Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of September 10 - 16, 2012  [Click on the caption to access the full report]

DiNapoli: Tax Cap Reporting Made Easier

State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax cap reporting form has been enhanced to make it easier for local officials to accurately calculate their tax levy limit.

After analyzing reporting errors from the first year of implementation, DiNapoli’s Division of Local Government and School Accountability developed an improved online property tax cap reporting system to address the most problematic areas encountered by local officials.

DiNapoli: Town Deficit Caused By Inaccurate Budgeting

Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a $1.5 million deficit in its major fund balances at the end of 2010, according to an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed to repay more than $3 million in inter–fund loans it made between different tax bases.

Comptroller DiNapoli Releases Municipal Audits

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

Eastchester Fire District;

Owasco Fire Department;

Mohawk Fire District;

Town of Colonie;

Town of Hinsdale;

Town of Peru;

Town of Red House;

Town of Waterford; and,

Village of Ballston Spa.

Comptroller DiNapoli Releases School Audits

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

Achievement Academy Charter School;

Green Island Union Free School District; and,

Madison–Oneida BOCES.

Not providing an employee claiming a disability an accommodation that would obviate performing an essential job requirement did not violate the ADA

Not providing an employee claiming a disability an accommodation that would obviate performing an essential job requirement did not violate the ADA

NYC Fire Department v A.G., OATH Index No. 771/12

The New York City Fire Department sought the termination of an employee, A.G., alleging the individual “had been excessively late or absent from work” in that A.G. had been tardy, or absent from work for more than 700 hours in 2010 and in excess of 700 hours in 2011.

The employee’s defense: The Department was in violation of the Americans with Disability Act because it had not provided her with a reasonable accommodation -- a three-hour flex-time schedule -- of  the various disabling medical conditions she claimed were the cause of her poor attendance record.

Although A.G. contended that she could not be disciplined for her attendance problems, OATH Administrative Law Judge Kara J. Miller held that A.G. failed to prove that her alleged medical conditions caused her attendance problems.

Judge Miller, finding that timely attendance was an essential function of A.G.’s job, ruled that the Department was not required to provide an accommodation that would eliminate its attendance requirements as “a reasonable accommodation can never involve the elimination of an essential function of a job,” citing Shannon v. NYC Transit Authority., 332 F.3d 95.

Sustaining the charges, the ALJ recommended that A.G. be terminated from her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0771.pdf

Motion to delay disciplinary action pending the outcome of a criminal investigation denied

Motion to delay disciplinary action pending the outcome of a criminal investigation denied

NYC Department of Homeless Services v Simmons, OATH Index #2042/12

OATH Administrative Law Judge Ingrid A. Addison denied a pre-trial motion made by a public employee to stay her disciplinary proceeding pending the outcome of a criminal investigation.

Judge Addison ruled that there was no constitutional bar to moving forward with the disciplinary action, where, as here, criminal charges had not yet been brought.

The employee, in effect, was asking for an indeterminate stay. Such stays are disfavored, said Judge Addison, because the employer has an interest in the prompt resolution of misconduct allegations and having the employee against whom disciplinary charges, or someone else, fulfill the job responsibilities. 

Below are selected excerpts from The Discipline Book* [an e-book published by the Public Employment Law Press, 2012, 1476 pages] concerning the relationship of administrative disciplinary actions and criminal proceedings based on the same alleged acts or omissions. They are reprinted here with permission: 

Pending criminal matters:

1. " ... Chaplin v NYC Department of Education, 48 A.D.3d 226, is another example. Here the Appellate Division said that an employee was not entitled to a stay of the disciplinary case as a criminal defendant does not have a right to stay a related disciplinary proceeding pending the outcome of trial, citing Watson v City of Jamestown, 27 AD3d 1183. Denial of such a stay does not adversely affect the employee’s constitutional rights.

2. " The appointing authority has no obligation to postpone disciplinary action even if the county District Attorney requests administrative action be postponed. This was the point made by the court in Levine v New York City Transit Authority, 70 AD2d 900 (2nd Dept 1979), affirmed 49 NY2d 747 (1980). [See also 2.14: “Impact of criminal action on disciplinary action”.]

3. "A [Taylor Law] contract may … prohibit disciplinary action in the face of pending criminal charges. Although not so stated in law, the courts have ruled that Section 75 proceedings need not be postponed because a criminal action is already pending or may soon be commenced.

4. "May administrative disciplinary action be prosecuted at the same time that a criminal action based on the same facts and allegations is pending? Yes. See, for example, the decisions of the court in Nosik v Singe, 40 F.3d 592, (unnecessary to delay administrative disciplinary action in a case of a school psychologist accused of defrauding insurance companies) and Matter of the Haverstraw-Stony Point CSD, 24 Ed. Dept. Rep. 466, (no requirement to adjourn a Section 3020-a hearing when parallel criminal proceedings are underway)."

* For information about The Discipline Book , click on  http://booklocker.com/books/5215.html 

The NYC Department of Homeless Services v Simmons decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-2042md.pdf

Entering a plea of Nolo Contendere in an administrative disciplinary action

Entering a plea of Nolo Contendere in an administrative disciplinary action

Appeal of T.B., Decisions of the Commissioner of Education, Decision #16,385

One of the issues in the Appeal of T.B. concerned the student’s attorney entering a plea of “no contest” or nolo contendere* in response to certain allegations of misconduct filed against the student by the school district.

Although New York State does not provided for the accused in a criminal proceeding to advance a nolo contendere plea [People v. Daiboch, 265 NY 125], as the court noted in Kasckarow v Board of Examiners, [33 Misc 3d 1028; appeal pending, Second Department, 2011-11569], “the fact that a defendant in a criminal action does not technically admit guilt in a nolo contendere plea has not prevented New York from recognizing that a nolo contendere plea from another jurisdiction constitutes a conviction for the purposed of sentencing a defendant as a second felony offender.”

Further, New York recognizes so-called “Alford pleas” (North Carolina v. Alford, 400 U.S. 25), which are similar to nolo contenderepleas in that the Court of Appeals has recognized that, from the New York State's perspective, an Alford plea is no different from any other guilty plea, and may be used for the same purposes as any other conviction.**

New York courts have occasionally addressed a plea nolo contendere or “no contest” in administrative actions. For example, in Dower v. Poston, 76 Misc.2d 72, such a plea was a factor in resolving the disqualification of an individual for appointment to a position in the competitive class.

Dower had entered a plea of nolo contendere to one count of the indictment found against him in which he was charged conspiracy to defraud the United States. Sentenced to imprisonment, his sentence to imprisonment was suspended and he was placed on probation for a period of three years.

When Dower challenged his disqualification for appointment to the position pursuant to §50.4(d) of the Civil Service Law based on his having been “convicted of a crime,” Supreme Court ruled that “It is clear … that [Dower] in his application incorrectly and improperly stated that he had never been convicted of an offense despite the announcement for the position indicated that “conviction of a felony will bar, and conviction of a misdemeanor may bar examination and appointment”. Accordingly, said the court, his disqualification for appointment to the position by the Civil Service Commission was a proper exercise of discretion under the statute.

The Commissioner of Education has considered the impact of pleas of “no contest” in a number of student disciplinary actions.

With respect to the appeal of T.B., T.B.’s then-counsel told the hearing officer that the school district had agreed to drop three of the 4 charges filed against the student and would only pursue one of the charges, “Charge 3.” T.B.’s counsel then submitted a plea of “no contest” on the student’s behalf.

The hearing officer said that as the student was “pleading no contest, as Hearing Officer, then I just will find him guilty of just the one charge.”  T.B.’s counsel disagreed with the guilty determination, stating that the student was neither “admitting or denying [the charge]”, just “not contesting the charge.”  No witnesses or additional documents were introduced or entered into the record by either party and, after learning that the student had no prior disciplinary history, the hearing officer “referred the matter to the superintendent for a determination of any additional penalties.”

Among the issues raised by T.B. in this appeal to the Commissioner of Education was the claim that Charge 3 was “too vague and insufficient to apprise [the student] of the activities giving rise to the hearing” and that the school district “produced no evidence of [the student’s] guilt and that the ‘no contest’ plea is not an admission and is insufficient proof of guilt.”

With respect to these issues, the Commissioner ruled:

1. The charges in a student disciplinary proceeding need only be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing;”

2. Where a student admits the charged conduct, the admission is sufficient proof of guilt; and

3. The record reveals that, although represented by counsel, T.B. failed to raise the issue of “vagueness” before the hearing officer at the hearing and, in fact, agreed to enter a plea with no such objection.  

Accordingly, the Commissioner held that as T.B. “failed at the hearing to dispute the specificity of the remaining charge and also failed to enter [the student’s] written statements into the record, [as] neither the issue of vagueness nor those documents were properly part of the record before the board … they may not now be considered as part of this appeal.

As to T.B.’s argument that the “no contest” plea submitted on the student’s behalf was neither sufficient proof nor an admission of the student’s guilt, and claimed that the hearing officer erred in finding the student guilty, the Commissioner disagreed, noting that although “New York State Criminal Procedure Law does not provide for a ‘no contest’ plea.” …  [n]evertheless, the courts have recognized that an individual’s ‘no contest’ plea amounts to ‘an admission of the facts as charged,” citing Kufs v State of New York Liquor Authority, 637 NYS2d 846 at 847.

In Kufs, said the Commissioner, the court ruled that “[b]y entering [his] ‘no contest’ plea, petitioner waived [his] right to a review of the facts upon which the punishment was imposed.”

Finding that there was nothing in the record, nor did T.B. argue that the student’s “no contest” plea was not entered in a voluntary, knowing and intelligent manner, the Commissioner said that there was no reason to annul the hearing officer’s determination.

Other decisions in which the Commissioner considered a plea of “no contest” include:

Decision No. 16,101 [http://www.counsel.nysed.gov/Decisions/volume50/d16101.htm];

Decision No. 15,841 [http://www.counsel.nysed.gov/Decisions/volume48/d15841.htm]; Decision No. 15,122 [http://www.counsel.nysed.gov/Decisions/volume44/d15122.htm]; Decision No. 14,529 [http://www.counsel.nysed.gov/Decisions/volume40/d14529.htm]; Decision No. 14,305 [http://www.counsel.nysed.gov/Decisions/volume39/d14305.htm]; and Decision No. 14,217 [http://www.counsel.nysed.gov/Decisions/volume39/d14217.htm]

* Nolo Contendere, is Latin for "I will not contest it." It appears that the only New York statute in which the term is referenced is found in the New York Public Health Law.  §4655.2.h.(iv)(A) of the Public Health Law provides, in pertinent part, “...  has been convicted of a crime or pleaded nolo contendre[sic] to a felony charge, or been held liable or enjoined in a civil action by final judgment if the criminal or civil action involved fraud, embezzlement, fraudulent conversion, or misappropriation of property [emphasis supplied].”

** Matter of Silmon, 95 N.Y.2d at 475,

The decision in the Appeal of T.B. is posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/d16385.html

N.B. A LawBlog focusing on Nolo Contendere is posted on the Internet at:

http://www.nolocontendere.org/historyofnolo.html

School district did not violate alleged whistleblower’s First Amendment free speech rights

School district did not violate alleged whistleblower’s First Amendment free speech rights

Ross v The Katonah-Lewisboro Union Free School District, USCA, 2^nd Circuit, Docket No. 10-5275-cv

The U.S. Circuit Court of Appeals, Second Circuit, ruled that a former school district employee’s First Amendment right to free speech was not violated because her speech was uttered in the context of her official duties in contrast to speech uttered in her personal capacity.

In the words of the court: “because Ross was speaking pursuant to her official duties and not as a private citizen, her speech was not protected by the First Amendment.”

The Circuit Court explained: “In the First Amendment context, ‘the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general,’" citing Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563. Speech by a public employee, said the court, is protected by the First Amendment only when the employee is speaking “as a citizen . . . on a matter of public concern.”

In Garcetti v. Ceballos, 547 U.S. 410, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

The individual had contended that she had been wrongfully terminated because she had exercised her First Amendment right to free speech in reporting alleged financial misfeasance to the school superintendent and the school board.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d60e79aa-6471-44b9-b831-70c72e11909d/1/doc/10-5275_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d60e79aa-6471-44b9-b831-70c72e11909d/1/hilite/

Employee suspended without pay after refusing to comply with superiors order

Employee suspended without pay after refusing to comply with superiors order

Office of the Comptroller of the City of New York v Martin, OATH Index #1680/12

A employee of the New York Office of the Comptroller was alleged to have refused to  remove her Bluetooth earpiece when ordered to do so and to have responded disrespectfully to her supervisor.

OATH Administrative Law Judge Alessandra F. Zorgniotti sustained the charges and after considering that the employee had already been disciplined twice for refusing to remove her Bluetooth earpiece, recommended a 15 work-day suspension without pay. 

The ALJ’ recommendation was adopted by the Office of the NYC Comptroller.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1680.pdf

A village that has a police department must have a chief of police

A village that has a police department must have a chief of police

Citing Village Law §§8-800, 8-800(1); Chapters 810 and 840 of the Laws of 1985; Town Law §150; and Civil Service Law §§58, 58(1-c), the Attorney General advised the Village Attorney, Village of Skaneateles, that “A village that has a police department must have a chief of police, unless the grandfather clause applies.” [Informal Opinions of the Attorney General 2012-08. This Informal Opinion is posted on the Internet at http://www.ag.ny.gov/sites/default/files/opinion/2012-8%20pw.pdf]

Using hearsay evidence in a disciplinary hearing

Using hearsay evidence in a disciplinary hearing
Saunders v City of New York, App. Div., First Dept., 273 A.D.2d 103, motion for leave to appeal denied, 95 N.Y.2d 766

A New York City police officer was terminated from his position after being found guilty of having "assaulted and caused physical injuries” to two individuals.

The officer appealed, contending that the Commissioner's determination was not supported by substantial evidence because it was based on hearsay. The Appellate Division disagreed, holding that "[t]he hearsay statements of the complainants were sufficiently probative to constitute substantial evidence."

According to the decision "[h]earsay may constitute substantial evidence where, as here, it is sufficiently reliable and probative on the issues to be determined."

This, in turn, depends on the credibility of the witnesses. The issue of the credibility of the witnesses at the officer's departmental disciplinary hearing, said the court, "was a matter to be assessed by the Deputy Commissioner who presided at the trial.”

Accordingly, said the court, determinations concerning the credibility of witnesses "is largely beyond our power of review."

Barring a former employee from property

Barring a former employee from property
Toussaint v Local 100, TWU, CA2, U.S. App. LEXIS 16257

May an employer prohibit an individual it has dismissed from entering its property? The Second Circuit Court of Appeals ruled the employer may prohibit such an individual from entering its non-public areas.

A Transportation Workers Union representative had been dismissed from his position with the New York City Transit Authority [NYCTA]. NYCTA then banned the representative from the non-public areas of its property. The representative sued, contending that this action by NYCTA violated his First Amendment rights.

The Circuit Court affirmed a federal district court's dismissal of the Union representative’s petition. The lower court had determined that he "failed to show a likelihood of success on the merits" because:

1. He did not demonstrate that he was excluded from non-public areas because the Transit Authority's motivation was to impair the exercise of his First Amendment freedoms or;

2. The Transit Authority's rule barring discharged employees from non-public areas lacked a reasonable basis.

The representative also attempted to obtain a stay of arbitration, claiming that NYCTA and Local 100 went forward with his arbitration "without allowing him to participate in selecting a neutral arbitrator to chair the arbitration panel." The Circuit Court of Appeals rejected this representation as moot "because the arbitration [had] proceeded to conclusion."

Employee exonerated of alleged off-duty misconduct

Employee exonerated of alleged off-duty misconduct

NYC Department of Corrections v Gayle, OATH Index #105/12

OATH Administrative Law Judge John B. Spooner recommended dismissal of a charge that a correction officer had caused more than $250 worth of damage to her former landlord’s property.

The landlord’s testimony that he saw the correction officer hitting the bathroom walls with a sledgehammer was uncorroborated and contradicted in part by evidence that the landlord himself had damaged the apartment.

The correction officer’s testimony that she had moved out of the apartment one month before the damage was incurred following alleged “improper actions by the landlord,” was corroborated by her sister’s testimony, date-stamped photographs showing the apartment in disarray, and the landlord’s admission that he had piled bolts of fabric inside the correction officer’s apartment and removed light bulbs because he was frustrated by her failure to pay rent and abrupt departure from the apartment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1051.pdf

Payroll deductions

Payroll deductions
Westchester County Correction Officers Benevolent Association, 33 PERB 3025

Although a "letter ruling" by the Internal Revenue Service advised the employer that it had the discretion to withhold income tax from the wages of individuals on workers' compensation leave or receiving benefit pursuant to Section 207-c of the General Municipal Law bi-weekly and reimburse the employee for such deductions annually or elect not to make such deductions, PERB ruled that it was an improper practice for the employer to change its procedure from not making such deductions to making bi-weekly deductions without first negotiating the change with the employee organization even where the claim for such benefits was controverted by the employer since the exercise of discretion is generally subject to a duty to bargain.

An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolve

An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolve

Board of Educ. of Yorktown Cent. Sch. Dist. v Yorktown Congress of Teachers, 2012 NY Slip Op 06023, Appellate Division, Second Department

Yorktown Central School District filed an Article 75 petition seeking a permanent stay arbitration of a claim by a teacher for approval of certain graduate credits for compensation pursuant to a collective bargaining agreement. Supreme Court granted the school districts petition and the Yorktown Congress of Teachers appealed.

The Appellate Division reversed the lower court’s ruling “on the law” and directed that the parties proceed to arbitration.

The court noted that the relevant collective bargaining agreement included [1] an annex to the salary schedule providing for payments for approved graduate credits and [2] a “four-step grievance* procedure culminating in binding arbitration.”

The Appellate Division explained that in determining whether a dispute between a public sector employer and employee organization on behalf of an employee is arbitrable,** a court must first determine whether there is a statutory, constitutional or public policy prohibition against arbitration of the grievance. If it finds no such prohibition against arbitration, the court must examine the parties' collective bargaining agreement to determine "whether the parties in fact agreed to arbitrate the particular dispute."

Finding that arbitration of the instant dispute was not prohibited by public policy or statute, including those provisions of the Education Law permitting any party aggrieved by a determination of a board of education to appeal to the Commissioner of Education nor by the power of a school board to manage the educational affairs of the school district, the Appellate Division found that there was a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA – i.e., a claim for approval of graduate credits for compensation and the general subject matter of the CBA.

Noting that “some uncertainty exists as to whether the subject matter of the dispute is encompassed within the provision governing payments for approved graduate credits or the exclusion from arbitration of matters involving the Board's discretion,” the Appellate Division said that any alleged ambiguity in the CBA "regarding the coverage of any applicable provision is . . . a matter of contract interpretation for the arbitrator to resolve."

Accordingly, the Appellate Division granted the Youngstown Congress of Teacher’s cross petition to compel arbitration.

* In this instance the CBA defined a "grievance" as "any dispute or claim by either party . . . arising out of or in connection with this Agreement" other than matters that involved [a] the School Board's exercising its discretion, [b] a nonapproval of tenure decision; and [c] matters where a review was prescribed by law.

** Subject limited exceptions, as a general rule only the certified or recognized employee organization may demand arbitration of a grievance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06023.htm