A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law

A public employee’s retirement allowance paid by a public retirement system of this State ruled subject to the provisions of the Son of Sam Law

New York State Off. of Victim Servs. v Raucci, 2012 NY Slip Op 04440, Appellate Division, Third Department

The issue in this action: Does Retirement and Social Security Law §110* insulate the retirement benefits from a public retirement system of this State from “the broad reach of the Son of Sam Law, which does not expressly exempt pension funds?”**

The Appellate Division held that such retirement benefits are not exempt from the Son of Sam Law.

Steven C. Raucci, a former employee of the Schenectady City School District, was sentenced to a lengthy prison term upon his conviction of numerous crimes arising out of his alleged detonation and attempted detonation of explosive devices at two of his victims' homes. Raucci began receiving a retirement allowance from the New York State and Local Employees' Retirement System of approximately $5,800 per month.

The New York State Office of Victim Services sought a preliminary injunction prohibiting the withdrawal or transfer of those funds from Raucci’s inmate account. Raucci, and his spouse as “an interested person,” argued that RSSL §110 exempts the pension funds from garnishment or any other legal process.

Noting that prior to its amendment in 2001, the Son of Sam Law permitted victims to recover only "profits from a crime," i.e., property or income generated from the crime itself, the Legislature "expand[ed] the [Son of Sam] [L]aw to cover money and property that a convicted criminal receives from any source."

Accordingly, said the Court,  “The current version of the statute thus permits crime victims to commence an action ‘within three years of the discovery of any profits from a crime or funds of a convicted person’ broadly defined as "all funds and property received from any source by a person convicted of a specified crime (Executive Law § 632-a [1] [c]” [emphasis added by the court].

The Appellate Division said that only two categories of a convicted person's funds are not recoverable by crime victims: the first $1,000 in the convicted person's account and the first 10% of compensatory damages obtained by the convicted person in a civil judgment, less counsel fees.

* The decision summaries the provisions of §110 as follows: Retirement and Social Security Law §110 protects public employee pensions, providing that "[t]he right of a person to a pension . . . or a retirement allowance . . . to the return of . . . the pension . . . or retirement allowance itself . . . and the monies in [those] funds . . . [s]hall not be subject to execution, garnishment, attachment, or any other process whatsoever, and . . . [s]hall be unassignable."

** The decision refers to both a “pension” and a “retirement allowance.” A retirement allowance consists of a “pension portion” determined by the employee’s final average salary and his or her “years of member service,” which is funded by employer contributions plus an “annuity portion” based on the actuarial value of the employee’s contributions, or contributions made on his or her behalf as of the date of his or her retirement.

NYPPL comments: This decision raises a number of questions that may have to be addressed by the courts or the legislature such as [1] Is a retirement allowance being received by a surviving beneficiary or beneficiaries of a retired public employee of this State subject to the Son of Sam Law? and [2] Is a retirement benefit being received by an individual or his or her beneficiary or beneficiaries from a retirement program or plan other than a public retirement system of this State subject to the Son of Sam Law?

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04440.htm

The Doctrine of Primary Jurisdiction explained

The Doctrine of Primary Jurisdiction explained 

Razzano v Remsenburg-Speonk UFSD, 2012 NY Slip Op 04178, Appellate Division, Second Department

The Board of Education of Remsenburg-Speonk UFSD reclassified Janice Razzano’s from a full-time position to a part-time position. Razzano filed a CPLR Article 78 petition seeking a court order compelling Board to reinstate Razzano to her former full-time position.

Razzano alleged that the reclassification of her position from full-time to part-time was undertaken in retaliation for various complaints she had made regarding alleged hazardous health conditions in the school building in which she worked. She also contended that school district improperly attempting to circumvent tenure rules by engaging the services of “an outside contractor to undertake the job responsibilities that she had previously undertaken” when she was employed full-time.*

Supreme Court dismissed Razzano’s on the ground that primary jurisdiction over the dispute lies with the Commissioner of the New York State Department of Education. The Appellate Division reversed the lower court’s ruling and remitted the matter to the Supreme Court, Suffolk County, for further proceedings.

Supreme Court had based its denial of the petition and dismissed the proceeding, pursuant to the doctrine of primary jurisdiction, i.e., (1) the Commissioner has the specialized knowledge and expertise necessary to resolve the factual question of whether an independent contractor assumed some of the responsibilities of Razzano, who held tenure in the position, and (2) whether the school district's conduct in reclassifying Razzano‘s full-time position to a part-time position was undertaken in good faith.

The Appellate Division ruled that Supreme Court erred in dismissing Razzano’s petition on basis of the doctrine of primary jurisdiction. The court explained that "The doctrine of primary jurisdiction provides that [w]here the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions," citing Flacke v Onondaga Landfill Sys., 69 NY2d 35.

The doctrine, said the court, is applied whenever a claim is originally cognizable in the courts, and comes into play “whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” In such situations the judicial process is suspended, rather than being dismissed, pending referral of such issues to the administrative body for its views.

In this instance, said the Appellate Division, the crux of Razzano’s threshold claim is that the reclassification and subsequent "excessing" of her employment from her full-time position and her “reinstatement” to a part-time position was undertaken in bad faith in that it was effected in retaliation for her engagement in a protected activity, in violation of the New York State Public Sector Whistleblower Law (see Civil Service Law §75-b).

In addition, Razzano contended that the school district’s "purported rationale was a fiction, and was not an issue within the Commissioner's special competence.”

The Appellate Division agreed, ruling that in light of the nature of Razzano’s allegations, Supreme Court should have retained jurisdiction to decide her claim of retaliation. Thus, said the court, the matter must be remitted to the Supreme Court for further proceedings on that branch of the petition alleging that the reclassification of Razzano’s position was undertaken in bad faith and, thus, constituted an abuse of discretion as a matter of law.

As to next steps, the Appellate Division explained that:

1. If the Supreme Court ultimately determines that Razzano’s employment was reclassified in bad faith, she is entitled to reinstatement.

2. If the Supreme Court ultimately determines that Razzano’s position was not reclassified in bad faith, then it would be proper for the Supreme Court to refer the remaining issues raised by the petition to the Commissioner for determination of questions arising under Education Law §3012, pursuant to the doctrine of primary jurisdiction.

* Razzano had also filed administrative petitions with the Commissioner of the New York State Department of Education pursuant to Education Law §310 challenging the district's decision to reclassify her position as a part-time position.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04178.htm

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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 is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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Serving notices by mail

Serving notices by mail

Cook v Village of Greene, 2012 NY Slip Op 04264, Appellate Division, Third Department

This decision by the Appellate Division sets out a number of points concerning effectively serving a notice to an individual to appear for a General Municipal Law §50-h when sending such a notice by mail.

The Village of Greene served a demand for examination by certified mail to the address verified by Wayne C. Cook in his notice of claim as his address. Cook failed to appear for the examination, but subsequently commenced an action against the Village and others. The Village moved to dismiss the action asserting, among other things, Cook's failure to attend the General Municipal Law §50-h examination.

The Appellate Division said that complying with a proper request for an examination pursuant to General Municipal Law §50-h is a condition precedent and failure to comply, absent exceptional circumstances, generally is a ground for dismissal of the action.

General Municipal Law §50-h [2] provides that certified mail is authorized manner of notifying a litigant not represented by an attorney to appear for an examination and the Village’s motion papers included a duly executed affidavit of service. The court noted that "A properly executed affidavit of service raises a presumption that a proper mailing occurred."

The Village, however, did not send the notice with a return receipt requested. Although the Appellate Division commented that a “return receipt” is not required by the statute as a general rule sending the notice "certified mail, return receipt requested" or "registered mail, return receipt requested," is viewed as appropriate and desirable.

Other provisions of law may authorize the delivery of certain notices by mail.

For example, Civil Service Law §76.1 provides that a §75 disciplinary determination is to be delivered “personally or by registered mail to the last known address of such person” while Education Law §3020-a provides that disciplinary charges shall be served on an educator “by certified or registered mail, return receipt requested or by personal delivery to the employee.”

The decision if posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04264.htm

Selected Rulings posted by PERB – A question of jurisdiction

Selected Rulings posted by PERB – A question of jurisdiction

United Federation of Teachers and the Board Of Education of the City School District of the City of New York, PERB U-28996

Although the Board dismissed exceptions filed by the employee after finding that she did not timely serve her exceptions upon UFT and the School District pursuant §213.2(a) of the Rules of Procedure, it noted that had it addressed the merits of her exceptions it would have dismissed them as PERB “does not have authority to determine alleged violations of Education Law §3020-a, or alleged violations of the terms of an unexpired agreement.”

Employee’s ADA claim for damages survives promotion to a higher grade position

Employee’s ADA claim for damages survives promotion to a higher grade position
Matter of Jochelman v New York State Banking Dept., 56 AD3d 375

After the New York State Banking Department denied Irving Jochelman a promotion to the position of Principal Bank Examiner I, Jochelman sued

Supreme Court granted Banking’s motion to dismiss his petition because Jochelman had been given the promotion underlying his complaint prior to his appeal, which also had the effect of “rendering moot that portion of his complaint seeking back pay.”

The Appellate Division, however, reversed the lower court’s dismissal of Jochelman’s petition “as a matter of law” explaining that his complaint also sought damages under the Americans with Disabilities Act (ADA).

Reinstating Jochelman’s ADA claim, but dismissing the remainder of his appeal as moot, the court explained that Jochelman's “separate claim for damages related to [Banking’s] allegedly discriminatory behavior has not been rendered moot by [Jochelman’s] promotion.”

Finding that Jochelman’s “ADA claim “was not without merit as a matter of law,” the Appellate Division indicated that the record raised factual issues as to whether Banking failed to make reasonable accommodations for the alternative workspace that Jochelman had requested for medical reasons and remanded the case to Supreme Court for its further its consideration of that issue.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09267.htm

Appellant required to meet a high burden by showing, with clear and convincing evidence, that the disciplinary hearing officer was partial

Appellant required to meet a high burden by showing, with clear and convincing evidence, that the disciplinary hearing officer was partial

Batyreva v N.Y.C. Dept. of Educ., 2012 NY Slip Op 04234, Appellate Division, First Department

Supreme Court, New York County denied the CPLR Article 75 petition seeking to vacate an arbitration award which found that the New York City Department of Education had just cause to terminate the employee, Olga Batyreva. The Appellate Division unanimously affirmed the lower courts ruling.

Explaining that the award was made in accord with due process, is supported by adequate evidence, is rational and is not arbitrary and capricious, the court noted “(e)ach of the sustained specifications was well supported by both documentary evidence and witness testimony.”

Batyreva, said the Appellate Division, failed to meet the high burden of showing, by clear and convincing evidence, that the hearing officer was partial, noting that it had not found any basis in the record to support a finding of partiality. Further, said the court, to the extent that Batyreva’s contention “is premised upon the hearing officer's credibility determinations, her arguments are unavailing because she failed to show that the hearing officer's credibility findings evince a bias against her.”

As to the penalty imposed, termination, the court rejected Batyreva’s claim that it is unwarranted and shocks the conscience.

In the words of the Appellate Division: “Not only does the high volume of sustained specifications of misconduct, standing alone, justify termination … but also [Batyreva] repeated unsuccessful attempts to cast [the employer], the witnesses, the hearing officer, a federal judge, and a Supreme Court Justice as somehow biased against her tend to show her "failure to take responsibility for her actions."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04234.htm

The lack of substantial evidence to support the hearing officer’s findings results in the court annulling the disciplinary action

The lack of substantial evidence to support the hearing officer’s findings results in the court annulling the disciplinary action

Meaney v Village of Johnson City, 2012 NY Slip Op 04265, Appellate Division, Third Department

The mayor of the Village of Johnson City demoted a fire captain to firefighter first class after adopting the findings of the disciplinary hearing officer that a fire captain was guilty of multiple counts of misconduct and incompetence.

The Appellate Division annulled the mayor’s determination and reinstated the captain to his former position with back salary.

In explaining its ruling the Appellate Division said:

1. Substantial evidence does not support the determination of guilt;

2. The disciplinary charges were based on the captain’s “failure to disclose information that was neither solicited nor relevant to the conversation” with a police detective and “under no reasonable view of the evidence can it be said that the captain’s silence was willful or indicative of ‘some dereliction or neglect of duty’ on his part;” and

3. The captain was not charged with making inaccurate statements to his superior and, thus, cannot be disciplined for allegedly making such statements.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04265.htm

Retirement System’s Medical Board’s determination that applicant is not disabled trumps Workers’ Compensation Board’s determination to the contrary

Retirement System’s Medical Board’s determination that applicant is not disabled trumps Workers’ Compensation Board’s determination to the contrary

Vargas v New York City Employees' Retirement Sys., 2012 NY Slip Op 04185, Appellate Division, Second Department

Alex Vargas filed a petition pursuant to CPLR Article 78 challenging a determination of the Board of Trustees of the New York City Employees' Retirement System [NYCERS] that denied his application for accidental disability retirement benefits pursuant to Retirement and Social Security Law §605-b. When Supreme Court denied his petition, Vargas appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that NYCERS’ Medical Board determines whether a member applying for accidental disability retirement benefits is disabled and NYCERS’ Board of Trustees of the New York City Employees' Retirement System is bound by the Medical Board's determination as to whether an applicant is disabled. Further, said the court, the Medical Board's determination is conclusive if it is supported by some credible evidence and is not irrational.

The record demonstrates that the Medical Board considered all of the medical evidence submitted by Vargas, interviewed him, and performed its own physical examination of him. Although the medical conclusions of some of Vargas' treating physicians differed from that reached by the Medical Board, the resolution of such conflicts is solely within the province of the Medical Board.

Rejecting Vargas’ argument to the contrary, the Appellate Division said that a disability determination by the Workers' Compensation Board does not control the Medical Board's disability determination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04185.htm

Police officer dismissed after being found guilty of serving as an active volunteer firefighter while on GML §207-c leave

Police officer dismissed after being found guilty of serving as an active volunteer firefighter while on GML §207-c leave

Kaufman v Wells, 56 AD3d 674

A disciplinary hearing officer found Steve Kaufman guilty of 42 of 122 specifications of misconduct filed against him, which ultimately resulted in Kaufman’s being terminated from his position with the Town of New Castle Police Department.

New Castle, among other things, charged that Kaufman, while on leave pursuant to General Municipal Law §207-c, participated in activities as a volunteer firefighter “which demonstrated his ability to work a light-duty assignment for the police department.”

Kaufman filed an Article 78 action to review New Castle’s determination.

The Appellate Division said that "Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence."

In this instance the court found that the Town Board's determination that Kaufman was guilty of the specified acts of misconduct was supported by substantial evidence.

In addition, said the court, "[a]n administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law," citing Kreisler v New York City Transit Authority, 2 NY3d 775.”

The Appellate Division concluded that ”Considering the repeated and numerous acts of misconduct, and the serious nature of the acts, it cannot be concluded, as a matter of law, that the penalty of [termination] shocks the judicial conscience."

Finally, the court said that “there is substantial evidence in the record to support the hearing officer's determination” that the disciplinary charges were not preferred against Kaufman in retaliation for his commencement of a civil action against the Town and members of the police department.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09082.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.

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15-day suspension recommended after worker found guilty of using a department vehicle for an unauthorized purpose

15-day suspension recommended after worker found guilty of using a department vehicle for an unauthorized purpose
Dep't of Sanitation v. Pulliam, OATH Index No. 1976/08

A sanitation worker was found to have disobeyed a supervisor's order and used a Department truck for an unauthorized purpose when he drove to a pay phone to call the police after allegedly being assaulted by a civilian on his route. Pulliam’s supervisor, after checking to make sure the respondent was not hurt, had ordered him to continue on his route while he called the central office to find out how to proceed. Administrative Law Judge Julio Rodriguez recommended a suspension of 15 days. He dismissed a second charge of unauthorized absence where the respondent claimed that he had gone on a bathroom break, and prior cases indicated that workers are vested with some discretion as to when and where to use the bathroom.

[For the full text of the decision, click on the title of the decision.]

 

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present
Harbatkin v New York City Dept. of Records & Info. Servs., 2012 NY Slip Op 04277, Court of Appeals

This action arose as the result of the City of New York providing redacted records in response to a Freedom of Information request for records resulting from the New York City Board of Education’s investigation of a large number of teachers and other employees suspected of being present or former members of the Communist Party in the1950's. These investigations included interviews with many individuals who, under the promise of confidentiality, were asked to provide the names of those who had been in the Communist Party with them.*

An historian of the period sought disclosure of unredacted transcripts of these interviews under the Freedom of Information Law (FOIL).

The Court of Appeals held that the historian was “entitled to everything in the transcripts except material that would identify informants who were promised confidentiality.”

The Court explained that “today, more than half a century after the interviews took place, the disclosure of the deleted information would not be an unwarranted invasion of personal privacy” noting that this was not always true as “at the time of the investigations, and for some years thereafter, public knowledge that people were named as present or former Communists would have subjected them to enormous embarrassment, or worse.” In any event, said the court, any such embarrassment would be much diminished today because “the activity of which they were accused took place so long ago, and because the label "Communist" carries far less emotional power than it did in the 1950s.”

Balancing these “diminished claims of privacy” against the claims of history, the court said that “The story of the Anti-Communist Investigations, like any other that is a significant part of our past, should be told as fully and as accurately as possible, and historians are better equipped to do so when they can work from uncensored records.”

There was a limitation on providing such records "unredacted," however. The Court ruled that with respect to the disclosure of the names of the interviewees who were promised that "no one would find out they were being interviewed," that promise was required to be honored.

The Court of Appeals said that it was “unacceptable for the government to break that promise, even after all these years,” commenting that “[p]erhaps there will be a time when the promise made to [such individuals], and to others similarly situated, is so ancient that its enforcement would be pointless, but that time is not yet.”

* NYPPL comments: Education Law §§3021 [adopted in 1949 and sometimes referred to as the Feinberg Law] and 3022, respectively provide for "loyalty oaths" and for the “elimination of subversive persons from the public school system”]. Educators involved in “Subversive activities” were “disqualified” for employment. In 1967 these provisions were ruled unconstitutional by the U.S. Supreme Court [Keyishian v. Board of Regents, 514 U.S. 673] on the grounds that they were [1] unconstitutionally vague and [2] violative of the individual's First Amendment rights of free speech and association. 

As to positions in the Classified Service, the Civil Service Law was amended by adding §105, the so-called “Anti-red Law,” which was challenged in Keyishian by co-plaintiff George E. Starbuck, an employee in the Classified Service.

The Supreme Court held that "Civil Service Law §105, subd.1(c), and Education Law §3022, subd. 2, are invalid insofar as they proscribe mere knowing membership without any showing of specific intent to further the unlawful aims of the Communist Party of the United States or of the State of New York."

The Keyishian decision is posted on the Internet at: http://scholar.google.com/scholar_case?case=15934266528750676067&q=keyishian+v.+board+of+regents&hl=en&as_sdt=2,33&as_vis=1

The Harbatkin decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04277.htm

An administrative decision denying an application for accidental disability retirement vacated because of a lack of evidence in the record supporting the determination

An administrative decision denying an application for accidental disability retirement vacated because of a lack of evidence in the record supporting the determination

Baranowski v Kelly, 2012 NY Slip Op 04208, Appellate Division, First Department

A New York City police officer filed an Article 78 petition seeking to vacate the denial of his application for accidental disability retirement based on a work-related incident involving his carrying an individual from a burning building.

The Medical Board had found that the officer suffered from a disabling congenital condition that prevented him from performing his duties as a police officer and recommended he be awarded ordinary disability retirement benefits rather than an accidental disability retirement allowance.

The officer, on the other hand, had contended that he was entitled an accidental disability retirement allowance because his congenital condition became permanently aggravated as a result of his rescuing the individual. The Appellate Division noted that it had remanded the matter to the Medical Board on earlier two occasions, asking the Board for evidence supporting its conclusion that officer's disability was not service-related.

However, said the Appellate Division, “the Medical Board's finding that [police officer’s] congenital condition was only temporarily exacerbated by the incident was based solely on conjecture” as the Board failed to cite anything in the record indicating that the condition improved before becoming permanently disabling.

Accordingly, it sustained Supreme Court’s ruling vacating the denial of the police officer’s application for accidental disability retirement benefits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04208.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.

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