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Saturday, March 25, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 25, 2017


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 25, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Audits and examinations concerning State Department and Agencies:

Department of Health (DOH) - Security and Controls Over
Medications and Related Supplies

New York City Department of Housing Preservation and Development (HPD) - Awarding Housing Units and Maintaining Waiting Lists


State Education Department - Compliance With the Reimbursable Cost Manual


Audits concerning the following political subdivisions of the State:

Ballston Lake Fire District - Length of Service Awards Program Service Credit

Town of Barker -Broome County- Justice Court Operations

Town of Genesee, -  Disbursements

Town of Hempstead Sanitary District No. 2 - Financial Condition and Procurement

Town of Horicon - Leave Accruals

Town of Kirkwood - Justice Court Operations

Lyon Mountain Fire District - Cash Disbursements

Manorville Fire District - Board Oversight and Fuel

Town of Mentz - Board Oversight

City of Olean - Budget Review

Friday, March 24, 2017

Inference of unlawful discrimination rebutted by employer's showing that its reasons for its decision not subterfuge for unlawful discrimination


Inference of unlawful discrimination rebutted by employer's showing that its reasons for its decision not subterfuge for unlawful discrimination
Uwoghiren v City of New York, 2017 NY Slip Op 01782, Appellate Division, First Department

Fridrey O. Uwoghiren alleged that his former employer, the New York City Department of Juvenile Justice (DJJ), discriminated against him on the basis of his Nigerian national origin by not selecting him for two promotions and by paying him less than it paid a peer of a different national origin.

Appellate Division said that Uwoghiren had established prima facie that he was passed over for promotion under circumstances raising an inference of discrimination. However, said the court, DJJ offered legitimate, nondiscriminatory reasons for promoting two employees who were not of Nigerian origin. Representatives of DJJ had testified to the effect that Uwoghiren had limited his work to fulfilling the minimal requirements of his job, that he sometimes balked at assignments without good reason, and that he failed to meet all of his goals.

In contrast, DJJ had demonstrated that the promoted employees had done outstanding work in positions relevant to the two vacancies to which they had been appointed.

The Appellate Division ruled that Uwoghiren had failed to raise triable issues of fact as to whether DJJ's proffered reasons for its decisions were pretextual in view of the absence of any evidence from which a reasonable jury could infer that Uwoghiren national origin played a role in DJJ's decision to pass him over for promotions.

Indeed, observed the court, Uwoghiren "admittedly never complained about the promotion process before commencing this action, and there is no indication that he raised any internal complaints of discrimination."

Another issue raised by Uwoghiren: the individuals selected for advancement were promoted in violation of the Civil Service Law. The Appellate Division said that although the promoted individuals were provisional rather than permanent employees, "this technical violation does not establish a discriminatory motive."

In his testimony Uwoghiren recounting two occasions when one of the decision-makers allegedly shouted admonitions at him or another employee of Nigerian origin. Such type of behavior, said the court, "does not establish discrimination based on national origin" as mere personality conflicts "must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code."

The decision also notes that Uwoghiren "failed to make a prima facie showing in support of his claim that he was paid less than a peer of another national origin." The court explained that while Uwoghiren and the other employee had the same civil service title, "they were not similarly situated in light of the differences in their experience ... the other employee's earlier salary ... and their differing job responsibilities.

The decision is posted on the Internet at:


Thursday, March 23, 2017

Sleeping on duty


Sleeping on duty
Click on text highlighted in color  to access the full text of the decision

Administrative Law Judge Susan J. Pogoda recommended termination of employment for a patient care technician at a hospital.

The employee was found sleeping on duty three times, including one incident where a patient he was assigned to observe, fell from his bed and struck the leg of a doctor who was performing a bone marrow biopsy on a patient in the adjacent bed.

The employee also failed to document his observations of patients every 15 minutes, as required.

Additionally, the employee  had a significant disciplinary record including a previous suspension for sleeping on duty.

Health & Hospitals Corp. (Bellevue Hospital Ctr.) v. Ogbonna, OATH Index No. 165/17 (Jan. 17, 2017), adopted, Hosp. Dec. (Feb. 14, 2017)

___________________


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
___________________

Wednesday, March 22, 2017

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


Recent appointments announced by New York State's Governor Andrew M. Cuomo 
Source: Officer of the Governor

On March 21, 2017 Cuomo announced the following appointments to his administration 

Carolyn Pokorny has been appointed Chief Special Counsel for Ethics, Risk and Compliance. Most recently, she served as Deputy Chief of Staff and Counselor to U.S. Attorney General Loretta E. Lynch. Prior, she spent nearly fifteen years with the U.S. Attorney’s Office in Brooklyn, where she held a number of leadership positions, including Deputy Chief of the Criminal Division. She received the U.S. Attorney General’s Award for Distinguished Service, and the Federal Prosecutor of the Year award from the Federal Law Enforcement Foundation. Ms. Pokorny began her career as a prosecutor in the Bronx District Attorney’s Office and then clerked for federal judge Arthur D. Spatt on Long Island. She has a B.A. from New York University, and a J.D. from Brooklyn Law School.

Christopher O’Brien has been appointed Director of Special Projects. Previously, Mr. O’Brien worked at Xerox Legal and Compliance Solutions for more than ten years, most recently as Senior Vice President and Chief Operating Officer. Prior, he worked in public service as Deputy Commissioner and General Counsel of the New York State Department of Taxation and Finance. Before that, he served as Senior Assistant Counsel to Governor George E. Pataki. Mr. O’Brien received his J.D. from Albany Law School and a B.A. from Hobart College.

Sarah Bittleman has been appointed Deputy Director of Special Projects.  Previously, she has worked in the U.S. House of Representatives and the U.S. Departments of the Interior and Agriculture, as well as the U.S. Environmental Protection Agency.  She comes to the Chamber most recently after serving as a Legislative and Policy Director for U.S. Senator Ron Wyden and the U.S. Senate Finance Committee. She holds a J.D. from Tulane University, an M.P.A. from East Carolina University and a B.A. from Union College.

Molly D. Dillon has been appointed Senior Policy Advisor. Prior to joining the Governor’s Office, she served in the Obama White House as a Policy Advisor for Urban Affairs, Justice and Opportunity on the Domestic Policy Council. At the White House, her work included a number of civil rights policy issues and their intersections, including women’s equality, child welfare, LGBTQ rights, labor, criminal justice, disability rights, homelessness, economic mobility and big data. Ms. Dillon holds an M.P.P. from Georgetown University’s McCourt School of Public Policy and a B.A. from Johns Hopkins University.

Valery Galasso has been appointed Senior Policy Advisor. Most recently, she was Special Advisor for Cabinet Nominations in the Office of the Chief Counsel for the Clinton-Kaine Transition Team. Ms. Galasso has served multiple roles in federal government, including Policy Advisor at the Federal Communications Commission, where she was responsible for policy development involving a wide range of telecommunications issues. Prior to that, Ms. Galasso was a Special Assistant for Legislative Affairs in the White House for Vice President Joseph R. Biden, and a Congressional Liaison for the U.S. Department of Commerce. She holds an M.A. in Public Policy from Johns Hopkins University and a B.A. from the University of Connecticut.

Patrick Oakford has been appointed Senior Policy Advisor. Most recently, Mr. Oakford was a Policy Advisor at the United States Department of Labor in Washington, D.C., where he advised Secretary Perez and helped execute the Department’s regulatory agenda. Prior, he conducted research on the economic impacts of immigration as a Senior Policy Analyst at the Center for American Progress. Mr. Oakford received a M.Sc. from the University of Oxford, where he graduated with distinction, and a B.S. from Cornell University.

Mike Perrin has been appointed Deputy Director of State Operations. Mr. Perrin most recently served as Executive Deputy Commissioner of the Office of Temporary and Disability Assistance. He came to the Cuomo administration as part of the New York Works initiative, where he played a key role in administering major capital projects across three state agencies. He then served as Deputy Commissioner for Administration and Finance at the Division of Homeland Security and Emergency Services overseeing all agency budget functions, federal homeland security grant programs and financial aspects of Federal Emergency Management Administration funding aimed at recovery from Superstorm Sandy. Prior to rejoining state government, Mr. Perrin served in the Office of the County Executive of Albany County for 15 years. Mr. Perrin holds a B.A. from SUNY Oswego.

Kate Dineen has been appointed Chief of Staff to the Director of State Operations. Ms. Dineen most recently served as the Assistant Secretary for the Environment, and previously as the Deputy Executive Director of the Governor’s Office of Storm Recovery. Before joining state government, she was U.S. Senator Kirsten Gillibrand’s Policy Director, covering environmental, energy, and economic development issues. She also worked for the Australian federal government evaluating the world’s first national scheme to regulate the creation and trade of carbon credits. Ms. Dineen holds a Masters in City Planning from the Massachusetts Institute of Technology. She graduated cum laude from Williams College with a B.A. in English.

Annabel Walsh has been appointed Director of Scheduling for Governor Cuomo. Previously, Ms. Walsh served as the Assistant Director of Scheduling, where she was responsible for coordinating many aspects of the Governor’s daily schedule. In 2013, Ms. Walsh joined the Cuomo Administration as an Operations Associate and Executive Assistant where she was responsible for organizing gubernatorial events. In those roles, Ms. Walsh also provided administrative support for the Senior Policy Advisor to the Governor and the Downstate Director of Intergovernmental Affairs. Ms. Walsh holds a B.A. from New York University.

Joel Wertheimer has been appointed Staff Secretary for Governor Cuomo. Most recently, he served as an Associate Staff Secretary at the Obama White House where he was responsible for coordinating and reviewing briefing materials sent to the President. Prior, Mr. Wertheimer worked in private practice as an Associate at Winston & Strawn LLP, before which, he clerked for the Honorable Lorna G. Schofield, U.S. District Court for the Southern District of New York. He received his J.D. from New York University School of Law and a B.A. from Tufts University.

Jen Darley has been appointed Assistant Director of Executive Operations. Most recently, she was the National Advance Lead at the Hillary for America Campaign where she traveled across the country advancing visits for Secretary Clinton and Senator Tim Kaine. Prior, she worked at the National Constitution Center in Philadelphia, where she held roles as the Vice President of Operations and the Vice President of Visitor Services. Ms. Darley also served as an event management consultant for the 2016 Democratic National Convention Host Committee. She received a B.A. in Psychology and a B.S. in Business Administration from the University of Delaware.

Jon Weinstein has been appointed Deputy Communications Director for Transportation. Previously, Mr. Weinstein was a Vice President at Mercury Public Affairs where he developed and executed both short- and long-term communications strategies for clients in the public and private sectors. Prior to that, Mr. Weinstein worked as a reporter and anchor with NY1 for more than seven years, covering a range of topics including politics, transportation, community news, real estate, and sports. He also worked as a field producer at News 12 The Bronx/Brooklyn. Mr. Weinstein holds a B.S. from Cornell University and an M.S.J. from Northwestern University’s Medill School of Journalism.

Elizabeth Bibi has been appointed Deputy Director of Media Relations. Ms. Bibi most recently served as National Press Advance Desk for Senator Tim Kaine with the Hillary for America campaign, overseeing media logistics for all of Senator Kaine's interviews and events. Previously, she served on the Government Relations team at Scholastic Inc., and as Senior Media Relations Associate at the Bill, Hillary, and Chelsea Clinton Foundation. She holds a B.A. from Barnard College.

Andrew Tillman has been appointed Speechwriter for Governor Cuomo. Most recently, he worked in the Obama White House as a Senior Research Associate and speechwriter, writing speeches for White House Chief of Staff Denis McDonough. Prior, he was an Associate Fellow at the Institute of the Americas, University College London, where he co-led a group of scholars for a major research project on United States-Latin American relations. Mr. Tillman holds a Ph.D. from the University of Cambridge, an M.A. from the Fletcher School at Tufts University, and a B.A. from Wake Forest University.

Tim Fullerton has been appointed Director of Digital Communications. Mr. Fullerton most recently served as the Director of National Digital Campaigns at Everytown for Gun Safety. Prior, he was the Director of Digital Strategy for the U.S. Department of the Interior where he served as a spokesperson for the department and executed its first digital strategic plan to broaden awareness and engagement with the public. Mr. Fullerton has held digital roles at a number of organizations, including the Alliance for Climate Protection, Oxfam America, and Electric Drive Transportation Association. He also served as the State and Regional E-Mail Manager for Obama for America in 2008. Mr. Fullerton holds a B.A. from Dickinson College.

Diana Bowen has been appointed Video Producer. Most recently, Ms. Bowen worked on the Hillary for America campaign as the state Filmmaker in Pennsylvania. Prior to that, she was a Video Producer at a strategic media firm. She was also a Video Producer and Photographer at the National Park Service. Ms. Bowen holds a B.A. in Multimedia Journalism from American University.

Joseph Rabito has been appointed Deputy Secretary for Intergovernmental Affairs, after serving as Deputy Director of State Operations for Programs. In his new role he will focus primarily on upstate intergovernmental relations. In February 2011, Governor Cuomo appointed Mr. Rabito as Executive Deputy Commissioner at the New York State Office of General Services. Before joining OGS, Mr. Rabito held the titles of Deputy Commissioner at New York State Homes and Community Renewal and President of the New York State Housing Trust Fund Corporation. Prior to his appointment at HCR, Mr. Rabito served as Commissioner of Development & Planning for the City of Albany, and in the federal government for then Secretary Andrew Cuomo at the U.S. Department of Housing and Urban Development.

Rochelle Kelly-Apson has been appointed Director of Downstate Intergovernmental Affairs for Governor Cuomo. She most recently served as Deputy Director of Intergovernmental Affairs at the Office of the New York State Attorney General, after serving as a Community Outreach Liaison. Mrs. Kelly-Apson also served as a Rank-and-File Organizer for the New York Hotel Trades Council where she helped develop the organization’s campaign, and as a Union Delegate for the Roosevelt Hotel in New York. She has over 13 years of experience organizing advocacy ├Żand political campaigns in New York State.

Brendan Hughes has been appointed Assistant Secretary for Economic Development. Mr. Hughes previously served as Deputy Commissioner at Empire State Development where he was responsible for oversight of Governor Cuomo’s Regional Economic Development Councils as well as several other programs, including the $1.5 billion Upstate Revitalization Initiative and $100 million Downtown Revitalization Initiative. Prior to joining Empire State Development, Mr. Hughes managed economic development initiatives in the clean energy sector for the New York State Energy Research and Development Authority. Mr. Hughes received a B.A. in Political Science from Siena College.

Kerri Neifeld has been appointed Assistant Secretary for Human Services. Ms. Neifeld previously served as Assistant Deputy Commissioner at the New York State Office of Temporary and Disability Assistance where she managed the newly-created Division of Shelter Oversight and Compliance. Before that, she worked as Special Assistant to the Deputy Commissioner at OTDA while serving as a member of Governor Cuomo’s inaugural class of Excelsior Service Fellows. Prior to the Excelsior Service Fellowship Program, Ms. Neifeld was a Fellow on Women & Public Policy at Rockefeller College’s Center for Women in Government & Civil Society. Ms. Neifeld has worked as a Project Manager at the Mental Health Association of Columbia-Greene Counties, a Child Protective Services Caseworker at the Albany County Department of Child and Family Services and a Youth Care Worker at WAIT House Homeless Youth Shelter. Ms. Neifeld holds a B.A. from Elmira College and an M.S.W. from the University at Albany School of Social Welfare.

Rob Gibbon has been appointed Assistant Counsel to the Governor for Transportation. Previously, he served as a Senior Counsel in Majority Counsel’s Office in the New York State Senate. During his time there, he acted as Home Rule and FOIL counsel to the conference and served as counsel to the local government committee; banks committee; housing, construction and community development committee; cities committee; and racing, wagering and gaming committee.  Before working for the Senate, he was Assistant Counsel to the New York State Association of Counties. He received his J.D. from Albany Law School and a B.S. in Business Administration magna cum laude from SUNY Albany.

Penny Lowy has been appointed Appointments Secretary. She most recently served as the Head of Resourcing and the Graduate Program at ICAP NA (Broker and FinTech Company), where she built a recruiting function and designed a series of global development programs and Human Resources processes and policies. Prior, she was the Recruiting Manager and Senior Vice President of Human Resources at Citibank. Before that, Ms. Lowy served as the Vice President of Global Talent Acquisition for Learning and Development at MasterCard Worldwide, and prior, she was a Human Resource Consultant at GE Capital Structured Finance Group. She holds a B.A. from Stony Brook University.

John Ceretto has been appointed Project Coordinator at the New York State Office of Parks, Recreation and Historic Preservation after serving in the New York State Assembly since 2011. Before serving as an Assemblyman, Mr. Ceretto worked at the State Parks Department’s Niagara Gorge Discovery Center for nearly ten years, in the facility’s Education Programs Office of Historical Archives. Mr. Ceretto also worked for nearly 20 years at the Prestolite/Tulip Corporation. During part of his time there, he was a U.A.W. President for nine years. Before that, he was a teacher at Niagara Falls & Niagara Wheatfield School Districts. He has also served as a Councilman for the Town of Lewistown and as a Niagara County Legislator. Mr. Ceretto holds an M.S. in Education from Niagara University.

Brendan Fitzgerald has been appointed First Deputy Secretary of State at the New York Department of State. Previously, Mr. Fitzgerald served as Deputy Secretary for General Government and Financial Services in the Executive Chamber. Prior to that, Mr. Fitzgerald served as Assistant Secretary for Financial Services, Assistant Secretary for Technology, Operations and Gaming and Special Assistant for Public Finance and Local Government. For nearly seven years, Mr. Fitzgerald served as Principal Legislative Analyst for the New York State Assembly. Mr. Fitzgerald holds a B.A. in English and Philosophy from Siena College.

Michael Volforte has been appointed Director of the Governor’s Office of Employee Relations. As Director, he oversees the Executive branch’s relationship with the public sector unions that represent New York State employees. Mr. Volforte has worked in public service at the Governor’s Office of Employee Relations for over 20 years. He has served in various roles at GOER, including Associate Director, Deputy Counsel and Assistant Counsel. He received a J.D. from Albany Law School and a B.A. from St. Lawrence University.

Sarah Coleman has been appointed Deputy Chair and Counsel for the New York State Public Employment Relations Board. Previously, Ms. Coleman served as Senior Counsel for the National Labor Relations Board where she worked as part of a team to prepare cases for decision by the Board. Prior to that, she worked at the Mississippi Youth Justice Project and Green Advocates. She also served as a Development Project Manager for Wiley-Blackwell Publishing and as a Junior Underwriter for Merrimack Mortgage Company. Ms. Coleman holds a J.D. from Columbia University School of Law and a B.A. from Boston University.

Jeffrey Pearlman has been appointed Acting Director of the Authorities Budget Office. Previously, Mr. Pearlman served as Chief of Staff and Counsel for Lieutenant Governor Kathy Hochul. Mr. Pearlman has also served as Chief of Staff for Senate Minority Leader Andrea Stewart-Cousins and the State Senate Democratic Conference. Before working for the Senate, he worked of-counsel in the Government and Litigation practices of Greenberg Traurig LLP, an international, multi-practice law firm. Prior to that, he held numerous positions in state government, including in the New York State Executive Chamber as Assistant Counsel to former Governor David A. Paterson, Counsel to the New York State Lieutenant Governor, and several capacities in the New York State Senate and Assembly. Mr. Pearlman holds a J.D. from Albany Law School and a B.A. from SUNY New Paltz.


Tuesday, March 21, 2017

Disciplinary hearings held in absentia



Disciplinary hearings held in absentia
NYC Office of Administrative Trials and Hearings [OATH], Index No. 728/17

A New York City tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations. The auditor failed to appear at trial and the hearing proceed in absentia.

The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed with the hearing but it must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing* as scheduled is, in effect, a concession of guilt.

OATH Administrative Law Judge Ingrid M. Addison conducted the hearing in "the form of an inquest" at which the Department presented the testimony the employee's supervisor, and documentary evidence.

Based on credible testimony from the auditor's supervisor and documentary evidence, Judge Addison sustained the charges. She found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct. The ALJ then recommended that the employee be terminated by the appointing authority.  

* N.B. The appointing authority is required to make a reasonable effort to contact the employee before proceeding to hold a disciplinary hearing in absentia. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness that would justify the hearing officer granting an adjournment. Attempting to contact the accused, or his or her attorney,  is advisable even if the individual had announce that he or she does not intend to appear at the hearing as scheduled since he or she can elect to do so the last moment and then be prevented from being present at the proceeding as the result of some legitimate mischance or medical inability.

The decision is posted on the Internet at:

________________________

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


Monday, March 20, 2017

Failing to prove that the union breached its duty of fair representation in challenging an arbitration award is fatal to employee's appeal



Failing to prove that the union breached its duty of fair representation in challenging an arbitration award is fatal to employee's appeal
Henvill v Metropolitan Transp. Auth., 2017 NY Slip Op 01785, Appellate Division, First Department

Winston Henvill, an employee of the Metropolitan Transportation Authority [MTA],  filed a CPLR Article 75 petition seeking to vacate the arbitration award resulted in the terminated his employment with MTA upon his being found guilty of misconduct. 

Supreme Court dismissed Henvill's petition and the Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division initially explained that Henvill "failed to adequately plead a claim for breach of the duty of fair representation against the Metropolitan Transportation Authority Police Benevolent Association [PBA], his collective bargaining unit's representative, finding that none of the allegations in Henvill's complaint demonstrated that PBA's conduct, in representing Henvill at the arbitration hearing which resulted in his termination, was arbitrary, discriminatory or conducted in bad faith.

Thus, said the court, as Henvill failed to state an unfair representation claim against PBA, his claim against his employer, MTA, alleging a breach of the relevant collective bargaining agreement, must also fail.

The Appellate Division also noted that Henvill had failed to demonstrate the existence of any of the statutory grounds for vacating the arbitrator's award set out in Article 75 such as fraud, bias or the failure to follow proper procedure.  

In addition, the court rejected what it characterized as Henvill's major argument: the arbitrator's fact-finding was irrational and required vacatur in view of "the well-settled principle that courts in considering a petition to vacate a voluntary arbitration may not review the arbitrator's findings of fact."

Finally, said the court, "we perceive no reason to overturn the imposed penalty of termination."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_01785.htm
 _______________________ 

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
_______________________ 



Saturday, March 18, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 18, 2017


New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 18, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Woman arrested for alleged theft of NYS Retirement benefits and welfare fraud
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a five-count indictment charging Tammy Banack, a resident of Kirkville, New York, with one count of Grand Larceny in the Second Degree, a class C felony, one count of Welfare Fraud in the Third Degree, a class D felony, two counts of Grand Larceny in the Third Degree, a class D felony, and one count of Offering a False Instrument for Filing in the First Degree, a class E felony.
Man alleged to have pocketed his deceased mother's retirement benefits
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one-count indictment charging Jimmie Buie, a resident of Brooklyn, with Grand Larceny in the Third Degree, a class D felony. Jimmie Buie is alleged to have stolen over $23,000 in pension benefits issued by the New York State and Local Employees Retirement System to his deceased mother, Sandra Buie, between May 2011 and December 2012.
http://www.osc.state.ny.us/press/releases/mar17/031617b.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170319&utm_campaign=fiscal+oversight

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued:

Office of Temporary and Disability Assistance - Wage Subsidy and Transitional Employment Programs

New York State Health Insurance Program - Long Island Bone and Joint, LLP waived Empire Plan members’ out-of-pocket costs resulting in overpayments on claims submitted by LI Bone and Joint.

State University of New York - State University of New York Upstate Medical University’s Billing Practices

Friday, March 17, 2017

Prohibiting a patron of a public library from access to the library for violation of the library's Code of Conduct


Prohibiting a patron of a public library from access to the library for violation of the library's Code of Conduct
R.T. v Freeport Memorial Library, Decision of the Commissioner of Education, Decision #17,060

The Freeport Memorial Library[Library] R.T.'s library use privileges were being suspended for a period of one year due to repeated violations of the Library’s Code of Conduct [Code] policy, contending that over a period of eight separate days, R.T. Had violated the Code by using his cellular telephone, speaking in an inappropriate manner to Library staff, and not vacating a computer when directed to at closing time. The letter also noted that R.T. had previously received a one-month suspension for Code violations and advised him that if he were to return to the Library prior to the conclusion of the one-year suspension, he will be deemed a trespasser and the police will be contacted. 

R.T. appealed the determination to Library’s board of trustees. The board dismissed his appeal, observing “that the use of a library 'is a privilege, not a right' and the Library’s board must consider the conduct of one individual in light of how it affects other Library patrons.”  The board's letter also noted that R.T. was “cited in approximately 17 different incidents reported in writing by approximately 12 separate members of the [Library’s] staff.” R.T. appealed the board's decision to the Commissioner, contending that the board's decision was “draconian” and that the allegations that he violated the Code are too vague “as a matter of fact, as a matter of law,” for him to properly respond to, and he specifically notes an alleged failure of the Library to provide him with a “bill of particulars.”

In his defense, R.T. offered alternative explanations for his conduct, such as, having “sensitive files” on the computer at closing time, that he used his cellphone but in areas designated for such use, or that certain Library staff have personal grievances against petitioner. He also argued that the suspension by the Library constitutes a violation of his rights under the United States and New York Constitutions including due process and equal protection.

In constructing her ruling, the Commissioner of Education Elia said that “Education Law §310 states in part that the Commissioner is 'authorized and required to examine and decide' a petition 'made in consequence of any action ... [b]y any trustees of any school library concerning such library, or the books therein, or the use of such books' (emphasis added in the opinion). Accordingly, the Commissioner ruled that R.T.'s appeal of the Library’s one-year suspension of his library use privileges is properly before her.

After dismissing R.T.'s appeal was moot, as the “penalty time” had passed, the Commissioner elected to address the merits of R.T.'s appeal regarding the penalty imposed by the board in view and R.T.'s complaint that “the Library’s determination to suspend his library use privileges for one year was excessive and constituted a penalty against petitioner beyond the scope of authority authorized by law.”

The Commissioner affirmed the board decision, finding that the suspension of R.T.’s library use privileges for various violations of the Library’s Code of Conduct was reasonable under the circumstances, noting that Education Law §262 states, in relevant part, that Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully violates such rules . . .  (emphasis added in the Commissioner's decision).

The Commissioner's decision concludes by observing that “On the facts of this case, I cannot find that the Library acted in an arbitrary and capricious manner in suspending petitioner’s library privileges. Petitioner engaged in disruptive behavior that violated the Library’s Code on several occasions, despite being put on notice from a prior suspension of privileges that he needed to cease his disruptive behavior.  …. I cannot find that a one-year suspension of library use privileges is excessive considering the numerous Code violations documented against petitioner, the responsibility that respondents have to the other patrons of the Library and to maintain a safe and orderly environment for the Library’s staff and the protection of its property, and that this one-year suspension was not petitioner’s first suspension from use of the Library.”

The decision is posted on the Internet at:  
http://www.counsel.nysed.gov/Decisions/volume56/d17060

___________________


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
___________________

Thursday, March 16, 2017

Withdrawing a letter of resignation



Withdrawing a letter of resignation
Lust v State of New York, 2017 NY Slip Op 01742, Appellate Division, Third Department

Francis Lust visited his employer's Human Resources office and told a personnel associate of his intention to retire. The personnel associate said that a letter of resignation was required and, upon Lust's request, prepared a letter of resignation on his behalf stating that "This letter serves as my intent to resign for purposes of retirement on March 30, 2015 close of business."  Lust reviewed and signed the letter without making any changes. The Director of Human Resources and, by letter dated February 11, 2015, she informed petitioner that his resignation had been accepted.*

On February 16, 2015, Lust informed the Director that, "due to financial reasons, he would not be able to retire as intended and, therefore, his earlier letter of resignation was "no longer valid." Lust's letter seeking to withdraw his resignation was rejected and he was told that his last day of employment would be, and was, March 30, 2015.

Lust initiated a CPLR Article 78 proceeding asserting, among other things, that the denial of his request to rescind his letter of resignation was arbitrary and capricious, an abuse of discretion or affected by an error of law. Supreme Court dismissed the petition and Lust appealed.

The Appellate Division agreed with the Supreme Court decision, holding that Lust was required to obtain the consent of the appointing authority before he could withdraw his resignation. The court said that 4 NYCRR 5.3(c ) of the Rules for the Classified Service, provides that a resignation tendered by an employee of the State as the employer in the classified service "may not be withdrawn . . . after it is delivered to the appointing authority, without the consent of the appointing authority."**

In this instance the Appellate Division concluded that the appointing authority had lawfully delegated its power of appointment to the chief executive officer [CEO] of the facility, who, in turn, by letter lawfully authorized the Director of Personnel to be his designee on "all matters related to employee relations and concerns" with "full authority to make decisions regarding whether to accept a resignation and, likewise, whether to deny a request to rescind a resignation from any such employee of the facility.

Accordingly, said the court, Lust's delivery of his letter of resignation to the Director on constituted delivery to CEO and, thus, petitioner could not unilaterally withdraw his resignation.

Holding that the question of "Whether to permit the withdrawal of a delivered letter of resignation is a matter committed to the sound discretion of the appointing authority, and such a determination will be disturbed only if it constituted an abuse of discretion or was arbitrary and capricious," the Appellate Division dismissed Lust's appeal.

* Acceptance of a letter of resignation is not required for the resignation to be operative, all that is required is its timely delivery to the appointing authority or the appointing authority's designated representative.

** Many local civil service commissions have adopted a similar rule or regulation.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2017/2017_01742.htm

Wednesday, March 15, 2017

The Commissioner of Education does not have jurisdiction to consider claims that an employee organization breached its duties of fair representation


The Commissioner of Education does not have jurisdiction to consider claims that an employee organization breached its duties of fair representation
Decisions of the Commissioner of Education, Decision 17,054

Gloria J. Parker, a tenured teacher, filed an appeal with the Commissioner of Education challenging her placement on paid administrative leave by her employer, the Board of Education of the City School District of the City of Rochester. She also named as respondents in her appeal the Rochester Teachers Association (“RTA”) and New York State United Teachers (“NYSUT”).

With respect to RTA and NYSUT, Parker contended that both organizations “failed to provide her with adequate representation.”

RTA and NYSUT argued that in addition to Parker's failure to properly serve her complaint upon them, the Commissioner should dismiss both organizations from the action as “each is an unincorporated association over which the Commissioner of Education has no direct jurisdiction.”

Essentially RTA and NYSUT claim that the Commissioner of Education lacks jurisdiction over an employee organization or a labor organization.

The Commissioner agreed, explaining that Education Law §310 provides that “any person considering himself aggrieved by an action taken at a school district meeting, by the trustees of a school district or library, or by any other official act or decision of a school officer or authority may seek review of such action or decision in an appeal to the Commissioner of Education. Education Law.” In the words of the Commissioner, “§310 does not authorize the Commissioner to review actions taken by an organization such as the teachers' association."

Accordingly, the Commissioner dismissed Parker's claims with respect to RTA and NYSUT “for lack of jurisdiction,” noting that with respect to Parker's allegation concerning the adequacy of representation provided by RTA and, or, NYSUT, the Public Employment Relations Board [PERB] has exclusive jurisdiction over claims of improper employee organization practices, including allegations that the employee organization breached its duty of fair representation.

The Commissioner's decision is posted on the Internet at:

Monday, March 13, 2017

Appellate Division finds penalty of dismissal imposed on educator shocking to its sense of fairness


Appellate Division finds penalty of dismissal imposed on educator shocking to its sense of fairness
Matter of Beatty v City of New York, 2017 NY Slip Op 01628, Appellate Division, First Department

The penalty of termination of employment was imposed upon Amira Beatty, a special education home instruction teacher having a 17-year unblemished record, by the New York City Department of Education [DOE] based upon the hearing officer's finding that she had submitted time sheets falsely stating that she had provided instruction to a disabled student and inaccurately indicating that she had reported to certain DOE schools and libraries over a two-month period.

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division ruled that "Notwithstanding Beatty's misconduct, under the circumstances presented here, the penalty of termination shocks our sense of fairness."

The court, quoting from Bolt v NYC Department of Education, 145 AD3d 450, explained that "[A] result is shocking to one's sense of fairness if 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. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved."

At the time of the incident in question, said the court, Beatty was confronted with an extraordinary situation -- "Superstorm Sandy" impact on the City had displaced both Beatty and her student from their respective homes and had adversely affected  transportation in the City.

The genesis of this disciplinary action: Beatty had filled out the time sheets in question in advance of the dates to which those time sheets pertained. She did not, in fact, proceed to provide instruction to the disabled student on the days set forth in those time sheets in the aftermath of Hurricane Sandy and submitted the time sheets without correction on a subsequent date. However, the Appellate Division noted that because she had instructed other students on each of the dates in question, she would have received the same salary regardless of how many students she had instructed or how many hours she had spent with them, and thus derived no benefit from her misstatements on the time sheets.

The court characterized Beatty's misconduct as "more a matter of lax bookkeeping than implementation of any venal scheme" as there was no intent to defraud or theft of services on her part, and the harm to the public and to the DOE was mitigated.

At the hearing, Beatty admitted that she was guilty of submitting reports stating that she had provided instruction to the disabled student on certain dates when she had not done so and that she had reported to various schools and libraries on certain dates when she had not done so. Acknowledging that her misconduct warrants punishment as the disabled student was deprived of the services of a teacher for two months, Beatty did not seek to set aside the findings of misconduct contained in the hearing officer's opinion, but only to modify the penalty imposed on her.

Noting that Beatty had acknowledged her error in judgment and has pledged to change her practices and never to repeat the error, the Appellate Division found no evidence that "[Beatty] could not remedy her behavior." Accordingly, the court found that the penalty of termination was disproportionate to the level of Beatty's misconduct and exceeds the standards that society requires to be applied to this offense.

The court concluded that rather than constituting a case of extended, intentional and self-serving misconduct or repeated and continuous neglect of duty, "this was an isolated instance of neglect occurring under circumstances of extraordinary personal hardship and involving a teacher who had an otherwise unblemished and longstanding record." "Had Superstorm Sandy not upended her life," said the court, "there is no indication that [Beatty's] wrongdoing would have occurred. As it is highly unlikely that the extraordinary situation presented in this case will recur, the factors of general and specific deterrence do not come into play."

[N.B. Presiding Judge Friedman and Judge Andrias  dissented in a memorandum by Judge Andrias.]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01628.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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Saturday, March 11, 2017

State Department of Audit and Control holding more than $14 billion in unclaimed funds



State Department of Audit and Control holding more than $14 billion in unclaimed funds
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced that his office has over $14.5 billion in unclaimed funds and urged New Yorkers to see if any of it belongs to them. In State Fiscal Year 2015-16

DiNapoli’s office set a national record for the third consecutive year for the most unclaimed funds returned in one year totaling $452 million.

Individuals are not the only entities for whom the Comptroller is holding unclaimed funds pursuant to the Abandonded Property Law. The Comptroller is also holding monies that may be claimed by State and local governments such as:


Name
Address
Reported By
SCHOLASTIC BOOK CLUBS INC
NEW YORK TELEPHONE CO

CDW LLC

W B MASON CO INC
ALFRED UNIVERSITY
GALLS LLC
NATIONAL GRID - NIAGARA MOHAWK POWER CORP

CITIBANK NA NATIONAL COMPLIANCE GRP



INTEGON INDEMNITY INSURANCE CO

STATE FARM FIRE & CASUALTY CO

CITIBANK NA NATIONAL COMPLIANCE GRP

YALE UNIVERSITY

CIGNA HEALTH & LIFE INSURANCE CO

OWEGO ASSOCIATES INC

AUTOMATIC DATA PROCESSING INC

DESMOND HOTEL

There are hundreds of other such governmental jurisdictions and employee organizations listed.

Individuals and organizations can search the Comptroller's data base of unclaimed funds to see if the Comptroller is holding any of their property in the Abandoned Property Fund by clicking:






Wednesday, March 08, 2017

Blocking computer threats with innovative technologies


Blocking computer threats with innovative technologies
Source: The CEO's Guide to Data Security - An AT&T publication

The recently published fifth report in this series of AT&T's Cybersecurity Insights addresses Data Security and chapters focus on the following topics:

1. Blueprint for cybersecurity innovation;

2. Data;

3. Applications;

4. Connected devices;

5. Network; and

6. Data center and cloud

The publication is posted on the Internet at: https://www.business.att.com/cybersecurity/docs/vol5-datasecurity.pdf

The first four reports in AT&T's Cybersecurity Insights series are:

What Every CEO Needs to Know About Cybersecurity

The CEO's Guide to Securing the Internet of Things

The CEO's Guide to Cyberbreach Response

and

The CEO's Guide to Navigating the Threat Landscape

These four earlier reports are available on the Internet by clicking here

Monday, March 06, 2017

Disciplinary hearing postponed “without prejudice” pending successful completion of a probationary period with another agency


Disciplinary hearing postponed “without prejudice” pending successful completion of a  probationary period with another agency 
Click on text highlighted in color  to access the full text of the decision

The Administration for Children’s Services (“ACS”) brought disciplinary charges against one of its employees. Prior to the first scheduled conference at New York City Office of Administrative Trials and Hearings [OATH], the employee took leave from ACS and accepted a new position with another agency. The employee sought to adjourn the conference, but ACS moved to go forward with case.

OATH Administrative Law Judge John W. Burns removed the disciplinary matter from OATH’s calendar without prejudice because employee is on leave from ACS pending successful completion of probationary period of employment with her new agency. Should the employee return to ACS on or before the end of her probationary period at the other agency, ACS shall have the right to re-file the charges and move forward with the disciplinary proceeding at that time.

Admin. for Children’s Services v. M.S., OATH Index No. 2054/16, mem. dec. (Jan. 11, 2017).


________________________

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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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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