How Lawyers Are Using Social Media in 2019

How Lawyers Are Using Social Media in 2019

Nicole Black, a Rochester, New York attorney and the Legal Technology Evangelist at MyCase - law practice management software for small law firms, notes that the majority of lawyers are learning about - and are using - social media. She asks "Are you one of those lawyers? Is your law firm using social media? Are you? How does your social media use compare?"

Her article "How Lawyers Are Using Social Media in 2019" is posted on the Internet at:

https://nylawblog.typepad.com/suigeneris/2019/01/how-lawyers-are-using-social-media-in-2019.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

Qualifications for employment in the public service mandated by statute may not be waived

Qualifications for employment in the public service mandated by statute may not be waived

Martin, as Administratrix of The Estate of Christos Lekkas v State of New York et al., 82 AD2d 712

Christos Lekkas, a permanent Assistant Clinical Physician in the then Office of Mental Retardation and Developmental Disabilities,* [OMRDD] was never licensed to practice medicine in New York or in any State of the United States or in the Dominion of Canada. Summarily terminated from his position pursuant to Education Law §6522 of the Education Law which provides that "Only a person licensed or otherwise authorized under this article shall practice medicine or use the title physician," Lekkas initiated an Article 78 proceeding alleging that both the Federal and State Constitutions as well as §50.4 of the Civil Service Law required that Lekkas be given a pre-termination hearing or, alternatively, the opportunity to respond to the reasons given by the State for his discharge."

Prior to its repeal in 1971 §6512.1(b) of the Education Law had exempted full-time employees of a State hospital from the normal requirement of a State license to practice medicine. Announcements for civil service examinations for certain physician positions in State hospitals were not updated to reflect  that appointees to these positions now must be licensed to practice medicine by the State of New York. As a result, Lekkas' was permanently appointed an Assistant Clinical Physician following his passing a post-1971 examination for the position.

Supreme Court, addressing the narrow issue of whether a permanently appointed civil service employee in the competitive class may be summarily discharged from his or her position because he or she did not meet the minimum qualifications for the position, citing Ferrine v Bahou, 75 A.D.2d 669, as being dispositive of the issue, ordered Leekas reinstated to his former position with back pay and benefits "without prejudice to further proceedings" deemed advisable by the State.

The State appealed contending that Lekkas was ineligible for employment as an Assistant Clinical Physician because he was not licensed to practice medicine by New York State.

The Appellate Division framed the issue before it as "[w]here, as here, an ineligible applicant is appointed, the issue narrows to whether such an appointee can be discharged without being afforded an opportunity to challenge the reasons for his discharge." The court, affirming the Supreme Court's ruling, explained that resolution of this question turned on whether the qualifications for Assistant Clinical Physician were prescribed by regulation or by statute.

If Education Law, §6522 controlled, it was beyond the power and jurisdiction of the Civil Service Commission or any other administrative body to confer upon an applicant eligibility for appointment "denied to him [or her] by the Legislature."*

If a regulation controlled, the Appellate Division, citing Matter of Wolff v Hodson, 285 N.Y. 197, said that the decision was within the sole power and jurisdiction of the administrative agency and thus no appointee who has obtained permanent appointed to his or her position can be removed without being afforded the procedural rights set forth in §50.4 of the Civil Service Law, "despite the fact that had his [or her] infirmity to qualify for the position been timely known he [or she] would not have been appointed."

Noting that the duties of an Assistant Clinical Physician were defined administratively rather than by statute, the Appellate Division concluded that such duties were amenable to administrative change. The record, said the court, indicates that OMRDD notified Lekkas and others performing medical duties requiring licensure by circulating memoranda advising unlicensed physicians that they must desist from such practice except under the supervision of a licensed physician.**

  

Accordingly, ruled the Appellate Division, the State's contention that Lekkas was subject to job dismissal, without recourse to any benefits of his permanent employee status on the sole ground that he was practicing medicine without a license was without merit as Lekkas' assigned duties as an Assistant Clinical Physician were defined administratively, rather than by statute and thus such duties were amenable to administrative change. Presumably, Lekkas, on the date his employment was terminated, was discharging limited medical duties under the supervision of a licensed doctor.

Thus, said the court, the State's claim that Lekkas was subject to summary dismissal, without recourse to any benefits of his permanent employee status, on the sole ground that he was practicing medicine without a license as required by Education Law §6522 was without merit in view of the fact that the duties of an Assistant Clinical Physician were both defined and changed by administrative fiat. Accordingly, said the Appellate Division,  the provisions of the Civil Service Law rather than the Education Law controlled.

In the words of the Appellate Division, While it is clear that decedent would not have been eligible either to take the examination or be appointed if the announcements for civil service examinations for positions as physicians in State hospitals had reflected the 1971 statutory changes, it is equally clear that respondents could not terminate decedent on the ground of disqualification, in the absence of fraud, more than three years after the date of such appointment (see Civil Service Law, §50.4). Special Term thus correctly annulled decedent's discharge and ordered respondents to reinstate him with back pay and benefits" and affirmed the lower court's judgment , with costs.

It should be noted that Leekas died subsequent to the perfection of this appeal but prior to oral argument and the administratrix of his estate was substituted as party petitioner. As Special Term ordered Leekas' reinstated with back pay, the possibility exists that his estate could be the beneficiary of monetary benefits if it should ultimately prevail in this matter. Accordingly, the Appellate Division declined to dismiss the appeal on the ground of mootness.

* Subsequently redesignated the Office for People with Developmental Disabilities

** Such physicians were continued in employment and were given a period of time during which they could seek to obtain a New York State license to practice medicine. Leekas failed to obtain the required license prior to the deadline imposed to do so.

The decision is posted on the Internet at:

https://www.leagle.com/decision/198279886ad2d7122464

Why lawyers should know how to properly redact a document

Why lawyers should know how to properly redact a document

Source: George Khoury, Esq. writing on Technologist, Findlaw's Legal Technology Blog

Mr. Khoury notes that "if you don't know how to properly redact a document, you could end up telling the entire world what you never intended to tell anyone."

His article is posted on the Internet at:

https://blogs.findlaw.com/technologist/2019/01/why-lawyers-should-know-how-to-properly-redact.html?DCMP=cons_top:nwl

Settlement of a dispute by oral agreement

Settlement of a dispute by oral agreement

Doe v. Kogut, USCA, Second Circuit, Docket #17-1479 [Summary Order]

[N.B.Second Circuit rulings by summary order do not have precedential effect.]

The parties in this action reached a settlement at a conference with a magistrate judge. After reciting the terms of the settlement on the record, the federal magistrate judge asked both parties if they understood and accepted the terms of the settlement and understood that acceptance constituted an oral contract. Both Doe and Kogut affirmed these statements.* 

Doe, however, subsequently repudiated the settlement, stating that the oral contract was not binding and she had been under duress.

Kogut, on the other hand, moved to enforce the settlement agreement and the court granted Kogut’s motion, reasoning that the oral agreement was binding and that Doe was not under duress at the time of the settlement conference. The Circuit Court sustained this ruling, explaining that “[a] settlement agreement is a contract that is interpreted according to general principles of contract law” and need not be reduced to writing if it is entered into voluntarily on the record in open court.  

In order to determine if the parties intended to be bound by an oral contract, the courts consider four elements:

[1] The absence of a writing;

[2] Whether there has been partial performance of the contract;

[3] Whether all of the terms of the alleged contract have been agreed upon; and

[4] Whether the agreement at issue is the type of contract that is usually committed to writing.

In this appeal the Circuit Court found that [a] the parties did not expressly reserve their rights not to be bound by the oral contract nor did either party object to the magistrate judge's statement of the terms of the settlement; and [b] both Doe and Kogut affirmed that they understood they would be bound by the oral agreement.

Noting that the parties “agreed that the formal settlement documents [would] incorporate the . . . [oral] terms and conditions,” the Circuit Court commented that the magistrate judge expressly stated that any later writing would be merely a memorialization of the material terms discussed at the conference and neither party objected. This factor, said the court, favors enforcement of the contract.

The second factor - partial performance - was affected Doe’s change in counsel. Doe's new attorney subsequently advised the court that he had been fired by Doe and ultimately a third attorney advised the court that he was now Doe’s new attorney. Thus, said the Circuit Court, the fact that Kogut did not ultimately draft a written version of the settlement or tender the agreed upon amount of the agreed upon payment to Doe "does not necessarily show that the parties intended not to be bound by the oral terms," opining that "[a]t best for Doe, this factor is neutral as Kogut’s ability to perform his end of the settlement was impaired as a result of Doe's actions.

The Circuit Court of Appeals found that the district court properly concluded that there were no open material terms as the agreement, as outlined by the magistrate judge, covered monetary compensation, included a mutual non-disparagement clause, and required Doe to withdraw her "family court petition" by a specified date. When asked by the magistrate judge, Doe’s attorney confirmed that no material terms were omitted. Indeed the Circuit Court's ruling states that "the parties considered whether the intervention of [an extra mural element] would affect any of the terms of the agreement and concluded that Doe would be bound [only] as to actions within her control." The court explained that Doe inability to withdraw her petition "does not bear on whether the parties settled all of the terms, but rather on her ability to perform her obligations.'

Turning to the fourth factor, the Circuit Court opined that “[s]ettlements of any claim are generally required to be in writing or, at a minimum, made on the record in open court [and] [t]hat is precisely what happened here -- the parties settled their dispute on the record before the magistrate judge." In the words of the Circuit Court, "... the parties’ settlement was not particularly complex -- Doe released her claims against Kogut and agreed to halt, to the extent  possible, proceedings in criminal and family court in exchange for a monetary payment and a mutual agreed upon non-disparagement agreement. Thus this factor favors enforcement of the oral settlement of the matter.

Because the parties did not reserve their rights not to be bound by the oral settlement, no material term was left open for further negotiation, and as the parties had reached their agreement on the record in open court, three of the four Winston factors favor enforcement of the oral settlement agreement.** The remaining factor was deemed neutral, without impact on any of the material terms of the settlement. 

As to Doe's claim of duress, although a settlement contract or agreement, like any other, may be attacked on the grounds that it was procured by fraud, duress or other unlawful means, Doe offered no evidence supporting her contention she agreed to the terms of the settlement under duress. Further, Doe did not offer any evidence of her attorney’s alleged lack of preparedness that “preclude[ed] the exercise of [her] free will,” and thus the court found this argument insufficient to show duress.

The Circuit Court of appeals held that the oral settlement was valid and the magistrate judge did not err by enforcing the agreement.

* Although this case involved litigating the oral settlement of a marital dispute, it is instructive with respect to the elements that would be considered by courts in resolving disputes involving an oral settlement of a contract grievance, a disciplinary action, a collective bargaining dispute and similar administrative or quasi-judicial proceedings. 

** Winston v. Mediafare Entm’t Corp., 777 F.2d 78

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/404d26cd-ecb0-4497-825a-a510fbd78a2b/2/doc/17-1479_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/404d26cd-ecb0-4497-825a-a510fbd78a2b/2/hilite/

Failure to file a timely appeal fatal to a party's challenging an arbitration award

Failure to file a timely appeal fatal to a party's challenging an arbitration award

Martin v Department of Educ. of the City of N.Y., 018 NY Slip Op 09018, Appellate Division, First Department

The Appellate Division affirmed the Supreme Court's ruling granting the Department of Education's (DOE) cross-motion to dismiss Lorna Martin's petition seeking to vacate an arbitration award terminating her employment.

Addressing a number of procedural issues, the Appellate Division first explained that Martin failed to commence her CPLR Article 75 proceeding within 10 days of her receipt of the Hearing Officer's decision as mandated by Education Law §3020-a[5][a].

The court, citing Leon v Department of Education of the City of New York, 115 AD3d 435, then opined that Martin did not show that she suffered prejudice as a result of [1] the disciplinary hearing not being completed within 125 days (see Education Law §3020-a[3][c][vii]) or [2] the arbitration award not being issued within 30 days of the last day of the hearing (see Education Law §3020-a[4][a]) due to the arbitrator's failure to meet either, or both, of these deadlines.

Addressing other issues raised by Martin in her appeal, the court found that [1] the Hearing Officer did not abuse his discretion in granting a one-day adjournment at the outset of the hearing nor [2] did Martin establish, "by clear and convincing evidence," that the Hearing Officer was biased.

Further, said the Appellate Division, the award was supported by "adequate evidence," was rational, and was not arbitrary and capricious nor was there any no basis to disturb the Hearing Officer's credibility findings.

In the words of the court, "[u]nder the circumstances presented, the termination of [Martin's] employment does not shock our sense of fairness" notwithstanding "an almost 30-year career with DOE" as the record shows that Martin committed many instances of misconduct, including threatening behavior and insubordination, and "she continued to deny any wrongdoing."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_09018.htm

_________________

Click here to Read a FREE excerpt from A Reasonable Disciplinary Penalty Under the Circumstances imposed on officers and employees of New York State and its political subdivisions.

New York State pays drug treatment center nearly $4 million for ineligible expenses

New York State pays drug treatment center nearly $4 million for ineligible expenses

Source: Office of the State Comptroller

A national drug and alcohol treatment provider was able to collect $3.9 million in ineligible payments due to the processing of invalid claims and inadequate oversight by the state Office of Alcoholism and Substance Abuse Services (OASAS), according to an auditreleased on January 13, 2019 by New York State Comptroller Thomas P. DiNapoli.

"Phoenix House is contracted to provide services to New Yorkers who are trying to overcome substance abuse problems, but it requested and received funding it was not entitled to,” said DiNapoli. “Our audit revealed that millions of dollars were claimed and spent on ineligible costs. Officials from the Office of Alcoholism and Substance Abuse Services must recoup this money, which should have been used for cost-effective addiction services to New Yorkers.”

OASAS, which oversees one of the nation’s largest programs for the prevention and treatment of alcohol and substance abuse, signed a five-year $47.6 million contract with Phoenix House New York (PHNY) in 2009 to provide outpatient, inpatient, and residential drug and alcohol addiction treatment services at several facilities in the New York metropolitan area. The state’s contract with PHNY was renewed in 2014 for another five-year term (July 1, 2014through June 30, 2019) at a total cost of $51.4 million.

Auditors examined a three-year period ending June 30, 2016 and determined that PHNY received reimbursement for expenses that did not comply with the contract. This included approximately $2.9 million in unallowable or unsupported parent organization administrative expenses.

For example, PHNY's parent organization periodically allocates its administrative costs to its affiliates throughout the country. When an affiliate in one state did not have the revenue to fund their share of these costs, the parent organization reallocated a portion to PHNY and New York was billed for the other state's share. All told, New York was billed $850,000 for these costs.

In addition, PHNY received reimbursement from OASAS for expenses deemed to be ineligible under the contract. This included:

● Equipment and property depreciation of about $700,000;

● Unsupported employee salaries and raises totaling about $500,000;

● Fundraising costs of about $400,000;

● More than $200,000 paid to the foundation's public policy office and outside lobbyists; and

● Entertainment and party expenses of about $12,700.

DiNapoli recommended OASAS take steps to recoup the $3.9 million from PHNY and take steps to establish better monitoring to ensure that only properly supported claims that are for contractually-approved expenses are approved.

The response from OASAS officials, who requested the audit by OSC, is included in the final report. The audit can be found on the Internet at:

https://www.osc.state.ny.us/audits/allaudits/093019/17s21.htm

Paid Family Leave webinar specifically for public employers

Paid Family Leave webinar specifically for public employers

Source: New York State Workers' Compensation Board

Learn about the nation’s strongest and most comprehensive paid family leave and how public employers can opt in at a special Paid Family Leave webinar specifically for public employers.

This one-hour, online session will provide you with an overview of the state’s landmark Paid Family Leave benefit, and the easy process for opting in.

Paid Family Leave is employee-paid insurance that provides employees with job-protected, paid time off from work to bond with a new child, care for a family member with a serious health condition, or assist when a spouse, domestic partner, child or parent is deployed abroad on active military service. Under the New York Paid Family Leave law, it is easy for public employers to opt in to provide access to these benefits for your employees. Those with union-represented employees may provide Paid Family Leave if it is agreed to through collective bargaining.

Register 

The one-hour sessions are free and will include time for questions and answers. Dates and times are below. Register for a session here:  http://bit.ly/pflwebinar.

Thursday, January 17, 2019, 12:00 p.m. - 1:00 p.m.

Thursday, January 24, 2019, 12:00 p.m. - 1:00 p.m.

Thursday, January 31, 2019, 12:00 p.m. - 1:00 p.m.

Thursday, February 7, 2019, 12:00 p.m. - 1:00 p.m.

Thursday, February 14, 2019, 12:00 p.m. - 1:00 p.m.

Thursday, February 21, 2019, 12:00 p.m. - 1:00 p.m.

Additional Paid Family Leave resources are available

In addition to the webinars, New York State offers complete details and resources on Paid Family Leave at PaidFamilyLeave.ny.gov, including a special page for public employers. Help is also available via a toll-free Paid Family Leave Helpline at 844-337-6303

Accidental disability retirement benefits are available to an applicant if precipitating event is not a risk of the work ordinarily performed by the applicant

Accidental disability retirement benefits are available to an applicant if precipitating event is not a risk of the work ordinarily performed by the applicant

Larivey v DiNapoli, 2019 NY Slip Op 00018, Appellate Division, Third Department

Becky C. Larivey, a bus attendant for a school district, applied for accidental disability retirement benefits after suffering a fall in the course of her being assigned to washing school buses. Her application was initially denied by the New York State Employees' Retirement System, but was subsequently granted by a Hearing Officer following a hearing. The State Comptroller overruled the Hearing Officer's decision and denied the application, ruling that the incident precipitating Larivey's fall and injury did not constitute an accident within the meaning of the Retirement and Social Security Law [RSSL]. Larivey appealed the Comptroller's determination.

The Appellate Division said that it is well settled that, for purposes of the Retirement and Social Security Law, an accident is "a 'sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact,'" citing Matter of Kenny v DiNapoli, 11 NY3d 873 and that the Court of Appeals had recently explained "the precipitating event must not be a risk of the work ordinarily performed." Further, observed the court, it is the petitioner who bears the burden of demonstrating the existence of an accident, and the Comptroller's determination in this regard will be upheld if is supported by substantial evidence.

The record in Larivey's case revealed that she had never been directed to wash buses as part of her duties as a bus attendant nor did her "job description" indicated that cleaning or maintaining buses were duties that could be assigned for her to perform.* Indeed, her regular duties involved assisting disabled children getting on and off the bus and ensuring their safety while riding the bus.  The Appellate Division's decision also noted that except for the date of which Larivey suffered her injury she had never been to the parking lot where the buses were kept.

The Appellate Division found that "[u]nder the circumstances presented, the incident was clearly sudden, unexpected and not a risk of [Larivery's] ordinary job duties." Accordingly the court found that Larivey met her burden of establishing that it was an accident within be meaning of the RSSL and that the Comptroller's contrary determination was not supported by substantial evidence.

Granting Larivey's petition, the Appellate Division remanded the matter to the Comptroller "for further proceedings not inconsistent with this Court's decision."

* See Matter of McCambridge v McGuire, 62 NY2d 563. An applicant is entitled to accidental disability retirement benefits when the injury involved "a precipitating accidental event which was not a risk of the work performed."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00018.htm

_________________

Click here to Read a FREE excerpt from Disability Benefits for fire, police and other public sector personnel employed by the State and political subdivisions of the State of New York.

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued

On January 10, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits were issued

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Department of Corrections and Community Supervision (DOCCS): Oversight of Sex Offenders Subject to Strict and Intensive Supervision and Treatment (Follow-Up) (2018-F-21)
The Sex Offender Management and Treatment Act requires that Strict and Intensive Supervision and Treatment (SIST) parole officers to have a minimum number of monthly contacts with paroled offenders. An initial audit identified weaknesses in officers meeting these requirements and significant differences in compliance among the locations tested. Auditors also found that officers didn’t adequately document their responses to electronic monitoring alerts. In a follow-up, auditors found DOCCS has made significant progress and implemented all of the recommendations.

Dormitory Authority of the State of New York (DASNY): Monitoring of Prevailing Wage Compliance on Construction Contracts (Follow-Up) (2018-F-30)
An initial audit found DASNY generally monitored contractors and sub-contractors on its projects to ensure they paid employees at the prevailing wage rate, but auditors found some shortcomings. In a follow-up, auditors found DASNY has made some progress. Of the two prior audit recommendations, one was implemented and one was partially implemented.

Office of General Services (OGS): Food Metrics Implementation (Follow-Up) (2018-F-23)
State law requires OGS and the Department of Agriculture and Markets to develop regulations, establish guidelines, and provide training on New York state food purchasing to agency personnel involved in the acquisition process. OGS is also responsible for tracking data on state agencies’ food purchases and for providing a Food Metrics Annual Report each year detailing these purchases. An initial audit report found that the two Food Metrics Annual Reports completed by the time of the initial audit fell short of providing complete and reliable information regarding the state’s efforts to support its farm and agricultural businesses. In a follow-up, auditors found OGS has made significant progress in correcting the problems.

Department of Health (DOH): Administrative Costs Used in Premium Rate Setting (Follow-Up) (2018-F-10)
An initial audit found DOH overpaid managed care organizations more than $18.9 million in mainstream Medicaid managed care premiums for the state fiscal year 2014-15 due to a flaw in the DOH’s rate-setting methodology. In a follow-up, auditors found DOH made some progress addressing the problems identified in the initial audit report but additional actions are needed.

Department of Health (DOH): Improper Medicaid Payments to Eye Care Providers (Follow-Up) (2018-F-28)
The initial audit report identified vulnerabilities in the DOH’s provider enrollment and revalidating processes that undermine DOH’s ability to ensure that only qualified providers participate in the Medicaid program and prevent improper payments for services rendered by providers who do not meet federal and state requirements. In a follow-up, auditors found DOH has made progress addressing the problems identified in the initial audit.

Department of Health (DOH): Medicaid Payments for Pharmacy Claims – Joia Pharmacy and a Related Prescriber (Follow-Up) (2018-F-26)
From Jan. 1, 2008 through Dec. 31, 2012, DOH paid Joia more than $7.7 million for 50,060 claims on behalf of 706 Medicaid recipients. One particular doctor was listed as the prescriber on 31,351 (63 percent) of the 50,060 claims. Auditors found that, based on a statistical projection of the audit sample results, DOH made improper payments totaling approximately $1.5 million to Joia for pharmacy claims. In a follow-up, auditors determined DOH made progress in addressing the issues. Of the report’s four audit recommendations, three were implemented and one was partially implemented.

State Education Department: Headstart of Rockland Inc. (HSOR): Compliance with the Reimbursable Cost Manual (2018-S-25)
HSOR is a not- for-profit special education provider located in Rockland County. It provides preschool special education services to children with disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $7,958 in ineligible costs that HSOR reported for reimbursement. .

State Education Department: Developmental Disabilities Institute Inc. (DDI): Compliance with the Reimbursable Cost Manual (2018-S-3)
DDI is a Suffolk County-based not-for-profit organization approved by SED to provide preschool special education services to children with disabilities who are between the ages of three and five years. For the three years ended Dec. 31, 2015, auditors identified $138,718 in reported costs that did not comply with state requirements

State Education Department (SED): Leake and Watts Services Inc.: Compliance with the Reimbursable Cost Manual (2017-S-73)
Leake and Watts (now known as Rising Ground) is a not-for-profit special education provider located in Westchester County. Leake and Watts provides preschool special education services to children with learning disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $228,071 in ineligible costs that Leake and Watts reported for state reimbursement.

State Education Department: Pinnacle Organization: Compliance with the Reimbursable Cost Manual (2018-S-6)
Pinnacle is a not-for-profit special education provider located in Oswego County. It provides preschool special education services to children with disabilities who are between three and five years of age. For the three fiscal years ended June 30, 2015, auditors identified $103,220 in ineligible costs that Pinnacle reported for state reimbursement.

Department of State: Monitoring of Not-for-Profit Cemeteries for Fiscal Stability and Adequate Facility Maintenance (Follow Up) (2018-F-22)
An initial audit report found numerous issues with the agency’s monitoring. For example: as of Sept. 30, 2016, records indicate 642 cemeteries (37 percent) had overdue audits and 285 (16 percent) had delinquent annual reports. For 145 cemeteries (8 percent), audits were overdue and annual reports were delinquent as well. As of Dec. 1, 2016, 391 cemeteries (22 percent) had not been inspected in over seven years. In a follow-up, auditors found some progress has been made to the problems identified in the initial audit. Of the four prior report recommendations, two were implemented and two were partially implemented.

Internet online anonymity didn't shield lawyer from ethical obligations

Internet online anonymity didn't shield lawyer from ethical obligations

Rochester, New York attorney Nicole Black has posted an item on her LawBlog Sui Generus summarizing a decision by the Supreme Court of Louisiana, In re: Salvadore R. Perricone, No. 2018-B-1233, in which the court considered whether Perricone violated his ethical obligations as an attorney as a result of anonymous comments that he posted online between 2007-2014. Some of the comments related to trials for which he was the prosecuting attorney and others related to trials that his colleagues were prosecuting. The court concluded that the appropriate sanction for Perricone’s conduct was disbarment.

The Internet link to Ms. Black's article is:

https://nylawblog.typepad.com/suigeneris/2019/01/louisiana-court-online-anonymity-doesnt-shield-lawyers-from-ethical-obligations.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

Former Savona Mayor arraigned on charges related to defrauding the Village

Former Savona Mayor arraigned on charges related to defrauding the Village

Source: Office of the State Comptroller Thomas P. DiNapoli

Former Savona Mayor Gregge Harrian was arraigned in Steuben County Court on felony charges of five counts of offering a false instrument for filing and five counts of misdemeanor falsifying business records. As Mayor, Harrian allegedly submitted fraudulent vouchers and falsified records to trick the village into paying his personal expenses.*

“Mr. Harrian allegedly abused his authority to deceive the residents he was supposed to serve,” State Comptroller Thomas P. DiNapoli said, “I thank District Attorney Brooks Baker and Sheriff James Allard for bringing Mr. Harrian to justice and for our continued partnership to fight public corruption.”

Harrian, 52, resigned his position and left the state after allegedly submitting dozens of unsupported, false, inaccurate or unfounded mileage and purchase claims, according to the audit and investigation. A second unnamed defendant was indicted for facilitating the alleged crimes. 

The indictment was the result of a joint investigation by Comptroller DiNapoli, Steuben County District Attorney Baker and Steuben County Sheriff Allard.

An earlier State Comptroller’s auditfound that Harrian also appointed his wife as clerk-treasurer under his supervision, in violation of the village employee handbook, and approved her unsubstantiated claims of off-hours work for $21,000 in extra pay.

* N.B. These charges are accusations and the individual is presumed innocent unless and until proven guilty.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236. Review prior cases at http://www.osc.state.ny.us/investigations/index.htm

Administrative due process trumps an employer's claim to a "management right" to summarily terminate an employee for cause

Administrative due process trumps an employer's claim to a "management right" to summarily terminate an employee for cause

Matter of the Arbitration between the Town of Greece Guardians' Club, Local 1170 and the Town of Greece, 2018 NY Slip Op 08775, Appellate Division, Fourth Department

Supreme Court rejected the Guardians' Club, Local 1170's [Local 1170] petition to confirm an arbitration award and granted the Town of Greece's [Town] cross petition to vacate the arbitration award. The Appellate Division unanimously reversed the Supreme Court's ruling "on the law" and confirmed the arbitration award in favor of Local 1170.

The genesis of the demand for arbitration was the Town's chief of police terminating an employee for alleged misconduct without "notice and hearing." Local 1170 filed a grievance on behalf of the employee and ultimately demanded that the matter be submitted to arbitration as provided the Collective Bargaining Agreement [CBA] between the Town and Local 1170.

The arbitrator, noting that the Collective Bargaining Agreement [CBA] between the Town and Local 1170  allowed the Town to terminate the grievant "for cause," opined that the term "for cause" was synonymous with the term "just cause," and that "just cause encompasses some degree of due process." Finding that the grievant's termination fell short of the requirements of due process,* the arbitrator concluded that the grievant "was not provided even rudimentary due process" prior to being terminated and thus the employee's termination "must be found to be without just cause."

Among the defects in failing to provide the grievant with "due process" identified by the arbitrator were the following:

1. The termination letter that the chief of police delivered to the grievant at their meeting was broadly worded and failed to provide her with notice of the charges against her.

2. The grievant was not given an opportunity to respond to the charges of alleged misconduct before the chief of police made the decision to terminate the grievant.

3. The chief of police did not conduct a full and fair investigation inasmuch as he failed to interview a key witness to the alleged misconduct, the grievant herself.

Accordingly, the arbitrator concluded that there was a failure to provide the grievant with "even rudimentary due process" and thus the grievant's "termination must be found to be without just cause" and Local 1170's grievance sustained.

In affirming the arbitrator's decision the Appellate Division noted that "It is well settled that judicial review of arbitration awards is extremely limited", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, cert dismissed 548 US 940, explaining that a ruling by an arbitrator is reviewable only pursuant to CPLR §7511(b), which states in relevant part: "The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by . . . an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made."

When does an arbitrator exceed his or her power under the statute? When, said the Appellate Division, "his [or her] award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power", citing Kowaleski, 16 NY3d at 90 [also see Matter of Town of Tonawanda [Town of Tonawanda Salaried Workers Assn.], 160 AD3d 1477,  leave to appeal denied 32 NY3d 908].

Outside of these narrowly circumscribed exceptions, courts lack authority to review arbitral decisions, even where an arbitrator has made an error of law or fact. Indeed, notes the decision, "An arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be", citing Matter of NFB Inv. Servs. Corp. v Fitzgerald, 49 AD3d 747. Further, said the Appellate Division, courts lack the power to review the legal merits of the arbitration award, or to substitute the court's judgment for that of the arbitrator, "simply because it believes its interpretation would be the better one."

Supreme Court had vacated the arbitrator's award after it determined that "the arbitrator exceeded a limitation on his power when he determined that the grievance was arbitrable." In the words of the Appellate Division, "Even if the court is correct that the issue of arbitrability was not before the arbitrator, [the Town] conceded on appeal that the grievance was arbitrable. Thus, even assuming, arguendo, that the arbitrator exceeded a limitation on his power, we conclude that [the Town] was not prejudiced by his determination. Absent a showing of prejudice, the court lacks the authority to vacate an arbitration award where, as here, the matter is before the court on the application of a party who participated in the arbitration."**

The Appellate Division said that Supreme Court also erred insofar as it vacated the award on the ground that the arbitrator exceeded a limitation on his power by adding a substantive provision that was not included in the CBA by reason of "the absence of a stand-alone article [in the CBA] pertaining to employee discipline."  However, the "for cause" language set out in the management rights provision relied upon by Supreme Court expressly circumscribed the Town's right to discipline or discharge the grievant and the arbitrator had interpreted that language, consistent with arbitral precedent, as incorporating "a just cause standard that encompasses a right to due process."

Finally the Appellate Division indicated that it had concluded that "the arbitrator merely interpreted and applied the provisions of the CBA, as [he] had the authority to do."

* At the arbitration hearing the chief of police testified that he had made the decision to terminate the employee before meeting with the grievant. In addition, the Town conceded  that the grievant was entitled to notice and a hearing pursuant to Civil Service Law §75, and that the Town had  failed to comply with that statute. 

** The Appellate Division also explained that Supreme Court further erred in determining that the arbitration award was irrational, indicating that "An award is irrational if there is no proof whatever to justify the award". Noting that a court must confirm the award where "the arbitrator offer[ed] even a barely colorable justification for the outcome reached," in this instance the Appellate Division described the arbitration award as a thoughtful, well-reasoned opinion and award based on the hearing testimony of the chief of police and the undisputed evidence in the record, concluding that the arbitrator's award was not irrational.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08775.htm