Internal Revenue Service’s requirements that apply to public employers

Internal Revenue Service’s requirements that apply to public employers

Source: The United States Internal Revenue Service

The Internal Revenue Service is offering a free “Compliance Self-Assessment Tool for Government Entities” on May 14, 2015; 2 p.m. (EST)

To Register click on: http://www.visualwebcaster.com/IRS/102153/reg.asp?id=102153

N.B. You will use this same link to attend the event.

The Self-Assessment Tool will assist public entities to:

Identify legal requirements that apply to public employers;

Recognize unique federal income, social security and Medicare taxes and public retirement system obligations;

Gain awareness of potential compliance issues; and

Understand the most common tax issues 
 

Probationary employee terminated after testing positive for cocaine

Probationary employee terminated after testing positive for cocaine

2015 NY Slip Op 03359, Appellate Division, Second Department

The New York City Transit Authority [Authority] terminated the employment of a subway conductor [Conductor] who was then serving as a probationary employee.

Conductor had sustained injuries in an off-duty motor vehicle accident and was absent from work for a period of more than 21 days. As a condition of returning to work, Conductor was required to undergo a medical evaluation, including the administration of a drug test. Conductor tested positive for cocaine and the Authority terminated his employment.

Conductor filed an Article 78 petition seeking a court order directing his reinstatement to his former position. Supreme Court denied Conductor’s petition and Conductor appealed the court’s dismissal of the proceeding.

The Appellate Division sustained the Supreme Court’s ruling. Citing York v McGuire, 63 NY2d 760,  the court explained that a probationary employee may be discharged without a hearing* and without a statement of reasons in the absence of any demonstration that the termination was in bad faith, for a constitutionally impermissible purpose, or in violation of statutory or decisional law. Finding that Conductor failed to carry his burden of presenting competent proof of bad faith, illegal reasons, or a violation of statutory or decisional law, the court dismissed his appeal.

As to the Authority’s decision to terminate Conductor, the Appellate Division said that “the penalty of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness.”

* N.B. Where a probationary period has been set in terms of a minimum and a maximum period of probation, case law holds that if the appointing authority elected to terminate a probationary employee during his or her minimum period of probation, such an individual is entitled to a notice and hearing in the same manner as a tenured individual.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03359.htm

Unscrupulous conduct or gross dereliction of duty warrants the removal of an officer of a town, village and other political subdivisions of the State pursuant to Public Officers Law §36

Unscrupulous conduct or gross dereliction of duty warrants the removal of an officer of a town, village and other political subdivisions of the State pursuant to Public Officers Law §36

2015 NY Slip Op 02815, Appellate Division, Third Department

Public Officers Law §36 provides that certain officers of a political division of the State may be removed from his or her office for misconduct, maladministration, malfeasance or malversation in office.  Loosely defined, these terms are used to describe, respectively, [1] acting unlawfully; [2] administer or manage badly or inefficiently; [3] commission of an act that is unequivocally illegal; and [4] corrupt behavior while serving in a position of trust.

In this action to remove a public officer from his positions with a Village the Appellate Division explained that “To warrant removal, an official's misconduct must amount to more than minor violations and must consist of "self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust” constituting "unscrupulous conduct or gross dereliction of duty or conduct that . . . connotes a pattern of misconduct and abuse of authority."

Residents of the Village commenced this proceeding in the Appellate Division*seeking to remove the incumbent [Officer] from the public offices of Mayor and Village Manager pursuant to Public Officers Law §36. When Officer moved to dismiss the petition the court denied the motion. The Appellate Division then referred the matter to a Referee to conduct a hearing and report his findings and recommendations to the court.

In the course of the hearing the residents offered testimony from a Village Trustee, an Assistant District Attorney, two Village police officers and a Village employee, as well as submitting affidavits and other evidence to support their allegations.  In contrast, Officer, who was present and was represented by counsel during the hearing, offered no testimony or evidence on his own behalf.

Ultimately the Referee issued a report recommending the removal of Officer from his positions. When the residents moved to confirm the Referee's report, Officer cross-moved to disconfirm the report and dismiss the petition.

The Appellate Division confirmed the Referee's report, concluding that Officer’s conduct warranted his removal from the offices of Mayor and Village Administrator pursuant to Public Officers Law §36. The court commented that Officer’s actions "rise to the level of 'unscrupulous conduct or gross dereliction of duty or conduct that connotes a pattern of misconduct and abuse of authority.’"

* §36 provides, in pertinent part, that an application for such removal “may be made by any citizen resident of such town, village, improvement district or fire district … and shall be made to the appellate division of the supreme court held within the judicial department embracing such town, village, improvement district or fire district.”

The decision, which sets out the acts or omissions alleged to warrant Officer’s removal from office are set out in the decision of the Appellate Division which is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02815.htm

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