Employee terminated for failure to posses a valid license required to perform the duties of the position

Employee terminated for failure to posses a valid license required to perform the duties of the position

Matter of Rivera v New York City Dept. of Sanitation, 2016 NY Slip Op 05837, Appellate Division, First Department

Supreme Court granted the Article 78 petition filed by probationary sanitation worker Carlos Rivera  seeking a court order annulling Department of Sanitation’s terminating his employment with the Department.

According to the Appellate Division’s decision, Rivera, during his probationary period, had been arrested and charged with Driving While Intoxicated [DWI]. His commercial driver's license, a requirement for employment as a sanitation worker, was suspended and then revoked as a result. The Department filed several disciplinary complaints against Rivera as a result of this incident and he was subsequently terminated.*

Rivera filed an Article 78 petition in Supreme Court seeking to annul Department terminating his employment, which the court granted in form of a “default judgment” as the result of the City’s failure to file a timely answer to Rivera’s petition. The City then filed a motion to vacate the default judgment on the grounds of “law office failure,” which motion was denied by Supreme Court. The City appealed the Supreme Court's decision.

The Appellate Division explained that a movant seeking to vacate a default judgment must [1] move to do so within one year of entry of the default; [2] show a reasonable excuse for the default; and [3] a meritorious defense. The court found that the City had met all three of these requirements and, further, the Appellate Division noted that Rivera did not oppose the City’s application to vacate the default judgment.

Considering the City’s claim of "law office failure" as a reason for its default, the court said that under certain circumstances, law office failure may provide a reasonable excuse for a default. The City’s excuse: Rivera’s was an “e-filed case” and its law office “failed to regularly check its email and, as a result, was unaware of the motion court's order that gave rise to the default.” The Appellate Division found that the City’s excuse was “sufficiently particularized and there is no evidence of willful or contumacious conduct” on its part.

As to the City’s advancing “a meritorious defense,” the court noted that Rivera [1] was a probationary employee at the time he was arrested and charged with DWI and [2] his commercial driver's license, a requirement for employment as a sanitation worker, was suspended and then revoked as a result of this event.

As a probationary employee, said the Appellate Division, Rivera “may be discharged without a hearing or a statement of reasons, in the absence of a demonstration that [his] termination was made in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law."**

Finding that the record before it “clearly establishes that there were legitimate reasons for terminating [Rivera’s] employment, specifically, his arrest and the revocation of his license.” Further, said Appellate Division, “[t]his is a valid reason for termination even if the charges for which he was arrested were later withdrawn or dismissed.”

As the City’s failure to timely file an answer was neither willful, nor part of a pattern of dilatory behavior, and Rivera points to no evidence that the three-month period of default caused him to change his position, and he has demonstrated no other prejudice, and “in view of the strong public policy of disposing of cases on their merits, [the Appellate Division ruled that Supreme Court had] improvidently exercised its discretion in denying [the City’s] motion to vacate the default.” The Appellate Division then unanimously reversed the lower court’s rulings “on the law,” vacating the default judgment, denying Rivera’s petition and dismissing the proceeding.

* Termination of an employee for failure to posses a valid license required to perform the duties of the position is not disciplinary in nature and thus was subject to neither the pre-termination disciplinary procedures set out in a  collective bargaining agreement nor the provisions of Civil Service Law §75 [Cravatta v New York State Dept. of Transp., 77 AD3d 1399]. Further, in Meliti v Nyquist, 41 NY2d 183, the Court of Appeals held that the suspension of a teacher without pay was appropriate where the teacher lacked the necessary license or certification to teach. With respect to the existence of a “valid license requirement,” see Martin ex rel Lekkas, 86 AD2d 712.

** There is another limitation on such “summary” termination, however. In the event an appointing authority wishes to dismiss a probationary employee before he or she has completed his or her minimum probationary period formal disciplinary action must be initiated and notice and hearing provided [Challandes v Shew, 275 A.D.2d 369].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05837.htm

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The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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Recent postings on Employment Law Notes

Recent postings on Employment Law Notes

Source: WK WorkDay

Click on text highlighted in colorto access full text of the posting

Claims of ‘boys’ club’ atmosphere with sexist comments, strippers, and porn survive dismissal

By Brandi O. Brown, J.D.

A female employee who described a work environment replete with sexist comments, pornography, minimization of female workers, and at least one daytime visit by strippers—as well as her own belittlement and eventual termination—may proceed in part with her suit against two corporate defendants, a federal district court in New York ruled. Although the employee’s state-law claims and claims against individual defendants were dismissed, the court found more than enough reason to deny the defendants’ motion to dismiss her Title VII claims of sex discrimination, sexual harassment, and retaliation (Conforti v. Sunbelt Rentals, Inc.).

A sign of the times? Justices asked to decide the threat-level of a hangman’s noose placed in a black employee’s work station

In the current political climate, in which many assert that dog-whistle politics have paved the way for divisiveness and racial discrimination more common in times that many Americans hoped were safely relegated to the past, the Supreme Court has been presented an opportunity to rule on just how powerful one particular symbol of racism—a hangman’s noose—remains today. The Ninth Circuit affirmed summary judgment for the employer because the employee had failed to make a prima facie case—the noose, as it turns out, was not clearly enough targeted to the employee to be one of those single acts of harassment that are threatening enough to create a hostile work environment—at least in the eyes of the district court and the Ninth Circuit.

Was required mental ‘fitness-for-duty’ exam unlawful? Jury to decide

By Marjorie Johnson, J.D.

A jury will decide whether a university’s decision to require a professor to undergo a mental fitness-for-duty examination was job-related and consistent with business necessity, and thus lawful under the Rehabilitation Act and the California Fair Employment and Housing Act. Denying both parties’ motions for partial summary judgment, a federal district court in California determined that triable issues existed as to whether the HR director based his decision on unsubstantiated allegations or specific emails from students and staff demonstrating her outbursts and inability to perform her job. And since the exam never occurred due to her refusal to attend, it was also questionable whether it would have been sufficiently job related (Ellis v. San Francisco State University, August 11, 2016, Henderson, T.).

Hospital workers certify Rule 23 class action alleging additional WARN Act notice required

By Matt Pavich, J.D.

A North Carolina district court has granted certification of a Rule 23 class action to a group of former hospital employees in their WARN Act lawsuit. The court found that questions of fact common to the class predominated over individual inquiries (Hutson v. CAH Acquisition Company 10, LLC dba Yadkin Valley Community Hospital, August 15, 2016, Osteen, W., Jr.).

Forfeiture of employee retirement contributions made to a New York State public retirement system

Forfeiture of employee's retirement contributions made to a New York State public retirement system

United States v. Stevenson, USCA, 2^ndCircuit, Docket 14-1862

Article V, §7 of the New York State Constitution, sometimes referred to as the “Nonimpairment Clause,” provides, in relevant part, that: “membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.” Such systems are "defined benefit" retirement plans.

One of the issues in the Stevenson case was whether Article V, §7 barred a federal district court from directing the forfeiture of an employee's contributions to a New York State public retirement system* as a "substitute asset."

Eric Stevenson, a former Member of the New York State Assembly, was convicted of accepted three bribes in 2012 and 2013 in the total amount of $22,000 in return for various actions to promote certain adult daycare centers including proposing legislation to the New York State Legislature that would have imposed a moratorium on new adult daycare centers, thus favoring certain interested parties.

The jury found Stevenson guilty on all counts and the Federal District Court judge hearing the case, among other things, entered a preliminary order of forfeiture of Stevenson's assets in the amount of $22,000, representing the amount of the bribes. A final judgment, entered on May 23, 2014, including an order of forfeiture that provided, as a substitute asset for forfeiture purposes, “[a]ny and all contributions, funds, benefits, rights to disbursements, or other property held on behalf of, or distributed to, Eric Stevenson, by the New York State and Local Retirement System, … and all property traceable thereto”** up to $22,000.

Stevenson appealed and with respect to the court's “order of forfeiture,” he contended that identifying his pension plan employee contributions as a substitute asset and permitting seizure up to the amount of $22,000 by the Government was error as those contributions were protected by Article V, Section 7 of the New York State Constitution, which, in pertinent part, provides that such a plan’s benefits “shall not be diminished or impaired.”

The Circuit Court of Appeals disagreed and affirmed the lower court’s ruling with respect to the forfeiture of assets and its designating Stevenson's contributions to the Retirement System a substitute asset for purposes of paying the $22,000 penalty imposed by the court.

The court explained that to the extent that there is "a conflict between New York law providing that the employee's pension  is not to be 'diminished or impaired,' and federal law, which authorizes forfeiture 'irrespective of any provision of State law,' of any property derived from the crime of conviction, [see 21 U.S.C. §853(a)], and, where such property cannot be located or has been transferred, of ‘any other property of the defendant’ in the same amount,” Article V, §7 of the New York State Constitution “is preempted to the extent that it would prevent forfeiture of Stevenson’s contributions to or benefits from a state pension or retirement system up to $22,000, the amount ordered forfeited.”

The Circuit Court then affirmed the lower court’s decision, including the sentence imposed, the forfeiture order, and the order identifying substitute assets by the district court.”

In Matter of D'Agostino v DiNapoli, 24 Misc 3d 1090, one of the relatively few State court decisions that consider the extent of the protections provided by Article V, §7 of New York State Constitution's, the court said that Article V, §7 “merely provides that retirement system benefits are contractual in nature and may not be impaired or diminished by state action. Further, said the court, “Such guarantee does not render an individual retirement system member's benefits inviolate.” Rather, the court, citing Matter of Village of Fairport v Newman, 90 AD2d 293, leave to appeal denied 58 NY2d 1112, said "[t]he purpose of the constitutional provision is 'to insure that pension and retirement benefits [are not] subject to the whim of the Legislature or the caprice of the employer.”

Further, explained the D’Agostino court, “[t]here is no constitutional violation unless the contractual benefits are unilaterally diminished,” presumably as a result of an action by the State Legislature, the State or a political subdivision of the State to truncate a retirement allowance otherwise payable, citing Rosen v New York City Teachers' Retirement Bd., 282 App Div 216,  affd 306 NY 625, and Delaney v Regan, 183 AD2d 981.

* The State University’s Optional Retirement Plan, established pursuant to Article 8-B of the Education Law [and similar defined contribution retirement plans established by law] is not a public retirement systems of the State and, as indicated in §396 of the Education Law, the “Employer [is] not liable for [the] payment of benefits.”

** Stevenson did not have sufficient “years of member service” in the Retirement System to have become a “vested” member of the System but the Federal District Court said that he was entitled to a refund of the “member contributions” that he had made as a member of the System.

The Stevenson decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/0227062b-c942-4ce4-8bb4-82668b8dddf0/1/doc/14-1862_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/0227062b-c942-4ce4-8bb4-82668b8dddf0/1/hilite/

Employment Law News postings

Employment Law News postings

Source: WK WorkDay

[Internet links highlighted in color]

Summaries of court decisions concerning:

Religion at the workplace: Sabbath observance; dreadlocks; other considerations

http://www.employmentlawdaily.com/index.php/2016/08/16/religion-at-work-dreadlocks-sabbath-and-other-tidbits-you-should-know/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

Police officer’s reporting superior’s alleged official misconduct to the Federal Bureau of Investigation

http://www.employmentlawdaily.com/index.php/news/officer-spoke-as-private-citizen-when-reporting-official-misconduct-to-fbi/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

Supervisor’s threat to shoot employee who complained about harassment constituted retaliation within the meaning of Title VII

http://www.employmentlawdaily.com/index.php/news/supervisor-if-i-had-a-gun-i-would-shoot-her-comment-supports-retaliation-claim/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WK+WorkDay%29

Determining if an employee is a joint employee of two or more employers for the purposes of State and City human rights laws

Determining if an employee is a joint employee of two or more employers for the purposes of State and City human rights laws
Brankov v Hazzard, 2016 NY Slip Op 05778, Appellate Division, First Department

The decision of the Appellate Division in Brankov, which involved an employment in the private sector, concerned whether “an ostensible non-employer is actually a "joint employer" for purposes of employment discrimination claims under the State and City Human Rights Laws (HRL).” Thus the ruling may be instructive in determining the employer-employee relationship for the purposes of HRLs in situations where a public officer or employee, alleging unlawful discrimination, initiates an administrative or judicial complaint under state, local and, or federal laws claimng two or more public sector employers are liable for the alleged acts of unlawful discrimination.

Although the majority of employments in the public service involve the appointment of an individual to a position under the jurisdiction of a single appointing authority, there are a number of other types of employments that may be made depending of the circumstances, the most common being a “dual employment” and a “joint employment.”*

Dual employments typically involves a single individual serving in two different positions, each under the jurisdiction of different appointing authorities and generally require the knowledge and approval of the appointing authorities involved.**

In contrast, a joint employment is effected when two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two [or more] appointing authorities typically share the personnel service costs involved.

Other types of employments in the public service include, but are not limited to:  

1. A “special employee” in the service of two or more employers pursuant to a shared services agreement,

2. A “shared employment” in which two or more individuals are employed part-time by a single appointing authority and “share” a single position and

3. An “extra service employee” where an individual, typically working full time for one appointing authority, is simultaneously employed by the same or another appointing authority in a different position with the approval of the appointing authority or both appointing authorities, as the case may be.

The Appellate Division described Dragica Branko’s employee status as follows:

“In this action "Company A" hired Brankov, paid her salary and bonuses, controlled where she was assigned to work, and placed her at "Company B" and later transferred her to other locations. A "Company A" employee supervised Branko on a day-to-day basis. "Company B" had no say in the end of Branko's employment with "Company A" years after she had been transferred to another location. The record plainly indicates that "Company A", and not "Company B," ultimately controlled Branko's employment.”

Explaining that Federal District Courts have typically applied the "immediate control" test in determining the appropriate “defendant-employer” in such situations, the Appellate Division said that under the "immediate control" formulation, a "joint employer relationship may be found to exist where there is sufficient evidence that the defendant had immediate control over the other company's employees," and particularly the defendant's control "over the employee in setting the terms and conditions of the employee's work."

"Relevant factors" in this analysis "include commonality of hiring, firing, discipline, pay, insurance, records, and supervision." Of these factors, "the extent of the employer's right to control the means and manner of the worker's performance is the most important factor."

In Brankov, the Appellate Division held that “[v]iewed in the light most favorable to [Brankov], the record fails to demonstrate that ["Company B"] had the requisite "immediate control" over the terms and conditions of her employment to be subject to liability under the New York State and New York City Human Rights Law as a "joint employer."

Accordingly, said the court, Supreme Court correctly held that "Company B" was not Brankov’s joint employer, and correctly dismissed her claims against "Company B" and Hazzard as those claims rested on her theory of joint employment.

* These designations involve the "nature of the individual's performance of duties obligations" rather than the “nature of a public officer’s or employee’s status" in the position such as a permanent, temporary, contingent permanent, full-time, part-time, seasonal, trainee, per diem or substitute appointee or as an individual elected to a position in the public service. An independent contractor serving with a State, a political subdivision of the State, a public authority or other governmental entity is not a “public employee."  

** Another consideration with respect to dual employments concerns the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation? As the Attorney General advised in an informal opinion: In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05778.htm

Determining if an employee is a joint employee of two or more employers for the purposes of State and City human rights laws

Determining if an employee is a joint employee of two or more employers for the purposes of State and City human rights laws
Brankov v Hazzard, 2016 NY Slip Op 05778, Appellate Division, First Department

The decision of the Appellate Division in Brankov, which involved an employment in the private sector, concerned whether “an ostensible non-employer is actually a "joint employer" for purposes of employment discrimination claims under the State and City Human Rights Laws (HRL).” Thus the ruling may be instructive in determining the employer-employee relationship for the purposes of HRLs in situations where a public officer or employee, alleging unlawful discrimination, initiates an administrative or judicial complaint under state, local and, or federal laws claimng two or more public sector employers are liable for the alleged acts of unlawful discrimination.

Although the majority of employments in the public service involve the appointment of an individual to a position under the jurisdiction of a single appointing authority, there are a number of other types of employments that may be made depending of the circumstances, the most common being a “dual employment” and a “joint employment.”*

Dual employments typically involves a single individual serving in two different positions, each under the jurisdiction of different appointing authorities and generally require the knowledge and approval of the appointing authorities involved.**

In contrast, a joint employment is effected when two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two [or more] appointing authorities typically share the personnel service costs involved.

Other types of employments in the public service include, but are not limited to:  

1. A “special employee” in the service of two or more employers pursuant to a shared services agreement,

2. A “shared employment” in which two or more individuals are employed part-time by a single appointing authority and “share” a single position and

3. An “extra service employee” where an individual, typically working full time for one appointing authority, is simultaneously employed by the same or another appointing authority in a different position with the approval of the appointing authority or both appointing authorities, as the case may be.

The Appellate Division described Dragica Branko’s employee status as follows:

“In this action "Company A" hired Brankov, paid her salary and bonuses, controlled where she was assigned to work, and placed her at "Company B" and later transferred her to other locations. A "Company A" employee supervised Branko on a day-to-day basis. "Company B" had no say in the end of Branko's employment with "Company A" years after she had been transferred to another location. The record plainly indicates that "Company A", and not "Company B," ultimately controlled Branko's employment.”

Explaining that Federal District Courts have typically applied the "immediate control" test in determining the appropriate “defendant-employer” in such situations, the Appellate Division said that under the "immediate control" formulation, a "joint employer relationship may be found to exist where there is sufficient evidence that the defendant had immediate control over the other company's employees," and particularly the defendant's control "over the employee in setting the terms and conditions of the employee's work."

"Relevant factors" in this analysis "include commonality of hiring, firing, discipline, pay, insurance, records, and supervision." Of these factors, "the extent of the employer's right to control the means and manner of the worker's performance is the most important factor."

In Brankov, the Appellate Division held that “[v]iewed in the light most favorable to [Brankov], the record fails to demonstrate that ["Company B"] had the requisite "immediate control" over the terms and conditions of her employment to be subject to liability under the New York State and New York City Human Rights Law as a "joint employer."

Accordingly, said the court, Supreme Court correctly held that "Company B" was not Brankov’s joint employer, and correctly dismissed her claims against "Company B" and Hazzard as those claims rested on her theory of joint employment.

* These designations involve the "nature of the individual's performance of duties obligations" rather than the “nature of a public officer’s or employee’s status" in the position such as a permanent, temporary, contingent permanent, full-time, part-time, seasonal, trainee, per diem or substitute appointee or as an individual elected to a position in the public service. An independent contractor serving with a State, a political subdivision of the State, a public authority or other governmental entity is not a “public employee."  

** Another consideration with respect to dual employments concerns the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation? As the Attorney General advised in an informal opinion: In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05778.htm

Collective bargaining under the Taylor Law: submitting demands characterized as new or regressive after post-impasse fact-finding

Collective bargaining under the Taylor Law: submitting demands characterized as new or regressive after post-impasse fact-finding

Buffalo Teachers Federation v Buffalo City School District, PERB U-34445

Buffalo City School District v Buffalo Teachers Federation, PERB U-34462

On July 21, 2015, The Buffalo Teachers Federation [BTF] filed an improper practice charge with the New York Public Employment Relations Board [PERB]. BTF alleged that the Buffalo City School District [CSD] had engaged in “bad faith bargaining” by offering “expanded, new and regressive” contract proposals after a fact finder’s report had been issued in violation of §209-a.1(d) of Civil Service Law Article 14, the Taylor Law [the Act].

Six days later CSD filed improper practice charges with PERB alleging that BTF had violated §209-a.2(b) of the Act by demanding that the school district reimburse BTF’s unit members for lost wages for the period 2004-2007 that resulted from the wage freeze imposed by the Buffalo Fiscal Stabilization Authority.*

PERB’s Administrative Law Judge M. Lynn Fitzgerald, addressing the issue of bargaining in good faith, opined that the charges alleged by the parties stem “at least in part, from both parties’ frustration over [their] inability to reach a mutually acceptable agreement over an 11 year period.”

Judge Fitzgerald then noted that where the parties are at impasse, §209.3 of the Act provides impasse resolution procedures permitting PERB to provide mediation assistance. Where such assistance is unproductive, PERB may appoint a fact-finder and should fact-finding fail to resolve the impasse situation, §209.3(f) of the Act, in pertinent part, provides:

“where the public employer is a school district … (i) the board may afford the parties an opportunity to explain their positions with respect to the report of the fact-finding board at a meeting at which the legislative body, or a duly authorized committee thereof, may be present; (ii) thereafter, the legislative body may take such action as is necessary and appropriate to reach an agreement. The board may provide such assistance as may be appropriate.”

In June 2015 CSD offered its new contract proposals which included salary increases but excluded any retroactive adjustment; an increase in employee health insurance contributions from 10% to 20%; an increase in the work-year from 186 work-days to 190 work-days; and an extension of the current 6 hour 50 minute work-day to a 7 hours 40 minute work-day; together with proposals in 8 subject areas concerning terms and conditions of employment that had not been previously included in the course of collective bargaining since negotiations commenced in 2004.

The ALJ noted that contract proposals not previously advanced have been permitted in situations where there has been a substantial change in one party’s bargaining position as the result of a “material change in circumstances” such as:

1. Legislative changes that affect a party’s statutory rights or obligations after the parties reached impasse; or

2. The issuance of an arbitration award during the course of collective bargaining; or

3. The publication of an improper practice decision by PERB where the decision had a financial impact on the employer, or  

4. A decision by the Court of Appeals that constitutes a change in circumstances that would justify a party’s introduction of new proposals.

In contrast, Judge Fitzgerald explained that contract proposals not previously advanced were not permitted where the justification for such proposals were based on:

1. A party’s “lead negotiator” being changed or replaced; or

2. The election or appointment of new or different members to the school board [or, presumably, an employee organization’s elected officers]; or

3. The appointment of a new school superintendent [or, presumably, an employee organization’s chief executive officer].

The ALJ also commented that the mere passage of time does not serve to permit the introduction of regressive proposals and the introduction of new matters. Were it otherwise, said Judge Fitzgerald, “would allow parties to continually change their proposals and add new subjects in direct opposition to the duty to narrow issues with an eye to bringing negotiations to a close.

Judge Fitzgerald concluded that although CSD “may have a legitimate interest in negotiating certain new benefits and work rule changes, it is not permissible to add those new matters to the issues which are pending at this stage of the negotiations for a successor to the expired 2004 agreement.” However, said the AJL, those proposals would be properly submitted in the next round of negotiations or in “separate negotiations specific to those issues.”

The bottom line, Judge Fitzgerald found that the District’s introduction of new subjects into post fact-finding negotiations, alone, was improper but, additionally, the reduction in the value of the District’s financial offer in its 2015 offer was “regressive and therefore improper.”

* The decision, the genesis of which was the expiration of the last negotiated collective bargaining agreement between the parties on June 30, 2004, sets out the history of the events leading to the filing of these charges, the arguments presented by the parties in support of their respective positions and the relevant litigation that transpired concerning the underlying issues during this period. For a PDF copy of this 46-page decision, e-mail your request to Publications@nycap.rr.com with the word Regressive in the subject line.

Pokemon Go: It’s Here And Law Enforcement Needs To Be Aware Of It

Pokemon Go: It’s Here And Law Enforcement Needs To Be Aware Of It

Source: Sui Generis, a LawBlog

 

Nicole Black, a Rochester, New York attorney, has posted an item on her LawBlog “Sui Generis” captioned Pokemon Go: It’s Here And Law Enforcement Needs To Be Aware Of It.

It is posted on the Internet at: http://nylawblog.typepad.com/suigeneris/2016/07/pokemon-go-its-here-and-law-enforcement-needs-to-be-aware-of-it.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

Son alleged to stolen pension benefits following his mother’s death

Son alleged to stolen pension benefits following his mother’s death

Source: Office of the State Comptroller

N.B. These charges are accusations and the defendant 

is presumed innocent unless and until proven guilty.

On August 15, 20156 New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of an indictment charging John H. Eydeler III, 66, a resident of Glendale, Arizona, with grand larceny in the second degree, a class C felony. Eydeler is alleged to have stolen over $100,000 in pension payments from the New York State and Local Employees Retirement System intended for his deceased mother, Dorothy Eydeler, a retired nurse who died in October of 1998.

“After his mother passed away, Mr. Eydeler hid her death and stole more than $100,000 in pension payments,” said Comptroller DiNapoli. “Through our Operation Integrity partnership with Attorney General Schneiderman, our investigation expanded to three states and led to Mr. Eydeler's arrest in Arizona.”

“When individuals illegally pocket pension funds that were intended for retirees, it harms all New Yorkers who count on their pension for a secure retirement,” said Attorney General Schneiderman. “Comptroller DiNapoli and I will continue our partnership to protect the state pension system from theft and abuse.”

According to investigators, Eydeler concealed his mother’s death in 1998 from the New York State and Local Employees Retirement System.  As a result, between October 1998 and January 2010, over $100,000 in pension benefits were deposited into a bank account in the name of Eydeler’s deceased mother.  Eydeler then allegedly diverted these monies to himself by claiming to have power of attorney for his mother and writing checks to himself every month for over a decade.  Eydeler allegedly altered his scheme to conceal the theft, and used the monies to prop up a small automotive repair business that he owned in Glendale, Arizona.

Eydeler was arraigned on August 15, 2016, on the indictment by the Honorable Stephen W. Herrick in Albany Supreme Court, and entered a plea of not guilty. The defendant "was released on recognizance." The next court date is scheduled for August 30. If convicted, Eydeler faces up to five to fifteen years in state prison.

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.  

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

The Attorney General’s investigation was conducted by Investigator Mitchell Paurowski and Deputy Chief Antoine Karam. The Investigations Bureau is led by Chief Dominick Zarrella.  

This case is being prosecuted by Assistant Attorney General John R. Healy 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.

Is the filing of a timely “notice of claim” with a municipal or school district employer where unlawful discrimination is alleged a condition precedent?

Is the filing of a timely “notice of claim” with a municipal or school district employer where unlawful discrimination is alleged a condition precedent?

Savvis v New York City Dept. of Educ., 2016 NY Slip Op 05751, Appellate Division, Second Department

Debra Savvis sued the New York City Department of Education to recover damages for alleged unlawful discrimination on the basis of sex and a hostile work environment in violation of New York State’s Executive Law §296. Supreme Court granted Department of Education's motion for summary judgment, dismissing the complaint on the ground that the Savvis had failed to serve a timely notice of claim.

Savvis appealed but the Appellate Division, in its August 10, 2016, decision,said that her action was barred by Education Law §3813(1), which required the filing of a notice of claim within three months after the accrual of a cause of action, which admittedly was not done in this instance.*

The court also rejected Savvis’ argument that she was relieved of the notice of claim requirement on the basis that her action was brought to vindicate a public interest, holding that “Supreme Court properly granted the City Education Department’s motion for summary judgment dismissing the complaint.”

However, in Carter v Syracuse City School District, a summary order by the United States Circuit Court of Appeals, 2nd Circuit, Docket 15-2395, dated August 8, 2016, noted that a decision by New York State’s Court of Appeals, Margerum v City of Buffalo, 24 NY3d 721, addressed one of the critical issues in Carter: was a notice of claim a condition precedent to filing a human rights action against a municipality?  

The Federal District Court had dismissed Carter's petition on a finding that Carter had failed to comply with the notice-or-claim provision in New York State’s Education Law §3813, which the District Court had held were conditions precedent to bringing any action against a school district or its officers pursuant to the State’s Human Rights Law. The issue, as perceived by the Circuit Court in issuing its summary order, was whether Carter was required to serve a timely notice of claim on the Syracuse City School District in first instance in view of Margerum. The Circuit Court remanded the action to the district court to reconsider this and a number of other issues.

In Margerum New York State’s Court of Appeals held that “a notice of claim need not be filed for a Human Rights Law claim against a municipality .…” Noting that “General Municipal Law §50-i (1) precludes commencement of an action against a city ‘for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city,’ unless a notice of claim has been served in compliance with §50-e,” the court explained that “human rights claims are not tort actions under §50-e and are not personal injury, wrongful death, or damage to personal property claims under §50-i,” concluding that “there is no notice of claim requirement here.”

In his concurring opinion, Justice Read noted that the Court of Appeals had held “that an employment discrimination claim brought against a county [sic] under the Human Rights Law is subject to County Law §52(1)'s notice-of-claim requirement,” citing Mills v County of Monroe, 89 AD2d 776, [affd. 24 NY3d 721], 59 NY2d 307. He then said that “There are certainly reasons why the legislature might nonetheless choose to treat civil rights actions differently, as this opinion suggests; however, it is hard to believe that the legislature ever intended to create a situation where an action brought against the County of Erie alleging violations of the Human Rights Law would require a notice of claim as a condition precedent to suit, while the same type of action brought against the City of Buffalo would not.”**

Justice Rivera, in a separate opinion, concurring in part and dissenting in part, said “The Court [of Appeals] has broadly interpreted the Human Rights Law consistent with the statutory mandate that ‘[t]he provisions of [the Human Rights Law] shall be construed liberally for the accomplishment of [its] purposes.’”

* There have been a number of decisions indicating that under certain circumstances a notice of claim is not required. Examples include:

1. New York State's Public Employment Relations Board, relying on the Court of Appeals ruling in Freudenthal v. Nassau County, 99 NY2d 285, held that claims filed with the NY State Division of Human Rights, a State administrative agency, do not require the filing of a Notice of Claim pursuant to Education Law §3813, concluded that such notice is not required with respect to improper practice charges filed with it.

2. The Commissioner of Education has held that §3813 does not apply to appeals brought under §310 of the Education Law, [Decisions of the Commissioner of Education, 12369].

3. In Mennella v Uniondale UFSD, 287 A.D.2d 636, the Appellate Division ruled that a petition filed with the Commissioner of Education may constitute the functional equivalent of a §3813(1) notice of claim.

4. In Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights."

** In Freudenthal v. Nassau County, 99 NY2d 285, footnote 5, the court said "... we conclude that Division proceedings are governed exclusively by the commencement procedures in Executive Law §297(5)." Thus it would appear that a timely filing with the Division controls with respect to the public entity named as a respondent in a human rights complaint submitted to it regardless of other provisions in law otherwise requiring the timely filing a notice of claim with such a public entity. 

The Carter decision is posted on the Internet at: http://www.ca2.uscourts.gov/decisions/isysquery/de194eaf-b3bd-4172-b6d7-0727fccccad6/9/doc/15-2395p_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/de194eaf-b3bd-4172-b6d7-0727fccccad6/9/hilite/

The Margerum decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_01378.htm

The Savvis decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05751.htm

Selected reports issued by the Office of the State Comptroller during the week ending August 13, 2016

Selected reports issued by the Office of the State Comptroller during the week ending August 13, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

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

Office of Temporary and Disability Assistance ­- National Directory of New Hires Data Security

The office has taken actions to comply with the federal requirements for securing directory data. Auditors found that the office is fully compliant with 23 of the 32 requirements and partially compliant with seven requirements. Two requirements were not applicable due to current practices at the office and modifications of federal reporting requirements. 
Office of Temporary and Disability Assistance: National Directory of New Hires Data Security
(2016-S-27) 

Queens County District Attorney’s Office - Oversight of Persons Convicted of Driving While Intoxicated  
Although 9,604 offenders overseen by the office received court orders to install Ignition Interlock Devices (IIDs), only 1,952 offenders (20.3 percent) did. By borough, IID installation rates ranged from 9 percent in Brooklyn to 30 percent in Staten Island. Generally, offenders who did not install IIDs signed court affidavits stating that they would not drive a motor vehicle during the period of conditional discharge unless it had an IID. Auditors also found material noncompliance with the office’s protocols to minimize the risk that offenders would drive vehicles without IIDs. 

Queens County District Attorney’s Office: Oversight of Persons Convicted of Driving While Intoxicated (2015-N-2) 

NYS Department of Education - Compliance With the Reimbursable Cost Manual Report 2015-S-96 

Costs submitted by the Early Education Center on its Consolidated Fiscal Report (CFR) were properly calculated, adequately documented and allowable under SED’s guidelines for the fiscal year ended June 30, 2014.
State Education Department (SED): Early Education Center, Compliance with the Reimbursable Cost Manual (2015-S-96)  


NYS Department of Education - The Alcott School; Compliance With the Reimbursable Cost Manual
For the year ended June 30, 2014, auditors identified $55,969 in ineligible costs that Alcott reported on its CFR. The ineligible costs included: $52,442 in personal service costs, which consisted of $49,874 in unsupported staff time, and $2,568 in employee compensation that was reported as more than one full-time equivalent on the CFR; and $3,527 in other than personal service costs, which consisted of $1,889 in inadequately documented expenses, $1,252 in working capital interest, and $386 in food and other non-reimbursable costs.
State Education Department: The Alcott School, Compliance with the Reimbursable Cost Manual (2015-S-97) 


Metropolitan College of New York; Higher Education Services Corporation; State Education Department - Audit of the State Financial Aid Program at Metropolitan College of New York, Report 2015-T-7 
Auditors determined that the procedures used by Metropolitan officials to certify students for state financial aid substantially complied with the governing law and regulations. However, Metropolitan was overpaid $20,944 because school officials incorrectly certified some students as eligible for financial aid.

Tuition Assistance Program: State Financial Aid Program at Metropolitan College of New York

(2015-T-7) 


Inappropriate Medicaid Payments

New York state’s Medicaid system made as much as $12.1 million in inappropriate payments during 2015, including $2.3 million for dead patients and millions more for recipients who had been dropped from long term care coverage, according to an audit released August 9, 2016 by State Comptroller Thomas P. DiNapoli. By the end of audit fieldwork, about $2.1 million of the overpayments were recovered.

The Comptroller said: “My auditors continue to find glitches in the Department of Health’s payment control systems that allow wasteful payments to be made,” DiNapoli said. “The department agreed with most of our recommendations and is working to fix the problems we have uncovered. It should recover up to $10 million that should not have been spent.”

New York’s Medicaid program, administered by the state Department of Health (DOH), is a federal, state, and locally funded program that provides a wide range of medical services to those who are economically disadvantaged or have special health care needs.

DOH’s eMedNY computer system processes Medicaid claims submitted by providers for services rendered to Medicaid-eligible recipients and generates payments to reimburse the providers for their claims.

DiNapoli’s office audits Medicaid payments on a routine basis to make sure claims are being paid appropriately and to determine if improvements are needed and whether money should be recovered because of errors, abuse or fraud. In 2015, DiNapoli’s auditors questioned $223 million in payments.

Managed Long-Term Care (MLTC) plans provide services to recipients who have a long-lasting health problem or disability. Medicaid pays MLTC plans a monthly payment for every recipient enrolled in an MLTC plan. According to the department’s MLTC contract, DOH has the right to recover capitation payments made to plans for recipients who it is later determined were inappropriately enrolled because of death, incarceration, or relocation out of the plan’s service area. From Feb. 1, 2015 to Sept. 30, 2015, Medicaid made 1,745 capitation payments totaling more than $7.1 million for 1,324 recipients who were retroactively disenrolled from a plan by DOH or local Departments of Social Services.

With the enactment of the federal Patient Protection and Affordable Care Act (PPACA) in 2010, the state developed New York State of Health (NYSOH) as a new online marketplace for individuals to obtain health insurance coverage, including Medicaid. The PPACA requires NYSOH to verify an applicant’s identifying information when determining Medicaid eligibility and enrollment. Once individuals are enrolled in Medicaid, NYSOH is required to periodically verify recipients are alive to ensure active coverage is appropriate.

DiNapoli’s auditors determined NYSOH enrolled 119 deceased individuals into the Medicaid program, and NYSOH did not automatically terminate 1,177 enrollees who apparently died after enrollment. Medicaid overpaid 4,892 claims totaling $2,282,626 on behalf of 966 enrolled recipients. At the end of our fieldwork, 766 of the 1,296 deceased enrollees still had active Medicaid coverage through NYSOH. 

DOH subsequently completed its review of the 766 enrollees, concluded that 4 individuals were alive and took the necessary steps to close the accounts of the remaining 762 enrollees.

DiNapoli’s auditors also found:

1. $1,052,058 in overpayments for claims billed with incorrect information pertaining to other health insurance coverage that recipients had;

2. $813,412 in overpayments for low-birth weight  newborn claims that were submitted with incorrect birth weights;

3. $708,016 in overpayments for inpatient claims that were billed at a higher level of care than what was actually provided; and

4. $77,861 in improper payments for duplicate billings and claims for clinic, transportation, durable medical equipment, and eye care services.

Auditors also identified providers in the Medicaid program who were charged with or found guilty of crimes that violate health care programs’ laws or regulations. DOH terminated 26 of those providers, but the status of five other providers was still under review at the time fieldwork was completed. 

DiNapoli made 11 recommendations to DOH to recover the remaining inappropriate Medicaid payments and improve claims processing controls. 

DOH generally agreed with the audit recommendations and indicated that certain actions have been and will be taken to address them. The agency’s complete response is included in the final audit.

Read the reportor go to: http://www.osc.state.ny.us/audits/allaudits/093016/15s16.pdf