ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

July 31, 2023

New York State Comptroller DiNapoli releases municipal and school audits

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school district audits were issued on July 28, 2023.

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

Town of Lake Luzerne – Procurement (Warren County)

The board did not enforce the provisions of the town’s procurement policy, and as a result, town officials did not seek competition when procuring goods and services totaling $561,829, or 48%, of the purchases reviewed. Because officials did not always comply with competitive bidding statutes and the town’s procurement policy, the board cannot ensure officials are procuring goods and services in the most prudent and economical manner.

 

Town of Lake Luzerne – Payroll (Warren County)

The supervisor did not ensure payroll payments were accurate or in accordance with town policies. Town officials did not properly review and certify payroll and 15 of 54 payroll registers reviewed were not certified. Officials also accepted incomplete time records for processing payroll and none of the 67 timecards reviewed contained all punches for time in/out. Additionally, inaccurately calculated overtime payments to hourly employees resulted in overpayments of $8,052 out of $47,192 overtime payments reviewed. Officials also did not always pay wages at board-approved rates, resulting in a $13,650 annual increase to the town’s payroll that the board did not approve.

 

City of Amsterdam – Recreation Department (Montgomery County)

The recreation director maintained limited and inadequate collection records and staff did not issue receipts for collections or maintain inventory records for the beverage events. As a result, there is a substantial risk that not all collections were remitted. For example: the total projected fees for the six-week summer camp program were $12,014; however, only $5,213 was collected; $4,303 was deposited from sales during the eight-hour Oktoberfest but officials did not maintain any support for the number of beverages sold;  for the $895 in cash that was remitted for the four-hour Craft Beer Fest the day of the event, officials could not support the number of tickets sold for the event; and auditors found $286 was remitted for the 10-hour Italiafest and wine tasting with no record of how many people attended the event.

 

Town of Johnsburg – North Creek Water District Charges (Warren County)

Town officials did not effectively manage the North Creek Water District's billing of water charges. This resulted in the town not billing for $8,461 (6%) of the water revenues it was entitled to. Officials did not ensure services provided by a contractor were billed to the customers or identify and bill all new water customers and ensure all water rates were board-adopted and accurately charged to customers.

 

Tuckahoe Union Free School District – Overtime (Westchester County)

District officials did not monitor overtime or ensure it was accurate. As a result, overtime payments increased the amount owed by a district, annually to the state, for its share of the cost of future employee retirement benefits. District officials did not adopt written policies and procedures for overtime and overpaid 15 employees a total of $4,432 for overtime due to lack of adequate review of time records and paid 15 employees overtime totaling $324,934 primarily for routine anticipated events.

 

Hannibal Fire Company – Misappropriation of Funds (Oswego County)

The board did not establish basic internal controls over cash disbursements. As a result, the former treasurer was able to misappropriate over $850,000 in company funds during an eight-and-a-half-year period. These improper disbursements went unnoticed for years because the board did not review bills paid by the former treasurer, receive written financial reports or review bank and investment statements and canceled check images. The board also did not obtain an annual independent audit of company records, as required.

 

Jericho Union Free School District – Acceptable Use Policy (Nassau County)

District officials did not help safeguard personal, private and sensitive information (PPSI) by developing and communicating a comprehensive acceptable use policy to business office staff. As a result, PPSI related to district employees and finances could be exposed. In addition to sensitive information technology weaknesses that were communicated confidentially to officials, auditors found that all nine business office employees, including the assistant superintendent for business affairs, were not aware that they were expected to follow the Computer Network and Internet Student Acceptable Use policy or what the district considers to be appropriate and inappropriate Internet use. District officials did not periodically review web histories to determine whether any employee’s web browsing was inappropriate.

 

Heuvelton Central School District – Procurement (St. Lawrence County)

District officials did not always comply with statutory requirements and the district’s procurement policy by seeking competition for the purchases of goods and services. As a result, they are unable to assure taxpayers that the district is procuring goods and services in the most prudent and economical manner. Officials could not support they used competition, as required, to make purchases totaling $189,497and did not seek competition when procuring professional services and insurance coverage from 10 vendors totaling $310,212. They also did not have written agreements with four of these vendors.

 

Son concealed mother’s death in order to continue receiving her retirement benefits

On July 28, 2023, New York State Comptroller Thomas P. DiNapoli also announced the guilty plea of Charles Alton Bump Jr. to two counts of felony theft for stealing $53,320 in payments from the New York State Common Retirement Fund and Social Security Administration (SSA) that were sent to his deceased mother, Elizabeth Dorothy Case. Bump concealed his mother’s death and continued collecting her retirement and SSA payments. He stole $28,679 from the state pension fund and $24,641 from the SSA. Bump was sentenced to eight years in prison minus time already served and three years supervised probation. He was also ordered to pay restitution.

“Mr. Bump’s conviction should serve as a warning to those who try to defraud the New York State Pension system: we will pursue those who attempt to steal from the system wherever they may live,” DiNapoli said. “My office will continue to work with law enforcement agencies across the country to protect the New York State pension. I’m grateful to the Social Security Administration Office of Inspector General for their partnership in seeing that justice was served.”

Elizabeth Dorothy Case was a New York State employee and resident of Jamaica, Queens, who moved to Maryland to live with her son, Bump. In 2019, a concerned neighbor reported to the SSA that Case, who was approximately 90 years old at the time, had not been seen in over a year. After repeated attempts to contact her, the SSA requested that she appear in person in order to continue receiving her payments. When her son appeared instead, the SSA questioned him. He stated that she was out of the country on an extended tour of Europe and only reachable by e-mail. Authorities confirmed, however, that Case had no passport and had never left the country. Bump eventually admitted to officials that his mother had died and he had disposed of her body.

Following the joint investigation of the State Comptroller's Office and the SSA Office of the Inspector General, Bump, 62, was prosecuted by the State’s Attorney’s Office in Somerset County Maryland. He pled guilty in the District Court for Somerset County, Criminal.

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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 https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller,  Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

July 29, 2023

PURSUE A CAREER IN PUBLIC SERVICE AS AN ATTORNEY WITH THE STATE OF NEW YORK



NEW YORK STATE DEPARTMENT OF CIVIL SERVICE ANNOUNCES ONLINE CIVIL SERVICE EXAMINATION NOW AVAILABLE TO PURSUE PUBLIC SERVICE CAREERS AS ATTORNEYS

The New York State Department of Civil Service (DCS) has announced that individuals interested in a career as an attorney in New York State public service can now apply and complete the Legal Specialties exam online. The civil service exam is held continuously and is used to fill multiple attorney titles across New York State agencies. 

Click Here for more information.

Department of Civil Service Commissioner Timothy R. Hogues said, “The Department of Civil Service is pleased to offer the Legal Specialties exam online for the first time ever. This exam is used to fill a number of key attorney positions throughout the state. Under Governor Hochul's leadership, we are focused on building a diverse and inclusive workforce that can best serve all New Yorkers, and these entry level attorney positions represent an excellent opportunity to start a career in public service. Working for New York State not only offers the chance to serve the greater public, but also provides the opportunity to work with dedicated public servants, in addition to the great health benefits and compensation packages. I encourage all interested and qualified to apply for these exams today."

New York State Department of Labor Commissioner Roberta Reardon said, “Taking the Legal Specialties civil service exam is a phenomenal way for legal professionals to begin their careers in public service. State workers have the opportunity to be part of the historic and nation-leading progress New York continues to make in almost every area. I encourage all eligible candidates to embrace this new opportunity and apply for the Legal Specialties civil service exam online.” 

Department of Environmental Conservation Commissioner Basil Seggos said, “DEC’s Office of General Counsel serves a vital role in enforcing environmental laws and helping craft effective policies to protect New York’s natural resources and communities. The new online availability of the Legal Specialties exam provides a great opportunity for legal professionals to explore potential careers with state agencies, including DEC, and join our team on behalf of the public and the environment.”

DMV Commissioner Mark J.F. Schroeder said, “A career in public service is so rewarding, and this is a great way for young lawyers to get their start, but whether you are just starting out, or you are a seasoned attorney, we have so many opportunities at DMV. Our attorneys and Administrative Law Judges play an important role in traffic safety, and we are always looking for talented professionals to join our team.  I encourage those who qualify to take the exam and I look forward to working with many of you in the future.”

Office of Children and Family Services Acting Commissioner Suzanne Miles-Gustave said, “As an attorney myself, I can attest to how fulfilling and rewarding a legal career in public service can be, particularly when policies and initiatives can help shape the lives and well-being of children, families and vulnerable communities. We have so many legal professional opportunities at OCFS, all of which offer a chance to create truly meaningful, life-changing guidelines and programs. We are excited to welcome diverse and talented attorneys to be change-agents and make a significant mark towards providing equal, equitable and accessible services and supports.”

Workers’ Compensation Board Chair Clarissa Rodriguez said, “There are many opportunities at the Board for rewarding positions in the legal field for those looking to make a difference. As an attorney, I am proud to lead an agency that is dedicated to protecting the rights of workers and employers by ensuring the proper delivery of benefits and promoting compliance with the law. If you are interested in serving the greater good while also growing your career, I highly encourage you to apply for the Legal Specialties exam and see what roles may be available for you.”

People interested in being considered for attorney positions within state government must first meet the minimum qualifications for the exam, which requires candidates to be a graduate of an accredited law school with an LLB or JD degree or be eligible to take the New York State Bar exam. All applicants who meet the minimum qualifications should apply for and complete the exam to be considered for available positions. The online exam will require candidates to provide information about their training and experience with an online questionnaire that is completed and submitted by the candidate. Candidates should be prepared to provide detailed information on their education, work experience, dates of employment, and supervisor contact information to answer the questions completely.

The exam is used to fill the following titles at multiple agencies:

  • Senior Attorney
  • Senior Attorney (Realty)
  • Senior Attorney (Financial Services)
  • Hearing Officer
  • Motor Vehicle Referee/Motor Vehicle Referee (Spanish Language)
  • Unemployment Insurance Referee/Unemployment Insurance Referee (Spanish Language)
  • Several positions within the Legal Specialties Traineeship

All positions include generous benefits including paid leave, health benefits, and retirement plans, and telecommuting options may be available to employees in these titles who meet certain criteria.  

It is estimated that approximately 100 attorney positions will be filled statewide over the next year.

Click Here to learn more about working for the State of New York and how to take the next step in pursuing a rewarding career in public service.

As part of the launch of the Legal Specialties exam, New York State has launched a statewide social media campaign, which will include videos and web content to help attract candidates to apply for the exam. Campaign content and additional information and resources to help candidates complete the exam is available at www.cs.ny.gov/legal-specialties.


July 28, 2023

Governor Hochul announces ratification of 3-year labor agreement with the Public Employees Federation covering more than 51,000 New York State employees

On July 28, 2023, Governor Kathy Hochul today announced the ratification of a three-year labor agreement with the New York State Public Employees Federation (PEF), which includes over 51,000 New York State employees in a in a wide variety of professional, scientific and technical titles. The agreement, which runs until April 1, 2026, won the approval of 95 percent of PEF members who cast ballots. 

 

 "This contract fairly compensates the hard-working members of the Public Employees Federation who provide critical expertise to benefit New Yorkers each day," Governor Hochul said. "I’m grateful to President Spence for his partnership to help get this agreement finalized and to ensure that New York workers' pay and benefits reflect their important contributions to our state."

 

The ratified contract includes raises in each year of the agreement of 3 percent. In addition, the contract includes other increases in compensation such as a one-time lump sum bonus of $3,000 and up to 12 weeks of fully paid parental leave. The contract also includes changes in the health insurance program that will encourage in-network employee utilization and help control health insurance costs plus funding of labor-management initiatives and yearly salary increases and increases in location pay.

 

Public Employees Federation President Wayne Spence said "I’d like to thank Governor Hochul for the role she played helping PEF secure this contract. It rewards the professional members of our union with compensation increases, a signing bonus, and a first-of-its-kind Higher Education Differential, recognizing the advanced degrees and professional licenses required by PEF members to do their jobs. In addition, we hope the $400 annual dental stipend it includes will lead to a new dental plan that better serves PEF members statewide.”

 

July 27, 2023

A provision in an arbitration award cannot strip a federal district court of its subject matter jurisdiction

A United States District Court dismissed the petition submitted by a party in an arbitration [Plaintiff] seeking to confirm an arbitration award opining that it lacked of subject matter jurisdiction to consider the matter.

The district court had concluded that any confirmation action must be brought in the State courts of New Jersey or New York as the Arbitration Agreement Forum Selection Clause provided "The decree of the Arbitrators shall be enforceable in the courts in the State of New Jersey and/or New York." 

This, said the district court, required the Parties to submit themselves to the personal jurisdiction of the courts of the State of New Jersey and, or, New York for any action or proceeding to confirm or enforce a decree of the Arbitrators pursuant to NJSA 2A:24-1 et seq. and Article 75 of the New York Civil Practice Law and Rules."

Plaintiff appealed the District Court's ruling that the district court had been "deprived of subject matter jurisdiction" by a clause set out in the arbitration award.

The Circuit Court of Appeals, Second Circuit, agreed with Plaintiff, holding that:

1. The district court erred in dismissing Plaintiff's petition; and

2. Plaintiff adequately pleaded subject matter jurisdiction based on diversity of citizenship.

The Circuit Court explained "parties cannot contractually strip a district court of its subject matter jurisdiction." Accordingly, said the court, it was error for the district court to conclude that the forum selection clause in the arbitration award "did so."

Further, the Circuit Court said it interpreted the relevant forum selection clauses as permissive arrangements that merely allow "litigation in certain fora, rather than mandatory provisions that require litigation to occur only there."   

Accordingly, the forum selection clauses "did not bar proceedings from going forward in the United States District Court for the Southern District of New York" and vacated the district court's judgment of dismissal, remanding the matter to the district court for further proceedings.

Click HERE to access the Second Circuit Court of Appeals decision posted on the Internet.

 

July 26, 2023

Recent Education Law §310 appeal decisions issued by the Commissioner of Education

The Commissioner of Education recently issued of decisions concerning appeals by Plaintiffs alleging wrongdoing by certain school district officers and personnel that sought the removal of these officials from office.

Decision No. 18,286* of Decisions of the Commissioner Education concerned a Wantagh Union Free School District school board election and budget vote, together with an application for removal of a member of the school board while Decision No. 18,279** of Decisions of the Commissioner Education addressed issued raised concerning the Board of Education of the North Salem Central School District's implementation a board resolution and an application for the removal of certain school board trustees.

 

Decision No. 18,286

Commissioner of Education Rosa concluded "this appeal must be dismissed and the application for removal of the board member must be denied."

Wantagh UFSD held its annual budget vote and election. Plaintiff was one of five candidates on the ballot running for the school board and was not elected.  This appeal and application for removal ensued.

The school district sought dismissal of the petition for improper service, failure to join necessary parties, and as untimely.  Additionally, the school district contended that Plaintiff’s claims are declaratory in nature or otherwise outside the jurisdiction of an Education Law §310 appeal. 

Noting that in an appeal to the Commissioner, a Plaintiff has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, the Commissioner opined that Plaintiff failed to meet her burden of proving that any of the alleged errors affected the outcome of the election, were so pervasive that they vitiated the electoral process, or that they demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

Further, said the Commissioner, Plaintiff failed to offer evidence, such as affidavits or signed statements from district voters, to support her claim and citing Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947; Appeal of Dodson, et al., 54 id., Decision No. 16,764), the Commissioner said "it is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results."

With respect to Plaintiff seeking to have the Commissioner removed a trustee, the Commissioner noted that a school officer or member of a board of education may be removed from office "when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law", citing Education Law §306 [1].***

 

Decision No. 18,279

Plaintiffs appealed the alleged the North Salem Central School District failed to hire a school resource officer (“SRO”) and sought the removal from office of the president of the board and other, unspecified board members for such failure. The Commissioner dismissed the appeal.

Noting an affidavit sworn to by the board's president indicating that “[b]etween June 16, 2022 and November 2022 … there were internal discussions as to where the money would come from to fund [the] second SRO,”  and the board rejected a resolution to “authorize the transfer of [funds] from [the] unassigned fund balance to the [SRO] budget code … to cover the cost of a second [SRO].”**** This appeal was the result of that action. 

Plaintiffs asserted that school officials engaged in willful misconduct and neglect of duty by failing to expeditiously hire a second SRO and asks that the Commissioner:

[1] "order [the board] to “abide by the June 15” resolution"; and 

[2] "remove the board president, and any other board member whose removal [the Commissioner deems]  warranted, from office."

The Commissioner dismissed the appeal for the reason it had become "moot," explaining that the Commissioner "will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances."

Then considering a request submitted by the school board members, the Commissioner found that the named district board members "each ... acted in good with respect to the exercise of their powers and performance of their duties" within the meaning of Education Law §3811[1] which section, in pertinent part, makes certain costs,  expenses  and  damages  a  district  charge "Whenever the trustees or board of  education  of  any  school   district,  or  any  school  district  officers,  have  been  or shall be   instructed by a resolution adopted at a district meeting to  defend  any   action  brought  against  them,  or  to  bring  or  defend  an action or   proceeding touching any district property or claim of the  district,  or   involving  its  rights  or  interests, or to continue any such action or  defense, all their costs and reasonable expenses, as well as  all  costs   and  damages adjudged against them, shall be a district charge and shall   be levied by tax  upon  the  district."

* Click HERE to access Decisions of the Commissioner No.18,286 posted on the Internet.

** Click HERE to access Decisions of the Commissioner No. 18,279.

*** To be considered willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose.

**** Following commencement of this appeal, the board announced that it had secured a grant to fund the second SRO position. Thereafter, the board approved a resolution “to allocate [funds] to cover the cost of the second [SRO] through [the end of the 2022-2023 school year].” 

 

The US immigration court backlog

On July 19, 2023, Law360 published the attached commentary entitled A Blueprint For Addressing The Immigration Court Backlog, by Donald Kerwin. This article addresses the US immigration court backlog, which it attributes to systemic problems in the broader US immigration system.

"It would be a mistake to blame the backlog on EOIR [the Executive Office for Immigration Review] or its 650 immigration judges," Kerwin writes. "Instead, the backlog results from ... gross disparities in funding between immigration enforcement and the adjudication of removal proceedings, the failure of Congress to enact meaningful legislative reform, backlogs in the legal immigration system and the limited authorities of immigration judges."

The commentary offers seven sets of interrelated policy recommendations based on the Center for Migration Studies of New York's (CMS's) comprehensive study, The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog, published in CMS's Journal on Migration and Human Security.

“Many of the broader problems in the US immigration system have seemed impervious to reform," the commentary concludes. "Yet a technical, good-government issue, such as reducing the backlog, may be the right vehicle to begin to remedy past failures. A nation with 45 million foreign-born residents needs an immigration court system that fairly and efficiently adjudicates cases.”

To access CMS's immigration court backlog report click HERE

July 25, 2023

Texas woman charged with stealing over $65,000 in NYS pension payments

On July 24, 2023, State Comptroller Thomas P. DiNapoli announced the indictment of a 53-year-old Texas woman for allegedly stealing more than $65,000 in New York state pension payments meant for a deceased acquaintance. Christy Gibson, of Smith County, Texas, was indicted by Texas prosecutors and charged with one count of theft after an investigation by DiNapoli’s office.*

“Christy Gibson went to great lengths to cover up the death of an acquaintance to line her own pockets,” DiNapoli said. “Thanks to the work of my investigators and law enforcement in Texas, she will be held accountable. We will continue to partner with law enforcement from across the country to protect the New York State Retirement System.”

William H. Walsh Jr. retired from the New York State Department of Corrections and Community Supervision in November 1986. He elected to receive a reduced monthly retirement benefit so his wife, Mary L. Walsh, would continue to receive payments if he died before her. William Walsh died in October 2005. Mary Walsh died in December 2012 and at the time of death the pension payments should have stopped. Instead, her death was never reported to the New York state retirement system.

In May 2013, the retirement system received information indicating that Walsh may have died, and pension payments were halted. In June of that year, the retirement system sought verification that Mary Walsh was still alive and subsequently received notarized verification, purportedly from Mary Walsh. As a result, the pension payments were reinstated.

A later investigation by the State Comptroller’s Office found that Mary Walsh was in fact deceased, and the verification was fraudulent.

In total, 70 pension payments were paid after date of death, amounting to $65,102.28.  

The pension payments went into a joint account in the name of Mary Walsh and Gibson that was opened in 2011. Gibson never informed the bank of Walsh’s death or removed Walsh’s name from the account. It appears that Gibson was an acquaintance of Mary Walsh through her sister-in-law and also worked at the nursing home where Walsh eventually lived.

DiNapoli’s investigators determined that Gibson used the joint account to pay for entertainment and food.  Gibson also made electronic transfers and cash withdrawals.

Gibson was indicted in the 114th District Court of Smith County Texas on one count of theft. Gibson’s anticipated arraignment will be on August 7 before Judge Austin Reve Jackson.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported 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.

* N.B. The charges filed in this case are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

July 24, 2023

New York State Comptroller DiNapoli releases School District and Municipal audits

New York State Comptroller Thomas P. DiNapoli announced the following School District and Municipal audits were issued on July 21, 2023.

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

 

Patchogue-Medford Union Free School District – Health Insurance Buyouts (Suffolk County) Although the district’s health insurance buyout program is generally cost-effective, the district could achieve greater savings by modifying the terms of the program. For example: the district should review the eligibility requirements of the program for married couples and family members employed by the district. For the 2021 calendar year, auditors found the district could have saved $73,966 if it had more cost-effective buyout requirements.

 

Village of Solvay – Financial Management (Onondaga County) The board and officials did not develop a budget for the electric fund and adequately manage its financial condition. From 2016-17 through 2020-21, the electric fund’s total net assets declined by approximately $9 million, and cash declined from $4.1 million to $1 million. Officials also did not maintain up-to-date records or provide adequate financial reports to the board; take action to ensure electric fund revenues kept pace with expenses; ensure that annual payments from the electric fund to the general fund totaling approximately $1 million were justified and supported; monitor the general fund budget during 2021-22; or develop long-term written financial or capital plans. Auditors found 31 general fund appropriation accounts were over expended by nearly $1.2 million.

 

West Hempstead Union Free School District – Nonstudent Network User Account Controls (Nassau County) District officials did not establish adequate controls over nonstudent network user accounts to help prevent unauthorized use, access and loss. In addition to sensitive information technology control weaknesses that were communicated confidentially to officials, auditors found the board and district officials did not: develop and adopt policies and procedures addressing key network user access controls, such as user account management, password security and user account controls, or disable 60 of the district’s enabled nonstudent network accounts that were not needed. Twenty-two of these accounts have not been used in more than five years.

 

Town of German – Supervisor’s Records and Reports (Chenango County) The former supervisor did not maintain the town’s accounting records and reports in a complete, accurate and up-to-date manner. As a result, the board’s ability to monitor financial operations was compromised, resulting in diminished transparency of the town’s financial operations. The former supervisor: incorrectly recorded almost $1 million of highway fund revenues and $57,000 of fire protection fund revenues in the general fund for the 2020 through 2022 fiscal years; did not provide budget status reports, or a monthly accounting of all money received and disbursed, to the board; consistently filed the annual financial report and the tax cap form late with the Comptroller’s Office; did not annually provide accounting records to the board for audit.

 

Tioga County Court and Trust Auditors reviewed the treasurer’s processes, procedures and records for the receipt and management of court and trust funds. They found the treasurer established adequate procedures, maintained appropriate records and properly reported court and trust funds as prescribed by statute. Auditors also found that records maintained by the County Clerk and Surrogate’s Court were up to date and complete with no material discrepancies.

 

East Ramapo Central School District – Nonpublic School Transportation (Rockland County) An audit issued in November 2019 identified certain conditions and opportunities for district management to review and consider. A follow-up review found that although the district’s Corrective Action Plan that was filed with the Comptroller’s Office indicated the district took corrective action on or before June 30, 2019, for seven of the eight audit recommendations, officials did not actually take corrective actions. Of the eight audit recommendations, six recommendations were not implemented and the status of two recommendations could not be determined.

 

East Ramapo Central School District – Textbooks Loaned to Nonpublic School Students (Rockland County) An audit issued in August 2020 identified certain conditions and opportunities for district management to review and consider. A follow-up review found that although the district’s Corrective Action Plan that was filed with the Comptroller’s Office indicated the district took corrective action on or before July 2020, of the six audit recommendations, one recommendation was implemented, two recommendations were partially implemented, and three recommendations were not implemented.

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July 22, 2023

Selected decisions distinguishing residence and domicile when determning eligibility for employment in the public service

 Click on the text in color to access the posting on the Internet.


An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment  Matter of Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 92 AD3d 1272. The City of Niagara Falls decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_03230.htm; A summary of the decision in Beck-Nichols is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/02/court-of-appeals-holds-that-residency.html

 

Determining “continuous residency” for the purpose of qualifying for public office or employment. Glickman v Laffin, 2016 NY Slip Op 05842, Court of Appeals The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_05842.htm

 

Distinguishing between an individual's "domicile" and his or her "residence" . The decision is posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01015.htm

 

Distinguishing between residence and domicile Rosseychuk (City of New York--Commissioner of Labor), 2016 NY Slip Op 01885. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_01885.htm

 

Elected official removed from public office for failing to be a domiciliary of the jurisdiction as required by law Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), The Allen decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/pdfs/2011/2011_31035.pdf. See, also, the Johnson decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm 

 

Employee deemed to have voluntarily resigned from her position found eligible for unemployment insurance benefits under the circumstances. Matter of Bowman (City of Niagara Falls--Commissioner of Labor), 2015 NY Slip Op 00425, The decision is posted on the Internet at www.nycourts.gov/reporter/3dseries/2015/2015_00425.htm
.

Employee found to have violated employer's domiciliary policy terminated . Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 2012 NY Slip Op 01293, Appellate Division. The Adrian decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01293.htm

 

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code Peck v Town Bd. of Town of Amherst, 2012 NY Slip Op 02220, Appellate Division. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02220.htm

 

Employee terminated for failure to comply with the employer’s “residence” requirement 2013 NY Slip Op 04148, The decision in this action is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_04148.htm [See also Alexis v City of Niagara Fallsposted on the Internet at:  http://publicpersonnellaw.blogspot.com/2013/05/an-employees-satisfying-employers.html].

 

Illinois Supreme Court rules that Rahm Emanuel a "resident" for the purpose of running for mayor of Chicago Walter P. Maksym Et Al. , Appellees, v The Board of Election Commissioners of the City of Chicago, Supreme Court of the State of Illinois, Docket No. 111773. The decision is posted on the Internet at:
http://www.scribd.com/doc/47691816/Illinois-Supreme-Court-Decides-Rahm-Emanuel-Can-Run-in-Chicago-Mayoral-Election?DCMP=NWL-cons_breakingdocs

 

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode” . Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206. The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm

 

 

NYPPL's public personnel law handbooks, listed below, are available for purchase from BookLocker.com, Inc

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE. 

A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses 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. For more information click HERE. 

Disability Benefits: payable to firefighters, police officers and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE. 

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.

July 21, 2023

The anatomy of challenging an administrative determination by an appeals board affirming the findings and decision of an administrative law judge

A police officer issued Plaintiff a traffic summons for operating a motor vehicle while using a cell phone in violation of Vehicle and Traffic Law §1225-d. Following an administrative hearing, at which the Plaintiff did not testify and appeared solely by counsel, an administrative law judge [ALJ] found Petitioner guilty of violating VTL §1225-d. Plaintiff appealed the ALJ's determination but the Administrative Appeals Board affirmed the ALJ's decision. Plaintiff then initiated a CPLR Article 78 proceeding in Supreme Court challenging the Appeals Board's determination, which action was transferred to the Appellate Division pursuant to CPLR §7804(g).

The Appellate Division, citing Matter of Mannino v Department of Motor Vehs. of State of N.Y.-Traffic Violations Div., 101 AD3d 880, noted that "[to] annul an administrative determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence* to support the determination". 

As the Mannino court, [supra] opined "... courts may not ... reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists" and "deference must be given to the fact-finding and credibility determinations of the administrative agency"**.

Further, explained the Appellate Division, credibility determinations were for the ALJ to make and there is no indication that the Plaintiff's "right to cross-examine the ... officer was so circumscribed as to deprive him of a fair hearing. " The court then confirmed the Appeals Board's decision, denied Plaintiff's petition, and dismissed the proceeding on the merits, with costs.

* Substantial evidence, said the court, is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

** See Matter of LaChance v New York State Dept. of Motor Vehs., 159 AD3d 1014 at 1015.

Click HERE to access the Appellate Division's decision posted on the Internet.

July 20, 2023

Tenured employee terminated after refusing COVID-19 vaccine after employee's application for a religious exemption was denied

This proceeding reviews the termination of a tenured teacher's [Petitioner] employment by the New York City Board of Education [DOE] during, and as a result of, the COVID-19 pandemic.

DOE required all its teachers to receive a vaccine against COVID-19 before being allowed enter and work in DOE buildings, Petitioner applied for a religious exemption, citing her religious beliefs against receiving a COVID-19 vaccine. DOE denied Petitioner's application for a religious exemption and her employment with the DOE was terminated as a result of Petitioner's refusal to receive the vaccine for COVID-19.

Petitioner commenced a CPLR Article 78 proceeding challenging DOE's decision and her resulting termination. Supreme Court sustained DOE's action.

Petitioner then moved "for leave to reargue and renew" her Article 78 action. Supreme Court denied Petitioner's motion. The Supreme Court's decision rejecting Petitioner's motion "to reargue and review" is set out below:


2023 NY Slip Op 32352(U) Docket Number: Index No. 156145/2022

This opinion is uncorrected and not selected for official publication.

TINA LYNCH,

Petitioner,

- V -

THE BOARD OF EDUCATION OF THE CITY SCHOOL

DISTRICT OF THE CITY OF NEW YORK, COMMUNITY

SCHOOL DISTRICT 21 OF THE BOARD OF EDUCATION

OF THE CITY OF NEW YORK, UNITED FEDERATION OF

TEACHERS,

Respondents.

DAVID B. COHEN, J.S.C.

By notice of motion, petitioner moves for an order granting reargument and reconsideration of the decision and order dated January 25, 2023, by which the petition was denied and the proceeding was dismissd. Respondents oppose and by notice of cross motion, move for an order adjourning the return date of the instant motion in order to submit opposition papers. It appears that the cross motion was resolved by a referee, who extended respondents' time to oppose the motion (NYSCEF 75), and they subsequently submitted their opposition.

I. PRIOR DECISION

This proceeding arises from the termination of petitioner's employment as a tenured teacher with respondents during and as a result of the COVID-19 pandemic. In sum, in response to respondents' policy requiring all Department of Education (DOE) employees to receive a vaccine against COVID-19 before being allowed enter and work in DOE buildings, petitioner applied for a religious exemption, citing her religious beliefs against receiving a COVID-19 vaccme [sic]. After petitioner's application was denied, and her employment with the DOE was terminated, petitioner commenced the instant proceeding.

By decision and order dated January 25, 2023, the petition was denied on the grounds that DOE' s reasons for denying religious exemption requests, in general and in petitioner's case, were not irrational, arbitrary, or capricious.

II. ANALYSIS

At the outset, I observe that petitioner's memorandum of law in support of this motion is 46 pages long, and although plaintiff does not submit a word count certification even though required to do so (22 NYCRR 202.8-b[c]), a review of the memorandum reflects that it contains more than 10,500 words, far above the permitted 7,000 word limit (22 NYCRR 202.8-b[a]), which in and of itself may warrant denial of the motion.

Nevertheless, the motion is addressed.

A. Motion to reargue

"A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrive at its earlier decision" (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992] [internal quotation marks and citations omitted], lv dismissed and denied 80 NY2d 1005 [1992]; see Foley v Roche, 68 AD2d 558, 567-568 [1st Dept 1979]).

Here, petitioner does not demonstrate that any issue of fact or law was overlooked or misapprehended. Rather, she makes the same arguments that she previously made, which were considered and rejected (William P. Pahl Equip. Corp., 182 AD2d at 27 [reargument not designed to give unsuccessful party successive opportunities to reargue issues already decided]).

Moreover, while petitioner argues that the majority of justices in this court have found that respondents' policy was arbitrary and capricious and that she is the victim of "the unfortunate arbitrary and capricious assignment of her case to a Judge in the City of New York" who ruled otherwise (NYSCEF 66, p. 7), not only are the other courts' decisions not binding on me, but petitioner does not acknowledge the cases wherein the vaccination policy was upheld (see e.g., Matter of Lebowitz v The Bd. of Educ. of the City of New York, 2022 WL 6776229 [Sup Ct, New York County 2023, Love, J.]; Matter of Hogue v The Bd. of Educ. of the City Sch. Dist. of the City of New York, 2022 WL 7109657 [Sup Ct, New York County 2022, Love, J.]; Matter of Maniscalco v The Bd. of Educ. of the City Sch. Dist. of the City of New York, 2022 WL 797971 [Sup Ct, New York County 2022, Kotler, J.]; Matter of Bryan v The Bd. of Educ. of the City Sch. Dist. of the City of New York, 2022 WL 14044362 [Sup Ct, New York County 2022, Engoron, J.]). Nor did petitioner distinguish the cases cited in the prior decision.

Petitioner's arguments regarding the New York City Human Rights Law are improperly raised for the first time here as she did not assert a NYCHRL claim in her petition (NYSCEF 1), which she acknowledges in the memorandum of law she filed in support thereof ("Petitioner would be well within her rights to assert a [NYCHRL] religious accommodation claim" [NYSCEF 3, p. 16]). In any event, petitioner's assertion that respondents failed to engage her in a cooperative dialogue as required by the NYCHRL has no merit (see e.g., Matter of Marsteller v City of New York, AD3d , 2023 WL 4065500 [1st Dept 2023] [petitioner failed to show that process for resolving accommodation requests did not comply with NYCHRL, as respondents offered information on process for reviewing accommodation requests, informed employees how to apply for exemption and to appeal denials, petitioner availed himself of process, respondents explained denial, and parties further engaged in appeals process]).

Similarly, petitioner's newly-asserted New York State unspecified constitutional religious freedom argument may not be considered for the first time on reargument, and, in any event, it is unavailing (see Kane v De Blasio, 623 F Supp 3d 339 [SD NY 2022] [City policy requiring workers in school settings to be vaccinated not unconstitutional]).

There is also no merit to petitioner's argument that this court erred in considering respondents' position statement (see Marsteller, 2023 WL 4065500 [where there has been no administrative hearing, "an agency may submit an official's affidavit to explain the information that was before the agency and the rationale for its decision, and this Court may consider such an affidavit even though it was not submitted during the administrative process"]). Leave to reargue is thus denied.

B. Motion to renew

Pursuant to CPLR 2221 (e ), a motion for leave to renew "shall be based upon new facts

not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination," and "shall contain reasonable justification for the failure to present such facts on the prior motion."

The new evidence proffered by petitioner - respondents' issuance of a policy in February

2023 which effectively repealed the vaccination mandate - is mentioned only in her counsel's affirmation, and she does not explain why the new policy is relevant to whether the prior policy was irrational, arbitrary and capricious, nor does she submit any supporting authority. In any event, "judicial review [of an Article 78 petition] is limited to the facts and record adduced before the agency" (Matter of Benjamin v Dept. of Haus. Preservation, 187 AD3d 433,433 [1st Dept 2020]). As the new policy would not change the prior decision, leave to renew is denied.

III. CONCLUSION

Accordingly, it is hereby ORDERED, that petitioner's motion for leave to reargue and renew is denied; and it is further ORDERED, that respondents' cross motion is denied as academic.

DAVID B. COHEN, J.S.C.

 

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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