arrests of the Armed, Violent, and Mentally Ill” by Ashley Torres.

Ms. Torres, a Whittier Law Schoolcandidate for the Juris Doctor degree and the Staff Editor of the Whittier Law Review, notes that “Although a law enforcement officer’s job is maintaining public safety and restoring order, society now demands that officers’ double as mental health proxies, counselors, and hospital transportation for persons with a mental Illness.” Ms. Torres observes that “In order to solve the public policy issue at hand, we must look to outside sources, other than the police themselves, to solve the problem and meet middle ground to keep both our officers and the mentally ill safe.”

The article is posted on the Internet at: http://www.aele.org/sheehan-torres.pdf

Wednesday, January 27, 2016

Unlawful discrimination on the basis of gender identity


Unlawful discrimination on the basis of gender identity
9 New York Code of Rules and Regulations (NYCRR) §466.13

The New York State Division of Human Rights adopted regulations, 9 NYCRR 466.13, prohibiting discrimination and harassment against transgender people and makes clear that transgender individuals are protected under New York State’s Human Rights Law. The new regulations expand the definition of “sex” under New York state law to include gender identity and transgender status.

The Division filed the Rule on January 5, 2016, and it took effect on January 20, 2016. The new rule clarifies how gender identity discrimination may constitute either sex or disability discrimination under the Human Rights Law.

§466.13 reads as follows:

466.13 Discrimination on the basis of gender identity.

(a) Statutory Authority.

Pursuant to N.Y. Executive Law §295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the N.Y. Executive Law, Article 15 (Human Rights Law).

(b) Definitions.

(1) Gender identity means having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.

(2) A transgender person is an individual who has a gender identity different from the sex assigned to that individual at birth.

(3) Gender dysphoria* is a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth.

(c) Discrimination on the basis of gender identity is sex discrimination.

(1) The term “sex” when used in the Human Rights Law includes gender identity and the status of being transgender.

(2) The prohibitions contained in the Human Rights Law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected category, also prohibit discrimination on the basis of gender identity or the status of being transgender.

(3) Harassment on the basis of a person’s gender identity or the status of being transgender is sexual harassment.

(d) Discrimination on the basis of gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out below is disability discrimination.

(1) The term “disability” as defined in Human Rights Law §292.21, means

(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or

(b) a record of such an impairment or

(c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

(2) The term “disability” when used in the Human Rights Law includes gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above.

(3) The prohibitions contained in the Human Rights Law against discrimination on the basis of disability, in all areas of jurisdiction where disability is a protected category, also prohibit discrimination on the basis of gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above.

(4) Refusal to provide reasonable accommodation for persons with gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above, where requested and necessary, and in accordance with the Divisions regulations on reasonable accommodation found at 9 NYCRR § 466.11 , is disability discrimination.

(5) Harassment on the basis of a person’s gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above is harassment on the basis of disability.

* Dysphoria: a state of feeling unwell or unhappy.

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments


Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments
OATH Index No. 2088/15

A community liaison worker at Bellevue Hospital was charged with violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments.

OATH Administrative Law Judge Kara J. Miller sustained the charges. Evidence showed that the employee had violated patient escort procedures on three occasions by leaving patients unescorted at locations outside the facility; violated the hospital's lateness policy and in one instance, falsified her time sheet to indicate she had arrived to work on time.

ALJ Miller recommended termination of employment.   

The decision is posted on the Internet at:
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The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence


The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence
Close v Nitido, 2016 NY Slip Op 00407, Appellate Division, Third Department

Eric M. Close’s father, William Close [Decedent], died in January 2012. Decedent's mother, Peggy Eythe, was listed as his primary beneficiary on the last designation of beneficiary form filed with the New York State Employees' Retirement System, [ERS] dated November 17, 2011. On a previous designation of beneficiary form, dated July 26, 2010, Close was listed as Decedent's primary beneficiary. After Decedent's death and upon being informed that he was no longer a primary beneficiary of Decedent's death benefits, Close filed an application for Decedent’s death benefits with ERS and requested an investigation and a hearing into whether Eythe submitted a fraudulent designation of beneficiary form.

ERS informed Close that its records indicated that Decedent had submitted a notarized change of beneficiary form and that payment would be made in accordance with the last valid designation.

At the administrative hearing Close indicated that “despite his knowledge that Decedent had been diagnosed with stage four cancer, [he] had not visited Decedent — who lived in the same state and sometimes the same city — for approximately five months leading up to Decedent's death. Among the reasons given by Close “for his lack of consistent contact with Decedent prior to Decedent's death” was that he was busy "trying to inherit [an] apartment" from his recently deceased grandmother.

In contrast, as the Appellate Division’s decision notes, Eythe, the primary beneficiary of the 2011 designation of beneficiary form filed with ERS, had moved in with Decedent to help care for him. Further, although Close’s handwriting expert opined that the signature on the 2011 designation of beneficiary form was forged, Decedent’s attorney testified to the contrary, stating that he had witnessed Decedent sign the 2011 change of beneficiary form and that he then notarized that form for the Decedent.

The Hearing Officer found that Close's testimony and the testimony of his witnesses were less credible than the witnesses called by ERS and determined that Close had failed to meet his burden of establishing that the 2011 designation was invalid. The Comptroller accepted in its entirety the Hearing Officer's determination and, as a result, denied Close's application for designation as the beneficiary of Decedent’s death benefits.

Close initiated Article 78 proceeding challenging Comptroller's determination and Supreme Court, finding there was an issue of substantial evidence present, transferred the action to the Appellate Division.

Initially Appellate Division explained that [1] the Comptroller has exclusive authority to determine the validity of beneficiary designations on applications for death benefits, and each such  determination must be supported by substantial evidence and [2] an individual challenging the Comptroller's determination had the burden of proving that the beneficiary designation accepted by the Comptroller was invalid.

Given the eyewitness testimony regarding validity of Decedent's signature on the 2011 designation form, the Appellate Division said that there was “compelling evidence” explaining Decedent's motivation for changing his beneficiary from Close to Eythe and, giving due deference to the Comptroller’s credibility determinations, found that substantial evidence supported the Comptroller decision.

The decision is posted on the Internet at:

Tuesday, January 26, 2016

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony was unsupported by reliable documentary evidence


OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony unsupported by reliable documentary evidence
OATH Index No. 195/16

The Department of Environmental Protection charged the employee, a city research scientist, with failing to perform the duties of his job satisfactorily. The Department presented the testimony of employee's supervisors, as well as employee's work performance evaluations.

The employee testified that after filing an Equal Employment and Opportunity complaint against one of his supervisors, he had been treated unfairly and his supervisors rated his work performance as unsatisfactory.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the testimony of the supervisors was unsupported by reliable documentary evidence and thus was not objective proof that employee was unable to meet the minimally acceptable threshold requirements with respect to performing the duties of his position satisfactorily.

Judge Zorgniotti recommended that the charges be dismissed.   

The decision is posted on the Internet at:

Where disclosure is not barred by statute, claims of “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information



Where disclosure is not barred by statute, claims of  “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information
Sell v New York City Dept. of Educ., 2016 NY Slip Op 00425, Appellate Division, First Department

Peter Sell sought the records of an investigation by the New York City Department of Education [DOE] Office of Special Investigations [OSI] into a complaint he filed alleging that school administrators had improperly influenced the re-scoring of a Regents Examination with the intent of improving the number of students who passed "with distinction." DOE denied Sell’s request, citing the statutory exemptions from disclosure of unwarranted invasion of privacy and inter- or intra-agency materials set out in Public Officers Law §87[2][b], [g].

Supreme Court ordered the records in question produced for an in camera* inspection by the court and subsequently directed DOE to disclose the investigative file concerning “Office of Special Investigation Case 08-4247” except for certain pages, with any Social Security numbers redacted from such files. The DOE appealed the court’s ruling.

The Appellate Division unanimously sustained the Supreme Court’s decision after excepting from disclosure certain additional pages or portions of pages it identified in its decision, explaining that the lower court had “properly directed the disclosure of some portions of these records, notwithstanding  OSI's finding the complaint “unsubstantiated."

As DOE had conceded that none of the statutorily enumerated categories of "unwarranted invasion of personal privacy" were relevant in this action, the Appellate Division said it must determine, "by balancing the privacy interests at stake against the public interest in disclosure of the information," whether any invasion of privacy is unwarranted.

The court said that it found that “there is significant public interest in the proper academic assessment of public school students and therefore in the requested materials, which may shed light on the adequacy of OSI's investigation into the allegedly improperly influenced assessment in this case.” Further, the Appellate Division said the DOE had failed to establish that this significant public interest is outweighed by the privacy interests of those involved. 

Contrary to DOE's argument, the court found that there was no indication in the record that any interviewees were promised confidentiality, explicitly or implicitly. Rather, said the court “all contact information other than the interviewees' names and official titles (such as identification numbers, home addresses, phone numbers, and dates of birth) should be redacted,” noting that Sell had specifically clarified in his administrative appeal that he did not seek that information.

As to the statutory exemption for inter- or intra-agency materials, the Appellate Division found the Supreme Court had erred in directing disclosure of certain pages or portions of pages as they were not "factual tabulations or data" or "final agency policy or determinations." Such pages or portions of such pages set out witness statements, email correspondence, and other materials consisting of "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" rather than "factual account[s] of the witness's observations."

However, observed the court, a page in which a nonparty FOIL requester, Michael Thomas, discussed certain sensitive matters was not covered by the personal privacy exemption to FOIL because Thomas "consent[ed] in writing to disclosure" by waiving, in an affidavit, any right to confidentiality in any of the records sought. Further, said the Appellate Division, “the remaining records at issue largely relate to [Sell], who expressly waived his right to confidentiality in those records in writing.”

Regarding the remaining materials at issue, the Appellate Division said that Supreme Court had “correctly found that [DOE] failed to meet [its] burden of articulating a ‘particularized and specific justification' for withholding them or redacting them as sought” because there is no blanket exemption for handwritten reports of witness interviews, citing Ingram v Axelrod, 90 AD2d 568.

It should be noted that the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to provide the information requested.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

In addition, the Freedom of Information Law is not a bar an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to Article 14 of the Civil Service Law obtaining the name or home address of any officer, employee or retiree of a public employer, “if such name or home address is otherwise available."

* A judicial review of material alleged to be confidential or sensitive information to determine whether it should be part of the record to be made public.

The decision is posted on the Internet at:

Monday, January 25, 2016

From the Blogs


From the Blogs

NYMUNIBLOGhas posted a new item, “Impacts of Federal Laws on Municipalities’ Daily Operations” by Joseph V. Frateschi, Esq.

NYMUNIBLOG previously discussed the impacts of federal laws and the United States Constitution upon the daily operations of local municipalities in such articles as “Concern Over Drones: Air Rights, Privacy, Health and Safety are Among the Issues” and “Lesson Learned in Arizona Sign Code Case – Municipal Ordinances Should be Content Neutral.”

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism


Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism
Triborough Bridge and Tunnel Authority v Beverly, OATH Index No. 2238/15

The Triborough Bridge and Tunnel Authority filed disciplinary charges pursuant to §75 of the Civil Service Law against Bruce Beverly, a Bridge and Tunnel Officer, alleging incompetency due to his excessive absenteeism from work. In rebuttal, Beverly alleged that his absences were caused by a long-term disability and sought a one-year leave of absence for ordinary disability pursuant to §72 of the Civil Service Law.

ALJ Alessandra F. Zorgniotti found that Beverly, who had an absenteeism rate of 100% in 2015 and 54% in 2014, was excessively absent and ruled that even if an employee’s  absences are caused by a disability, an employer may discipline the employee for incompetence pursuant to §75 of the Civil Service Law when the absences are excessive and have a burdensome effect on the employer. .

In addition, Judge Zorgniotti ruled that Beverly was not entitled to a one-year leave pursuant to §72 of the Civil Service Law as there was insufficient proof that “he is currently unfit to perform his duties due to a disability.”

In support of her decision, Judge Zorgniotti cited the following decisions:

1. Brockman v. Skidmore, 39 N.Y.2d 1045 rev’g 43 A.D. 2d 572, in which the Court of Appeals reversed a finding that a government agency must treat an employee’s time–and-leave violations pursuant to CSL §72 rather than as a disciplinary matter under CSL §75 when there is evidence of a disability;

2. Garayua v. Board of Education, 248 A.D.2d 714, where the court rejected an assistant custodian’s claim that her physical incapacity and “nonwillful absenteeism” entitled her to leave pursuant to §72, rather than subjecting her to disciplinary action pursuant to §75; and

3. Romano v. Town Board of Colonie, 200 A.D.2d 934, holding that an agency may terminate an employee for excessive absence regardless of whether valid reasons existed for the absences or whether they were authorized, concluding that even if an employee’s absences are caused by a physical or mental disability, the employer may discipline and, if appropriate, terminate the employee for incompetence pursuant to CSL §75 when the absences are excessive and they have a burdensome effect upon the employer.

Considering Beverly’s “egregiously poor attendance over the past two years,” the ALJ recommended that he be terminated from employment.

The decision is posted on the Internet at:
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Saturday, January 23, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending January 23, 2016


Selected Reports issued by the Office of the State Comptroller during the week ending January 23, 2016
Click on text highlighted in color to access the full report

Non-profit organization executive convicted of theft of public monies
Comptroller Thomas P. DiNapoli, Attorney General Eric T. Schneiderman and New York City Department of Investigation (NYC DOI) Commissioner Mark Peters announced that Dorothy Ogundu, a nonprofit executive convicted for pocketing taxpayer dollars intended for public services and capital improvements in New York City, was sentenced to one to three years in state prison. A multi-agency investigation, including NYC DOI and two federal agencies, exposed the theft of approximately $300,000 in public funds provided by New York state, the New York City Council, and federal earmark grants. On October 22, 2015, a jury convicted Dorothy Ogundu on 29 counts, including Grand Larceny in the Second Degree.


Retiree alleged to have fraudulently obtained retirement benefits
Noting that the charge contained in the Indictment is merely an accusation and the defendant is presumed innocent unless and until proven guilty, Thomas P. DiNapoli, New York State Comptroller, Preet Bharara, United States Attorney for the Southern District of New York, and Diego Rodriguez, the Assistant Director-in-Charge of the New York Field Office of the Federal Bureau of Investigation (FBI) announced the indictment of Michael J. Vatter, the Chief of the Newburgh Fire Department, charging him with fraudulently obtaining approximately $95,000 in pension benefits by failing to report his return to work in the public sector to the New York State and Local Police and Fire Retirement System. Under New York State law, a public sector retiree who is receiving a pension and who returns to public service cannot receive both pension payments and a public sector paycheck. The law permits public sector retirees to earn up to $30,000 per year from public sector employment before their pension benefits are cut off for that year.


New Tax Cap Calculations
Property tax levy growth for school districts will be capped at 0.12 percent above current levels for the 2016-17 fiscal year, according to data released by State Comptroller Thomas P. DiNapoli. The latest calculation affects the tax cap calculations for 677 school districts as well as 10 cities, including the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers.


Municipal Audits published

Gloversville Housing Authority – Selected Financial Operations

Mechanicville Housing Authority – Tenant Rents

Village of Old Brookville – Cash Receipts

Town of Pamela – Financial Management

Tompkins County Public Library – Financial Management


School Audits published

East Greenbush Central School District– Claims processing

East Rockaway Union Free School District– Purchasing

Honeoye Central School District – Payroll

Jefferson Central School District – Fund balances

Keene Central School District – Claims Processing

Lansing Central School District – Financial Management

Otego-Unadilla Central School District – Financial Condition

Royalton-Hartland Central School District – Financial Condition

Friday, January 22, 2016

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education


Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education
Appeal of Ling Ling Chou from a disciplinary proceeding brought pursuant to Education Law §3020. Decisions of the Commissioner of Education, Decision No. 16,861

Carmen FariƱa, Chancellor of the New York City Department of Education, implemented the arbitrator’s decision to suspend Ling Ling Chou from her position as principal of P.S. 184M without pay.  The Commissioner, in dismissing the appeal, addressed a number of issues, including the following:

Opening the arbitration hearing to the public:
With regard to the conduct of the hearing, Ms. Chou claimed that the hearing officer erred in closing the hearing after she had elected to have a public hearing, pursuant to Education Law §3020-a(3)(c)(i)(C). 

The Commissioner noted that in his decision, the hearing officer explained that the hearing was subsequently closed to the public, in part, due to “potential and actual” violations of the federal Family Educational Rights and Privacy Act.  She then said the “Even if I were to determine that closure of the hearing to the public was not proper, under these circumstances, Ms. Chou has alleged no harm or prejudice resulting therefrom and, in any case, such error would not be a basis for overturning the suspension imposed upon Ms. Chou.”  

Refusal to hear “pertinent testimony”
Ms. Chou alleged that the arbitrator refused to hear “pertinent witness testimony. However, 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 petitioner seeks relief. 

Here, said the Commissioner, Ms. Chou asserted her claim in a conclusory fashion and did not set forth what, if any, “pertinent witness testimony” was precluded nor did she establish how such testimony would have impacted her case.  Other than her conclusory assertion, Ms. Chou, the Commissioner said that she failed to set forth facts or citations in the record on which to establish her claim.  Consequently, the Commissioner ruled that Ms. Chou failed to meet her burden of proof in this regard.

Failure to follow the §3020-a disciplinary process
Ms. Chou, said the Commissioner, contended that the New York City Department of Education “inexcusably did not follow the process defined in §3020-a(4)(D)(i-a)(A) for bringing charges of incompetence based solely on a pattern of ineffectiveness. Instead, a full disciplinary hearing was implemented by [the Department] without giving petitioner an opportunity to develop a correction plan for alleged inefficiencies, as statutorily required.” 

The Commissioner explained that Education Law §3020-a(3)(D)(i-a)(A) was the statutory provision relating to expedited hearings on charges of incompetence based solely on a pattern of ineffectiveness that existed prior to July 1, 2015, not Education Law §3020-a(4)(D)(i-a)(A) as erroneously cited by Ms. Chou.  That former provision was deleted by section three of Subpart G of Part EE of Chapter 56 of the Laws of 2015, though it was in effect at the time of petitioner’s hearing.  

In any event, to the extent that Ms. Chou argued that she was entitled to an expedited hearing because she was charged with incompetence based solely on a pattern of ineffectiveness, the Commissioner decided that the record did not support any such claim. 

The decision is posted on the Internet at:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html
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Thursday, January 21, 2016

The test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position


The test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position
Cook v New York State Comptroller, 2016 NY Slip Op 00236, Appellate Division, Third Department

Brent J. Cook Jr., a police lieutenant employed by the Nassau County Police Department as an administrative supervisor, was injured in a motor vehicle accident while on duty. When Cook returned to work on or about March 30, 2010, he was placed on restricted-duty status, i.e., he "was no longer allowed to perform patrol function[s]" and instead was limited to working in a clerical capacity.

In February 2011, Cook applied for accidental disability retirement benefits alleging that he was permanently incapacitated from the performance of his duties due to certain neck and back injuries sustained in the accident.

The NYS Employees’ Retirement System rejected Cook’s application and he requested a hearing and redetermination. The Hearing Officer found that Cook failed to establish that he was permanently incapacitated from the performance of his duties and upheld the denial of his application for benefits. The State Comptroller, in turn, adopted the Hearing Officer's findings and recommendation and Cook sued challenging the Comptroller’s decision.

Citing 2 NYCRR 364.3[a], the Appellate Division noted that “Where, as here, the applicant ‘has been assigned to light, limited or restricted duties for less than two years prior to the date [upon which the] application for disability retirement benefits was filed with [respondent,] . . . the issue of permanent incapacity [shall be determined] on the basis of the duties and job requirements of such previous full duty assignment.’”

Cook had testified, without contradiction, that he never returned to full-duty status as a lieutenant during the less than one year that elapsed between the date of his return to work and the date upon which he applied for accidental disability retirement benefits. The Department’s Chief of Patrol for the Department confirmed that the full duties of the position entailed performing patrol functions, which included, among other things, entering and exiting a patrol vehicle, responding to an emergency, making an arrest and engaging in heavy lifting.

Significantly, said the court, “Although numerous individuals offered various estimates as to what percentage of [Cook’s] actual duties were administrative versus patrol in nature, the fact remains that petitioner's full duties entailed performing patrol functions — tasks that he was not allowed to resume after he returned to work on restricted-duty status.”

Although it is true that the State Comptroller “is vested with the exclusive authority to weigh [conflicting medical] evidence and credit the opinion of one medical expert over another" here the Appellate Division ruled that Comptroller’s expert opinion upon which he relied, “misses the mark.”

The court explained that “The dispositive inquiry for purposes of determining disability is not whether [Cook] is capable of indefinitely performing the clerical tasks assigned to him while on restricted duty but, rather, whether he is capable of performing the full duties of a police lieutenant.” The court then said that “the record as a whole clearly establishes that [Cook] is incapable of returning to full-duty status,” and concluded that the Comptroller’s determination “cannot be said to be supported by substantial evidence.”

The Appellate Division annulled the Comptroller’s determination and remanded the matter “for further proceedings not inconsistent with this Court's decision.”

The decision is posted on the Internet at:

The Disability Benefits E-book: - This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/
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Wednesday, January 20, 2016

Reliance on case law relating to a provision of a law alleged to be analogous may be misplaced where the issue under consideration is governed by a different statute


Reliance on case law relating to a provision of a law alleged to be analogous may be misplaced where the issue under consideration is governed by a different statute
Gandin v Unified Ct. Sys. of State of N.Y., 2016 NY Slip Op 00186, Appellate Division, Second Department

David Gandin commenced employment as a confidential law secretary to an Acting Justice of the Supreme Court, at a salary grade of JG-531. He resigned from that position in 2008, at which time his salary grade was JG-531, with his rate of pay reflecting annual salary increments based upon his two years of service.

More than four years later Gandin returned to the employ of the New York State Unified Court System [UCS] and was appointed as a principal law clerk at a hiring rate salary grade of JG-531. Gandin then requested salary increment credit for the annual salary increments he had earned during his two years of prior service. In a letter dated July 22, 2013, Gandin was advised that his request had been denied by UCS and the Office of Court Administration [OCA].

Gandin sued USC and OCA and Supreme Court granted petition and annulled the UCS and OCA determination and directed that Gandin be paid a salary reflecting a credit for previously earned annual salary increments, and back pay and benefits retroactive to January 2, 2013.

The Appellate Division explained that although "An administrative agency's interpretation of the statute it is charged with implementing is entitled to varying degrees of judicial deference depending upon the extent to which the interpretation relies upon the special competence the agency is presumed to have developed in its administration of the statute" when the interpretation of a statute is one of " pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency' and the legal interpretation is ultimately the court's responsibility." Further, said the court, “in attempting to effectuate the intent of the Legislature, ‘the best evidence . . . is the plain language of the statute.’"

Turning to the relevant statute, Judiciary Law §37(7), the court noted that §37(7), in pertinent part, provides that "Appointments, transfers and reinstatements to similar grade positions. If an employee is transferred to a similar position, or is appointed or reinstated to a position in the same salary grade . . . [a]n employee so appointed, transferred or reinstated shall be eligible to receive the increments in the schedule established for the new position based upon the number of [the employee's] years of service in the new position and in [the employee's] former position" (emphasis supplied by the Appellate Division).

§37, said the court, does not require that an employee have continuous or uninterrupted employment with the State in order to obtain such salary increment credit and “a fair reading of the language of Judiciary Law §37(7) leads to the conclusion that the [Gandin] was eligible to receive the appropriate salary increment credit when he was appointed to a position in the same salary grade as that which he held when he was previously employed by UCS.

UCS and OCA had contend that a similar, but not identical, provision set out in Civil Service Law §131(4) had been interpreted to require "continuous service" in order for an employee to be eligible for a salary increment credit.

The Appellate Division agreed with the Supreme Court’s rejection of that argument, holding that UCS/OCA’s reliance on case law relating to what was claimed to be an analogous provision in the Civil Service Law was misplaced as “this matter was governed by the Judiciary Law” and dismissed the appeal.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_00186.htm
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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 
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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/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

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

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

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