Retraining and progressive discipline deemed inappropriate penalties where correction officer was found guilty of using excessive force against an inmate

Retraining and progressive discipline deemed inappropriate penalties where correction officer was found guilty of using excessive force against an inmate

OATH Index Nos. 731/13 & 1000/13

OATH Administrative Law Judge Alessandra R. Zorgniotti recommended that a correction officer found guilty of using improper force on four occasions be terminated from his position.

The New York City Department of Correction alleged that the correction officer used excessive physical force in dealing with prison inmates such as choking inmates, punching inmates in the head, and slamming one inmate against a wall. Among the charges served on the correction officer was one that alleged that he hit an adult inmate with a radio. 

The correction officer was also charged with making false statements in interviews concerning his conduct. 

ALJ Zorgniotti found that the correction officer’s use of deadly force and his inability to appreciate the seriousness of his misconduct indicated that retraining and progressive discipline were inappropriate penalties.

Accordingly Judge Zorgniotti recommended the individual be dismissed from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-731.pdf
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Determining eligibility for accidental disability benefits

Determining eligibility for accidental disability benefits

Mruczek v McCall, 299 AD2d 638,
Steven v McCall,**

 

The Mruczek Case:The Mruczek decision demonstrates the burden an individual has in proving that he or she is eligible for accidental disability benefits or line of duty disability benefits. The test to be met is difficult. 

In the words of the Appellate Division, in order for an injury to be the result of an accident for the purposes of eligibility for [accidental] disability retirement benefits within the meaning of the Retirement and Social Security Law, it must "result from a `sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact' and [be] unrelated to the ordinary risks of employment." 

The Comptroller sustained ERS's rejection of Patrick M. Mruczek's applications for accidental, or in the alternative, performance of duty, disability retirement benefits.

Mruczek, a correction officer at the Attica correctional facility, claimed he was injured while at work when he fell over a "feed-up" cart as he proceeded to remove his lunch from a microwave oven. According to Mruczek, he was talking to the hall captain when he heard the bell on the microwave oven. Turning around to retrieve his meal, he fell over a feed-up cart that he alleged had been placed behind him by an inmate. Mruczek also testified that it was normal for inmates to use the feed-up carts and that it was not uncommon to see the carts in the block area in which the accident occurred. 

The Employees' Retirement System [ERS] explained that it had rejected Mruczek's applications because the occurrence was neither (1) an accident nor (2) a result of the acts of an inmate. The Comptroller affirmed ERS's ruling; Mruczek appealed.

The Appellate Division held that "[u]nder these circumstances, the Comptroller could rationally conclude that [Mruczek's] injury occurred as a result of his misstep while he was engaged in a routine activity rather than a sudden, fortuitous and unexpected event."

The Stevens Case: In Stevens the Appellate Division, 3rd Department affirmed the Comptroller's decision that a Nassau County police officer, Gordon F. Stevens, did not qualify for accidental disability retirement benefits.

Stevens was the commanding officer of the County's Marine/Aviation Bureau. He injured his arm while he was assisting other officers engaged in launching a 36-foot patrol vessel weighing 30,000 pounds.

The Appellate Division said that "[c]rucial to the finding of an accident ... is `a precipitating accidental event ... which was not a risk of the work performed.'" Stevens contended that he was not engaged in a task he normally performed and he had never before participated in launching a boat. However, he also said that it was his job was to "make sure everything [got] done" and indicated that, because of the urgency of the situation, he physically assisted in launching the boat. In addition, a former commanding officer of the Bureau testified that it was the responsibility of the commanding officer to see to it that all functions of the Bureau were accomplished and this included physically assisting in the performance of certain tasks if necessary to fulfill this responsibility. 

The court's conclusion: notwithstanding the fact that Stevens had not previously participated in launching the patrol boat, there was substantial evidence to support the Comptroller's finding that "it was a task inherent in [Stevens'] regular duties as commanding officer to carry out the functions of the Bureau" and, therefore, it declined to disturb the Comptroller's determination disapproving Steven's application. 

**The decision is posted on the Internet at http://decisions.courts.state.ny.us/ad3/decisions/2002/91879.pdf
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Aspiration for another position with the employer not a property right

Aspiration for another position with the employer not a property right

Gokaran Singh v District Council 37, et al. US Circuit Court of Appeals, 2^nd Circuit; 05-2255*

The Circuit Court of Appeals affirmed the district court's dismissal of Gokaran Singh’s complaint that he had been denied due process in connection with his alleged loss of property rights due him by his employer. The lower court had dismissed Singh's petition because, it held, Singh failed to demonstrate that he had been deprived of a cognizable property interest by his employer.

Singh’s complaint was based on his interest in obtaining employment in other positions within his Department, the New York City Department of Design & Construction, and his desire for an “exceptional performance” evaluation.

These objectives, said the court are “abstract need[s], desire[s] or unilateral expectation[s]” and do not satisfy the requirement that Singh demonstrate that he has been denied a property right.

* This summary order will not be published in the federal reporter and may not be cited as precedential authority to this or any other court, but may be called to the attention of this or any other court in a subsequent stage of this case, in a related case, or in any case for purposes of collateral estoppel or res judicata.

The decision is posted on the Internet at:

http://federal-circuits.vlex.com/vid/singh-v-district-council-25604512
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Free speech related to job action by teachers trumps initiating disciplinary action where there is no threat to a school's effective operation

Free speech related to job action by teachers trumps initiating disciplinary action where there is no threat to a school's effective operation

2013 NY Slip Op 05633, Appellate Division, Second Department

A teacher [Petitioner] was served with disciplinary charges alleging misconduct flowing from her participation in a “job action” near school grounds in the course of collective bargaining. Found guilty of misconduct and fined $1,000 by the Education Law §3020-a arbitrator, Petitioner challenged the determination by filing a petition pursuant to CPLR Article 75 in an effort to vacate the arbitration award.

According to the decision, the School District and the District's teachers' union were engaged in negotiations on a new collective bargaining agreement. As negotiations continued without an agreement, teachers engaged in concerted actions, including weekly picketing in front of a school. The district filed disciplinary charges against a number of teachers, including Petitioner, alleging that the job action "intentionally created a health and safety risk … by purposely situating [their] vehicle[s] … in order to preclude children from being dropped off at curbside” in front of the school building.

The Appellate Division initially noted that where arbitration is statutorily required, as is the case in an Education Law §3020-a disciplinary action, "judicial review under CPLR Article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record." Further, said the court, "The award must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78" and "Due process of law requires . . . that the [arbitrator's determination] under the power conferred by statute have a basis not only in his good faith, but in law and the record before him [or her]."

The Appellate Division then noted that in two earlier appeals involving teachers disciplined for their involvement the same job actions, it was found that  “the evidence at the hearing provided a rational basis for the arbitrator's determination that the teachers contributed to the creation of a health and safety hazard, and that the awards were not arbitrary and capricious.”* This, said the court, was true in Petitioner’s case as well.

That said, the Appellate Division vacated the arbitration awards handed down in the two earlier cases and then did the same in Petitioner’s case.

In the two earlier cases the appellate court determined that the School District failed to meet its burden of demonstrating the teachers charged with misconduct, who were then engaged in the exercise of their First Amendment rights, so threatened the school's effective operation as to justify the imposition of discipline.

Accordingly, the Appellate Division granted Petitioner’s appeal “for the same reasons, i.e., her job-related activity regarding collective bargaining issues” indisputably addressed matters of public concern and the School District failed to meet its burden of demonstrating that Petitioner's exercise of her First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline.

* See Matter of Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 101 AD3d 1026; Matter of Trupiano v Board of Educ. of E. Meadow Union Free School Dist., 89 AD3d 1030.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05633.htm

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SUNY at Albany's sabbatical leave policies and procedures reviewed by the State Comptroller

SUNY at Albany's sabbatical leave policies and procedures reviewed by the State Comptroller

Source: Office of the State Comptroller

A State Comptroller’s audit reports that State University of New York at Albany [SUNY-Albany] officials “failed to consistently follow guidelines for sabbatical leaves and granted questionable paid leave to other employees, unnecessarily costing taxpayers more than $1 million.”* The Comptroller recommended that SUNY-Albany “Take actions as needed, including the recovery of improper compensation payments, to address the matters presented.”

As to efforts to recover “improper compensation payments," in Trumansburg Central School District v Chalone, 87 A.D.2d 921, the Appellate Division agreed with the School District that it could recover the salary it paid to an educator during his sabbatical leave when he failed to return to his position as agreed upon completion of the leave.

Similarly, in State of New York v Gordon, 102 A.D.2d 990, affirmed, 64 N.Y.2d 712, the court ruled that the employer could recover the cost of the benefits it provided to an individual placed on leave for training purposes in the event he or she fails to return to his or her job.

Also, the State Comptroller has advised that a municipality may adopt a resolution requiring employees who are sent to schools for specialized training at the municipality’s expense in order to qualify for a promotion to reimburse the municipality for the cost of such training if they resign from their position within a specified period of time (Op. St. Comp. 82-4). 

* The Comptroller’s SUNY-Albany audit report is posted on the Internet at:

http://www.osc.state.ny.us/audits/allaudits/093013/11s34.pdf?utm_source=weeklynews20130804&utm_medium=email&utm_campaign=073113release

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The law in effect at the time the administrative or court decision is made controls

The law in effect at the time the administrative or court decision is made controls

Trifaro v Town of Colonie, 31 AD3d 821

Pointing out that it is well established that, generally, the law is to be applied as it exists at the time a decision is rendered, even if the law has been altered since the commencement of the action or proceeding, the Appellate Division, citing citing Gager v White, 53 NY2d 475, 483 [1981], cert denied 454 US 1086, said that this rule applies to administrative and judicial proceedings alike.

Accordingly, the Appellate Division vacated a hearing officer’s determination that was based on the law at the time a hearing was requested rather than the law as it existed at the time the decision was made, notwithstanding the fact that the processing of the hearing was delayed by the individual requesting the hearing. 
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School district must offer its Medicare-eligible retirees the same health insurance benefits the district offers to its active employees

School district must offer its Medicare-eligible retirees the same health insurance benefits the district offers to its active employees

Anderson v Niagara Falls City Sch. Dist., 2013 NY Slip Op 23274, Supreme Court, Niagara County, State Supreme Court Justice Ralph A. Boniello, III

Medicare-eligible retirees of the Niagara Falls City School District [Plaintiffs] sued the school district alleging that the School District had diminished their health insurance benefits by placing them in the "Blue Cross/Blue Shield Forever Blue Medicare PPO 799 Plan" (Forever Blue Plan) without making a similar change in the health insurance plan in which the school district's active employees participated.

This, contended Plaintiffs, constituted a unilateral diminution of their benefits – i.e., additional or higher co-payment costs and medication costs -- as the result of the School District requiring that its Medicare-eligible retirees switch from the “Traditional Blue Plan” to the “Forever Blue Plan.”* In contrast, there was no corresponding diminution in the health insurance benefits provided the active employees. Indeed, said the court, it is undisputed that at the same time Plaintiffs were placed in Forever Blue, the active employees employed by the School District were placed in the NY-44 Health Benefits Trust Plan and as a result the active employees were provided with an increase or improvement of their overall health insurance benefits.

Plaintiffs alleged that this change violated the School District’s obligations under Chapter 504, Part B, §14 of the Laws of 2009 [The Moratorium provision]:

§14 addressed health insurance benefits available to retired employees of school districts and certain boards and, in pertinent part, provides that “a school district … shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such … district makes for such health insurance coverage … unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board [for] the corresponding group of active employees ….”

Among the differences noted by Justice Boniello: the Traditional Blue Plan did not require co-payments for nearly all medical services that took place in-network while the Forever Blue Plan requires co-payments for medical services that occur, both in and out-of-network, and required significantly higher co-payments for prescription medications.

While the School District claimed that it had “offset the additional out of pocket expenses” incurred by the Plaintiffs resulting from their enrollment in Forever Blue by creating a medical reimbursement account for each Medicare-eligible [retiree]," this account was capped at $600.00. Justice Boniello found that “while in some cases the $600.00 may be sufficient, it is entirely possible, and indeed probable, that in most cases it will not be enough.”

Justice Boniello concluded that the School District’s actions violated the mandates set out in Chapter 504, Part B, §14 of the Laws of 2009 and that the School District’s actions were arbitrary, capricious and unlawful.

Justice Boniello then directed the School District[1] to pay each of the Petitioners the amounts, together with interest, "that each has incurred and/or will incur" by reason of the School District’s action to the date of its compliance with the Moratorium provision; and further ordered the school district [2] “to cover the costs and/or provide health insurance coverage that will place the Petitioners in the same position that they would have been in but for the actions of the [School District].”

* A number of school districts, rather then unilaterally imposing such a change upon its Medicare-eligible retirees, have offered its Medicare-eligible retirees the option of either [1] remaining in the district's health insurance plan available to its active employees or [2] electing to switch to different health insurance plan.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_23274.htm
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The Moreland Commission recently established by Governor Cuomo to investigate corruption in the public service issues its first subpoenas

The Moreland Commission recently established by Governor Cuomo to investigate corruption in the public service issues its first subpoenas

The editorial team of the NYMUNIBLOG, published by the Harris Beach law firm as a public service, has posted a new item, "Moreland Commission Issues First Subpoenas." The post reports that the Moreland Commission recently appointed by Governor Cuomo to investigate corruption in the public service has issued its “first wave of subpoenas” and that more subpoenas are expected to be issued in the near future. The Commission has scheduled initial public hearings to be held in September. 

The Moreland Act, now §6 of Executive Law, was passed by the New York State Legislature and signed into law in 1907. The Act authorizes the governor, in person or through one or more persons appointed by the governor, to examine the management and affairs of any department, board, bureau or commission of the State. Commission investigators have the power to interview witnesses, administer oaths, hold hearings, and seize any material deemed relevant to the Commission's investigation.

The Commission is expected to releasing an interim report by the end of 2013 and its final report in mid-2014. 

Additional information on the scope of investigations undertaken by a Moreland Commission is posted on the Harris Beach Legal Alert website at  “Insights into the history and intricacies of a Moreland Commission investigation.”
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Reports and audits issued by the New York State Comptroller

Reports and audits issued by the New York State Comptroller during the week ending August 19, 2013. [Click on text highlighted in bold to access the full report.] 

State Recovers $46 Million in Medicaid Payments Following DiNapoli Audit

New York state was able to recover $46 million in overpayments to nursing homes after an audit by State Comptroller Thomas P. DiNapoli found the Department of Health’s computer system failed to deduct payments some nursing home residents are required to pay for their care, according to a follow–up reportissued August 17, 2013 by DiNapoli. The new report, however, notes that deficiencies in the computer system still exist.

Contractor Charged in Federal Court for Defrauding NYS Health Department of Over $700,000

State Comptroller Thomas P. DiNapoli and United States Attorney for the Southern District of New York Preet Bharara Wednesday announced chargesagainst JOSEPH L. JUNKOVIC for allegedly engaging in a scheme to defraud the New York State Department of Health (NYSDOH) out of more than $700,000 dedicated to providing cancer screening services to low–income New Yorkers. JUNKOVIC allegedly used a not–for–profit corporation that he controlled, Cancer Service Network, Inc. to obtain more than $25 million in federal and state funding to administer cancer screening services, and then billed the NYSDOH for thousands of hours that he did not in fact work. He was arrested at his Bronx home Wednesday morning and presented in Manhattan federal court before U.S. Magistrate Judge Ronald L. Ellis.

DiNapoli: State Fiscal Picture Stable

Tax collections were $18 million below updated projections during July, but receipts since the start of the fiscal year were 13.3 percent higher than last year because of strong personal income tax (PIT) receipts in April, according to the July cash report released Friday by New York State Comptroller Thomas P. DiNapoli. July tax collections were 5.2 percent higher than last year, largely from an additional collection day for PIT withholding this month.

DiNapoli: New Medicaid Reimbursement Method Leads to $31 Million in Overpayments

The state Department of Health made as much as $31 million in excessive Medicaid payments for patients who died within 24 hours of being admitted to a hospital after a new method of calculating hospital payments went into effect, according to an auditreleased August 16, 2013 by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Long Island Pharmacy Swindled State Out Of $235,000

A Long Island pharmacy improperly collected at least $235,000 from Medicaid and the New York State Health Insurance Program over a four–year period, primarily through payments for phony prescriptions that were never delivered to patients, according to audits released Tuesday by New York State Comptroller Thomas P. DiNapoli.

Audit Finds New York City Property Owners Underreported $20 Million in Billboard Income

Hundreds of New York City property owners failed to report an estimated $20 million of taxable income from billboards according to an auditreleased Thursday by New York State Comptroller Thomas P. DiNapoli which was coordinated with New York City Comptroller John C. Liu. Auditors found the New York City Department of Finance failed to follow up on whether property owners were reporting income and did not impose penalties for late or inaccurate information.

NYS Common Retirement Fund Announces First Quarter Results

The New York State Common Retirement Fund’s (Fund) overall rate of return for the first quarter ending June 30, 2013, was 0.29 percent, according to New York State Comptroller Thomas P. DiNapoli. The Fund’s estimated value at the end of the first quarter of its fiscal year was $158.7 billion.

Comptroller DiNapoli Releases Municipal Audits

the Town of Alexandria;

the Village of Bolivar;

the Town of Coldspring;

the City of Glens Falls;

the Grahamsville Fire District;

the Town of Kendall;

the Mastics–Moriches–Shirley Community Library;

the Roosevelt Fire District;

the Schuyler County Sheriff’s Department;

and, the Steuben County Soil and Water Conservation District.

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Audit reports released by State Comptroller DiNapoli on August 16, 2013

Audit reports released by State Comptroller DiNapoli on August 16, 2013

On August 16, 2013, New York State Comptroller Thomas P. DiNapoli announced that the following audits were issued. . [Click on text highlighted in bold to access the full report.] 

Department of Agriculture and Markets, Uncollected Penalties (2012-S-69)
Auditors found outstanding accounts routinely have no collection activity for two years or more and are often eventually deemed uncollectible. Between April 2007 and October 2012, more than 6,000 penalized establishments went out of business resulting in the withdrawal and write off of more than $3.5 million of accounts receivable. Critical but incompatible duties associated with collection are all assigned to one employee. An absence of management oversight has increased the risk that errors, omissions and even irregularities can occur and not be detected.

Department of Motor Vehicles, Oversight and Collection of Snowmobile Registration Fees (2011-S-54)
DMV practices have allowed snowmobile registration discounts to registrants who are ineligible for them, resulting in less revenue to the trail fund for trail services. As a result, 31 of the 50 discounted registrations (62 percent) auditors sampled were for registrants for whom neither DMV nor the New York State Snowmobile Association could confirm eligibility. Given the weaknesses identified, auditors estimate lost revenues to the trail fund may be significant.

Metropolitan Transportation Authority, Selected Aspects of Bus Fleet Maintenance Report (2013-F-8)
An initial audit report in 2010 examined whether the MTA has standards and procedures for the maintenance of its bus fleet, performs bus maintenance in compliance with these standards and procedures, and has a comprehensive maintenance plan for its bus fleet. Auditors found that a number of improvements were needed. In a follow-up report, auditors found the MTA made significant progress in correcting the problems identified.

The MTA has implemented four recommendations and partially implemented three recommendations.

Also, as part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities:

State University of New York System Administration Office, Selected Employee Travel Expenses (2012-S-100)
Auditors selected to audit one State University of New York System Administration Office employee whose expenses ranked among the highest in the state in the area of lodging. In total, they examined $188,074 in travel costs associated with this employee. Most of the expenses examined were appropriate. However, the employee selected for audit had charges totaling $5,021 that were either for non-reimbursable expenses ($200 hotel room smoking charge) or lacked adequate assurance that the charges were for the most reasonable and economical method of travel ($4,821 in car service charges).

State University of New York College at Buffalo, Selected Employee Travel Expenses (2012-S-136)
Auditors were only able to examine two years and nine months of the three years of travel expenditures totaling $127,095 because the college was not required to and did not maintain records prior to July 1, 2008. The travel expenses for the one employee selected for audit were documented and adhered to state travel rules and regulations. This employee was an athletic coach who was responsible for team travel expenses. This coach also incurred expenses for recruiting trips.

State University of New York at Stony Brook, Selected Employee Travel Expenses (2012-S-102)
Auditors examined the travel costs of eight university employees whose expenses exceeded $100,000 or had outliers in the area of train fare. In total, auditors examined $1,313,845 in travel costs associated with these eight employees. Most of the expenses auditors examined were appropriate. However, two employees had charges totaling $2,529 that were either not for legitimate business purposes or lacked adequate assurance the charge was solely for legitimate business purposes.
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Hearsay evidence coupled with nonhearsay evidence held to constitute substantial evidence sufficient to support the appointing authority’s disciplinary decision

Hearsay evidence coupled with nonhearsay evidence held to constitute substantial evidence sufficient to support the appointing authority’s disciplinary decision

2013 NY Slip Op 05630, Appellate Division, Second Department

The appointing authority terminated the employee [Petitioner] following a Civil Service Law §75 disciplinary hearing. Petitioner was found guilty of “misconduct and/or incompetence” and was terminated from her position. Petitioner appealed.

The Appellate confirmed the appointing authority’s determination, explaining that the review of administrative determinations in employee disciplinary cases made after a hearing pursuant to Civil Service Law §75 is limited to a consideration of whether the appointing authority's determination was supported by substantial evidence.

Although much of the evidence against Petitioner offered by the employer was hearsay, the Appellate Division said that this hearsay evidence, in conjunction with the nonhearsay evidence presented at the hearing, constituted substantial evidence sufficient to support the determination that Petitioner was guilty of the charges brought against her.

As to the penalty imposed, termination, the court said that the penalty was “not so disproportionate to the offense committed as to be shocking to one's sense of fairness,” citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05630.htm
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Court holds that termination of an employee after 19 years of employment because of an isolated incident of misconduct shocking to one's sense of fairness”

Court holds that termination of an employee after 19 years of employment because of an isolated incident of misconduct shocking to one's sense of fairness”

2013 NY Slip Op 51322(U), Supreme Court, Dutchess County, Justice James D. Pagones [Not selected for publications in the Official Reports.].

An employee [Petitioner] was served with a number disciplinary charges pursuant to Civil Service Law §75, found guilty of such charges and dismissed from his position.

In a previous proceeding, the Appellate Division found "that substantial evidence in the record supports the determination of [the appointing authority] that Petitioner was guilty of charges one, two, and three…” Accordingly, Justice Pagones said that in the action before him there was no issue of fact as to Petitioner’s guilt as to charges one, two and three. However, said Justice Pagones, “[t]his Court must now look specifically to the offense(s) and determine whether or not the penalty, termination, shocks the judicial conscience."

The court concluded that although the facts and the charges as sustained by the Appellate Division, “while serious, do not fit the penalty of termination.”

In brief, Petitioner was observed “consuming a beer and a shot of liquor” from approximately 1:40 p.m. until 2:40 p.m during his workday, at which point Petitioner returned to work. "This one hour time frame," said the court, "has now cost [Petitioner] his job and his benefits associated with the position."

Recognizing that Petitioner committed a serious infraction, Justice Pagones ruled that “the penalty of termination of his employment is so disproportionate to the offense committed as be shocking to one's sense of fairness” considering that there was no evidence in the record before the Court that Petitioner “during his nineteen (19) years of employment with [employer] had presented a disciplinary problem or that the incident was anything but isolated.”

Justice Pagones then remitted the matter to the appointing authority for the imposition of a lesser penalty and “held in abeyance pending submissions by [Petitioner] and [appointing authority] of a computation of the value of [Petitioner's] full back pay and benefits less any compensation derived from other employment or any unemployment benefits received from September 9, 2010 until now.”

N.B. With respect to the amount of the back pay to be awarded in the event a discharged employee is reinstated by action of a civil service commission or personnel officer or a court, prior to its amendment in 1985 Civil Service Law §§76 and 77 provided that the amount of back pay due an individual found to have been unlawfully terminated from his or her position was to be reduced by the amount of compensation he or she may have earned in any other employment or occupation following his or her termination, together with any unemployment insurance benefits he or she may have received during that period.

In 1985 §§76 and 77 of the Civil Service Law, which apply to certain employees in the classified service of a public employer, were amended [Chapter 851, Laws of 1985] and currently provide that an employee reinstated pursuant to either of these subdivisions is to receive the salary to which he or she would have otherwise been entitled, less the amount of any unemployment insurance benefit that he or she may have received during such period. The clause providing for a "reduction" in the amount to be paid for any compensation earned in other employment or occupation following his or her termination was eliminated.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_51322.htm

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