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Monday, February 29, 2016

Acting in self-defense when accosted by others while at work did not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law


Acting in self-defense when accosted by others while at work did not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law
Matter of Chirico (City of Syracuse--Commissioner of Labor), 2016 NY Slip Op 01027, Appellate Division, Third Department

Anthony D. Chirico worked for the City of Syracuse as a motor equipment operator for about 10 months. After parking the truck he was driving, three individuals, two of whom were carrying golf clubs, assaulted him. After being struck with a golf club, Chirico grabbed one of the golf clubs and swung the club to ward off the three attackers. A few days later the City terminated Chirico from his employment for "unsatisfactory work performance."

Chirico then applied for, and received, unemployment insurance benefits. The Department of Labor, however, subsequently determined that Chirico lost his employment with the City due to actions that constituted misconduct in connection with that employment, thus disqualifying him from receiving benefits.

Ordered to reimburse the City for the unemployment insurance benefits he had received,* Chirico appealed. Although the Administrative Law Judge [ALJ] upheld the Department's determination, the Unemployment Insurance Appeal Board reversed the ALJ’s ruling and determined that Chirico was entitled to receive unemployment insurance benefits because, in its view, his actions were in self-defense and did not constitute disqualifying misconduct.

The City appealed the Board’s determination, contending that Chirico not entitled to receive unemployment insurance benefits because he had engaged in disqualifying misconduct while at work. The Appellate Division sustained the Board’s determination, explaining "Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence."

The court also noted that not every discharge for cause is misconduct within the meaning of the Unemployment Insurance Law, which defines such disqualifying misconduct  conduct as “a willful and wanton disregard of the employer's interest.”

Although engaging in a physical altercation or exchange during the course of one's employment may be found to constitute disqualifying misconduct, here Chirico asserted that [1] he did not initiate the altercation and [2] that he acted in self-defense and appropriately under the circumstances. These assertions, said the court, “presented a credibility issue that the Board could properly choose to credit.”

The City also argued that Chirico had made a “willful false statement” in his application for unemployment insurance benefits. The Appellate Division rejected the City’s contention that Board should have found that such a willful false statement or representation warranted a reduction or forfeiture of Chirico’s unemployment insurance benefits.

The court said that the details of the incident that Chirico provided in his application for unemployment benefits were consistent with his testimony at the hearing, “which the Board credited.” Accordingly, the Appellate Division found no reason to disturb the Board's decision.

* See Labor Law §594

The decision is posted on the Internet at:
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Saturday, February 27, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 28, 2016


Selected Reports issued by the Office of the State Comptroller during the week ending February 28, 2016
Click on text highlighted in color to access the full report

Former Director of the Putnam County Department of Consumer Affairs enters guilty plea for stealing money she accepted to satisfy county-issued fines
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Jean Noel, the former Director of the Putnam County Department of Consumer Affairs, for stealing money from Putnam County. Ms. Noel was arrested after a joint investigation by the State Police, the Office of the New York State Comptroller, and the Attorney General’s Office revealed Ms. Noel’s theft of cash that she accepted from local contractors to satisfy county-issued fines. Ms. Noel entered a guilty plea before the Honorable Joseph J. Spofford, Jr. in Carmel Town Court to the class “A” misdemeanor charge of petit larceny under Penal Law § 155.25. As part of a plea agreement, Ms. Noel agreed to terminate her employment with Putnam County, pay restitution, and was sentenced to a one-year conditional discharge.


Former Tupper Lake Volunteer Fire Department Treasurer pleaded guilty to grand larceny
Former Tupper Lake Volunteer Fire Department Treasurer Timothy J. Brown pleaded guilty to grand larceny and agreed to repay the $30,000 he stole for private vacations revealed in an audit and investigation by State Comptroller Thomas P. DiNapoli.


School District Audits Released

Alexander Central School District - Financial Condition

Cazenovia Central School District - Financial Condition


Silver Creek Central School District – Financial Condition

Wallkill Central School District – Financial Management


Comptroller rejected contracts valued at $2.64 billion and 4,200 payments valued at $2.7 million due to fraud, waste or other improprieties in January
State Comptroller Thomas P. DiNapoli announced his office approved 1,436 contracts valued at $4.53 billion and approved 1.9 million payments worth $10.2 billion in January. His office also rejected 170 contracts and related transactions valued at $2.64 billion and 4,200 payments valued at $2.7 million due to fraud, waste or other improprieties.


Department of Health (DOH) needs to fix problems and delays with how it is assessing fines to nursing homes after violations are found
The state Department of Health (DOH) needs to fix problems and delays with how it is assessing fines to nursing homes after violations are found, according to an audit released by State Comptroller Thomas P. DiNapoli. While DOH is frequently inspecting nursing homes and acting quickly on serious complaints, auditors found that some facilities had repeated violations that escalated into more serious problems with limited consequences.


State may face increasing budgetary challenges in coming years as revenue growth
is expected to slow
New York state’s fiscal position has improved, but the state may face increasing budgetary challenges in coming years as revenue growth is expected to slow and billions of dollars in settlement money are spent, according to an analysis of the $154.6 billion Executive Budget released by State Comptroller Thomas P. DiNapoli. This report, prepared each year following the release of the Executive Budget, provides information to assist in the evaluation of the 2016-17 proposal.


Fiscal Stress Monitoring System – Reports concerning selected villages
State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has identified 18 villages in New York in some level of fiscal stress. For 2015, three villages have been classified as in “significant fiscal stress,” four in “moderate fiscal stress,” and 11 as “susceptible to fiscal stress.” Last year, a total of 22 villages were listed in fiscal stress.


Audit finds non-profit provider of supportive housing for
New York City’s Dept. of Health and Mental Hygiene (DOHMH) overbilled the agency
A non-profit provider of supportive housing for New York City’s Dept. of Health and Mental Hygiene (DOHMH) overbilled the agency by $1 million according to an audit released by New York State Comptroller Thomas P. DiNapoli. DOHMH’s weak oversight of the Center for Urban and Community Services made the overpayments possible and raises concerns about potential overpayments to other vendors. 


State Comptroller and the Church of England’s investment fund challenge Exxon’s attempt to silence questions on climate change
Investors, led by New York State Comptroller Thomas P. DiNapoli and the Church of England’s investment fund, the Church Commissioners, asked the Securities and Exchange Commission to reject ExxonMobil’s plan to block a shareholder proposal for information on how the company will be impacted by public policies seeking to rein in climate change.

 
State’s January receipts $4.8 billion higher than initially projected
New York state collected $126.6 billion in receipts from April through January, which was $582.3 million higher than the Division of the Budget’s latest projections and $4.8 billion higher than initial projections, according to the monthly state cash report issued by New York State Comptroller Thomas P. DiNapoli.


Friday, February 26, 2016

Governor announces recent administration appointments


Governor announces recent administration appointments
Source: Office of the Governor

On February 26, 2016, Governor Andrew M. Cuomo announced the appointment of the individuals listed below to his administration.

Jamie Malanowski has been appointed Senior Speechwriter for the Executive Chamber. He brings with him 30 years of experience in writing and editing. Most recently, Mr. Malanowski was the Lead Writer for the award-winning Disunion series in The New York Times, and the author of the biography Commander Will Cushing, Daredevil Hero of the Civil War. He has served as the National Editor of Spy and was a member of the founding staff; Senior Editor at Esquire; and Senior Editor at Time, among other positions. He also published two novels and more than 500 articles in more than thirty magazines, newspapers and websites in the
United States and Great Britain. In 2012, he was the recipient of the Folio Award (the ‘Eddie’) for Magazine Feature Writing. He holds an M.A. from the University of Pennsylvania and a B.A. from LaSalle College.

Matthew Pennello has been appointed Special Assistant for Legislative Affairs. Mr. Pennello has worked in public service since 2010, most recently as the Governor’s Regional Representative for the
Mohawk Valley. Prior to working at the Executive Chamber, he was the Assistant for Central New York Intergovernmental Affairs and Federal Policy for the NYS Department of Labor. He has also worked in the Department of Law of the Syracuse Corporation Counsel. A Central New York native, Mr. Pennello  received his B.A. in Political Science from SUNY Cortland, where he earned a Research Fellowship studying the effect of terrorism on modern constitutional theory.

Melissa R. Quesada has been appointed Director of Latino Affairs, after having served earlier as Assistant Deputy Commissioner for Worker Protection at the Department of Labor where she was responsible for coordinating the planning and implementation of multi-agency statewide enforcement and outreach efforts. While at the Department Ms. Quesada also served as the Director of Outreach for the Governor’s Unemployment Strike Force, cultivating relationships with local businesses, targeted constituencies, elected officials and community organizations. Prior to that, Ms. Quesada served as a Special Associate for the New York City Law Department. She holds a J.D. from Hofstra University School of Law and a B.A. from
Binghamton University.

Mary Beth Woods has been appointed Executive Director of the NYS Workers’ Compensation Board, after serving as the Acting Director. Ms. Woods has worked at the Workers’ Compensation Board for over 15 years, and held titles including Deputy Executive Director, Director of Financial Administration and Director of Licensing. From 1990-1998, Ms. Woods worked at the NYS Division of the Budget, where she was an Associate Budget Examiner. She was also a Supervising Senior Accountant at KPMG Peat Marwick. Ms. Woods is currently a Board Member of the Compensation Insurance Rating Board and has previously served as the Chair of the Governor’s Task Force on Group Self Insurance. She earned a B.S. in Business Administration from
Siena College and is a Certified Public Accountant in New York State.

Justin Bernbach has been appointed Chief Government Affairs & Community Relations Officer at the MTA. Most recently, Mr. Bernbach was Northeast Director of Government Relations at HNTB, a national transportation design and program management company. Previously he was the Managing Director of State and Community Affairs for American Airlines. In this role, he managed state and local government relations for American Airlines in
New York, New Jersey, Connecticut and Massachusetts. Prior to his role there, he was the Deputy Director of Communications at the Phoenix House Foundation, the nation’s largest nonprofit substance abuse treatment organization. Mr. Bernbach also served as the New York City-based Press Officer for the New York State Assembly from 2002-2004. He holds an M.P.P. from Harvard University’s John F. Kennedy School of Government and a B.A. in Government and Economics from Cornell.​

John Lockwood has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for the Office of Children and Family Services. Most recently he served as the First Deputy County Attorney for the Family Court Unit at the Schenectady County Attorney’s Office. He also recently served as a Village Trustee for the Village of Scotia, N.Y. Prior to joining the Schenectady County Attorney’s Office, Mr. Lockwood was an Assistant Public Defender in the Schenectady County Public Defender’s Office. He will be replacing Barbara Kruzansky who will become Director of the Office of Agency Performance. He holds a J.D. from Roger Williams University School of Law and a B.S. from
Salve Regina University.

Peggy Rodriguez has been appointed Regional Representative for the
Mohawk Valley. Previously she served as a Special Assistant for Labor Regional Affairs at the New York State Department of Labor. She has held numerous positions at the University of Nevada, Las Vegas, including Victim Advocate for the Jean Nidetch Women’s Center at UNLV, and Research Assistant at the University’s Boyd Law School. Ms. Rodriguez holds a B.A in Political Science from UNLV.

Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position


Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position
Decisions of the Commissioner of Education, Decision #16,874

A resident [Resident] of the school district [District] asked the Commissioner of Education to remove the Superintendent of Schools [Superintendent] from the position. Resident alleged certain conduct that occurred while Superintendent was superintendent at another school district and alleged certain conduct while Superintendent of the District in support of the request for Superintendent’s removal from the position.

The Commissioner explained that a member of the board of education or a school officer may be removed from his or her office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the individual who is targeted for such removal “has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.”

The Commissioner ruled that Resident’s petition must be dismissed for procedural reasons. The Commissioner explained that Resident failed to include the notice requirements set out in  8 NYCRR 277.1(b) of the Commissioner’s regulations.

This provision requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office.  Resident failed to comply with the notice requirements of  §277.1(b), but instead used the notice prescribed in §275.11(a).* The Commissioner pointed out that a notice of petition seeking the removal of an officer which fails to contain the language required by §277.1(b) of the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended individual or individuals.

Notwithstanding the dismissal of Resident’s petition as a result of its procedural defect, the Commissioner addressed the Superintendent’s request that she issue a certificate of good faith pursuant to Education Law §3811(1)* for the purpose of authorizing the school board to indemnify the Superintendent for legal fees and expenses incurred in defending this proceeding.

The Commissioner said that it is appropriate to issue such a certification unless it was established on the record that the individual seeking such a certification acted in bad faith.

As Resident’s application was dismissed on procedural grounds and there had been no finding that Superintendent acted in bad faith, the Commissioner approved the request “solely for the purpose of Education Law §3811” as Superintendent “appears to have acted in good faith.”

* 8 NYCCR §275.11(c) requires that in the event the petitioner is seeking removal of a school officer, in addition to the notice required by 8 NYCRR §275.11(a) “the notice provisions of section 277.1 of this Title shall also apply.”

** §3811(1) sets out the procedures for seeking such indemnification but provides that an individual is not eligible for indemnification for legal fees and expenses incurred as a result of a criminal prosecution or an action or proceeding brought against him or her by a school district or board of cooperative educational services.

The decision is posted on the Internet at:

Thursday, February 25, 2016

The employment history of an employee found guilty of one or more disciplinary charges may be considered in setting the disciplinary penalty to be imposed


The employment history of an employee found guilty of one or more disciplinary charges may be considered in setting the disciplinary penalty to be imposed
OATH Index #2743/15

A sergeant who worked the overnight tour at a juvenile detention center employed by ACS was charged with multiple employment infractions spanning nine months. Two supervisors testified at trial that the sergeant failed to complete work duties, including completing reports, attending meetings, properly signing out equipment, wearing his uniform, and responding to supervisors’ requests.

OATH Administrative Law Judge John B. Spooner found the proof sufficient to sustain most of these charges. Based on the sergeant’s three prior disciplinary incidents, generally poor work evaluations, and recent egregious conduct, ALJ Spooner recommended that he be terminated from his position.

In Scott v Wetzler, 195 AD2d 905, the court rejected Scott’s argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing. The court said that “such evidence was relevant to the determination of an appropriate penalty,” noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file. Another decision frequently cited as authority for this proposition is Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470.

The general rule applied by the courts when asked to determine if the employee’s personnel record was lawfully considered in setting the disciplinary penalty is that the employee’s personnel records may be considered in setting a disciplinary penalty, provided the employee is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file. Although the employee’s consent is not required in order for the hearing officer or arbitrator to consider the employee’s personnel record in determining an appropriate penalty to recommend or determine, it is essential that he or she be notified of that provide the opportunity to review and comment on his or her personnel record.

The decision is posted on the Internet at:

____________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
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Wednesday, February 24, 2016

In a lawsuit brought by a public official alleging defamation, the official must show actual malice on the part of the alleged defamer in order to prevail


In a lawsuit brought by a public official alleging defamation, the official must show actual malice on the part of the alleged defamer in order to prevail
Eastwood v Hoefer, 2016 NY Slip Op 00674, Appellate Division, Second Department

Kenneth W. Eastwood, the former Superintendent of the Oswego City School District, sued Francis E. Hoefer, then a member of the Board of Education, to recover damages for defamation. Eastwood alleged the Hoefer had defamed him when he published three statements on an Internet website.

The first alleged defamatory statement was that "[i]t wasn't until [Eastwood] packed his bags for Middletown that the Oswego School District discovered that our reserve accounts had been depleted." The second allegedly defamatory statement was that there had been "allegations of [Eastwood’s] abuse of a young honor student and [a] subsequent cover up." The third allegedly defamatory statement was that the Eastwood "use[d] . . . his position to acquire enhanced grades for his daughter."

Following a jury trial, the jury returned a verdict in favor of Eastwood, finding that all three of the statements were defamatory and that Hoefer had published the three statements with actual malice.

In the appeal that followed the Appellate Division, noted that Eastwood did not dispute the characterization that he was a public figure. Accordingly, said the court, this case was governed by the rule of New York Times Co. v Sullivan, 376 US 254, in which the Supreme Court of the United States interpreted the First Amendment to the United States Constitution as embodying "the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."

The Times decision, said the court, bars a plaintiff "from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not" and "[T]he appellate court must make a de novo review of the entire record and determine whether the proof before the trial court supports the finding of actual malice with convincing clarity."*

Contrary to Hoefer’s contention, the Appellate Division found that “record demonstrates, by clear and convincing evidence, that the third statement he made was made with actual malice.” However, the court, upon its independent review of the record, concluded that the evidence does not establish, with "convincing clarity," that Hoefer published the first and second statements with actual malice.

Accordingly, the court ruled that Supreme Court properly granted Hoefer’s motions,  which were made pursuant to CPLR 4404(a),** to set aside so much of the verdict as was in favor of the Eastwood with respect to Hoefer’s first and second statements.

As to the third statement, the Appellate Division said that the Supreme Court properly denied that branch of Eastwood’s CPLR 4404(a) motion to set aside so much of the verdict as was in favor of Eastwood with respect to the third statement.

* See Sweeney v Prisoners' Legal Servs. of N.Y., 84 NY2d 786

** As relevant here, a motion by a party after a trial by jury to set aside all or part of the jury's verdict. 

The decision is posted on the Internet at:

Tuesday, February 23, 2016

A hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists


A hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists
Tamsen v Village of Kenmore, 2016 NY Slip Op 00785, Appellate Division, Fourth Department

The Appellate Division rejected Jeffrey Tamsen’s challenge to his being terminated from his position as a firefighter after the Hearing Officer found him guilty of the disciplinary charges filed against him.

Concluding that the Hearing Officer’s determination was supported by substantial evidence, i.e, “… relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," the court rejected Tamsen’s claim that the Hearing Officer erred in determining that he misrepresented certain facts in the course of the disciplinary hearing.

Conceding that Tamsen presented “evidence to the contrary,” the court explained that a hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses and courts may not weigh the evidence or reject a hearing officer’s decision in that regard “where the evidence is conflicting and room for a choice exists.”

Citing Kelly v Safir, 96 NY2d 32, rearg denied 96 NY2d 854, the Appellate Division concluded that the penalty imposed, termination, was not "so disproportionate to the offense[s] as to be shocking to one's sense of fairness" and thus did not constitute an abuse of discretion and dismissed Tamsen’s appeal.

The decision is posted on the Internet at:
_______________________

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

 

Monday, February 22, 2016

The term “race” for purposes of 42 U.S.C. 1981 is to be defined the same as the term “race” is defined for the purposes of Title VII


The term “race” for purposes of 42 U.S.C. 1981 is to be defined the same as the term “race” is defined for the purposes of Title VII
Village of Freeport v Barrella. USCA 2nd Circuit, Docket 14-2270

A disappointed candidate for appointment to the position Chief of Police sued the Village of Freeport for alleged unlawful discrimination.

The individual, a “white Italian-American.” alleged that a “less-qualified Hispanic candidate” was appointed to the position in violation of 42 USC 1983 because he scored highest on the examination and of the three names on the list certified for the appointment, the Hispanic candidate was ranked "third."* The Village argued that an employer who promotes a “white Hispanic” candidate over a “white non-Hispanic” candidate cannot have engaged in unlawful discrimination based on race.

The Second Circuit reject the Village’s argument, explaining that the term “race” includes ethnicity for the purposes of 42 USC 1983 and race should be defined in the same manner as “race” is defined for the purposes of Title VII. In so doing the court said “The Parties and the District Court experienced some confusion in unraveling the legal definitions of “race” and “Hispanic,” thanks partly to  the federal government’s less-than-straightforward use of those terms,” citing McCleskey v Kemp, 481 US 279.

The court also noted that even to the extent that one eligible was more qualified than another eligible for appointment, federal anti-discrimination law “does not require that the candidate whom a court considers most qualified for a particular position be awarded that position; it requires only that the decision among candidates not be discriminatory.” Further, said the Circuit Court, “an employer’s stated desire for diversity in the workplace does not, without more, establish a discriminatory intent with respect to any particular employment decision.”

* It appears that the appointment was otherwise consistent with the so-called "rule of three" set out in §61 of the Civil Service Law.

The decision is posted on the Internet at:

Commissioner of Education has primary jurisdiction to consider allegations that a school district failed to implement adequate policies and procedures


Commissioner of Education has primary jurisdiction to consider allegations that a school district failed to implement adequate policies and procedures
SC v Monroe Woodbury Cent. Sch. Dist., 2016 NY Slip Op 00669, Appellate Division, Second Department  

In this action to recover damages for negligence, SC alleged that the Monroe-Woodbury Central School District failed to adopt and implement adequate policies and procedures to prevent bullying and harassment.

The Appellate Division sustained Supreme Court dismissal of the action, explaining the matter “should be addressed, in the first instance, to the Commissioner of Education.”  

Contrary to SC’s contention, Supreme Court correctly determined that SC failed to exhaust available administrative remedies before commencing its action. Further, said the Appellate Division, SC also failed to establish the applicability of any exception to the exhaustion of administrative remedies doctrine.

One exception to the exhaustion doctrine: futility. For example, as a general rule, an employee covered by a collective bargaining agreement that provides for a grievance procedure must exhaust the administrative remedies available prior to seeking judicial remedies. However where the individual can prove that the union breached its duty of fair representation in the handling of the employee's grievance he or she would be excused from exhausting his or her administrative remedy. 

In Civil Service Bar Assn., Local 237, Intl. Bhd. of Teamsters v City of New York, 64 NY2d 188, the court opined that a union’s breach of its duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or its decision was made in bad faith.

In Garvin v. NYS Pub. Employment Relations Bd., 168 AD2d 446, the court held that "a union is not required to carry every grievance to the highest level, and the mere failure on the part of a union to proceed to arbitration with a grievance is not, per se, a breach of its duty of fair representation.” As the Appellate Division explained in Matter of Hoffman [Board of Education of the City of New York], 84 AD2d 840, a Union is not required to seek arbitration after having processed the employee's grievance through the initial stages of the grievance procedure and received unfavorable results.

The decision is posted on the Internet at:

Saturday, February 20, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 20, 2016


Selected Reports issued by the Office of the State Comptroller during the week ending February 20, 2016
Click on text highlighted in color to access the full report

Office of Temporary and Disability Assistance failed to adequately monitor shelters
A state agency’s failure to adequately monitor and inspect homeless shelters allowed violations and squalid living conditions to go unchecked, according to an audit released by New York State Comptroller Thomas P. DiNapoli. The audit found fire and safety hazards, rodent and vermin infestations, and mold conditions at shelters under the oversight of the state’s Office of Temporary and Disability Assistance (OTDA). DiNapoli commended the agency for agreeing to strengthen its inspections and monitoring of shelters. DiNapoli’s audit covered the period from April 1, 2013 to Aug. 5, 2015.


City of Troy Audit  - Financial Condition
The City of Troy’s financial condition deteriorated because of poor budgeting, the overuse of rainy day funds to finance day-to-day operations and insufficient funding for capital costs, according to an audit released by State Comptroller Thomas P. DiNapoli. DiNapoli applauded the city’s new mayor for agreeing to take immediate steps to remedy the multitude of problems identified in the audit.


Municipal Audits issued

Albany Public Library – Leave accruals

Cambria Housing Authority – Financial Management

Oneida County Department of Social Services – Contract Management and Payments



School Audits issued

Arlington Central School District – Cooperative Services Computer Inventory


Mineola Union Free School District – Competitive Quotations

Penn Yan Central School District – Separation Payments

Friday, February 19, 2016

Social Security Administration’s disability determination not binding on a public retirement system of this State.


Social Security Administration’s disability determination not binding on a public retirement system of this State.
Fusco v Teachers' Retirement Sys. of the City of New York, 2016 NY Slip Op 00782, Appellate Division, First Department

Kimberly Fusco appealed the New York City Teachers’ Retirement System’s [System] denial of her application for accidental disability retirement benefits.., unanimously affirmed, without costs.

The Appellate Division sustained the System’s determination indicating that some creditable evidence supported its finding that:

1. Fusco was not disabled by back pain or leg pain allegedly resulting from a fall while she walked up the steps at school, while at work.

2. Fusco failed to show that any disability was the result of an accident as there a lack of evidence that her fall was caused by anything other than her own misstep while ascending the stairs to the school.

In addition, the court held that the Social Security Administration’s finding that Fusco was disabled, rendered after the System’s determination, “is not dispositive of the Medical Board's disability determination.” 

This is consistent with previous court decisions holding that an employer's Section 207-a or Section 207-c decisions are not binding on PFRS; PFRS' disability rulings are not binding on the employer's Section 207-a or Section 207-c rulings and that the Workers' Compensation Board's decisions are not binding on PFRS or vice versa. See, for example, Cook v City of Utica, 88 NY2d 833 and Bett v City of Lackawanna et al.,76 NY2d 900.

The decision is posted on the Internet at:
_________________ 

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Thursday, February 18, 2016

Section 1983 complaint of civil rights violations dismissed for failure to state a cause of action


Section 1983 complaint of civil rights violations dismissed for failure to state a cause of action  
2016 NY Slip Op 00881, Appellate Division, First Department

In this action brought against the City of New York for alleged violations of the federal Civil Rights Act, 42 USC §1983, the Appellate Division found that the “complaint failed to state a cause of action … as [the] plaintiff alleged only a single instance of wrongful conduct by a municipal employee without authority to make decisions regarding official policy.”

The Appellate Division noted that “The conclusory allegation of wrongful hiring and training, standing alone, cannot support a §1983 claim.”

The decision is posted on the Internet at:

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education


Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education
Appeal of Martha Kavanaugh, Decisions of the Commissioner of Education, Decision No. 16,870

Martha Kavanaugh, a tenured teacher employed by the Hamburg Central School District, filed a petition asking the Commissioner of Education to rescind the Board of Education’s decision granting James Martinez tenure as an elementary school principal “pending an investigation by the State Education Department’s Office of School Personnel Review and Accountability and referral of the matter to law enforcement.”

Kavanaugh’s petition contained some 200 paragraphs setting out Martinez’s employment history in the district and alleged various acts of misconduct, harassment, intimidation, and impropriety by Martinez and others that Kavanaugh contended “raise questions as to his moral character.”

The Commissioner dismissed Kavanaugh’s appeal, noting two critical procedural difficulties barring consideration of her appeal.

First the Commissioner held that Kavanaugh lacked standing to challenge granting tenure to Martinez, explaining that an individual may not maintain an appeal pursuant to Education Law §310 unless he or she can show he or she is aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. In other words, “Only persons who are directly affected by the action being appealed have standing to bring an appeal.”

Rather than setting out any facts or evidence that her civil, personal or property rights were, or are, directly adversely affected by the School Board’s granting tenure to Martinez, the Commissioner said Kavanaugh's petition “expresses concern that others may be harmed by Martinez’s continued employment.”

In addition, the Commissioner found that Kavanaugh failed to name to a necessary partly, Martinez, as a respondent in her appeal.

It is well settled that “a party whose rights would be adversely affected by a determination of an appeal to the Commissioner in favor of a petitioner is a necessary party and must be joined as such.” Here, were Kavanaugh to prevail in the appeal, clearly Martinez’s rights could be adversely affected.

The decision is posted on the Internet at:

Wednesday, February 17, 2016

Lawsuit brought seeking to remove an elected official from office leads to counter claims alleging slander, defamation, abuse of process and malicious prosecution


Lawsuit brought seeking to remove an elected official from office leads to counter claims alleging slander, defamation, abuse of process and malicious prosecution
Reszka v Collins, 2016 NY Slip Op 00807, Appellate Division, Fourth Department

Elizabeth Reszka initiated a lawsuit in which she sought a court order removing Councilman Joseph A. Collins from his position as a council member of the Town Board of the Town of Hamburg. While the matter was pending in the Appellate Division, Collins filed an amended answer in the original action and asserted two counterclaims. When the Appellate Division dismissed Reszka’s petition in the original proceeding, she asked Supreme Court to dismiss Collins' two counterclaims.

Collins' first counterclaim alleged Reszka held a press conference regarding the lawsuit, and further alleged that Reszka "made slanderous and defamatory and libelous statements intentionally, willfully and maliciously" attacking him in his individual and professional capacity. Collins’ second counterclaim alleged malicious prosecution and abuse of process. Supreme Court dismissed Reszka’s motion to have both counterclaims dismissed.

In response to Reszka’s appeal challenging Supreme Court’s denial of her motion to dismiss both counter claims, the Appellate Division, noting that although Civil Rights Law §74* provides that “statements made in the course of judicial proceedings are protected by absolute privilege provided that they are material and pertinent to the issue to be resolved in the proceeding, explained that a party cannot maliciously commence a judicial proceeding alleging false and defamatory charges and then circulate a press release based on the same charges and escape liability by invoking §74 of the Civil Rights Law.

The Appellate Division ruled that Collins’ first counterclaim “adequately states that [Reszka’s] action was without any basis in fact and was commenced solely to defame [Collins] as well as also alleging that Reszka acted with actual malice, a required element for a defamation claim brought by a public official. Under the circumstances the Appellate Division concluded that Supreme Court properly refused to dismiss Collins' first counterclaim.

As to Collins' second counterclaim alleging malicious prosecution, the Appellate Division said that where the underlying action is civil in nature, “the party alleging a claim for malicious prosecution must allege a special injury.” Finding that Collins "fail[ed] to plead that the civil proceeding involved wrongful interference with [his] person or property," the Appellate Division held that Supreme Court should have granted Reszka’s motion to dismiss Collins’ second counterclaim. The court observed that instead of alleging “a special injury,” Collins alleged damages amounting to "the physical, psychological or financial demands of defending a lawsuit," which claims are insufficient to constitute “a special injury for a claim of malicious prosecution.”

The court also ruled that to the extent Collins’ second counterclaim alleged abuse of process and not malicious prosecution, it must still be dismissed as well. "Insofar as the only process issued [here] was a summons necessary to initiate Reszka’s lawsuit."

Accordingly, said the court, “there was no unlawful interference with [Collins’] person or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused." Although Collins claimed that Reszka acted maliciously in bringing the action, the Appellate Division said that "[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process."

* §74 of the Civil Rights Law, privileges in action for libel, provides “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published. This section does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.

The decision is posted on the Internet at:

Monday, February 15, 2016

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement


Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement
City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 2016 NY Slip Op 00977, Appellate Division, Second Department [Appeal I]
City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 2016 NY Slip Op 00970, Appellate Division, Second Department [Appeal II]

The Appellate Division handed down two decisions involving the same parties on the same day. 2016 NY Slip Op 00977 [Appeal I] considered the merits of a disciplinary determination while 2016 NY Slip Op 00970 [Appeal II] considered the merits of a disciplinary determination that resulted in the filing of an appeal concerning the issues decided in Appeal I.

Appeal I

In this proceeding pursuant to CPLR Article 78 Jay Gusler challenged his demotion from the position of lieutenant to the position of firefighter. Supreme Court granted the City of Long Beach’s motion to dismiss the proceeding and, in effect, denied Gusler’s petition and dismissed the proceeding. Gusler appealed the Supreme Court’s ruling.

According to the Appellate Division’s decision, Jay Gusler was a lieutenant in the City of Long Beach Fire Department [Department] and multiple disciplinary and grievance proceedings relating to his employment had been brought or then were pending. 

In a "Settlement Agreement" executed by Long Beach Professional Firefighters Assn., Local 287 [Local 287] and the City of Long Beach  it was agreed that Robert L. Douglas would be appointed to preside over a hearing on the charges pending against Gusler. The settlement agreement also provided that Douglas would have "sole and exclusive authority" to determine the timeliness of the charges, Gusler's guilt or innocence, and the appropriate penalty, if any, to be imposed on Gusler if he were found guilty of one or more of the charges pending against him. 

The parties subsequently agreed that the hearing would be bifurcated. First, Douglas was to determine guilt or innocence. Then, if necessary, he would hold a hearing as to the penalty. The City Manager then would be required to "implement" Douglas's determination as to penalty, if any, without amendment or modification.

Douglas issued an opinion and award finding Gusler guilty of certain charges. He then held a second hearing as to the penalty to be imposed and ultimately determined that the penalty to be imposed was Gusler's demotion from the position of lieutenant to the position of firefighter.

Gusler and Local 287 then initiated a CPLR Article 78 against the City, the City Manager, and the City Council seeking, among other things, to nullify Gusler's demotion, contending that Douglas was without authority to determine that the penalty would be demotion, because that penalty is not provided for under §11-54 of the City Code of the City of Long Beach. In addition Gusler and Local 287 argued that as Douglas was without authority to issue the penalty of demotion, its implementation — as was required under the settlement agreement — was "arbitrary and capricious, without rational basis, without basis in law, . . . an abuse of discretion, and . . . in excess of [the respondents'] jurisdiction." Long Beach moved to dismiss the proceeding, and, again, the Supreme Court granted the motion and, in effect, denied Gusler and Local 287’s petition and dismissed the proceeding.

The Appellate Division, agreeing that the City Code did not provide for “demotion” as a penalty, explained that “nothing in the City Code precluded the City and the Association from negotiating a collective bargaining agreement that permits imposition of that penalty,” citing Civil Service Law §76[4]. Further, the court pointed out that in the controlling collective bargaining agreement, “the City and the Association expressly authorized the penalty of demotion in cases of certain specified misconduct.”

The Appellate Division found that Douglas had acted within his authority under the settlement agreement to determine the penalty and selected a penalty expressly authorized by the parties themselves. Additionally, said the court, “in abiding by the terms of the settlement agreement, which required the City to impose the penalty determined by Douglas, the imposition of the penalty was not arbitrary or capricious, and the respondents did not abuse their discretion, act without basis in law, irrationally, or in excess of their jurisdiction.”


Appeal II

Referring to the facts stated in its decision in Appeal I, the Appellate Division said that the "Settlement Agreement" between the parties in this matter provided that the parties could challenge or appeal the determinations of the hearing officer, Robert L. Douglas, "through any appropriate means of legal recourse, whether under the collective bargaining agreement [CBA] and/or applicable law."

The relevant CBA provided that the Association had the right to "submit the determination . . . to final and binding arbitration in accordance with the Rules of the New York State Public Employment Relations Board (PERB) for Voluntary Arbitration (Grievance Arbitration), within Fifteen (15) days of the determination, where upon the arbitrator “shall review the record of the hearing and . . . decide if substantial evidence supports the determination and penalty." The CBA further provided that "[t]he arbitrator shall have no authority to consider any matter which was not presented in the course of the discipline and shall be the ultimate authority there from."

On December 14, 2012, Douglas issued his "Opinion and Award" determining that the penalty was to be demotion of Gusler from lieutenant to firefighter. The Association did not serve the City with a demand for arbitration before PERB until 32 days later, on January 15, 2013. The City did not dispute Local 287’s the demand was filed with PERB the same day it was served but, rather, intiated an CPLR Article 75 action to permanently stay the arbitration on the ground that the Association's demand was untimely.

Supreme Court granted the City's petition to permanently stay arbitration, explaining that, in light of the narrowly drawn arbitration provision in the CBA, the timeliness of the Association's demand for arbitration was for the court, not the arbitrator, to decide. The court then found that “under the clear terms of the CBA's arbitration provision,” the demand for arbitration before PERB was not timely. Local 287 appealed the Supreme Court’s ruling.

The Appellate Division said that “Whether the issue of the timeliness of an arbitration demand is to be determined by the court or by the arbitrator depends on the nature and scope of the agreement to arbitrate.” Here the court, agreeing with Supreme Court, found  that the arbitration clause in the CBA “is so narrowly drawn as to clearly withhold the issue of timeliness from the arbitrator.” In addition the Appellate Division pointed out that the CBA provided that “the arbitrator was to decide only whether the hearing officer's ‘determination and penalty’ were supported by ‘substantial evidence’ and not any matter ‘not presented in the course of the discipline’."*

The Appellate Division also sustained Supreme Court’s ruling, on the merits, that the Association's demand for arbitration before PERB was not timely, regardless of whether timeliness was to be measured by service or filing of the demand as the CBA required that the determination be "submit[ted]" in accordance with PERB's rules within 15 days after the determination and the demand for arbitration before PERB was neither served nor filed before January 15, 2013 and both “service and the filing of that demand were indisputably untimely.”

One final argument presented by Local 287 was that its prior demand for arbitration, before a forum other than PERB, could be regarded as complying with the CBA's 15-day limitation on the theory that its seeking arbitration before a different forum was merely a “ministerial error.” However, the decision notes that Local 287’s arguments to the court make clear that the Local’s prior demand was not a ministerial error, “but a considered decision to invoke the jurisdiction of the other forum.” In the words of the Appellate Division, “the issue of the propriety of [invoking the jurisdiction of another forum] which was litigated in another proceeding … is not before us.”

* The issue of the timeliness of the demand did not involve an interpretation of PERB's rules as to whether its jurisdiction is invoked by service or by filing as the demand was served and filed the same day. The issue involved an interpretation of the provisions of the CBA as to whether arbitration was available.

The decision in Appeal I is posted on the Internet at:


The decision in Appeal II is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_00970.htm
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