Daughter admits stealing over $148,000 of New York State Public Employees’ Retirement System funds after failing to report her retired father’s death

Daughter admits stealing over $148,000 of New York State Public Employees’ Retirement System funds after failing to report her retired father’s death

Source: Office of the State Comptroller

New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced that Renee Kanas, 63, a resident of Tamarac, Florida, pleaded guilty today to Grand Larceny in the Third Degree, a Class D felony, for stealing over $148,000 in pension payments from the New York State and Local Employees Retirement System paid to her father, Jacob Yudenfreund, a New York State pensioner who died in March 2010.

By failing to notify the New York Stateand Local Employees Retirement System of her father’s passing in March 2010, Kanas she continued to collect his pension benefits for approximately five years. During this time period, Kanas lived off the stolen money and, among other things, took multiple cruises, including to the Caribbean.

In May 2016, Kanas was arrested on a warrant by City of Tamarac Road Patroland Broward County Sheriff’s in Florida. Having been brought to Albany Countyto face these charges, on June 30, 2016, Kanas today pleaded guilty before Honorable Thomas A. Breslin in Albany Supreme Court. As part of her plea, Kanas signed a confession of judgment in favor of New York Statein the amount of $148,092.24 and now faces up six years in state prison when she is sentenced.

The investigation was conducted by the New York State Comptroller’s Division of Investigations and the Attorney General. This case is the latest joint investigation under the Operation Integrity partnership of the Comptroller and Attorney General, which to date has resulted in dozens of convictions and more than $11 million in restitution. Comptroller DiNapoli and the Attorney General thank the City of Tamarac Road Patrol and Broward County Sheriff’s in Floridafor their assistance.

The Comptroller’s investigation was conducted by the Comptroller’s Division of Investigations, working with the New York Stateand Local Retirement System.

The Attorney General’s investigation was conducted by Investigator Mark Spencer, Investigator Casey Quinlan and Deputy Chief Antoine Karam. Forensic accounting was performed by Associate Forensic Auditor Meaghan Scovello. The Investigations Bureau is led by Chief Dominick Zarrella. The Forensic Audit Section is led by Chief Auditor Edward J. Keegan.

This case is being prosecuted by Assistant Attorney General Philip V. Apruzzese of the Criminal Enforcement and Financial Crimes Bureau. The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chief Stephanie Swenton. The Division of Criminal Justice is led by Executive Deputy Attorney General Kelly Donovan.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online athttp://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

State Division of Human Rights’ complaint alleging discriminatory housing practices filed in Supreme Court held untimely

State Division of Human Rights’ complaint alleging discriminatory housing practices filed in Supreme Court held untimely

New York State Div. of Human Rights v Folino, 2016 NY Slip Op 04821, Appellate Division, Fourth Department

The New York State Division of Human Rights (SDHR), on the complaint of Housing Opportunities Made Equal, Inc. (HOME), commenced an action in Supreme Court seeking damages from Anthony and Carmeline Folino for their alleged discriminatory housing practices. Supreme Court denied the Folino’s motion to dismiss SDHR’s complaint as untimely and the Folinos appealed the Supreme Court’s ruling.

The Appellate Division said that it agreed with the Folinos that Supreme Court erred in denying their pre-answer motion to dismiss the complaint as time-barred pursuant to CPLR §214(2). 

The court's decision noted that HOME had filed an administrative complaint with the United States Department of Housing and Urban Development, which then forwarded the matter to SDHR pursuant to a work-sharing agreement. Accordingly, said the Appellate Division, the running of the statute of limitations was tolled upon the filing of the administrative complaint, and during its pendency, until the administrative proceeding was terminated.

The Appellate Division explained that the last discriminatory act set forth in the SDHR’s complaint occurred on November 8, 2010, and thus the cause of action accrued and the three-year statute of limitations for the New York State Human Rights Law began to run on that date.

Following a probable cause determination by SDHR, the Folinos had submitted a notice of their election to terminate the administrative proceeding and instead "to have an action commenced in the civil court" by SDHR as authorized by Executive Law §297[9].* 

That election triggered the continuation of the running of the Statute of Limitations, the running of which had been tolled upon the filing of the administrative complaint by HOME.

The Appellate Division, noting that 143 days elapsed after the cause of action accrued and before the tolling period commenced upon HOME's filing of its administrative complaint, found that SDHR had two years and 222 days within which to commence the civil action after the tolling period ended. 

This period, said the court, ended on February 22, 2014. SDHR, however, did not commence its civil action until July 3, 2014. Accordingly, said the court, it was untimely, sustaining the Folino’s motion to dismiss complaint filed by SDHR in a civil court.

*§297[9] of the Executive Law, a statutory exception to the Doctrine of Election of Remedies, in pertinent part provides “…. Any party to a housing discrimination complaint shall have the right within twenty days following a determination of probable cause pursuant to subdivision two of this section to elect to have an action commenced in a civil court, and an attorney representing the division of human rights will be appointed to present the complaint in court, or, with the consent of the division, the case may be presented by complainant's attorney.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04821.htm

A probationary employee may not be dismissed from his or her position in bad faith or for an improper or unlawful reason

A probationary employee may not be dismissed from his or her position in bad faith or for an improper or unlawful reason

Castro v Schriro, 2016 NY Slip Op 05105, Appellate Division, First Department

Supreme Court denied Raymond Castro’s CPLR Article 78 petition seeking a court order annulling  his termination from his position as a probationary correction officer with the New York City Department of Corrections [DOC]. The Appellate Division, reversing the lower court’s action, reinstated Castro’s petition and remanded the matter to Supreme Court for further proceedings.

The Appellate Division summarized the events leading to Castro’s termination as follows: Castro was terminated “after an inmate died because [Castro’s] superior, a captain, thwarted the efforts of several people, including Officer Castro, to assist the inmate with his medical condition. Officer Castro cooperated in the investigation of the inmate's death and the federal prosecution of his superior.”

The decision sets out “the present record” with respect to the events that preceded Castro’s termination in some detail and opines that “Officer Castro's termination, without an explanation [by DOC], appears questionable and in bad faith. Under the circumstances, this Court is unable to conclude that his claim of wrongful termination as a probationary correction officer is without foundation to warrant a pre-answer dismissal based solely on the ground that it fails to state a cause of action.”

Citing Swinton v Safir, 93 NY2d 758, the Appellate Division said that a “probationary employee may be dismissed for almost any reason, or for no reason at all, and the employee has no right to challenge the termination in a hearing or otherwise,* absent a showing that he or she was dismissed in bad faith or for an improper or impermissible reason” and the burden falls on the petitioner to demonstrate by competent proof that bad faith exists, or that the termination was for an improper or impermissible reason.”

DOC had asked Supreme Court to dismiss Castro’s Article 78 petition at the pre-answer stage on the sole ground that his petition failed to state a cause of action. The Appellate Division said it disagreed with Supreme Court's determination that the petition failed to sufficiently state a claim of improper termination of a probationary correction officer, noting that Castro alleged that his termination was arbitrary and capricious, and in bad faith and set out “a factual predicate for his allegations.”

Castro’s petition, said the court, “avers that despite serving as a correction officer who acted in complete accord with DOC's rules and proper protocol, pursuant to orders from his supervisor, and in full cooperation with the investigation of inmate Echevarria's death, which lead to Captain Pendergrass' indictment, Officer Castro was inexplicably terminated.”

Noting that in its appeal DOC made no attempt to refute Castro’s allegations but simply argued that, as a probationary employee, it was not required to furnish Castro with the charges against him and he could be dismissed without a reason being stated.

The Appellate Division rejected DOC’s argument, explaining that Castro’s termination was within the ambit of an exception to this general principle. The court ruled that where a substantial issue of bad faith is raised, as was here the case, in that the termination a probationary employee may not have been the result of the probationary employee's failure to perform his or her duties satisfactorily but may have been due to some improper basis, a petition should not be dismissed on the pleadings.

DOC presented nothing other than a pre-answer motion to dismiss Castro based on the sole ground that Castro’s petition failed to state a claim of improper termination. The Appellate Division said that although the burden falls squarely on Castro to demonstrate by competent proof at an evidentiary hearing that his termination was for an improper or impermissible reason, DOC, as the firing agency, “should be required to provide responsive pleadings so as to explain the basis of the termination.”  

Accordingly, the matter was remanded to Supreme Court for further consideration.

* Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. The rationale for this was noted in McKee v. Jackson, 152 AD2d 54, where the court said that a probationer is entitled to a minimum period of time to demonstrate his or her ability to successfully perform the duties of the position. In contrast, as the Court of Appeals held in Gray v Bronx Developmental Center, 65 NY2d 904, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05105.htm

_______________

The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions and the termination of permanent,  provisional, temporary and term state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

_______________

Where the collective bargaining agreement so provides, an allegation that the employer violated the “whistle-blower” statute is adjudicated in accordance with the terms of the agreement

Where the collective bargaining agreement so provides, an allegation that the employer violated the “whistle-blower” statute is adjudicated in accordance with the terms of the agreement

DiGregorio v MTA Metro-N. R.R., 2016 NY Slip Op 04807, Appellate Division, First Department

A former employee of MTA Metro-North Railroad, Lisa DiGregorio, sued MTA Metro-North alleging it had violated §75-b of New York State’s Civil Service Law, the so-called “whistle-blower statute” applicable to employees of the State and political subdivisions of the State.

The Appellate Division, citing Subdivisions (3)(b) and (3)(c) of Civil Service Law §75-b, affirmed Supreme Court’s dismissal of her petition, explaining that Lisa DiGregorio’s complaint “may not be litigated in this forum” because the relevant collective bargaining agreement contained provisions addressing situations involving the employer's taking of adverse personnel actions and which contains a final and binding arbitration provision.

Accordingly, said the court, DiGregorio was required to arbitrate her complaint.* 

CSL §75-b(2)(a) provides that “(a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding  the employee's employment because the employee disclosed allegations of  “improper governmental action” to a  governmental body if the employee satisfies certain conditions.

CSL §75-b(3)(b) provides that “Where an employee is subject to a collectively negotiated agreement which contains provisions preventing an employer from taking adverse personnel actions and which contains a final and binding arbitration provision to resolve alleged violations of such provisions of the agreement and the employee reasonably believes that such personnel action would not have been taken but for the conduct protected under [subdivision 2 of CSL §75-b], he or she may assert such as a claim before the arbitrator. The arbitrator shall consider such claim and determine its merits and shall, if a determination is made that such adverse personnel action is based on a violation by the employer of such subdivision, take such action to remedy the violation as is permitted by the collectively negotiated agreement.” [Emphasis supplied].

In contrast, if a public employee is not subject to any of the provisions of CSL §75-b(2)(a) or §75-b(2)(b), the individual may commence “an action in a court of competent jurisdiction under the same terms and conditions as set out in Labor Law Article 25-c.”

Article 25-c[4] of the Labor Law provides that where an employer is alleged to have violated Article 25-c, “An employee who has been the subject of a retaliatory personnel action in violation of this section may institute a civil action in a court of competent jurisdiction for relief as set forth in subdivision five of this section within one year after the alleged retaliatory personnel action was taken.”

* In Kowaleski v New York State Dept. of Correctional Servs., 16 NY3d 85, the Court of Appeals held that an arbitrator’s refusal to hear an employee’s “whistle blower” defense in the course of disciplinary hearing required the vacating of the award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04807.htm

A two-prong test is used by courts to determine if a provision in a collective bargaining agreement is subject to arbitration

A two-prong test is used by courts to determine if a provision in a collective bargaining agreement is subject to arbitration

Matter of Cortland County (CSEA, Inc., Local 1000 AFSCME, AFL-CIO), 2016 NY Slip Op 04481, Appellate Division, Third Department

Lawrence Jackson, a correction officer employed by the Cortland County Sheriff’s Department [County], was diagnosed with plantar fasciitis* in his left foot and was subsequently awarded workers' compensation benefits. However, his application for disability benefits pursuant to General Municipal Law §207-c was denied, which administrative determination was affirmed by the Appellate Division [see Matter of Jackson v Barber, 133 AD3d 958].

In August 2013, Jacksonsubmitted a physician's note stating that, as a result of his foot condition, he was restricted from working more than 40 hours and 35 minutes per week. Although the County initially accommodated Jackson's limitation, in September 2013, the County notified Jackson that his "availability to work mandatory overtime [wa]s an essential function of [his] position" and that his "limited availability pose[d] a safety issue . . . [that] could result in an understaffed shift," it could not accommodate his work "restriction on a continuing basis" and was therefore placing him on family and medical leave until such time as he was "able to complete all essential functions of [his] position."

Jackson’s employee organization for collective bargaining, CSEA, Inc., Local 1000 [CSEA], submitted a grievance on behalf of Jackson alleging the County had violated the collective bargaining agreement [CBA] between the parties by refusing to accommodate Jackson's work restriction. The County denied the grievance. In response to CSEA’s demand for arbitration the County filed a petition in Supreme Court pursuant to §7503(b) of the CPLR seeking a permanent stay of arbitration.

Concluding that the dispute was arbitrable, Supreme Court denied the County’s application for the permanent stay of arbitration. The County appealed and the Appellate Division sustained the lower court’s ruling.

The Appellate Division explained that "The court's role in reviewing applications to stay arbitration is . . . a limited one" and a two-prong test is used to determine if the dispute arbitrable.

The court initially considers if the subject of the claim sought to be arbitrated is the type authorized by Civil Service Law Article 14 [the Taylor Law] and is not barred by constitutional, statutory or public policy considerations, the first test. 

If the demand for arbitration meets this test, the court will then consider the grievance and arbitration provisions set out in the collective bargaining agreement. Where the arbitration clause in a collective bargaining agreement is broad, said the Appellate Division, courts "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Not discerning any constitutional, statutory or public policy considerations that prohibit arbitration of the dispute, the Appellate Division considered the second prong of the test. Noting that the CBA defines an arbitrable grievance as "any alleged violation of the terms and conditions of employment,” as defined in the CBA, including any misinterpretation or misapplication of the agreement or past practices, the court noted that Article 5 of the CBA addresses employee work schedules, including certain required overtime, and includes a section on "Light Duty Assignments." **

As the CBA specifically addresses overtime and contemplates the availability of light-duty assignments, 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 for the purpose of resolving the matter by arbitration. 

Recognizing that certain substantive clauses in the CBA might not support the grievances, the court said that  issue was irrelevant with respect to the threshold question of arbitrability, as the arbitrator, and not the court, is to resolve any uncertainty concerning the substantive rights and obligations of the parties."

Accordingly, the Appellate Division ruled that Supreme Court had properly determined that the dispute should be submitted to arbitration.

* A pain in the heel resulting from the inflammation the plantar, a thick band of tissue in the heel.

** Additionally, said the court, “Article 20 of the CBA discusses overtime and sets forth the procedure for assigning mandatory overtime shifts.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_04481.htm

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New York State public employer

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New York State public employer

Porco v New York State Teachers' Retirement Sys., 2016 NY Slip Op 04777, Appellate Division, Third Department

Supreme Court dismissed Joan Porco's application seeking a review of the New York State Teachers' Retirement System’s [TRS] determination denying her years of service credit for retirement purposes for certain months of service.

Porco joined TRS as a “Tier 2” member upon commencing employment as a public school teacher. Subsequently Porco sustained a serious injury and applied for, and was granted, disability retirement pursuant to Education Law §511. Later Porco returned to work for a period of three months, during which period she continued receiving her disability retirement allowance. In response to Porco's request for clarification regarding earning "member service credit" for those three months of employment, TRS advised Porco that she was ineligible to receive such credit for that period of employment.

Ultimately TRS issued a final determination denying Porco member service credit for the disputed three-month period. Porco then initiated a CPLR Article 78 proceeding challenging that determination. Supreme Court upheld TRS’s decision and dismissed Porco’s petition, which ruling was sustained by the Appellate Division.

The Appellate Division, citing Maillard v New York State Teachers Retirement System, 57 AD3d 1299, explained when an administrative determination is rendered without a hearing, a court’s review "is limited to whether [the determination] is arbitrary, capricious or without a rational basis." Further, said the court, “given that [TRS] is charged with administering the retirement statutes at issue, its interpretations are entitled to deference and should be upheld unless they are irrational, unreasonable or inconsistent with the governing law.”

As a general rule, said the court, "retirement on a pension" causes a person's membership in the retirement system to cease. With respect to an individual receiving a retirement allowance from TRS, Education Law §511(5) permits "Tier 2 disability retirees" to resume active service while still receiving disability retirement benefits subject to certain limitations salary limitations. Such a retiree, however, "shall not become a member of [TRS]."

In contrast, should the retiree be restored to active service at a salary as great as, or greater, than his or her final average salary, "his [or her] retirement allowance shall cease, and he [or she] shall again become a member of [TRS]." Education Law §511[6] provides that such an individual’s "prior service certificate on the basis of which his [or her] service was computed at the time of his [or her] retirement shall be renewed." Upon such individual’s subsequent retirement, he or she "shall be credited" with both the service credit reflected in the prior service certificate and "all [of] his [or her] service as a member subsequent to the period covered by his [or her] prior service certificate"

Finding that TRS’s interpretation of these statutes was rational and reasonable, the Appellate Division concluded that Porco’s membership in TRS cease when she began receiving disability retirement benefits and although she had returned to work during the disputed three months, because her salary did not exceed the statutory cap, Education Law §511(5) explicitly barred her from becoming a member of TRS during that period of time.  

Accordingly, ruled the Appellate Division, TRS’s determination denying years of service credits to Porco for this three-month period would not be disturbed.

Similar rules apply is situations where an individual is receiving a retirement allowance from another New York public retirement system [see §150 of the Civil Service Law, Suspension of pension and annuity during public employment, and, generally, §§210 – 217 of the Retirement and Social Security Law] with respect to the re-employment of such retired individuals in public service of the State or a political subdivision of the State.

* The decision notes that Porco received $6,809.91 in disability retirement benefits as well as her salary during this three-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04777.htm

Complimentary webinar “Avoiding and managing the threats of ransomware attacks” scheduled to be held on June 28, 2016

Complimentary webinar “Avoiding and managing the threats of ransomware attacks” scheduled to be held on June 28, 2016

Source: NYMuniblog

Ransomware computer attacks are potential disruptors of a organization’s operations. The consulting subsidiary of Harris Beach PLLC, HB Solutions LLC, will hold a complimentary webinar June 28, 2016, focusing on avoiding and managing the threats of ransomware attacks.

Click on HB Solutions Data Privacy and Cybersecurity Team for information about this  program which is being held in conjunction with Access Advisory Group, leaders in cyber protection technology.

For additional information about the webinar and a link to register for the event, click on

http://hbsolutions.com/wp-content/uploads/Ransomware-Would-You-Trust-a-Thief.pdf

Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer

Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer

2016 NY Slip Op 04422, Appellate Division, Second Department

The petitioner [Petitioner], a tenured teacher, filed a complaint with her employer, a school district, alleging that two teachers in her department were bullying and harassing her. 

Following a preliminary investigation of the complaint by the School District’s Director of Human Resources, the School Board [Board] retained an attorney to conduct an investigation and prepare a written report for the Board's consideration.

Ultimately the Board determined that there was insufficient evidence to conclude that the alleged misconduct rose to the level of "harassment, bullying, discriminatory behavior and/or hostile environment" toward Petitioner.*

Petitioner then commenced a CPLR Article 78 proceeding to review the Board's determination and to compel the production of the investigation report submitted to the Board by the attorney.

Supreme Court denied Petitioner’s motion to annul the Board's determination, but, determining that the Board and the School District had waived any attorney-client privilege as to the investigation report, granted that branch of her petition seeking to compel the production of the report. Both parties appealed from the respective portions of the judgment adverse to them.

The Appellate Division ruled that “under the circumstances,” Supreme Court should have reviewed the investigation report in camera* before determining whether the Board's determination was arbitrary or capricious rather than relying on selective information submitted by the Board and the School District.

Further, said the court, Supreme Court also erred in determining that the Board and the School District had waived the attorney-client privilege with respect to the investigation report without first conducting an in camera review of the report.

Reversing the Supreme Court’s judgment “insofar as appealed and cross-appealed” the Appellate Division remitted the matter to the Supreme Court to conduct an in camera review of the investigation report and then to make a new determinations of the branches of the petition seeking to annul the Board's determination and to compel disclosure of the investigation report.

* The Appellate Division’s decision states that the Board noting that “… the relationship between [Petitioner] and the two other teachers had become an impediment to the effective operation of the …  department … directed the school's administration to take appropriate remedial action, including conducting workplace sensitivity training.

** A review of documents by the court in his or her chambers.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04422.htm

Challenging the denial of a Freedom of Information Law request on the representation that the records are exempt from disclosure

Challenging the denial of a Freedom of Information Law request on the representation that the records are exempt from disclosure

2016 NY Slip Op 04417

The petitioner [Petitioner] in this CPLR Article 78 action had filed a Freedom of Information Law [FOIL] request with the custodian of police department records relating to a recent criminal investigation of allegations concerning events that occurred more than 25 years ago. The custodian of the records denied the request, claiming that the entire case file was exempt from FOIL disclosure.

After an unsuccessful administrative appeal, Petitioner initiated litigation to compel the custodian to produce the case file. Supreme Court denied the petition and dismissed the proceeding. Petitioner appealed the Supreme Court’s decision.

The Appellate Division commenced its review of the Petitioner’s appeal by noting:

1. In a proceeding pursuant to CPLR Article 78 to compel the production of material pursuant to FOIL, the custodian of the records denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are to be narrowly construed;

2. The denial requires the entity resisting disclosure to articulate a particularized and specific justification for denying access and conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed; and

3. If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera* inspection of representative documents and order disclosure of all nonexempt, appropriately redacted, material.

The Appellate Division also noted that Public Officers Law §87(2)(a) provides that a custodian may deny access to records or portions thereof that "are specifically exempted from disclosure by state** or federal statute" while Civil Rights Law §50-b(1) provides a statutory exemption from disclosure for documents that tend to identify the victim of a sex offense. 

However, said the court, Civil Rights Law §50-b(1) "does not justify a blanket denial of a request for any documents relating to a sex crime. If a requested document does not contain information that tends to identify the victim of a sex crime, and the FOIL request is otherwise valid, the document must be disclosed." Further, the custodian must make a particularized showing that “the statutory exemption from disclosure pursuant to Civil Rights Law §50-b(1) applies to all the records that the petitioner seeks.”

The Appellate Division said that Supreme Court should have conducted an in camera inspection to determine whether the entire case file falls within the exemption from disclosure of Civil Rights Law §50-b(1) as any document in the case file containing identifying information is protected by Civil Rights Law §50-b(1) would be categorically excluded in its entirety and not subject to redaction or deletion.

Accordingly, the Appellate Division remanded the matter to Supreme Court for a new determination based upon the court’s in camera inspection of the records claimed to be exempt from disclosure.  

* An inspection of the documents is to held by the judge in his or her private chambers.

** The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute unless the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the FOIL exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04417.htm

Governor Cuomo asks to Port Authority officials to investigate an alleged closure of a Lincoln Tunnel lane for other than official purposes

Governor Cuomo asks to Port Authority officials to investigate an alleged closure of a Lincoln Tunnel lane for other than official purposes

Source: Office of the Governor

On June 21, 2016, Governor Andrew M. Cuomo sent a letter to Port Authority of New York and New Jersey Chairman John Degnan, Vice Chairman Steven Cohen and Executive Director Patrick Foye regarding a reported lane closure in the Lincoln Tunnel.

Governor Cuomo wrote:

Dear Chairman Degnan, Vice Chairman Cohen and Executive Director Foye:

In recent court papers detailing corruption charges against members of the New York City Police Department, it was noted that a businessman “using his connections in local law enforcement agencies, was able to arrange for the closure of a lane in the Lincoln Tunnel and a police escort down that lane for a businessman visiting the United States.” If this is true, it is deeply troubling.

I am hereby directing the New York State and Port Authority Offices of the Inspector General to conduct a thorough examination of what, if any, role agents of the Port Authority played in the circumstances associated with these allegations. The NYPD has no jurisdiction within the tunnels boundaries. If members of the Port Authority or PAPD participated in any fashion – through purpose or neglect – the State will deliver immediate and severe consequences.

The State of New York holds the integrity of public service to the highest standard. When those who are sanctioned to uphold the law use their position for personal gain, it threatens all of us. We will simply not allow Port Authority facilities to be chips in some nefarious pattern of deceit.

Please ensure you are coordinating with the U.S. Attorney for the Southern District of New York and the Federal Bureau of Investigation before commencing any action.

Sincerely,

Andrew M. Cuomo

Governor Cuomo’s letter is posted on the Internet at:

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/PortAuthorityLetter06.21.2016.pdf

Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office

Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office

2016 NY Slip Op 04420, Appellate Division, Second Department

The Village Board [Village] adopted a resolution appointing its Village Clerk/Treasurer [Clerk] for a two-year term. Village subsequently advised Clerk that it had suspended her with pay following her arrest for allegedly “shoplifting” and ultimately adopted a resolution terminating Clerk's “employment by the Village.”

Clerk commenced a CPLR Article 78 action seeking a court order compelling Board to reinstate her to her office retroactively with full back pay, alleging, among other things, that Village’s action terminating her from office was arbitrary and capricious, and in violation of Public Officers Law §36. Village answered the petition and subsequently moved to dismiss the proceeding.

Supreme Court, without deciding the merits of Clerk’s petition, determined that the Village did not raise any objections in point of law that could terminate the entire proceeding, denied the Village's motion to dismiss Clerk’s petition and transferred the proceeding to the Appellate Division.

The Appellate Division opined that, as the challenged determination by Village was not made after a quasi-judicial evidentiary hearing, Supreme Court erred in transferring the matter to it. However, “in the interest of judicial economy,” the court elected to retain jurisdiction and determine the issues raised by Clerk on their merits.

Considering the relevant law, the Appellate Division ruled that Village lacked the authority to remove Clerk, a Village officer, from her position by adopting a resolution to that effect.

The court explaining that a Village officer could only be removed from his or her office in accordance with the procedure set forth in Public Officers Law §36, noting that §36 provides, in relevant part, that any Village officer "may be removed from office by the supreme court for any misconduct . . . An application for such removal may be made by any citizen resident of such . . . village . . . or by the district attorney of the county in which such . . . village . . . is located, and shall be made to the appellate division."

Further, §36 provides that “Such application [to the Appellate Division in the appropriate judicial department] shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice.”

The Village’s action to terminate Clerk from her public office by adopting a resolution so doing was, in effect, a nullity as Village lacked the authority to remove Clerk from her public office by resolution. As no application to the Appellate Division to remove Clerk from her office had been made as mandated by Public Officers Law §36, the Appellate Division granted Clerk’s petition to the extent that Village’s action was annulled and the matter remitted to the Supreme Court to determine the appropriate remedy.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04420.htm

_______________

The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

_______________

If a State Department’s policy memorandum constitutes a "rule or regulation" within the meaning of the State’s Constitution it must be filed with the Secretary of State before it can have the force and effect of law

If a State Department’s policy memorandum constitutes a "rule or regulation" within the meaning of the State’s Constitution it must be filed with the Secretary of State before it can  have the force and effect of law

Plainview-Old Bethpage Congress of Teachers v New York State Health Ins. Plan, 2016 NY Slip Op 04473, Appellate Division, Third Department

[See, also, 2016 NY Slip Op 04472, http://www.nycourts.gov/reporter/3dseries/2016/2016_04472.htm, granting NYSHIP’s motion to reargue the court’s decision.]

Roslyn Teachers Assn. v New York State Health Ins. Plan, 2016 NY Slip Op 04475, Appellate Division, Third Department*

[See, also, 2016 NY Slip Op 04474, http://www.nycourts.gov/reporter/3dseries/2016/2016_04474.htm, granting NYSHIP’s motion to reargue the court’s decision.]*

While the Plainview-Old Bethpage Central School District [School District], a participating employer in the New York State Health Insurance Program [NYSHIP] administered by the New York State Department of Civil Service, was negotiating the terms of new collective bargaining agreements with the Plainview-Old Bethpage Congress of Teachers and its Clerical Unit and Teachers Unit, [Association], the Department of Civil Service issued its "Policy Memorandum No. 122r3" [Memorandum], which limited the circumstances under which an employee of a participating employer such as the School District may decline NYSHIP coverage in exchange for a cash payment.

Although earlier collective bargaining agreements between the parties had included such a "buyout program," the School District took the position that the buyout program was required to conform to the new restrictions set forth in the Memorandum.

In response to the position taken by the School District, the Association commenced a combined CPLR Article 78 proceeding and action for declaratory judgment seeking, among other things, a judicial declaration that the Memorandum is null and void. NYSHIP and the Department of Civil Service [the State] moved for summary judgment.

Supreme Court denied the State’s motion, granted the Association’s petition declaring the Memorandum null and void, and remitted the matter to the State for further action. The State appealed.

In an earlier, and similar action, the Appellate Division, School Administrators Association of New York v New York State Department of Civil Service, 124 AD3d 1174, the State had argued that School Administrators' claims were barred by the four-month statute of limitations. In response to the State’s argument that the Association’s claim was similarly untimely, the Appellate Division ruled that the Association had advanced an argument regarding the timeliness of their challenge that was not before the court in School Administrators.

Here, said the Appellate Division, the Association contended the Memorandum was, in fact, a new, formal rule governing employee eligibility for the NYSHIP buyout program. Thus, argued the Association, its provisions are unenforceable because, among other things, it was not filed with the Department of State in accordance with the mandates of the State’s Constitution** and Executive Law §102[1][a]).

In the words of the Appellate Division, “… the resolution of the [Association's] challenge hinges on whether the policy memorandum is more properly characterized as a rule or regulation, or as an interpretive statement or general policy which are not subject to constitutional and statutory filing requirements.”

The court explained that a rule or regulation is "a fixed, general principle to be applied by an administrative agency without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers." Interpretive statements and guidelines, in contrast, merely assist agency officials in exercising some aspect of their discretionary authority granted by existing statutes and regulations but do not have, in and of themselves, the force and effect of law.

The primary difference between a rule or regulation and an interpretive statement or guideline, said the court, is that the former “set standards that substantially alter or, in fact, can determine the result of future agency adjudications” while interpretive statements and guidelines simply provide additional detail and clarification as to how such standards are met by the public and upheld by the agency.”

The Appellate Division found that the Memorandum constituted a "rule or regulation" within the meaning of Article IV, §8 of the State Constitution and Executive Law §102 and thus it is “invalid and without effect” until it is filed with the Department of State.

As the State did not comply with this filing requirement, it follows that the statute of limitations never commenced to run on the Association’s claims.

Accordingly, the Appellate Division sustained Supreme Court's determination.

* In Roslyn, which the Appellate Divisions characterized as a case that is virtually indistinguishable from Matter of Plainview-Old Bethpage Congress of Teachers v New York State Health Insurance Plan, 2016 NY Slip Op 04473, [see above], the court said that the new restriction that the policy memorandum imposes on eligibility for the NYSHIP buyout program constitutes "a firm rigid, unqualified standard or policy" that effectively "carves out a course of conduct for the future.” Accordingly the policy memorandum constituted a "rule or regulation" within the meaning of Article IV, §8 New York State’s Constitution and Executive Law §102(1)(a) and, thus, is not effective until it is filed with the Department of State. The Roslyn decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_04475.htm

** Article IV, §8 of the State Constitution provides that “No rule or regulation made by any state department, board, bureau, officer, authority or commission, except such as relates to the organization or internal management of a state department, board, bureau, authority or commission shall be effective until it is filed in the office of the department of state. The legislature shall provide for the speedy publication of such rules and regulations by appropriate laws.”

The Plainview-Old Bethpage Congress of Teachers decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_04473.htm