Giving effect to the plain meaning of the relevant statutory language is the clearest indicator of legislative intent

A County correction officer [Petitioner] assigned to the core central desk at the county jail, applied for performance of duty disability retirement benefits pursuant to Retirement and Social Security Law §607-c. Petitioner claimed that he was permanently disabled as a result of work-related injuries, which he asserted he had sustained when called to assist another correction officer who had arrested and handcuffed a suspect for trespassing on county property adjacent to the jail.

The New York State and Local Employees' Retirement System [NYSERS] denied Petitioner's application on the ground that, among other things, Petitioner's injuries did not result from the acts of an inmate or person confined in an institution under county jurisdiction within the meaning of §607-c(a) of the Retirement and Social Security Law [RSSL]. 

Petitioner challenged NYSERS' determination. The Hearing Officer, however, found that Petitioner had not established that his injuries were the result of "an act of an inmate or person confined in a county facility," recommended that NYSERS' determination be sustained. The State Comptroller accepted the findings of fact and conclusions of law of the Hearing Officer and denied the Petitioner's application for performance of duty disability retirement. Petitioner subsequently initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.

Citing a number of earlier court rulings including Matter of Martin v New York State Comptroller, 161 AD3d 1418, the Appellate Division affirmed the Comptroller's decision, explaining that to qualify for a RSSL §607-c performance of duty disability retirement the applicant bears the burden of establishing that his alleged incapacity was "the natural and proximate result of any act of any inmate or any person confined in an institution under [county] jurisdiction" [emphases in the court's decision].

Noting that a review of an administrative determination denying performance of duty disability retirement benefits typically is limited to whether substantial evidence exists in the record to support such determination, the Appellate Division said that where, as here, the dispositive issue is one of statutory interpretation, courts will "engage in de novo review of the statutory interpretation" and "need not accord any deference to the agency's determination." Further, said the Appellate Division, "... the clearest indicator of legislative intent is the statutory text must always be the [statutory] language itself, giving effect to the plain meaning thereof", citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.

Finding that neither the term "inmate" nor the phrase "person confined in an institution" are defined for the purposes of RSSL §607-c, the Appellate Division opined that considering the plain meaning of the statutory language and its commonly understood usage, as well as a review of the definitions given to the term "inmate" in relevant Correction Law and Penal Law provisions, in this instance the individual alleged to have caused Petitioner's injuries here does not qualify as an "inmate" or a "person confined in an institution" within the meaning of RSSL §607-c.

The Appellate Division, conceding that under the circumstances granting Petitioner §607-c "would further the legislative purpose of awarding benefits to correction officers injured in the discharge of their duties ... the restrictive language of Retirement and Social Security Law §607-c precludes such award here, as [Petitioner's] injuries were not caused by the acts of an inmate or person confined in an institution" and confirmed the Comptroller's denial of Petitioner's application for performance of duty disability retirement benefits.

Click HERE to access the Appellate Division's decision.

 

Court finds dismissal of a teacher during her probationary period supported by documentary evidence, performance evaluations and the existence of attendance issues

Supreme Court denied the CPLR Article 78 petition filed by a New York City probationary teacher [Plaintiff] seeking a court order annulling a determination of the New York City Board of Education and others [Respondents] that resulted in the termination Plaintiff's employment as a teacher.

Plaintiff appealed the Supreme Court's ruling. The Appellate Division unanimously affirmed the lower court's decision.

Citing Matter of Che Lin Tsao v Kelly, 28 AD3d 320 and other decisions, the Appellate Division held that Supreme Court "properly concluded that [Plaintiff] failed to meet her burden of demonstrating, by competent proof, that a substantial issue of bad faith existed warranting a hearing."

The Appellate Division noted that "documentary evidence, performance evaluations and Plaintiff's attendance issues" supported the lower court's determination that the Respondents' discontinuance of Plaintiff's employment during her probationary period was not made in bad faith

Further, said the Appellate Division, Supreme Court "properly determined" that to the extent the Plaintiff's Article 78 petition sought to challenge Respondents' denial of Plaintiff's request to withdraw her prior resignation, such challenge was untimely. Accordingly, the Appellate Division did not consider Plaintiff's claim that the New York City Board of Education Chancellor's Regulation C-205, which addresses the "general requirements for licensure and provisions relative to the termination and restoration of licenses," was improperly applied in her case.

Regulation C-205.28 provides, in pertinent part, that "a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation for the purpose of reinstatement to service, regardless of whether the person was tenured or not on the date of his or her resignation."

Click HEREto access the Appellate Division's decision.

 

Adopting disciplinary procedures applicable to a town's police officers pursuant to §155 of the Town Law

An employee organization [Union] brought a CPLR Article 78 proceeding seeking dismissal of disciplinary charges filed against a police officer [Officer] in the collective bargaining unit represented by the Union by the appointing authority [Town] pursuant to §155 of the Town Law and "the disciplinary procedures outlined in the police manual."

The Union contended that such disciplinary charges must be brought pursuant to §75 of the Civil Service Law and the collective bargaining agreement [CBA] between it and the Town. Unionalso sought a court order compelling the Town to reinstate Officer, who had been suspended without pay pending a disciplinary hearing to the payroll. Supreme Court granted the Article 78 petition and the Town  appealed.

The Appellate Division vacated that part of the Supreme Court's judgment prohibiting the Town from conducting disciplinary proceedings pursuant to Town Law §155 and that part of the court's order directing the Town "to abide by Civil Service Law §75 and the collective bargaining agreement regarding disciplinary issues, and by reinstating the amended charges against [Officer]."

The Appellate Division indicated that Town Law §155 states that "[t]he town board shall have the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges" against members of the town police department. Further, said the court, "although the police manual does not specifically reference Town Law §155, the police manual contains language that mirrors that statute.

Citing Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 84 AD3d 968, affd. 19 NY3d 1066, the Appellate Division concluded that the police manual "invokes the Town Law" and, contrary to [Supreme Court's] determination, the lack of any specific reference to §155 in the police manual does not mean that the police manual was not adopted pursuant to that section of the Town Law, and does not preclude the Town from using the procedures set forth in the police manual.

The Appellate Division also held that Town Law §155 does not specify the methods to be used by a town board when adopting rules and regulations regarding police discipline, and thus the statute does not require that police disciplinary procedures be adopted by passing a local law rather than a resolution.

Accordingly, the Appellate Division held that "where, as here, a town board has adopted disciplinary rules pursuant to Town Law §155, those rules are controlling and Civil Service Law §75 and any collective bargaining agreement are inapplicable." Thus, said the court, the Town had the authority to initiate disciplinary proceedings established pursuant to Town Law §155 against the Officer.

The court, however, sustained Supreme Court's reinstating Officer's salary and benefits, noting that the police manual states that, "[p]ending the hearing and determination of charges of incompetency or misconduct, an officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty (30) days."

Click HEREto access the text of the Appellate Division's decision.

 

Free webinar on Reporting Election Workers Earnings

The Tax Exempt and Government Entities Division invites interested readers toregister to watch the free webinar on Reporting Election Workers Earnings on June 24, 2021 at 1:00 p.m. (ET).

This webinar is designed to explain which workers should be treated as election workers and when taxes should be withheld from wages. It will also cover what should be included in earnings.

Questions emailed to: TEGE.outreach@IRS.gov with the subject line “Pre-submitted questions for Election Worker webinar (June 24)” will be answered as time permits. The deadline for submitting questions is June 10, 2021. 

For more information, see Webinars for Tax Exempt & Government Entities.

Audits and reports issued during the week ending May 7, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 7, 2021.

Click on the text highlighted in colorto access the complete audit report.

Local Governments

Town of Potter – Town Clerk (Yates County) A former clerk did not deposit, report and remit all collections to the appropriate parties in a timely and accurate manner. Auditors identified a cash shortage of $23,838 during this former clerk’s tenure. The former clerk did not complete monthly bank reconciliations, issue or properly prepare duplicate receipts, or retain receipts for all collections. In addition, the town board did not annually audit the clerk’s records as required. As a result of the audit and subsequent investigation, the former clerk was arrested in November of 2020. The matter is still pending in court.

South Butler Fire District – Board Oversight of Financial Operations (Wayne County)The board did not provide adequate oversight of the district’s financial operations and did not adopt or enforce key financial policies. As a result, the treasurer lacked guidance to adequately perform financial duties and did not maintain sufficient banking or purchasing records. The treasurer also funded and disbursed money from reserves without authorization and paid unapproved claims. Officials could not demonstrate the district obtained the best available prices on purchases auditors reviewed. In addition, the board adopted inaccurate and structurally imbalanced budgets and did not properly establish, fund or use reserve funds. Fund balances and real property tax levies were higher than needed to fund operations.

South Butler Fire Department – Oversight of Financial Activities (Wayne County)Department officers and members did not provide adequate financial oversight. As a result, officers and members were not in a position to monitor and assess the department’s financial status. Existing bylaw provisions were not enforced and adequate accounting and fundraising records were not maintained. Petty cash funds were not properly overseen or accounted for, and $65,658 was disbursed without any review or approval. In addition, auditors found the president routinely signed blank checks. The treasurer’s books and records were not annually audited as required. Required state and federal filings were not completed, and annual budgets were not prepared.

Town of Fishkill – Information Technology (Dutchess County) Town officials did not adequately secure and protect the town’s information technology (IT) systems against unauthorized use, access and loss. The board did not adopt adequate IT policies or a disaster recovery plan. Auditors also found officials did not adequately manage user accounts for the network or financial application. In addition, town employees did not comply with the acceptable use policy and officials did not monitor the use of IT resources. Sensitive IT control weaknesses were communicated confidentially to officials.

Town of Ithaca Justice Court – Justice Court Operations (Tompkins County)The justices collected, deposited, disbursed, recorded and reported the fines and fees auditors reviewed in an accurate and timely manner. During the audit period, the justices deposited 2,111 cash receipts totaling $306,087 and made 60 disbursements totaling $318,091. Auditors reviewed a sample of 556 cash receipts totaling $78,948 and all 60 disbursements totaling $318,091. There were no recommendations as a result of this audit.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

Commissioner of Education dismissed §310 appeal naming teachers' association president as a respondent "for lack of jurisdiction"

Plaintiff filed a §310 Education Law petition challenge certain school district hiring practices. The petition named the board of education and the president of the school district's teachers' association as respondents.

With respect to the president of the teachers' association, Dr. Betty A. Rosa, Interim Commissioner of Education, dismissed Plaintiff's §310 appeal for "lack of jurisdiction."

The Commissioner explained that to the extent that Petitioner's requests for relief targeted the actions of an individual serving in his capacity as president of the teachers' association, "[i]t is well settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310."

In a footnote to the decision the Commissioner further opined that many of Petitioner's claims would be subject to dismissal on other grounds, including, but not limited to, being untimely and lack of standing to submit an appeal pursuant to Education Law §310.

Click HERE to access the text of the Commissioner's decision.

Sheriffs have the powers accorded police officers under the Criminal Procedure Law but are not mandated to get police officer training [Opinions of the Attorney General 2021-F-1]

The Criminal Procedure Law, granting police officer powers, includes sheriffs in its definition of “police officer,” while the Civil Service Law and General Municipal Law, establishing fitness and training requirements for police officers, exclude sheriffs from their definitions of that term.

In response to a request for a Formal Opinion of the Attorney General, Attorney General Letitia James advised Michael Flaherty, Acting Counsel, Division of Criminal Justice Services [DCJS], that Sheriffs have the powers accorded police officers under the Criminal Procedure Law but are not mandated to get police officer training.

The Attorney General noted that Civil Service Law §58, in defining the term "police officer," excludes a sheriff and under-sheriff, commissioner of police, deputy or assistant commissioner of police, chief of police, deputy or assistant chief of police, or any person having an equivalent title who is appointed or employed to exercise equivalent supervisory authority.

Accordingly, the Attorney General concluded that such officers, including the sheriff, need not meet the age, height, weight, and physical fitness requirements established by DCJS’s Municipal Police Training Council."

The opinion further observes:

"Because a sheriff is deemed a “police officer” by Criminal Procedure Law §1.20(34)(b), he or she is eligible to exercise the powers granted to police officers by the Criminal Procedure Law and the Penal Law.* 

"In summary, while the sheriff is expressly not deemed a “police officer” who needs to satisfy the requirements, including training, of Civil Service Law §58 and General Municipal Law §209-q, he or she must be included in the police officer registry maintained by DCJS and is eligible to exercise the powers granted to police officers by the Criminal Procedure Law and the Penal Law.

"We recognize the anomalous result of a sheriff being a police officer under the Criminal Procedure Law, with the attendant powers, but not being required by General Municipal Law §209-q to receive training as to the exercise of those powers. Indeed, this conclusion differs from the conclusion we have reached with respect to police chiefs in prior opinions, because those police chiefs were not explicitly included in the Criminal Procedure Law’s definition of “police officer.” See Op. Att’y Gen. 2003-1 (village chief of police); Op. Att’y Gen. 85-F12 (municipal police chiefs and commissioners).

"We have been unable to identify the reason for the discrepancy between the powers of a sheriff and the lack of a requirement to obtain training relevant to the use of those powers. We note that many sheriffs will in fact have been trained in previous positions of law enforcement employment. See General Municipal Law §209-q(1)(b) (Municipal Police Training Council certificate valid during continuous service as police officer and for up to 10 years following an interruption of service under certain circumstances).

"The Legislature might wish to consider mandating training for all sheriffs, but absent such legislation, the decision to whether to get training rests with the sheriffs themselves." 

* These powers include possessing an unlicensed firearm, Penal Law §265.20(a)(1)(b); making an arrest without a warrant, Criminal Procedure Law §140.10; using physical or deadly force, if necessary, to effect an arrest or prevent an escape, Criminal Procedure Law §120.80, Penal Law §35.30; executing arrest and search warrants, Criminal Procedure Law §§120.60, 690.25; and stopping and frisking a person in a public place, Criminal Procedure Law §140.50.

Click HERE  to access the full text of the Attorney General's opinion.

 

County's False Alarm Law alleged to violate the due process rights of alarm owners

Federal District court dismissed Plaintiff's law suit against the County defendant upon concluding that the County’s False Alarm Law [1] did not violate the due process rights of County alarm owners; [2] did not effectuate an unlawful taking under the Fifth Amendment; and [3] did not violate New York state law.

The United States Court of Appeals, Second Circuit, affirming the district court's ruling, explained:

1. "The false alarm fines for non-residential alarm owners range from $100 to $500 and are not so high as to have a severe economic impact on a business establishment;

2. "The False Alarm Law does not require alarm owners to disable the alarm or to remove the alarm after a false alarm;

3. "Law enforcement does not stop responding to alarms from a particular establishment if it has responded to a false alarm at that establishment in the past;

4. "The investment-backed expectation—that the alarm system protects its establishment in the event of an emergency—has not been frustrated; and

5. "Because the False Alarm Law aims to preserve law enforcement resources for true emergencies rather than false alarms, the cost associated with false alarm fines would be an expected cost of maintaining an alarm system that calls for law enforcement to respond rather than a departure from the expectations a business would have when investing in such an alarm system."

The text of the Circuit Court's decision is posted on the Internet  HERE 

 

 

Accessing the New York State Workers' Compensation Board's latest information via social media

Did you know the New York State Workers' Compensation Board [WCB] is available on social media? 

For the latest WCB and NY Paid Family Leave news, events, training, and more, access the WCB via the following social media addresses:

FACEBOOK = @NYSWCB

TWITTER = @NYSWorkersComp

INSTAGRAM = @NYSWorkersCompBoard

UTUBE = www.youtube.com/NewYorkStateWorkersCompensationBoard

 

 

Court rules appointing authority's imposing the disciplinary penalty of termination "shocking to one's sense of fairness" under the circumstances

Petitioner in this CPLR Article 78 proceeding challenged the appointing authority's [Town] dismissing her from her position with the Town after she was found guilty of four charges alleging misconduct and insubordination arising from an incident in which Petitioner "took approximately $181 from the Town's petty cash fund."*

At her Civil Service Law §75 disciplinary hearing Petitioner maintained that she intended only to borrow the money and to replenish the fund later. Addressing this representation, the Appellate Division said "it was undisputed that [Petitioner] left a note in the [Town's] petty cash envelope indicating that she owed money to the fund."

The Appellate Division modified the Town's determination "on the law" and annulled that part of the Town's determination finding Petitioner guilty of charges 1 and 2,  finding charges 1 and 2, which charged her respectively with theft and larceny, was not supported by substantial evidence** and vacated the penalty of termination.

The court explained that "A person "commits larceny when, with intent to deprive another of property or to appropriate the same to him[- or her]self or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof." Here, said the Appellate Division, it concluded that Petitioner's actions, "particularly the creation and placement of the note" indicating that she "owed money to the fund" are inconsistent with an intent to deprive or appropriate and annulled that part of the Town's finding Petitioner guilty under charges 1 and 2.

However, said the court, with respect to charges 3 and 4, alleging Petitioner had violated certain Town's policies, Petitioner's contention that the charges 3 and 4 are not supported by substantial evidence of insubordination "is not properly before us because it [was] not raised in the petition."

In light of Petitioner's "32 years of service to the Town, her impending retirement, and the absence of grave moral turpitude," the majority of the court, citing the so-called Pell Doctrine,*** concluded that the penalty of termination was "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." 

The matter was then remitted to the Town for imposition of an "appropriate penalty less severe than termination."

* The decision notes that Petitioner contended, and the Town "correctly conceded," imposing a penalty of a six-month suspension without pay would be "illegal."

** Presiding Justice Carni and Justice Curran, dissenting, said that in their view [1] the determination of Petitioner's guilt with respect to charges 1 and 2 was supported by substantial evidence; [2] there was evidence from which a reasonable mind could conclude that Petitioner did not intend to return the funds taken; and [3] the penalty of termination was not "so disproportionate to the offense[s] as to be shocking to one's sense of fairness and thus does not constitute an abuse of discretion as a matter of law."

*** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Click HERE to access the text of the Appellate Division's ruling.

 

If, in the course of collective negotiations, the parties agree to certain terms until "an agreement is reached by the parties," such terms become inoperative when the contemplated agreement between the parties is reached

Supreme Court granted the motion submitted by Board of Education of the City of New York [DOE] to dismiss a hybrid CPLR Article 78 proceeding brought by a Union [UFT] for failure to state a cause of action. The UFT complaint-petition* had alleged:

[1] a breach of contract by DOE; and 

2] DOE's decision not to give retroactive salary increases  to union-member managers that were given to City-wide managerial employees paid pursuant to the Pay Plan for Management Employees was arbitrary and capricious.

The Appellate Division unanimously affirmed the Supreme Court's decision, explaining that the "complete, clear and unambiguous terms of the "Agreement" entered into by the parties require that union-member managers receive the same salary increases received by nonunion managers "[u]ntil an agreement is reached." In other words, as characterized by the court, the Settlement Agreement was operative only as long as collective bargaining negotiations between DOE and the UFT were "ongoing"

The Appellate Division pointed out that UFT's complaint-petition alleged that the nonunion managers received the salary raise and benefits demanded by the Union approximately one year after UFT and DOE entered into the Memorandum of Agreement [MOA]. In the words of the Appellate Division, "[t]hus, the receipt of the salary increase occurred outside the time period contemplated by the Settlement Agreement."

The Appellate Division then opined that UFT's claim that the Settlement Agreement requires the UFT-represented managers to receive retroactive raises granted even after the MOA has taken effect, would inappropriately "add or excise terms or distort the meaning of ... particular words or phrases." Thus, said the court, the breach of contract claim was correctly dismissed by Supreme Court.

Pointing out the UFT's claim that the failure to provide the raise to the union-member managers was arbitrary and capricious was correctly dismissed by the lower court for the reasons stated in the above paragraph, the Appellate Division opined that "DOE determined rationally that the Mayor's Personnel Order, which applied to management-level employees 'in active pay status in a position under the Pay Plan for Management Employees' as of the day before the raise was made retroactive and in active status on the date of this order,' excluded the union-member managers at issue."

* The Appellate Division noted that the complaint-petition alleged that the union-member managers' salaries "were governed by the MOA, not the Pay Plan for Management Employees," when the MOA became effective in November 2017.

Click HERE to access the Appellate Division's decision.

 

Audits and reports issued during the week ending April 30, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 30, 2021.

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

Brighton Fire Department, Inc. – Board Oversight of Financial Operations (Monroe County) The board did not provide adequate oversight of financial operations. The department lacked detailed financial procedures and the board did not enforce compliance with existing bylaw and policy provisions. They also did not present the statutorily-required annual directors’ report or any interim financial information to the membership. Of 220 disbursements reviewed totaling $545,658, 155 (70 percent) totaling $190,160 did not have documented approval and 93 (42 percent) totaling $92,605 did not have adequate supporting documentation.

Brighton Fire District – Non-Payroll Disbursements (Monroe County) District officials did not ensure non-payroll disbursements were properly procured, approved or adequately supported. Of 97 disbursements tested totaling $1.13 million, seven disbursements totaling $568,648 lacked adequate documentation. Of 19 professional service providers paid $769,931 in 2019, officials did not seek competition or provide documentation that competition was sought for 11 totaling $133,567. The district may have saved about $7,100 for meals and lodging if the United States General Service Administration per diem rates were used. The financial software allowed changes to transaction data without approval and officials did not use available software controls to further safeguard transactions.

Town of Marcy – Justice Court Operations (Oneida County) The justices generally provided adequate oversight of court financial activities and ensured collections were deposited timely and intact and were properly reported and remitted. However, the justices did not document their review of the clerk’s monthly bank reconciliations and accountabilities. They did not ensure the court clerk properly handled or made reasonable efforts to collect payment on 12 pending traffic tickets (30 percent) of 40 tickets tested. The justices also did not ensure the court was using the most up-to-date and secure recordkeeping software.

Town of Milo – Financial Condition (Yates County) The board did not effectively manage the town’s financial condition. More real property taxes and user fees were levied than needed to fund operations. The board did also not adopt realistic budgets for each of its funds from 2017 through 2020, multiyear financial and capital plans or the following policies in fund balance, reserve and budgeting. As of December 31, 2020, the general, highway and water funds unrestricted fund balances were excessive, ranging from 97 percent to 178 percent of 2020 expenditures.

Town of New Windsor – Information Technology (Orange County) Town officials did not ensure information technology systems were adequately secured and protected against unauthorized use, access and loss. Officials did not provide employees with cybersecurity training. They did not have a disaster recovery plan. In addition, officials did not ensure online banking agreements comply with New York State General Municipal Law. Sensitive IT control weaknesses were communicated confidentially to officials.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.