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State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.

N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

May 28, 2021

Firefighter's application for accidental disability retirement benefits rejected based on substantial evidence that the injuries were not the result of an accident

A firefighter [Plaintiff] filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries sustained during seven different incidents occurring between 2006 and 2017. ERS, however, denied Plaintiff's application upon the ground that the incidents did not constitute accidents within the meaning of Retirement and Social Security Law §363. Ultimately Plaintiff withdrew four of the seven incidents, and the sole issue to be resolved was whether these incidents "qualified as accidents."

The ERS Hearing Officer denied Plaintiff's application, finding, among other things, that the cited incidents occurred during the course of Plaintiff's routine employment duties and were risks inherent in the performance of those duties. The Comptroller sustained the Hearing Officer's determination and Plaintiff initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.

"As the applicant, [Plaintiff] bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law ... [the Appellate Division said that the Comptroller's] determination on that point will be upheld if supported by substantial evidence in the record as a whole. Further, said the court, "for the purposes of §363, an accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," citing Matter of Kenny v DiNapoli, 11 NY3d 873 and other court decisions. In contrast, opined the Appellate Division, "[a]n injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental."

The decision reports that Plaintiff "does not dispute, and the record indeed establishes, that [Plaintiff] was engaged in the performance of his ordinary firefighting duties during each of the incidents at issue" which involved encountering smoke, water, tangled hose lines, reduced visibility and debris, falling ice that 'could have been reasonably anticipated' as well as the corresponding threat of tripping or falling due to such conditions."

Concluding that substantial evidence supported ERS's finding that the incidents at issue did not constitute accidents within the meaning of §363, the Appellate Division declined to disturb the Comptroller's decision.

Click HERE to access the Appellate Division's decision. 


May 27, 2021

Former town clerk to serve six months in county jail after pleading guilty to stealing public funds

New York State Comptroller Thomas P. DiNapoli reported that a former town clerk [Clerk] was sentenced to six months in County jail for stealing nearly $27,000 in public funds for her personal use after she pled guilty to a number of criminal charges including "grand larceny in the third degree/public servant (a class C Felony); two counts of tampering with public records in the first degree (a class D felony); scheme to defraud in the first degree (a class E felony) and official misconduct (a class A misdemeanor)."

Clerk's thefts, which were discovered during a joint investigation by the State Comptroller's office, Yates County District Attorney Todd Casella’s office and Yates County Sheriff Ronald Spike’s office, consisted of cash payments made to the town for property taxes and fees for marriage licenses, dog licenses, hunting permits and building permits. The Comptroller said the funds stolen were used by Clerk "to support her personal lifestyle, including trips to casinos and gambling websites."

Comptroller DiNapoli opined that “[w]hen a public servant steals taxpayer funds, it damages the public’s trust in government.” "A public office is a public trust and regrettably this town clerk acted contrary to their oath,” said Yates County Sheriff Spike. “I thank all involved in this criminal investigation, prosecution, and conviction, especially the New York State Comptroller’s office for their forensic work.”

Such misconduct by a public officer is referred to as "Jobbery" -- using one's public office or position of trust for ones' personal gain or advantage. Having taken advantage of the trust placed in her, Clerk will pay $26,729 in restitution as part of her plea agreement, of which she has already paid $20,000. 


Click HERE to access the full text of the Comptroller's statement.

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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.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

May 26, 2021

Establishing a prima facie case of unlawful discrimination

In Joseph v. Leavitt, 465 F.3d 87, the United States Circuit Court of Appeal held that "A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment."

In the instant case, the Circuit Court indicated that only certain prongs of Plaintiff's prima facie case were in dispute, i.e., the extent to which Plaintiff suffered the alleged adverse employment action or actions and whether those actions occurred under circumstances that give rise to an inference of discrimination. Here, said the court, Plaintiff's employment was terminated, "which itself is, of course, an adverse employment action."

Noting that there were factual issues regarding whether the New York Police Department's [NYPD] investigating personnel's pre-termination conduct constituted an adverse employment action, the Circuit Court opined that "[v]iewing the evidence in a light most favorable to Plaintiff, a reasonable juror could infer that the investigators' consulted with certain NYPD units "not because of information linking [the Plaintiff to] terrorism but because of [Plaintiff's] national origin, ancestry, or religion. Further, the court indicated that under the circumstances, "[a] reasonable juror could also infer that, after the ... investigator did so, it resulted in a more searching investigation and harsher discipline than had [the NYPD] applied its standard investigative and disciplinary procedures.

The Circuit Court also concluded that Plaintiff presented sufficient evidence to raise a triable issue of fact as to whether the investigation and termination occurred giving rise to an inference of discrimination, i.e., statements made by NYPD personnel in which "they noted [Plaintiff's] national origin (Egyptian) and his ancestry (Middle Eastern) while investigating his alleged misconduct." Further, the decision states that Plaintiff had set forth evidence that NYPD launched an investigation into Plaintiff and his family involving the NYPD personnel, which, arguably, "was a departure" from the NYPD's normal investigative procedures.

Accordingly, the Circuit Court concluded that Plaintiff provided "admissible evidence sufficient to permit a rational finder of fact to infer a discriminatory motive" and Plaintiff's factual claims under the New York City Human Right Law must be analyzed "more liberally" than his federal discrimination claims.

Considering the fact that Plaintiff advanced sufficient facts to carry the heavier burden of establishing his federal claims, the Circuit Court said it had "no trouble concluding that he set forth sufficient facts to carry the lesser burden on his city claims," and remand the matter to the federal district court "for further proceedings consistent with this order." 

Click HERE to access the Second Circuit's decision.


May 25, 2021

Determining legislative intent in interpreting a statute

In a consolidated proceeding pursuant to Election Law Article 16, petitioners [Plaintiffs] sought judicial review a determination of the Suffolk County Board of Elections denying Plaintiffs' objections to a petition designating Kate M. Browning as a candidate in a primary election and sought a court order to compel the Suffolk County Board of Elections to remove Ms. Browning's name from the ballot in that primary election and other relief.

Supreme Court granted Plaintiffs' petition and issued a "final order" compelling the Suffolk County Board of Elections to remove Ms. Browning's name from the ballot. Supreme Court had concluded that Ms. Browning was ineligible to serve as a Suffolk County Legislator as a term limits provision in the Suffolk County Charter*  provided that "[n]o person shall serve as a County Legislator for more than 12 consecutive years".

Ms. Browning appealed and the Appellate Division reversed the lower court's ruling "on the law."

The Appellate Division, noting that "[T]he plain language of the statute ... is the clearest indication of legislative intent," opined that Article II, §C2-5[B] does not expressly impose any total or lifetime term limit. Rather, said the court, "the plain language of the provision only prohibits a County Legislator from serving more than 12 consecutive years." Citing Andryeyeva v New York Health Care, Inc., 33 NY3d 152, the Appellate Division said that in construing a statute, "words must be 'harmonize[d]' and read together to avoid surplusage."**

Accordingly, the court declared that the provision set out in the County Charter relied upon by Petitioners seeking the removal of Ms. Browning's name from the ballot in the primary election "should not be interpreted as prohibiting an individual who has previously served as a County Legislator for 12 consecutive years from thereafter seeking a new term in that office, so long as the new term sought is not consecutive to the preceding term."

Thus, said the Appellate Division, Supreme Court should have denied the Plaintiffs' petitions and dismissed the proceeding.

* See Article II, §C2-5[B].

** Courts should not interpret any statutory provision in a way that would render it or another part of the statute inoperative or redundant. 

Click HERE to access the Appellate Division's decision.

May 24, 2021

A request for reconsideration of a final administrative determination does not extend or toll the running of the statute of limitations

The Petitioner [Plaintiff], a retiree, in this CPLR Article 78 challenged the appointing authority's [Town] decision denying his request to change his health insurance provider. The Town moved to dismiss Plaintiff's action, contending that it was untimely.

Supreme Court granted Town's motion for summary judgment and, in effect, dismissed the proceeding. Petitioner appealed but the Appellate Division affirmed the lower court's ruling, with costs.

In affirming the lower court's ruling, the Appellate Division:

1. Noted that an Article 78 proceeding must be commenced within four months after the administrative determination sought to be reviewed becomes final and binding upon the petitioner;

2. Explained that an administrative determination "becomes final and binding when 'the agency ... reache[s] a definitive position on the issue that inflicts actual, concrete injury and ... the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party'";

3. Pointed out that the party seeking to assert the statute of limitations as a defense has the burden of establishing that the petitioner was notified of the determination more than four months before the proceeding was commenced; and

4. Observed that "... a request for reconsideration of an administrative determination does not extend or toll the statute of limitations or render the otherwise final determination non-final unless the agency's rules mandate reconsideration."

Here, said the court, the Town's determination denying Plaintiff's request to change his health insurance provider became final and binding no later than February 8,  when the Plaintiff received notice of the denial by telephone and email. Accordingly, the Appellate Division concluded that Plaintiff's petition, filed in September, was untimely.

Click HERE to access the Appellate Division's ruling. 

 

May 22, 2021

Audits and reports issued during the week ending May24, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 21, 2021.

Click on the text highlighted in color to access the complete audit report.

Local Governments

Brooktondale Fire District – Purchases and Disbursements (Tompkins County) - District officials ensured the purchases and disbursements auditors examined were proper and supported.  Auditors reviewed 39 disbursements (totaling $119,590) of 304 disbursements (totaling $826,000) paid during the audit period. The auditors found the reviewed purchases followed the district’s purchasing policy, were adequately supported, and approved prior to payment. As a result of this audit, there were no recommendations

City of Cortland – Credit Accounts and Employee Reimbursements (Cortland County) - City officials did not ensure all credit account purchases and employee reimbursements were properly supported and for appropriate purposes. There were no formal city-wide policies in place to address the usage, documentation and approval of credit account purchases. As a result, 314 of the 438 (72 percent) claims auditors reviewed were either not properly supported or for questionable or inappropriate purchases.

Town of Caneadea – Fund Balance Management (Allegany County) - The board did not effectively manage fund balance and spent down fund balance by $427,000 or 71 percent. The board also appropriated fund balances the town did not have, which resulted in deficit, or negative fund balances, in the general fund. The board did not develop and adopt a comprehensive written fund balance policy, a multiyear financial plan, or capital plans. As a result, the board’s ability to know what effect financial decisions would have on future fund balance levels was diminished.

Herkimer-Fulton-Hamilton-Otsego Board of Cooperative Educational Services (BOCES) – Online Banking (Fulton County, Hamilton County and Otsego County) - BOCES officials did not establish adequate controls to ensure online banking transactions were appropriate and secure. Online banking transactions are not compared to supporting documentation. Bank agreements lack important components such as identifying who is authorized to process online banking transactions or requiring the bank to provide confirmations of online transactions. A dedicated computer is not used for online banking.

In addition, auditors conducted reviews of 20 adopted budgets of various counties, cities, towns and villages across the state to assess whether local officials adequately considered the impact of the pandemic on their financial operations while developing their 2021 fiscal year budgets. Below are the findings of some of the communities reviewed:

Adequacy of 2021 Budgets – Genesee County - Genesee County officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Town of Herkimer (Herkimer County) - Town of Herkimer officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – City of Norwich (Chenago County) - City of Norwich officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Village of Ossining (Westchester County) - Village of Ossining officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – City of Saratoga Springs (Saratoga County) - City of Saratoga Springs officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget. However, city officials should develop a plan and make budgetary modifications to balance the budget for the $1.15 million Federal aid revenue shortfall. They should also closely monitor revenue estimates for Aid and Incentives for Municipalities (AIM) funding and Video Lottery Terminal (VLT) aid throughout 2021 and develop a plan to balance the budget in the event these revenue projections are not fully realized. 

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

May 21, 2021

Arbitrator's award in a disciplinary arbitration of alleged sexual harassment charges vacated as violative of public policy

The appointing authority [Employer] issued a notice of suspension and a notice of discipline to an employee [Respondent] advising him of his immediate suspension, without pay based on various disciplinary charges related to allegations of sexual harassment in the workplace. The notices specified that the Employer was seeking a penalty terminating Respondent's employment. Ultimately the matter proceeded to arbitration pursuant to a collective bargaining agreement [CBA] between the Employer and Respondent's collective bargaining representative.

Following a hearing, the arbitrator issued a "Decision and Award" sustaining four of the 13 charges served on Respondent and determined that:

1. There was probable cause for the interim suspension;

2. There were "certain mitigating factors warranted a penalty less than termination; and

[3] Characterized the Decision and Award as "a final warning" to Respondent that "any repeat of offending conduct will most surely result in [Respondent's] termination."

Employer initiated a CPLR Article 75 proceeding seeking to vacate the arbitration award, contending that the penalty was against public policy. Supreme Court granted the Employer's petition, vacated the award and remitted the matter for the imposition of a new penalty before a new arbitrator. Respondent appealed the court's ruling.

The Appellate Division said that the core issue presented is whether the arbitrator's award violated established public policy considerations prohibiting sexual harassment in the workplace, noting that, Supreme Court recognized, "that there is a strong public policy under both state and federal law that prohibits sexual misconduct in the workplace."

Noting that a court may vacate an arbitrator's award only on grounds stated in CPLR §7511(b), which include an instance where an arbitrator "exceed[s] his [or her] power" by rendering an award that violates a strong public policy, the Appellate Division observed that this limited public policy exception pertains "only when 'public policy considerations, embedded in statute or decisional law, prohibit, in an absolute sense, certain relief being granted by an arbitrator' [and] the courts must be able to examine the award on its face without engaging in extended fact-finding, or legal analysis, and conclude that public policy precludes its enforcement." This inquiry necessitates that courts gauge the penalty against the sustained charges.

The arbitrator sustained charges that alleged the Respondent had sexually harassed a female coworker. Indeed, the coworker's complaint with respect to the last incident suffered as the result of Respondent's alleged sexual harassment prompted an investigation and the filing of the instant disciplinary charges on the Respondent by the Employer. In addition, the coworker also filed criminal charges against Respondent, resulting in Respondent's plea of guilty to harassment in the second degree.

Conceding that the findings of the arbitrator are not challenged on this appeal, only the penalty imposed, the Appellate Division noted that under relevant provisions of the CBA, the arbitrator's decision:

1. As to the penalty to be imposed "shall be final and binding upon the parties"; and

2. The arbitrator is authorized to "take any ... appropriate action warranted under the circumstances including ... ordering reinstatement and back pay for all or part of any period of suspension without pay." 

The Employer, however, contended that the arbitrator's reinstatement of Respondent without conditions violates the public policy against sexual harassment.

Citing Newsday Inc. v Long Island Typographical Union No. 915, CWA, AFL-CIO, 915 F2d at 844-845, the Appellate Division noted that the United States Court of Appeals, Second Circuit, held that an arbitral award was properly vacated under the public policy exception where an arbitrator reinstated a terminated employee who had engaged in multiple acts of sexual harassment. 

Although the employee in Newsday had previously been disciplined for such conduct and warned, as here, that similar future conduct would warrant immediate discharge, the Appellate Division noted that Respondent did not have a disciplinary history. The Appellate Division, observed that unlike the employee in Newsday Respondent does not have a "disciplinary history", ... [but] ... "we have a series of four separate, escalating and outrageous sexual harassment incidents" by the Respondent.

This, said the Appellate Division, is "particularly troublesome" considering that Respondent had engaged in annual sexual harassment training since 2013 and, when confronted by his supervisors after two recent incidents of sexual harassment, "promised not to re-offend." In the words of the court, "The events that followed were even more egregious and rise to the level of criminal conduct, as memorialized in [Respondent's] guilty plea to the harassment charge."

Given the "extremely inappropriate nature" of Respondent's conduct, the Appellate Division concluded that the arbitrator's decision violated public policy, that the award failed to account for the rights of other employees to a non-hostile work environment and that it conflicted with the Employer's obligation to eliminate sexual harassment in the workplace. 

Finally, opined the court, "The fact that the victimized coworker no longer worked in the office is hardly a mitigating factor" nor is the penalty imposed on Respondent by the arbitrator "consistent with the arbitrator's 'significant concern' that [Respondent] failed to acknowledge his own wrongdoing."

Concluding that Supreme Court properly vacated the award as violative of the public policy prohibiting sexual harassment, the Appellate Division also ruled that Supreme Court was authorized to remit the matter to a different arbitrator for the imposition of a new penalty.

Click HERE to access the Appellate Division's decision. 

 

May 20, 2021

Unfair rejection of applicants for employment or a license required for employment because of a conviction of a criminal offense prohibited

In describing the thrust of New York State's Correction Law §752 the Appellate Division said §752 prohibits unfairly discriminating against persons previously convicted of one or more criminal offenses absent "a direct relationship between the offense(s) and the duties or responsibilities inherent in the license or employment sought or held by the individual, or such employment or license poses an unreasonable risk to the public" after consideration of certain enumerated elements set out in the statute.

The New York City Transit Authority [NYCTA] denied a former employee [Plaintiff] re-employment because he had been convicted of criminal possession of a firearm.

Plaintiff brought a CPLR Article 78 action and subsequently appealed Supreme Court's dismissal of his petition seeking a court order directing NYCTA to approve his application for reemployment. The Appellate Division sustained the Supreme Court's ruling, noting that NYCTA "reasonably determined" that Plaintiff's re-employment would pose an unreasonable risk. 

The court explained that when making its determination under color of §752, the public employer must consider the eight enumerated factors set out in Correction Law §753(1). These include, but are not limited to, considering the specific duties and responsibilities related to the employment sought, the age of the person at the time of the criminal offense, the seriousness of the offense, and information produced by the person with respect to his rehabilitation and good conduct. 

In its decision the court referred to an affidavit submitted by NYCTA's Director of Employment Operations for Human Resources indicating that NYCTA had reviewed the recommendation letters and certificates submitted by Plaintiff in support of his reemployment by NYCTA but had decided not to re-employ Plaintiff after considering all of the relevant factors including:

[1] The duties and role of the position Plaintiff was seeking;

[2] Plaintiff's prior work history with NYCTA;

[3] The seriousness of Plaintiff's prior misconduct; and 

[4] The amount of time that had elapsed since Plaintiff's misconduct.

Citing Bonacorsa v Van Lindt, 71 NY2d 60, the Appellate Division observed that a finding of unreasonable risk "depends upon a subjective analysis of a variety of considerations relating to the nature of the license or employment sought and the prior misconduct."

The Appellate Division opined that NYCTA's determination that Plaintiff would pose an unreasonable risk because "he was convicted of criminal possession of a firearm only two years before seeking re-employment with NYCTA and he sought a role that required unsupervised contact with the public and other employees" was reasonable and unanimously affirmed the Supreme Court's ruling.

Click HERE to access the Appellate Division's decision.

May 19, 2021

Performance reports and the testimony by administrators submitting the reports considered by the arbitrator in a disciplinary hearing

Supreme Court denied the Plaintiff's petition to vacate an arbitration award terminating Plaintiff's employment and granted the Appointing Authority's cross motion to dismiss Plaintiff's petition. Plaintiff appealed Supreme Court's disposition of the matter.

The Appellate Division unanimously affirmed [1] the Arbitrator's finding the Petitioner guilty of the disciplinary charges and specifications filed against him and [2] the penalty imposed, dismissal from his position. The court noted that the Arbitrator's decision was supported by the evidence, which included "eight observation reports and credible testimony of the principal and assistant principals who authored those reports," which described Plaintiff's persistent teaching deficiencies and inability to control his students.

Further, said the court, "[t]he evidence also demonstrated the school administrators' efforts to remediate [Plaintiff's] deficiencies, which ultimately were unsuccessful due to [Plaintiff's] lack of effort or interest in improving his performance."

Addressing the penalty imposed, termination of Plaintiff's employment, the Appellate Division opined that the penalty of dismissal "does not shock the conscience" in light of the prior disciplinary action taken against Plaintiff's which documented Plaintiff's "inability to meet standards of effective instruction" after considerable attempts were made to help him to improve his performance.

Click HERE to access the Appellate Division's decision.

 

 

May 18, 2021

Recall rights of educators receiving disability retirement benefits from the New York State Teachers' Retirement System

Plaintiff in this CPLR Article 78 proceeding applied for and was granted disability retirement benefits by the New York State Teachers' Retirement System [TRS].* 

Subsequently Plaintiff's condition improved and the school district [Board] recalled him and appointed Plaintiff as a probationary teacher. The Board subsequently summarily terminated Plaintiff from that position under color of §3013 of the Education Law and then appointed another individual to replace him.

Plaintiff challenged the Board's action, seeking a court order annulling the Board's  terminating his employment and directing the Board to reinstatement him to the position with back pay. Plaintiff argued, among other things, that the Board had "violated his recall rights pursuant to Education Law §2510 and interfered with his tenure rights by unlawfully terminating him without a hearing" in violation of §2510[3][a] of the Education Law. The Board, in its defense, contended, among other things, that Education Law §2510 only applied to small city school districts and Plaintiff's employer was a central school district.

Supreme Court granted Plaintiff's petition, holding that both Education Law §§2510(3)(a) and 3013(3)(a) applied under the circumstances. The court opined  that "the overall statutory scheme of both sections, as it related to recall rights, 'are most effectuated by affording similar protections to teachers within all school districts,' regardless of size." The court also ruled, among other things, that Plaintiff did not give up his recall rights upon acceptance of the position, and, in doing so, he also did not relinquish his rights to tenure.

The Board appealed Supreme Court's ruling, which ruling was affirmed by the Appellate Division following its analysis of the legislative history of the provisions of the Education Law respectively relied upon by the parties. 

Although the Board contended that Supreme Court erred in granting Plaintiff's petition as the controlling law is Education Law §3013, rather than Education Law §2510, arguing that §2510 does not grant recall rights to teachers who received disability retirement, the Appellate Division held:

1. Its review of Plaintiff's CPLR Article 78 claims is limited to whether the Board's determination, made without a hearing, was arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion;

2. No deference is given to the Board's interpretation of the law as the questions raised on appeal depend only "the accurate apprehension of legislative intent;" and

3. "The main goal in statutory construction is to discern the will of the Legislature and, as the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof".

Citing Matter of Soriano v Elia, 155 AD3d 1496, [leave to appeal denied 31 NY3d 913], the Appellate Division held that Education Law §2510(3)(a) supersedes Educational Law §3013(3) (a) "as it regards recall rights, and, consequently, it applies to all school districts, not just those districts within cities with less than 125,000 inhabitants."

The court pointed out that "Education Law §2510 has generally not been limited in its application to small city school districts; rather, it has been applied to other types of school districts, including central school districts," citing a number of court decisions including Van Derzee v Board of Educ. of Odessa-Montour Cent. School Dist., 228 AD2d 998, leave to appeal denied 89 NY2d 803.

Accordingly, the Appellate Division found that Plaintiff in the instant appeal "was entitled to recall rights pursuant to Education Law §2510(3)(a), which included, among other things, an opportunity for an administrative hearing prior to his termination," and held that "the Board's summary termination of [Plaintiff's]  employment was affected by an error of law and Supreme Court properly granted [Plaintiff's] petition."

* See §511 of the Education Law, which provides for a member of the New York State Teachers' Retirement System's "Retirement on account of disability" in general, and subdivisions (4), (5), and (6) of §511 of the Education Law with respect to discontinuing such disability retirement status in particular.

Click HERE to access the Appellate Division's decision. 

 

May 17, 2021

Former school district treasurer sentenced after pleading guilty to stealing school district funds

This decision illustrates acts of misconduct by a public official called Jobbery, i.e., using one's public office or position of trust for ones' personal gain or advantage.

On May 14, 2021, State Comptroller Thomas P. DiNapoli reported that a former school district treasurer pled guilty to stealing $34,000 from the school district at which she was employed.

The former district treasurer admitted she stole about $24,000 by depositing checks payable to the school district into bank accounts that she controlled. She also admitted stealing at least $10,000 more by using the school district’s Amazon account and credit cards to purchase personal items while serving as the district's treasurer over a six year period. Pleading guilty to two counts of federal program theft for stealing from a school district that received federal funds, she was sentenced to two years of probation, will be required to serve 50 hours of community service and was ordered to pay $34,000 in restitution.

Comptroller DiNapoli said that this case was investigated in partnership with the FBI and the New York State Police and was prosecuted by the U.S. Attorney's Office for the Northern District of New York.

Since taking office in 2007, DiNapoli has been 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 mailing a complaint to Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or by filing a complaint online at investigations@osc.state.ny.us.

 

The top 20 NYPPL searchers made during the weekend ending May 16, 2021

Have you ever wonder what other NYPER readers are researching over a weekend?

Below are the headings of the top 20 NYPPL items accessed during the weekend ending May 16, 2021.

Reports issued during the week ending May 14, 2021 by the New York State Comptroller

Giving effect to the plain meaning of the relevant statutory language is the clearest indicator of legislative intent

Education Law Blogs

Ability to pass hearing test without the assistance of a hearing aid found a business necessity for the purpose of qualifying for a security position

Responding to Freedom of Information requests

Residence requirements for public officers

Workers’ compensation benefits not available for injuries sustained by an individual in the course of an altercation unrelated to his or her employment

Absence from an assigned post

Distinguishing between “constructive criticism” and a “reprimand” in the nature of disciplinary action

Anastasia Titarchuk named Chief Investment Officer of the New York State Common Retirement Fund

Nepotism and public employment in New York State

Requesting reconsideration of a final administrative decision does not serve to toll or extend the running of the controlling statute of limitations

IRS Alerts Payroll and HR Professionals to Phishing Schemes

Final administrative determination for the purposes of determining the statute of limitations

At-will employee not entitled to a pre-termination hearing

Important Information on W-2/SSN Data Theft Scam

Terminating an educator during his or her probationary period

Conducting disciplinary hearings in absentia

Court rules that the employer rebutted the employee’s prima facie case it unlawfully discriminated against him because of his race

Concerning name-clearing hearings

 

 

 

May 15, 2021

Reports issued during the week ending May 14, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the reports listed below during the week ending May 14, 2021. 

 

Reviews of adopted 2021 budgets

Auditors conducted reviews of 20 adopted budgets of various counties, cities, towns and villages across the state to assess whether local officials adequately considered the impact of the pandemic on their financial operations while developing their 2021 fiscal year budgets. Below are the findings of some of the communities reviewed:

Click on the text highlighted in color to access these reviews.

Adequacy of 2021 Budgets - Town of Bolton (Warren County) Auditors found that officials for the Town of Bolton adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget. Due to uncertainties in available state funding for highway improvements that were planned to be made in 2020, officials delayed highway improvements from 2020 to 2021. The delays carried over their 2020 revenue estimate for state funding to 2021.

Adequacy of 2021 Budgets - Town of Elma (Erie County) Auditors found that officials for the Town of Elma adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets - Essex County Auditors found that Essex County officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets - City of Jamestown (Chautauqua County) Auditors found that officials for the City of Jamestown adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets - Town of Niskayuna (Schenectady County) Auditors found that officials for the Town of Niskayuna adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget. However, officials balanced the 2021 adopted budget by including negative appropriations totaling $663,254. Those funds were identified as “2021 budget challenge” across departments in the general fund, highway fund, water district and two sewer districts. When adopting the budget, officials did not identify the specific appropriations in each department from which these budgeted cost savings would be realized nor did they develop a cost savings plan. This is not an appropriate budgeting method. As a result, the board adopted an out of balance budget.

Other audits released:

City of Amsterdam - Budget Review (Montgomery County) Auditors found that certain significant revenue and expenditure projections in the 2021-22 proposed budget are not reasonable and identified other matters that require city officials’ attention. The proposed general fund budget includes estimated revenues of $975,000 for federal aid anticipated to be received by the city through the Federal American Rescue Plan Act of 2021. The timing of the receipt of funds from the Act is uncertain at the time. Once received, the funds will come with restrictions on what they can be used for. The proposed budgets for the general and recreation funds are not structurally balanced because they include subsidies from other funds to finance their operations.

City of Long Beach – Budget Review (Nassau County) The city's financial condition remains in significant fiscal stress. The proposed general fund budget of $93.6 million is structurally imbalanced because the city continues to issue debt to finance recurring operating expenditures. The continued reliance on proceeds of long-term debt to finance recurring operating expenditures will further diminish the city's ability to finance needed services in future budgets. The city's proposed budget includes a tax levy of $50.5 million, which is $3 million above the legal limit, unless the city council overrides the tax levy limit. The proposed budget also includes a 4 percent water rate increase. However, at the time of the review, the city council had not authorized the rate increase. Based on the city's historical overtime cost trends, the city's overtime appropriation appears insufficient. City officials did not include cash flow projections in the proposed budget. Although not required, cash flow projections would provide officials with another gauge of the effectiveness of the proposed budget. City officials developed a "budget timeline," but they never confirmed an actual budget adoption date.

Town of Springfield – Accounting Records and Reports (Otsego County) The current supervisor did not maintain complete, accurate and timely accounting records and reports. As a result, the board was not provided with the necessary financial reports and information to properly oversee town finances. During the audit period, the current supervisor did not prepare bank reconciliations, record receipts in the financial accounting software, or provide the board with detailed monthly budget-to-actual reports. In addition, the annual financial reports required by the State Comptroller’s Office were not filed. The board did not annually audit or provide for an audit of the supervisor’s records and reports, as required.

Town of Springfield – Credit Card Purchases (Otsego County) The town board did not ensure credit card purchases were adequately supported, for legitimate purposes or approved before payment. Credit card statements were mailed to the prior supervisor and not provided to the board. They were also not always reconciled with supporting documentation before approval. The board approved payment of 116 credit card purchases totaling $18,014 without adequate supporting documentation. Auditors were unable to determine the appropriateness of an online shopping membership totaling $420 and they were unable to locate a ladder purchased for $585. Credit card reward points worth at least $1,250 were redeemed during the audit period. Auditors were unable to determine whether these points were redeemed to benefit the town.

 

Identity Theft complaints in New York State

Another Report issued by the Comptroller on May 14, 2021 noted that Identity Theft complaints in New York State in 2020 was 85% greater than in 2019.

Identity thefts in New York surged during the pandemic with more than 67,000 complaints filed statewide in 2020, which was 85 percent more than the previous year and more than four times the annual total from a decade earlier, according to a report released by the Comptroller.

The New York City metropolitan area had the highest rate of identity theft reports to the Federal Trade Commission (FTC) per capita at 403 reports per 100,000 people, followed by Poughkeepsie-Newburgh-Middletown (315) and Rochester (303) metropolitan areas.

The COVID-19 era has been marked by new varieties of financial fraud, including new identity theft scams. Although the full impact of the pandemic on the problem is not yet known, the Comptroller said that "New Yorkers should be aware of potential scams and guard against them."

The FTC has compiled identity theft complaints related to COVID-19 for 2020 through mid-March 2021, reporting 3,617 in New York. Of the state’s identity theft reports, about two-thirds (2,375) were related to information misused to try to get a government document or benefits such as economic relief checks or unemployment insurance.

According to the FTC, imposters are filing claims for unemployment benefits using the names and personal information of people who have not filed claims. People learn about the fraud when they get a notice from the state unemployment benefits office or their employer about their supposed application for benefits. As of late April 2021, the state Department of Labor (DOL) said it had identified over 1.1 million fraudulent unemployment benefit claims during the COVID-19 pandemic, preventing more than $12.3 billion in stolen benefits.

Comptroller DiNapoli’s office began an audit of the DOL in February. His office first conducted an assessment of the risk of potential identity theft fraud since the beginning of the pandemic, which included looking at complaints, large increases in payments, new programs and criteria, and changes to the internet technology. This assessment found numerous red flags that led DiNapoli’s office to launch a full audit.

Identity thieves have also attempted to leverage news of government COVID-related stimulus payments by posing as someone from an official organization and asking for personal or financial information. They have also tried to exploit pandemic fears by asking victims to pay out of pocket to get a COVID-19 vaccine or to put their name on a vaccine waiting list and, in the process, take their Social Security, bank account or credit card information. 

Private businesses that collect and maintain personal information must redouble their efforts to safeguard such data, DiNapoli said. He called on social media companies to promote best practices and proactively educate users about ways to keep private information confidential.

The Comptroller recommends the following actions, among others, to help prevent becoming a victim of identity theft:

1. Carry only the credit and bank cards you need;

2. Use two-factor authentication for online security where possible;

3. Use a password manager or strong passwords, including a mixture of capital letters, numbers, and symbols, and change passwords frequently;

4. Check bank or credit statements regularly; and

5. When online shopping, look for indications that the site is secure, such as a secure URL that begins with “https” (rather than “http”) and a lock icon near your browser’s location field.

Click on The Increasing Threat of Identity Theft to access the Comptroller's report posted on the Internet.

 

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on https://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. Click on http://booklocker.com/books/7401.html for more information.

The Layoff, Preferred List and Reinstatement Manual - A 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

Disability Leave for fire, police and other public sector personnel - A 1098 page e-book focusing on disability benefits available to public officers and employees employed by New York State and its political subdivisions. For more information click on http://booklocker.com/books/3916.html