Governor David A. Paterson fined $62,125 after being found guilty of charges that he received complimentary tickets to Game 1 of the 2009 World Series

Governor David A. Paterson fined $62,125 after being found guilty of charges that he received complimentary tickets to Game 1 of the 2009 World Series
Source: The New York State Commission on Public Integrity

On December 21, 2010, the New York State Commission on Public Integrity announced that it had fined Governor David A. Paterson $62,125* after finding him guilty of charges that he solicited, accepted and received five complimentary tickets to Game One of the 2009 World Series for himself, two aides, his teenage son and his son's friend.

The Commission reports that "It is the largest fine imposed on a public official" by it.

The Commission said that “The Governor's false testimony is . . . evidence that he knew his conduct was unlawful and, thus, is one factor underlying the Commission's determination that the Governor violated Public Officers Law §§73(5)(a), 73(5)(b), 74(3)(d), 74(3)(f) and 74(3)(h).”

The Decision also noted that Governor Paterson “did not perform a ceremonial function at the game, and his attendance was not related to his duties and responsibility as a public official.” Further, the Commission indicated that “Even if the Governor had performed a ceremonial function at the game, it would not have entitled him to free tickets for his son and his son's friend.”

The Commission noted that the Yankees have “myriad and continuing business and financial interests that relate to New York State government,” including real estate, stadium development and tax matters.

“The moral and ethical tone of any organization is set at the top. Unfortunately the Governor set a totally inappropriate tone by his dishonest and unethical conduct. Such conduct cannot be tolerated by any New York State employee, particularly our Governor,” commented Michael Cherkasky, the Chairman of the Commission.

* The $62,125 civil penalty consists of the value of the tickets, $2,125, plus $25,000 for violating Public Officers Law §73(5)(a), $25,000 for violating Public Officers Law §73(5)(b), and $10,000 for violating Public Officers Law §74(3)(d). The law does not authorize a civil penalty for a violation of Public Officers Law §§74(3)(f) and §74(3)(h).

Click here to read the Hearing Officer's Decision dated 12/9/2010.

Teacher placement and the ADA

Teacher placement and the ADA
Arbitration between the United Educators of San Francisco and San Francisco [California] Unified School District, Arbitrator William E. Riker

In 1997 a hearing impaired California teacher, certified to teach deaf students at the high school level and regular students from kindergarten through eighth grade, was laid off when her position was eliminated. Her name was placed on a preferred list.

Assigned to clerical work, in April 1998, the teacher asked to be assigned to teach kindergarten or first-grade. She also asked for a reasonable accommodation, including an interpreter to translate her signed conversation. The district rejected her request and continued employing her in a clerical capacity.

Ultimately, the teacher filed a grievance contending that the district violated the collective bargaining agreement by not placing her in a classroom and that the district discriminated against her because of her disability. She also filed a disability discrimination complaint under the Americans with Disabilities Act.

Arbitrator William E. Riker denied her grievance, ruling that the school district was not required to place a hearing-disabled teacher in a kindergarten or first-grade classroom unless she is able to perform the essential functions of the position.

Riker’s rationale: The ADA requires fair treatment of qualified individuals with disabilities, but it does not require the employer to change the essential functions of a job to accommodate a disabled employee who cannot perform them.

Riker ruled that kindergarten and first grade teachers must be able to carefully listen to children’s speech and help them to develop and mimic speech patterns and thought processes.

Absence of the name of an individual on a list of members as required by law deemed evidence that the individual is not a member of the organization

Absence of the name of an individual on a list of members as required by law deemed evidence that the individual is not a member of the organization
Murphy v Town of Ramapo, 2010 NY Slip Op 09233, Decided on December 14, 2010, Appellate Division, Second Department

Dennis Murphy, Jr., then a 16-year-old member of the "youth corps" of the Ramapo Valley Ambulance Corp. Inc., sued Ramapo to recover for personal injuries he suffered as a result of his being injured when a pen thrown by a member of Ramapo struck him in the eye while he was on Ramapo's premises.

Ramapo’s motion for summary judgment dismissing Murphy’s action on the grounds that it was barred by the exclusivity provision of the Volunteer Ambulance Workers' Benefit Law §19 was denied by Supreme Court.*

The Appellate Division agreed with the Supreme Court's result, but for a different reason.

Essentially the Appellate Division ruled that Ramapo failed to show that Murphy within the statutory definition of “a volunteer ambulance worker” and thus he was not barred from suing by reason of the statutory "exclusivity provision" set out in §19. Why? Because Murphy's name was not on the list of Ramapo's members.

The court pointed out that §3[1] of the Volunteer Ambulance Workers' Benefit Law defines a "[v]olunteer ambulance worker" as ‘an active volunteer member of an ambulance company as specified on a list regularly maintained by that company for the purpose of this chapter’."

Ramapo, said the court, did not submit proof that Murphy was on such a list and thus failed to meet its burden of showing that the provisions of Volunteer Ambulance Workers' Benefit Law §19 controlled insofar as Murphy’s maintaining his action against Ramapo was concerned.

N.B. "Being listed" is critical in public employment situations as well. For example, the status of an individual appointed to a position in the classified service of the State as an employer or a political subdivision of the State is determined by records of the responsible civil service commission notwithstanding the belief or intent of the appointing officer concerned making the appointment.

* §19 of the Volunteer Ambulance Workers' Benefit Law §19 provides, in pertinent part, that "the benefits provided by this chapter shall be the exclusive remedy of a volunteer ambulance worker … otherwise entitled to recover damages, at common law or otherwise, for or on account of an injury … resulting from an injury to a volunteer ambulance worker in line of duty."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09233.htm