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Saturday, April 29, 2017

New York State Comptroller Thomas P. DiNapoli recognizes administrative professionals serving in the Office of the State Comptroller


New York State Comptroller Thomas P. DiNapoli recognizes administrative professionals serving in the Office of the State Comptroller
Source: Office of the State Comptroller

Links to the Internet highlighted in COLOR

Honoring OSC's Administrative Professionals

This past week, Comptroller DiNapoli, on behalf of the entire staff, honored and thanked the administrative professionals who work at the Office of the State Comptroller for their hard work and dedication that help this office run effectively and efficiently. Six of these administrative professionals were highlighted on the Comptroller's Facebook page. Pictured, clockwise from top left: Shannon Cirilli, Tori Jones, Donna Reed, Angela Houle, Glory Ciuro and Leah Boggs.


The Department's Facebook page includes updates, photos, event listings and more items readers may find of interest. OSC encourages engagement and feedback, and invites comment and sharing the page with associates, family and friends.


Far Rockaway Pre-School Provider "Investor" Pleads Guilty in Theft of Education Funds Intended for Special Needs Students

New York State Comptroller Thomas P. DiNapoli and Queens District Attorney Richard A. Brown announced that a self-described investor in Island Child Development Center, once one of New York City’s largest providers of special education services to preschoolers with disabilities, has pleaded guilty for his participation in a scheme that stole millions of dollars in city and state funding between 2005 and 2012—money that was intended for special needs students between ages three and five.


Friday, April 28, 2017

Determining an appropriate disciplinary penalty under the circumstances


Determining an appropriate disciplinary penalty "under the circumstances"
King v New York State Off. of Alcoholism and Substance Abuse Servs., 2017 NY Slip Op 03098, Appellate Division, Third Department
Figueroa v New York State Off. of Alcoholism and Substance Abuse Servs., 2017 NY Slip Op 03104, Appellate Division, Third Department

As the Court of Appeals explained in Pell v Board of Education of Union Free School District No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, commonly referred to as the "Pell Doctrine," a court may "set aside a determination by an administrative agency only if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." A result is shocking to one's sense of fairness, said the court, when the "sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals."

Both the King and Figueroa decisions address the application of the Pell Doctrine in the context of the loss of a license or certification required to lawfully perform the duties of the position, thereby resulting in the automatic termination of the individual's employment.*

The King Case

King, an Addictions Counselor 2 employed by the Office of Alcoholism and Substance Abuse Services [OASAS), was required to maintain a valid Credentialed Alcoholism and Substance Abuse Counselor [CASAC] certification, which credential is issued by OASAS.

In response to an "official complaint" alleging that King had violated certain ethical provisions prohibiting a counselor from engaging in a sexual relationship or activity with an OASAS client, OASAS notified King of the complaint and his right to an administrative hearing. King elected to exercise his right to the hearing.

The Hearing Officer found that King and the client had a relationship that "far exceeded an appropriate and professional one" and that "it comprised potential, and actual, harm" to the client. The Hearing Officer also found that, while the relationship between King and the client had "sexual overtones," it was "debatable" whether they engaged in an actual sexual encounter. As a penalty, the Hearing Officer recommended a one-year suspension of King's CASAC credential.

The Commissioner of Alcoholism and Substance Abuse Services adopted the Hearing Officer's recommendation and subsequently notified King that his employment was being terminated due to the suspension of his CASAC credential. King initiated a CPLR Article 78 proceeding challenging the suspension of his CASAC credential and the termination of his employment.

The Appellate Division said that judicial review of an agency's administrative determination made following a hearing is limited to determining whether the decision is supported by substantial evidence. The court indicated that "[S]ubstantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably ... probatively and logically."

The court ruled that there was substantial evidence to support the suspension of King's CASAC credential, including the client's testimony that King bought her gifts such as "a glass rose and earrings, and they exchanged personal messages and pictures via text messaging." Further, King admitted that he had regular contact with the client that was unrelated to his professional relationship with her. The Appellate Division concluded that in view of this relationship, the administrative decision that King engaged in inappropriate behavior with the client was supported by substantial evidence.

As to the penalty imposed, the suspension of King's CASAC credential and the automatic termination of his employment, the Appellate Division ruled that "[e]ven though there was insufficient evidence to establish that an actual sexual encounter between the client and [King] occurred, in light of [King's] inappropriate behavior ... the penalty of suspending [King's] CASAC credential does not shock one's sense of fairness."

The court also rejected King's argument that he was denied due process because OASAS did not proceed under the disciplinary procedures set forth in the relevant collective bargaining agreement, explaining that in this instance King's termination from OASAS "stemmed from his failure to maintain a qualification critical to his employment and, therefore, the provisions of the collective bargaining agreement did not apply."


The Figueroa Case

Figueroa was also an employee of OASAS, serving in the position of Addictions Counselor I. In accordance with a procedure set out in the relevant Collective Bargaining Agreement, OASAS interrogated Figueroa about her decision to go jogging alone with a patient on five separate occasions. Although Figueroa was not formally disciplined for this conduct, her supervisor issued a counseling memorandum concerning the event.

As an Addictions Counselor I, Figueroa was required to be a CASAC. In the course of a subsequent, unrelated investigation at the facility, Figueroa jogging incident and another incident involving her record keeping activities were raised. As a result OASAS filed two complaints alleging that Figueroa had violated certain CASAC canons of conduct.

After an investigation, OASAS advised Figueroa that it was recommending that her CASAC credential be suspended for three years -- one year for the jogging complaint and two years for the record-keeping complaint. Figueroa requested a hearing on both complaints, which were consolidated and an administrative hearing was held.

The Hearing Officer issued a report finding that Figueroa did engage in the conduct set forth in the two complaints, but recommended lesser penalties — a six-month suspension of Figueroa's CASAC credential for the jogging incident and a reprimand for her record-keeping discrepancies. OASAS issued a final order accepting the Hearing Officer's findings and recommendation with regard to the jogging complaint. As to the record-keeping complaint, OASAS suspended Figueroa's credential for six months — to run concurrently with the six-month suspension for the jogging complaint.

OASAS then advised Figueroa that she was terminated "as a result of [her] failure to maintain a valid, statutorily required qualification for [employment in her] position." Figueroa commenced a CPLR Article 78 proceeding challenging both the suspension of her credential and the determination to terminate her employment based on the suspension.

The Appellate Division said that given Figueroa's concession during the hearing that she went jogging with a patient and postdated certain records, it found that substantial evidence supported the Hearing Officer's determination with respect to the alleged acts of misconduct. Notwithstanding this holding, the court then considered the question of whether OASAS abused its discretion by imposing the concurrent suspensions that effectively compelled Figueroa termination for failing to have a "valid credential" in place.

Applying the Pell Doctrine, the Appellate Division concluded that "[u]nder the circumstances presented, [it found] that OASAS's determination to impose a six-month suspension of [Figueroa's] credential for each of the complaints was disproportionate to the offenses charged."

Due to the unique circumstance that Figueroa was employed by OASAS in a classified position in the Civil Service of the State, the Appellate Division said that OASAS knew that the practical effect of the suspension was that she would be rendered temporarily unqualified to hold her civil service position and, indeed, OASAS summarily dismissed her for failing to maintain her credential. The court concluded that this result makes little sense as:

1. Figueroa had been employed by OASAS as a CASAC for more than six years with no apparent disciplinary record and consistently satisfactory performance reviews;

2. Considering the jogging complaint, there was neither an allegation nor any evidence that Figueroa was engaged in an inappropriate relationship with the patient or that the patient was harmed in any way;

3. OASAS, with full knowledge of the regulations governing CASAC credentials, initially decided to simply counsel Figueroa about the jogging events and Figueroa testified that she did not engage in the same or similar conduct after being counseled;

4. With respect to the record-keeping complaint, when OASAS explained its determination to reject the Hearing Officer's penalty recommendation, it erroneously claimed that the Hearing Officer did not have the authority to recommend the penalty of reprimand;

5. The Hearing Officer noted the uncontroverted evidence was that, in accord with the then prevailing practice, Figueroa's supervisor directed her to postdate the records in question knowing that she was going to be out of the office and it was only after the complaint was lodged was this practice changed; and

6. There was no showing that the agency or the public was harmed or that Figueroa was personally enriched by her conduct.

The Appellate Division said that, in its view, OASAS should not disregard its role as employer where it is exercising its credentialing oversight, but that is essentially what occurred here. As an employer, OASAS chose only to counsel Figueroa, but, as the credentialing authority, it imposed an administrative penalty that mandated her termination, the ultimate disciplinary penalty.

Considering the nature of the misconduct, Figueroa's otherwise satisfactory employment record and the known impact of the penalty imposed, the Appellate Division found that the effective penalty of suspension of Figueroa's credential, which resulted in her termination from her employment, too severe and annulled the imposed the penalty of suspending Figueroa's credential and the resulting termination of her employment.

* With respect to the loss or failure to obtain or renew a required license or permit or certification, courts have viewed such individuals as “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Common examples include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make a reasonable inquiry to determine if the employee, in fact, possess the required document and thus may lawfully perform the duties of the position. An employee charged with failing to possess such a document required to perform the duties of his or position is only entitled to notice of the allegation and a reasonable opportunity to produce the required document. Relevant court rulings include Fowler v City of Saratoga Springs, 215 A.D.2d 819 (City Engineer lawfully dismissed for failure to obtain his Professional Engineer’s license by a specified date); Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspensions of teachers was lawful upon their teaching licenses expiring); and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator did not suffer unlawfully discrimination when a private sector employer terminated him after his driver’s license was suspended).

The King decision is posted on the Internet at:

The Figueroa decision is posted on the Internet at:


http://www.nycourts.gov/reporter/3dseries/2017/2017_03104.htm
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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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Thursday, April 27, 2017

Assigning law enforcement personnel to perform light duty while receiving benefits pursuant to §207-c of the General Municipal Law


Assigning law enforcement personnel to perform light duty while receiving benefits pursuant  to §207-c of the General Municipal Law
Barkor v City of Buffalo, 2017 NY Slip Op 02270, Appellate Division, Fourth Department

A City of Buffalo police officer [Petitioner] was receiving benefits pursuant to General Municipal Law §207-c as the result of his having suffered a disability in the line of duty. While receiving such benefits, Petitioner returned to work in a light-duty capacity.

Petitioner while at work in such light duty employment status reported that he "twisted his ankle exiting the restroom and allegedly exacerbated the prior injuries." In the course of the administrative hearing that followed, Petitioner presented evidence, in the words of the Appellate Division, "suggesting that he was not able to work at all." The Hearing Officer, however, credited other evidence and determined that Petitioner could perform light-duty assignments.

Petitioner challenged the Hearing Officer's determination by initiating an Article 78 action seeking a court order vacating the Hearing Officer's decision.

The Appellate Division said that it agreed with the employer that the Hearing Officer's determination that Petitioner could continue to perform the light duties assigned to him was supported by substantial evidence. The court explained that ""The Hearing Officer was entitled to weigh the parties' conflicting medical evidence" and "[a court] may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists."

As to Petitioner's claim that "he was not able to work at all," it should be noted that in the event an individual otherwise eligible for benefits pursuant to §207-c of the General Municipal Law is "permanently disabled," §207-c.2 of such law provides as follows:

2. Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement allowance pursuant to section three hundred sixty-three of the retirement and social security law, a retirement for disability incurred in performance of duty allowance pursuant to section three hundred sixty-three-c of the retirement and social security law or similar accidental disability pension provided by the pension fund of which he is a member. If application for such retirement allowance or pension is not made by such policeman, application therefor [sic] may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed.

The decision is posted on the Internet at:

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The Disability Benefits E-book: - This 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://booklocker.com/3916.html
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Wednesday, April 26, 2017

An employee's resigning his or her position to continue his or her education deemed a voluntarily separation "without good cause"


An employee's resigning his or her position to continue his or her education deemed a voluntarily separation "without good cause"
Matter of Delgado-Agudio (Commissioner of Labor), 2017 NY Slip Op 03095, Appellate Division, Third Department

An applicant for unemployment insurance benefits [Claimant] worked full time as a social work assistant for approximately 2½ years. She enrolled in a graduate program while she was working and requested the employer to modify her work schedule to enable her to complete an internship that was part of the program. When the employer denied her request, she resigned from her position.

The Department of Labor issued an initial determination disqualifying Claimant from receiving unemployment insurance benefits on the ground that she voluntarily left her employment without good cause. The determination was sustained by a Department of Labor Administrative Law Judge [ALJ] following a hearing. Claimant appealed the ALJ's ruling and the Unemployment Insurance Appeal Board affirmed the ALJ's decision.

Claimant appealed the Board's ruling. The Appellate Division affirmed the administrative determination, explaining that "[r]esigning from a position in order to pursue educational opportunities constitutes a personal and noncompelling reason for leaving employment disqualifying a claimant from receiving unemployment insurance benefits."

As it was undisputed that Claimant resigned from her job because the employer declined to modify her work hours, the Appellate Division held that substantial evidence supported the Board's decision and that it found no reason to disturb it.

The decision is posted on the Internet at:



An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"


An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"
Redfern-Wallace v Buffalo News, CWA Local 81, CA2nd Circuit, Docket #16-3007-cv

The Petitioner in this action claimed that she was the victim of race discrimination, retaliation, and a hostile work environment by her employer, the Buffalo News Co., in violation of Title VII of the Civil Rights Act of 1964 [42 U.S.C. §2000e]. She also contended that CWA Local 81 had breached its duty of fair representation with respect to her advancing her claims against Buffalo News.

Petitioner contended that she had been disciplined and terminated from her position by Buffalo News, while a co-worker, who was similarly situated in all material respects to her, was neither disciplined nor terminated.

Although Petitioner had admitted to Buffalo News that she had sent inappropriate text messages to the co-worker, she failed to provide any evidence to Buffalo News, or to the court in the course of the litigation, to corroborate her allegation that the co-worker had sent her inappropriate text messages in the same exchange.

The Circuit Court of Appeals said that Petitioner "thus failed to show that she and [the co-worker] were 'similarly situated in all material respects' because she did not demonstrate that they both 'engaged in' conduct of comparable seriousness.”

Petitioner had also claimed that the conduct that resulted in her dismissal from her position occurred outside of work and therefore did not violate any of Buffalo News’ rules or policies. The court disagreed, commenting that Buffalo News’ anti-harassment policy was not limited to conduct occurring at work but covered [employee] conduct outside of work that affected the workplace as well.*

Finally, Petitioner claimed "ineffective assistance of counsel." However, the Circuit Court dismissed this contention, explaining that such a claim "is not cognizable in a civil case," citing United States v. Coven, 662 F.2d 162.

* In Tessiero v Bennett, 50 A.D.3d 1368, the Appellate Division sustained the termination of an employee found guilty of off-duty misconduct that brought discredit upon the employer. 

The decision is posted on the Internet at:

Tuesday, April 25, 2017

Assessing the appropriate penalty to be imposed for unprofessional and disrespectful language in the workplace


Assessing the appropriate penalty to be imposed on an employee found guilty unprofessional conduct and using disrespectful language at the workplace
OATH Index No. 0073/17

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] found that an Eligibility Specialist employed by the City's Human Resources Administration [HRAHHRA] inefficiently performed her duties by holding seven cases for 22 or more days and delaying the processing of a client’s application for months.

In addition, Judge Ingrid M. Addison found that the Eligibility Specialist violated multiple rules of HRA's Code of Conduct by being verbally abusive to co-workers at her workplace; failed to efficiently perform her duties; was insolent to, and refused to meet with, HRA's deputy director when directed to do so, was discourteous to a client in the presence of other clients and failed to follow a supervisor’s instructions.

Finding that HRA, however, failed to prove other Charges and Specifications of misconduct alleged in the notice of discipline served upon her.

Considering the record made at the Civil Service Law §75 disciplinary hearing, the ALJ recommended that the Eligibility Specialist be suspended from her employment without pay for 30 days, the penalty urged by HRA, commenting that "Even though [HRA] did not prove the five charges [preferred against the employee] in their entirety, I find [HRA's] request to be appropriate."

The decision is posted on the Internet at:

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing


Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing
Varriale v City of New York, 2017 NY Slip Op 02513, Appellate Division, First Department

The Appellate Division affirmed the decision to terminate a tenured New York City school teacher [Petitioner]. Noting that Petitioner showed no remorse nor appreciation for the seriousness of her conduct, the Appellate Division said that as Petitioner declined to testify at her administrative disciplinary hearing, "the hearing officer was permitted to draw the strongest inference against her permitted by the record."

The court said that the record indicated that Petitioner had "strayed from her duties as a school teacher by deliberately escalating a confrontation with a student by yelling expletives and threatening him with violence."

The Appellate Division's decision also noted that: "Even after security personnel defused the situation by removing the student from the classroom, Petitioner subsequently confronted him again, later that day, yelling at least six times that her husband, an armed police officer, would kill him. Petitioner then brought her husband to school the following morning to the student's scheduled class in the gymnasium although the student, having been suspended from school, was not there."

The court said that although Petitioner was a thirteen-year employee with no prior disciplinary history, and no charges had ever previously been filed against her, in light of the seriousness of the allegations made against her, the penalty of termination was not shocking to one's sense of fairness.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_02513.htm

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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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Monday, April 24, 2017

Challenging an employee's termination during his or her disciplinary probation period


Challenging an employee's termination during his or her disciplinary probation period
Woods v State Univ. of N.Y., 2017 NY Slip Op 03083, Appellate Division, Third Department

In 2013 a member of a collective bargaining unit [Employee] represented by the New York State Correctional Officers and Police Benevolent Association, Inc. [Union] was placed on disciplinary probation in the course of a disciplinary arbitration conducted pursuant to the relevant collective bargaining agreement.

In 2014 the employer, State University of New York [SUNY], summarily terminated Employee from his probationary employment following a negative performance evaluation. The Union commenced a proceeding seeking to compel arbitration of Employee's termination pursuant to CPLR §7503 or, alternatively, to vacate and annul SUNY's decision terminating Employee while he was serving the disciplinary probationary period pursuant to CPLR Article 78.

Supreme Court converted the proceeding to an application to confirm the 2013 arbitration award; the Appellate Division reversed and granted the Union's petition to compel arbitration (see 139 AD3d 1322). Ultimately the Court of Appeals reversed Appellate Division's order and remitted the matter to it "for consideration of the facts and issues raised but not determined on the appeal" (see 28 NY3d 1140).

Upon remand, the Appellate Division noted that the parties had agree, and it concurred, that Supreme Court erred in treating the petition as an application to confirm the 2013 award and in remitting the matter to the arbitrator for clarification. The Appellate Division explained that "[a]n arbitrator's authority extends to only those issues that are actually presented by the parties. Thus, an arbitrator may not reconsider an award — regardless of whether the request is couched as a clarification or a modification — if the matter was not previously raised in arbitration."

The Appellate Division's decision also noted that at the commencement of the 2013 arbitration the Union and SUNY stipulated to allow the arbitrator to decide whether Employee was guilty of the past misconduct as alleged and, if so, what the appropriate penalty should have been. Significantly, the arbitrator was not asked to interpret any term in the contract or make a ruling that would define or affect the employer/employee relationship going forward and neither party sought to modify, confirm or vacate the award after it was issued.

Although the Union sought an order by Supreme Court to compel SUNY to arbitrate the 2014 termination, the Appellate Division said that this was error and Supreme Court "should not have remitted the issue for resolution by the arbitrator who decided the 2013 disciplinary action."

Addressing the Union's allegation that SUNY acted in bad faith when it decided to terminate Employee, the Appellate Division said that "[a] probationary employee may challenge a termination only by demonstrating that the dismissal was in bad faith or done for an improper reason."* Further, said the court, "a probationary employee is not necessarily entitled to a hearing or even an explanation unless there is proof that the discharge was unconstitutional or violated the law." To successfully challenge a probationary termination, the individual is required to submit "proof sufficient to raise a question of fact as to whether the dismissal was due to causes unrelated to work performance and/or improperly motivated."

Here, said the court, SUNY's submissions, "which are not disputed," confirmed that Employee "was terminated for a valid reason, that is, poor work performance."

*N.B. The decision Taylor v Cass, 122 A.D.2d 885, illustrates another the critical element for an appointing authority to consider when terminating an individual serving a disciplinary probationary period. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after demonstrating that he had been improperly dismissed while serving his disciplinary probation period. The terms of his probation provided that Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months. Taylor, however, was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” The Appellate Division ruled that Taylor's termination from his probationary employee was improper because Taylor was not terminated for the sole reason specified in the agreement settling the disciplinary action: intoxication on the job.

The Woods decision is posted on the Internet at:

The Taylor decision is posted on the Internet at:

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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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Saturday, April 22, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 22, 2017


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 22, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR


New York State Comptroller Thomas P. DiNapoli and Queens District Attorney Richard A. Brown announced that Rabbi Samuel Hiller, the former assistant director of Island Child Development Center, once one of New York City's largest providers of special education services to pre-schoolers with disabilities, pleaded guilty to stealing $5 million in city and state funding between 2005 and 2012—money that was intended for special needs students between ages three to five.


Volunteer Fire Company Treasurer alleged to have embezzled over $55,000 of the fire company's funds for personal use

On April 18, 2017, Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the arrest and arraignment of Gail E. Cesternino, for allegedly embezzling over $55,000 from the West Ghent Volunteer Fire Company. The indictment  charges Cesternino with Grand Larceny in the Second Degree and thirteen counts of Falsifying Business Records in the First Degree. It should be remembered that these charges against Cesternino are merely accusations and she is presumed innocent unless and until proven guilty in a court of law.

According to the Indictment and papers filed in court on April 18, 2017, Cesternino is alleged to have used her position as the Fire Company's Treasurer to regularly withdraw cash, issue herself checks and charge personal expenses on the Fire Company's credit card, including purchases for her personal sales business.

The indictment is the result of an investigation conducted by the State Comptroller's Office Division of Investigations and the Attorney General's Public Integrity Bureau.

This case is the latest joint investigation under the Operation Integrity partnership of the Attorney General and Comptroller, which to date has resulted in dozens of convictions and more than $11 million in restitution.

The Comptroller's investigation was conducted by the Comptroller's Division of Investigations working with the Division of Local Government and School Accountability.

Assistant Attorney General Bridget Holohan Scally of the Attorney General's Public Integrity Bureau is prosecuting this case under the supervision of Public Integrity Bureau Chief Daniel Cort and Deputy Bureau Chief Stacy Aronowitz.

This matter was investigated by the State Comptroller's Division of Investigations, along with Mark Spencer of the Attorney General's Investigators Bureau, which is led by Deputy Chief Antoine Karam and Chief Dominick Zarrella. Legal Analyst Sara Pogorzelski worked on the matter as well.

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


Department of Audit and Control auditors halt payment of suspicious 2016 tax refunds

On April 17, 2017, State Comptroller Thomas P. DiNapoli announced that his office stopped $21.3 million in questionable or fraudulent personal income tax refunds from being paid so far in 2017.

DiNapoli’s office paid out 4.6 million state refunds totaling $4.4 billion to date. Another 471,000 refunds totaling $466 million are expected to be paid in the coming days.

The Comptroller said: “My auditors are committed to safeguarding the funds of honest New Yorkers ... [w]e’ll stay one step ahead of the schemes used by tax cheats, and look to ensure only legitimate refunds are paid.”

DiNapoli’s office audits New York state personal income tax refunds prior to payment. The Comptroller’s auditors work cooperatively with the Department of Taxation and Finance to stop questionable refunds and to ensure timely payment of legitimate refunds. DiNapoli’s auditors perform their review after the department completes its own tax return audit.

The majority of questionable refunds stopped were for returns filed by taxpayers who claimed refundable credits based on incorrect information such as fake or inflated dependents or understated income. Auditors also stopped over $2.2 million in refunds that were linked to unscrupulous tax preparers filing false returns. Other popular scams include using questionable social security numbers and intentionally misstating deductions. 


Municipal Audits released

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

Village of Endicott -- Budget Review

Village of Hempstead – Budget Review

Town of Hoosick -- Departmental Cash Collections and Sales Tax Allocation

Town of Lake Pleasant – Credit Cards  

Town of Newfane – Supervisor's Financial Records and the

Village of Sandy Creek – Cash Receipts and Disbursements


New York State Comptroller announced the release of the following State Audits

An initial audit issued in February found that OITS did not have established policies and procedures for backup of key division systems. In a follow-up, auditors found OITS officials have made some progress in correcting the problems identified in the initial report. However, improvements are still needed.

DASNY has implemented appropriate controls to meet its specific prevailing wage responsibilities,. However, although DASNY project managers and field representatives visited construction projects, they did not routinely inspect the sites to ensure that prevailing wage rates were posted, as required.

Auditors found DOCCS has appropriate procedures in place to ensure that it accurately determines inmate release dates. Tests of sentencing calculations for a sample of 60 inmates found proper procedures were followed in all the cases selected, and the sentences were accurately calculated. However, DOCCS records showed that during the audit period five inmates were released between two weeks and 12 months early because department procedures were not followed.

An initial audit issued in September 2014, examined whether the loans awarded by HPD under the Article 8-A Loan Program were being used only for qualified projects and their intended purpose and whether loan recipients were complying with the requirements of their loans with respect to correcting violations and making other needed repairs. In a follow-up, auditors determined HPD officials made little progress addressing the problems identified in the initial audit report and additional actions are still needed.

During the 2013-14 school year, Spotted Zebra provided three SED-funded, rate-based preschool special education programs to 43 children from school districts located in Albany, Columbia, Rensselaer, and Saratoga counties. For the three years ended June 30, 2014, Spotted Zebra reported over $2.5 million in reimbursable costs for the rate-based preschool special education programs it operated. Auditors found that the personal service costs tested were in compliance with SED’s requirements. However, they identified $13,058 in other than personal service costs that Spotted Zebra that did not comply with SED’s prescribed requirements for reimbursement.

During the 2013-14 school year, ACDS provided four SED-funded, rate-based preschool special education programs to 213 children from school districts located in Nassau, Queens, and Suffolk counties. For the fiscal year ended June 30, 2014, ACDS reported $4,752,257 in reimbursable costs for the rate-based preschool special education programs it operated. For the fiscal year ended June 30, 2014, the personal service costs claimed by ACDS that were tested were in compliance with SED’s requirements. However, auditors identified $30,104 in other than personal service costs that did not comply with SED’s prescribed requirements for reimbursement.

North County provides preschool special education services to children with disabilities who are between three and five years of age. North Country is reimbursed for preschool special education services through rates set by SED. For the two fiscal years ended June 30, 2014, North Country reported $2.6 million in reimbursable for the rate-based preschool special education programs it operated. For the two years ended June 30, 2014, auditors identified $79,084 in ineligible costs that North Country reported for the programs. The ineligible costs included: $69,272 in other than personal service costs and $9,812 in personal service costs.

Friday, April 21, 2017

Second Circuit Court of Appeals precedent holds Title VII's prohibition of unlawful discrimination based on "sex" does not encompasses discrimination based on "sexual orientation"


Second Circuit Court of Appeals precedent holds Title VII's prohibition of unlawful discrimination based on "sex" does not encompasses discrimination based on "sexual orientation"
Zarda v Altitude Express, USCA, 2nd Circuit, Docket #15-3775;

Donald Zarda,* a skydiver, alleged that he was terminated from his job as a skydiving instructor because of his sexual orientation. He sued his former employer, Altitude Express, alleging that his termination was in violation of Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e et seq.,] and New York State's Human Right Law [Executive Law Article 15].

The United States District Court, Eastern District of New York, found a triable issue of fact with respect to Zarda's contention that Altitude was in of violation of New York law but granted summary judgment to Altitude with respect to Zarda's Title VII claim. The district court, citing Simonton v Runyon, 232 F.3d 33, observed that Second Circuit precedent holds that Title VII does not protect against discrimination based on sexual orientation. 

Considering Zarda's allegations that Altitude violated New York State's Civil Rights Law, the jury found for Altitude.

On appeal, Zarda asked the Circuit Court's three-judge panel to reconsider the Second Circuit's interpretation of Title VII and hold that Title VII’s prohibition on discrimination based on “sex” includes discrimination based on “sexual orientation.” 

The panel declined to do so, explaining that "a three-judge panel of this Court lacks the power to overturn Circuit precedent."

* Zarda died in a skydiving accident before the case went to trial and two executors of his estate replaced him as plaintiff.




Thursday, April 20, 2017

Exceptions to providing public records pursuant to New York State's Freedom of Information Law [FOIL]


Exceptions to providing public records pursuant to New York State's Freedom of Information Law [FOIL]
New York Civ. Liberties Union v New York City Police Dept., 2017 NY Slip Op 02506, Appellate Division, First Department

The basic rule when seeking public records pursuant to a Freedom of Information Law [FOIL] request is that FOIL provides that all public documents are subject to disclosure. However, where access to the records sought is not barred by law in the first instance, the custodian of the record or records sought may elect to deny access to documents otherwise subject FOIL if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in FOIL.

In this action brought pursuant to FOIL Supreme Court granted the New York Civil Liberties Union's [NYCLU] petition compelling the New York City Police Department to disclose certain records concerning disciplinary actions taken against Department police officers.

The Appellate Division unanimously reversed the lower court's action, on the law, denying the Civil Union's petition and dismissing the action.

Noting that Public Officers Law §87(2)(a) provides that an agency "may deny access to records" that "are specifically exempted from disclosure by state . . . statute," the Appellate Division said that the NYPD disciplinary decisions sought by NYCLU fell within Civil Rights Law §50-a, which makes confidential police "personnel records used to evaluate performance toward continued employment or promotion."*

Although NYPD disciplinary trials are open to the public, the Appellate Division said that this "does not remove the resulting decisions from the protective cloak of Civil Rights Law §50-a." The court explained that "[w]hether the trials are public and whether the written disciplinary decisions arising therefrom are confidential are distinct questions governed by distinct statutes and regulations." In addition, said the court, "the disciplinary decisions include the disposition of the charges against the officer as well as the punishment imposed" [if the officer is found guilty of one or more of the disciplinary charges and specifications], "neither of which is disclosed at the public trial."

In Short v Board of Mgrs. of Nassau County Medical Center, 57 NY2d 399, the Court of Appeals ruled that where there is a "specific exemption from disclosure by State . . . statute," an agency is not required to disclose records with identifying details redacted.  Concluding that Short was the controlling precedent in this action, the Appellate Division held that in view of the provision set out in Civil Rights Law §50-a,  it could not order NYPD to disclose redacted versions of the disciplinary decisions sought by the NYCLU.

* The release of certain public records, such as those identified in Civil Rights Law §50-a, is limited by statute. Other examples of such limitations are set out in Education Law, §1127 - Confidentiality of records and §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. Submitting a "formal" FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file the FOIL request to obtain the information. 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.

The decision is posted on the Internet at:

Tuesday, April 18, 2017

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error


Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error
Hopton v Ponte, 2017 NY Slip Op 02649, Appellate Division, Second Department

New York City Correction Officer [Petitioner] was found guilty of violating certain Department of Correction rules and was terminated from her position. Contending that the administrative law judge (ALJ) that had presided at her Civil Service Law §75 disciplinary hearing did not have the authority and jurisdiction to conduct the hearing, Petitioner filed an Article 78 action with Supreme Court seeking to vacate the decision and have the court order the Department to reinstate her to her former position.

Supreme Court granted the Department's motion to her to dismiss Petitioner's claim "for failure to state a cause of action" and Petitioner appealed the court's ruling to the Appellate Division.

Civil Service Law §75, in relevant part, provides that "[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose." Explaining that "The failure to designate a hearing officer for a disciplinary hearing in writing, as required by Civil Service Law §75(2), is a jurisdictional defect that renders the hearing officer's determination null and void," the Appellate Division said that in this instance the ALJ had been properly designated to conduct Petitioner's disciplinary hearing and to make findings of fact and to recommend the penalty that should be imposed by the appointing authority.

The Appellate Division noted that in accordance with a written request sent to the Chief Administrative Law Judge of the New York City's Office of Administrative Trials and Hearings [OATH] by the then serving appointing authority, the Chief Administrative Law Judge had properly designated an OATH ALJ to conduct Petitioner's disciplinary hearing and to make findings of fact and a recommendation with respect to penalty that should be imposed in the event Petitioner was found guilty of one or more of the disciplinary charges and specifications served upon her.

Accordingly, said the court,  Petitioner's allegations, even if accepted as true, failed to state a cause of action based on the ALJ's purported lack of jurisdiction over her  disciplinary hearing and dismissed her appeal.

The decision is posted on the Internet at:

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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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Monday, April 17, 2017

Recent administrative appointments announced by New York State Governor Andrew M. Cuomo


Recent administrative appointments announced by New York State Governor Andrew M. Cuomo
Source: Office of the Governor

On Monday, April 17,  2017 Governor Andrew M. Cuomo announced the following appointments to his administration:

Melissa DeRosa has been appointed Secretary to the Governor
Since April 2013, Ms. DeRosa has served as Communications Director, Strategic Advisor, and most recently Chief of Staff to the Governor. During her tenure, Ms. DeRosa has managed overall communications and press for the Executive Chamber and over 50 state agencies, political affairs, labor relations, and the administration’s strategic approach to enacting policy. She spearheaded the Governor’s campaigns to raise the minimum wage to $15 an hour, enact the nation’s strongest paid family leave program, and most recently to establish the ‘Excelsior Scholarship’, making New York the first state in the country to provide free public college tuition for middle and low-income families.  Before joining the Governor’s office, Ms. DeRosa worked in the Attorney General’s Office as Deputy Chief of Staff and as Acting Chief of Staff. Ms. DeRosa led the office’s effort to negotiate and pass the country’s most aggressive prescription drug reform package, I-STOP (Internet System for Tracking Over-Prescribing Act). Prior to working for the Attorney General, Ms. DeRosa served as New York State Director of Organizing for America, President Obama’s national political action organization. Before joining OFA, Ms. DeRosa served as the Director of Communications and Legislation for Cordo and Company, an Albany based government affairs firm. She was also the Campaign Manager for Tracey Brooks for Congress, Deputy Press Secretary to Congresswoman Nydia Velazquez, and Deputy Press Secretary for the successful NY State Transportation Bond Act Campaign in 2005. She holds a Bachelor’s Degree in Industrial and Labor Relations and a Master’s Degree in Public Administration, both from Cornell University. She has served on the executive board of the Women’s Leadership Forum Network of the Democratic National Committee.

Ms. DeRosa, the first woman to ever serve in the role of Secretary to the Governor, succeeds Bill Mulrow who departs the administration for the private sector. 


Jill DesRosiers has been appointed Executive Deputy Secretary to the Governor.
Since 2012, Ms. DesRosiers has served as Deputy Secretary for Executive Operations and previously Director of Scheduling for the Governor. Ms. DesRosiers will oversee the offices of Intergovernmental Affairs, Scheduling and Operations, Regional and Constituency Affairs, Special Events and Appointments.  Ms. DesRosiers has held leadership positions in New York City and State level government for years. After getting a degree from the University of Pennsylvania in Systems Engineering, Ms. DesRosiers worked in senior positions for the New York City Council for 12 years under both Speakers Gifford Miller and Christine Quinn, where her responsibilities included community outreach and member services. She created CouncilStat, the first computerized tracking system for citywide constituent issues. She has also served as campaign manager, field director and GOTV director for over a dozen successful campaigns in New York State. 


Adam Zurofsky has been appointed Deputy Secretary for Energy and Financial Services.
Mr. Zurofksy comes to state service after serving as President & Founder of Touchstone Metrics, LLC, a business management consulting company in New York City. Prior, he was a Partner at Cahill Gordon & Reindell LLP, where he advised companies and boards on regulatory, governance and litigation matters. Mr. Zurofsky has taught as an Adjunct Professor and worked as a Program Leader and Fordham Law School and is a Board Member of the Brookings Institution, Governance Studies Leadership Council. He earned his J.D. from Harvard Law School, where he graduated cum laude and earned a B.A. in Political Science from Stanford University.


Michael Schmidt has been appointed Deputy Secretary for Economic Development.
Mr. Schmidt previously served on a team of policy advisors to Hillary Clinton at the Hillary for America campaign. In this role he led the development of Secretary Clinton’s economic agenda on a wide range of issues, including financial regulation, trade, infrastructure, housing, small business and economic development. Before joining the campaign, he worked in the Office of Domestic Finance at the U.S. Department of the Treasury where he supported the Obama Administration’s efforts to enhance the regulation of Wall Street after the 2008 financial crisis. Before working in government, Mr. Schmidt was a Senior Finance Analyst at the Yale Investments Office. He holds a J.D. and a B.A from Yale.


Ali Chaudhry has been appointed Deputy Secretary for Transportation.
Mr. Chaudhry previously served as Deputy Secretary for Economic Development. Before that, he was Assistant Counsel to Governor Cuomo for two years with a focus on transportation and economic development.  He provided counsel on priority capital projects including the LaGuardia Airport redevelopment, the new Tappan Zee Bridge, the Second Avenue Subway, the MTA Capital Plan, the DOT Capital Plan, the Empire Station Complex, the Broadband Initiative, and the expansion of the Javits Convention Center. Mr. Chaudhry has also served as counsel on various economic development projects across the State, as well as alternative project delivery procurement. Prior to joining the Executive Chamber, Mr. Chaudhry served as Assistant Counsel in the New York State Senate, where he was counsel to several legislative committees over the course of three years. Before joining public service, Mr. Chaudhry practiced civil litigation in the private sector, focusing on employment matters. 


Adam W. Silverman has been appointed Assistant Counsel to the Governor for Public Safety.
Most recently Mr. Silverman served as Special Counsel to the Commissioner for Ethics, Risk and Compliance at the New York State Department of Corrections and Community Supervision.  Prior, he was an Associate Attorney in the litigation department of an international law firm. There, he focused his practice on complex government and commercial matters for clients ranging in size from small business owners to Fortune 500 corporations. Mr. Silverman also served as an Assistant Attorney General in the Office of the New York State Attorney General, representing the State and its employees in both state and federal courts.  He holds a J.D. from Albany Law School and a B.A. in Psychology, with a minor in Criminal Justice, from The George Washington University.


Tanisha Edwards has been appointed Assistant Counsel to the Governor for Taxation and Finance.
Ms. Edwards has over ten years of legal experience working in government. Most recently, she served as Chief Counsel in the finance division of the New York City Council where she advised the Council Speaker, Finance Committee Chairperson, and City Council Members on legislation and legal and policy issues related to the budget of New York City. While serving as Chief Counsel to the Finance Division, she also served as Counsel to the Finance Committee.  Prior to working with the City Council, she served as the Legislative Counsel at the Office of the New York City Comptroller. She earned a J.D. from Rutgers University Law School and a B.A. in Psychology from Syracuse University.


Rajiv Shah has been appointed Assistant Secretary for the Environment
Ms. Shah previously served as Senior Policy Advisor for the Environment. Prior to joining the Executive Chamber, Mr. Shah joined the New York State Department of Environmental Conservation as an Empire State Fellow and served in dual roles as a Special Assistant to the Commissioner and Counsel to the Bureau of General Enforcement. Prior to working at DEC, Mr. Shah served as Assistant Attorney General in the New York State Office of the Attorney General. He also clerked for the Honorable Eileen Nadelson in the Kings County Civil Court and for the Honorable Laura Taylor Swain in the U.S. District Court of the Southern District. Mr. Shah earned his J.D. from Fordham University and a B.A. from the University of Pennsylvania.


Megan Baldwin has been appointed Assistant Secretary for Health.
Ms. Baldwin most recently held multiple roles within the New York State Senate Finance Committee, including Principal Analyst for the Republican Conference, where she led budget negotiations on behalf of the Senate Majority. She also served as a Senior Analyst and Associate Analyst for the Democratic Conference, where she provided Senate Majority Members with research and recommendations concerning budget proposals for DOH, OCFS and OTDA. She also has experience working in the Office of the New York State Comptroller. She received an M.B.A. from the Rochester Institute of Technology and a B.S. in Business Administration from SUNY College at Brockport.


Natacha Carbajal-Evangelista has been appointed Assistant Secretary for Labor and Workforce.
Ms. Carbajal-Evangelista most recently served as the Special Counsel for Ethics, Risk and Compliance to the Commissioner for the New York State Department of Labor. Prior to government service, Ms. Carbajal-Evangelista was a senior associate at Baker & Hostetler LLP. She also served as a Judicial Law Clerk for the United States Bankruptcy Courts of the Southern and Eastern Districts of New York. Ms. Carbajal-Evangelista has received several awards for her provision of pro bono legal services to victims of domestic violence including the 2015 John Geiger Award from Her Justice and the 2013 Champion of Justice Award from the Brooklyn Bar Association Volunteer Lawyers Project and T.D. Bank. She holds a B.S. from Cornell University's School of Industrial and Labor Relations and a J.D. from Fordham University.


Daniel Fuller has been appointed Assistant Secretary for Education.
Having previously served as Education Policy Advisor, earlier Mr. Fuller served as Vice President of Legislative Relations at Communities in Schools. He was also the Director of Public Policy at the Association for Supervision and Curriculum Development, and prior to that, was the Director of Federal Programs at the National School Boards Association. Mr. Fuller holds a B.A. in English from SUNY Plattsburgh.


Peter Olmsted has been appointed Assistant Secretary for Energy.
Mr. Olmsted served as Manager of Strategic Engagement at the New York State Department of Public Service. In this role he was responsible for carrying out work vital to Governor Cuomo’s Reforming the Energy Vision (REV) and the implementation of the Regional Greenhouse Gas Initiative. Prior to working at DPS, Mr. Olmstead was the East Coast Regional Director for Vote Solar. He also worked as an Energy Policy Fellow in the Majority Caucus of the Delaware State Senate. Mr. Olmstead received a Master of Energy & Environmental Policy from the University of Delaware and a B.A. from Skidmore College.


Abbey Fashouer has been appointed First Deputy Press Secretary.
Ms. Fashouer most recently served as Deputy Press Secretary. Prior to that, she served as Press Secretary for State Senator Jeff Klein. Ms. Fashouer also served as a Director at Mercury, LLC where she helped develop and execute public affairs campaigns for both public and private sector clients. Ms. Fashouer also has experience on state and local campaigns, serving as a field organizer for the Sweeney, Burzichelli, and Riley Campaign in New Jersey, as well as the Quinn for New York Mayoral Campaign. She holds a B.A. from SUNY Albany.


Robyn Ryan has been appointed Assistant Director of Operations for Special Projects.
Ms. Ryan is an accomplished project manager and writer who most recently served as Executive Services Counsel for the New York State Bar Association. Prior, she clerked for U.S. District Court Judge Peter J. Messitte, after working in private practice as a Litigation Associate at Steptoe & Johnson in Washington, DC. Ms. Ryan has years of experience in journalism, working as a staff reporter for the Times Herald Record, and as a freelance writer. She earned her J.D. from Georgetown University Law Center and her B.A. from Barnard College.


Andrew Ball has been appointed Assistant Secretary for Intergovernmental Affairs.
Previously Mr. Ball served as Director of Scheduling and Confidential Assistant to the Governor. Mr. Ball joined the Cuomo administration in 2011 as special assistant for legislative and intergovernmental affairs, where he served as a liaison between local elected officials and the administration, including addressing constituent issues and facilitating coordination between legislative members and state agencies. A Long Island native, Mr. Ball graduated from Syracuse University in 2010.
 

Chelsea Muller has been appointed Senior Program Manager.
Ms. Muller joins the Executive Chamber after working in the Governor’s Office of Storm Recovery as a Senior Program Manager. In this role, she helped launch the NY Rising Community Reconstruction Program and led community development and planning projects for the agency. Before joining state government, she was the Executive Director of Rebuilding Together NYC, a nonprofit organization dedicated to rebuilding the New York City community after Hurricane Sandy. Before that, she was an Anchor, Reporter and a Producer for KDRV-TV in Medford Oregon, and an Associate Producer for KVBC-TV in Las Vegas, NV. She holds a B.A. from the University of Nevada and a Public Relations Certification from the University of Washington, Seattle.


Casey Kuklick has been appointed Senior Policy Advisor for Energy.
Mr. Kuklick has worked in Governor Cuomo’s administration in the Office of Energy and Finance since 2014, most recently as a Policy Advisor and prior, as an Infrastructure and Urban Policy Analyst. Before joining state government, he was a Program Assistant for the Urban and Regional Policy Program for the German Marshall Fund of the United States. He has held roles in the Office of Manhattan Borough President Scott M. Stringer, U.S. Senator Charles E. Schumer and in the City of Philadelphia Mayor’s Office of Sustainability. He received an M.P.A in Urban Policy and Advanced Policy and Economic Analysis from Columbia University School of International and Public Affairs and a B.A. from Northwestern University.

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors


Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors
Armbruster v Cassano, 2017 NY Slip Op 02641, Appellate Division, Second Department

New York City Firefighter Daniel Armbruster had tested positive for cocaine during a random drug test administered by the New York City Fire Department, in contravention of the Department's "zero tolerance" drug policy. At his disciplinary hearing Armbruster admitted that he tested positive for cocaine but offered as his defense that "his ingestion of cocaine was unknowing" and he could not recall the circumstances of his cocaine use because "I was drinking excessively and I blacked out."

The Administrative Law Judge [ALJ] presiding at Armbruster's disciplinary hearing found him guilty of three charges of misconduct. As to the penalty to be imposed, the ALJ recommended that Armbruster be terminated from his employment as a New York City firefighter.

The Commissioner of the Fire Department adopted the ALJ's findings and the recommendation of the penalty to be imposed and dismissed Armbruster from his position. Armbruster then commenced a proceeding pursuant to CPLR Article 78 challenging the Commissioner's determination.

Among the issues considered by the Appellate Division in the course of Armbruster's appeal was the impact, if any, on Armbruster's right to due process in consideration of the following events alleged to have occurred in the course of Armbruster's disciplinary hearing:

1. The cumulative effect of the approximately three-year delay in conducting the administrative hearing;

2. The ALJ's rulings with respect to certain evidence presented in the course of the disciplinary hearing;

3. Armbruster's "brief exclusion from the hearing" during a pause in his testimony; and

4. The Fire Department counsel's isolated "disparaging commentary."

The Appellate Division concluded that "[t]he prejudice arising from these circumstances, where it arose at all, did not so permeate the underlying hearing as to render it unfair."

The court explained that a review of an administrative determination made after "a trial-type hearing directed by law" is limited to whether the administrative determination is supported by substantial evidence. In the event there is conflicting evidence or different inferences may be drawn from the evidence presented, the said court that "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]." Courts may not weigh the evidence or reject the choice made by such agency where the evidence is conflicting and room for choice exists.

The Appellate Division found that any credibility issues were resolved by the ALJ and that it found no basis upon which to disturb the ALJ's determination, which was supported by substantial evidence.

As to the penalty imposed by the Commissioner, dismissal, the court held that in view of Armbruster's "relatively brief tenure with the Fire Department at the time of his positive drug test," considered with the ALJ's finding that his testimony at the disciplinary hearing "lacked credibility" and the application of the Department's zero tolerance drug policy, the Appellate Division held that the imposition of the penalty of termination "was not so disproportionate to the offense committed as to be shocking to one's sense of fairness," notwithstanding evidence that Armbruster had previously sustained two employment-related injuries.

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

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

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

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

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

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