Overtime paid to a police officer for “special-duty” for service performed for a private entity not included in determining the “final average salary” for retirement purposes

Overtime paid to a police officer for “special-duty” for service performed for a private entity not included in determining the “final average salary” for retirement purposes

Tamucci v DiNapoli, 2015 NY Slip Op 08027, Appellate Division, Third Department

Between 1989 and 2009, Town and Village of Harrison Police Department [HPD] police sergeant Mark Tamucci was a member of New York State Police and Fire Retirement System [PFRS].

During his last three years of employment, Tamucci received special-duty overtime wages for services performed on special details.* After his retirement, the New York State and Local Retirement System sent Tamucci a letter indicating this his final average salary was based on calculations that did not include salary payments he received for his “special-duty overtime” work.

Tamucci asked PFRS to recalculate of his final average salary to include such overtime wages. A hearing was held and the Hearing Officer concluded that the wages that Tamucci earned for services performed on those special details were properly excluded from the calculation of his final average salary. The Comptroller adopted the decision of the Hearing Officer and denied Tamucci 's application for a recalculation of his final average salary.

Tamucci commenced a CPLR Article 78 proceeding in Supreme Court. Supreme Court, finding that Tamucci’s petition raised an issue of substantial evidence, transferred the proceeding to the Appellate Division.

The Appellate Division observed that the Comptroller is vested with the “exclusive authority to determine all applications for retirement benefits and the determination must be upheld if [the] interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence.”**

The relevant elements set out in the Retirement and Social Security Law with respect to determining an individual’s "final average salary" for retirement purposes in this instance are:

1. The average annual compensation of the member for credited government service not exceeding his [or her] three years of credited government service immediately preceding his [or her] date of retirement (See Retirement and Social Security Law §302 [9] [a]).

2. Government service includes, among other things, paid "[s]ervice as an officer or employee of an employer (See Retirement and Social Security Law §302 [12])

The term "Employer" is defined as "[t]he state, a participating employer,*** and any other unit of government or organization obligated or agreeing . . . to make contributions to the retirement system on behalf of its police [officers] and fire [fighters]" (Retirement and Social Security Law §302 [8]).

The Appellate Division said that the Comptroller's finding that Tamucci's services during special details were provided to the relevant private entities, rather than to or for the police department, was supported by substantial evidence. Noting that uncontested evidence in the record established that the private entities HPD order to receive services performed by Tamucci and other officers in the form of special details, the court explained that “A reasonable person could infer that the police department required these private entities to pay for the services because it had determined that such services were not within the scope of its responsibilities to the public.”

The Appellate Division, citing Cannavo v Regan, 122 AD2d 523, said it had previously indicated that the voluntariness of such services is relevant to the inquiry and that  Tamucci “unambiguously testified that he had volunteered for all of the special details on which he had performed services.” In addition, the court noted that there was nothing in the records to indicate that HPD had ever ordered or otherwise compelled Tamucci or any of his fellow officers to perform services on special details.

Considering the evidence that the private entities had contracted with HPD to have these “special detail” services provided to them and the lack of any evidence these “special detail services” were, in fact, required to be performed by HPD, the court concluded that substantial evidence supported the Comptroller's determination that the services that Tamucci performed on special details were not provided to his employer, HPD.

NOTA BENE: An off-duty police officer injured while he or she was off-duty and working for a private employer may not be eligible for General Municipal Law §207-c benefits or Retirement and Social Security Law accidental disability or service disability retirement nor eligible for "defense and indemnification" by his or her public employer pursuant to §18 of the Public Officers Law should he or she be sued concerning an event that occurred in the course of his or her working for a private employer. The Disability Leave for fire, police and other public sector personnelhandbook addresses these and similar situations. For more information click on http://booklocker.com/3916.html

* These “special details” result from private entities contracting with the police department for its officers to provide various services that would not otherwise be provided to such entities.

** Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

*** The term "participating employer" includes "any municipality participating in the [police and fire] retirement system" (see Retirement and Social Security Law §302 [20]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08027.htm 

See, also, Pitzel v DiNapoli, 2015 NY Slip Op 08015, Appellate Division, Third Department,  posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08015.htm

A court’s review of a determination by the Commissioner of Human Rights is limited to the issue whether substantial evidence supports the determination

A court’s review of a determination by the Commissioner of Human Rights is limited to the issue whether substantial evidence supports the determination

Monti v New York State Div. of Human Rights, Serv. Empls. Intl. Union, AFL-CIO, Local 200 United, 2015 NY Slip Op 07092, Appellate Division, Fourth Department

Zajac v New York State Div. of Human Rights & Serv. Empls. Intl. Union, Local 200 United, 2015 NY Slip Op 07097, Appellate Division, Fourth Department

The Commissioner of the New York State Division of Human Rights, adopting the findings and recommendation of the Administrative Law Judge [ALJ] who conducted the administrative hearing concerning their respective complaints, dismissed the complaint filed by Carl A. Monti and the complain filed Corrine Zajac alleging Local 200 had subjected them to unlawful discrimination in violation of the State’s Human Rights Law.

In both actions the Appellate Division unanimously confirmed the decisions of the Commissioner of Human Rights and dismissed their respective petitions.

The Appellate Division explained that its review of a determination by the Commissioner of Human Rights is limited to the issue of whether substantial evidence supports the Commissioner's determination. Further, said the court, an ALJ’s assessment of credibility of the testimony given by the witnesses testifying at the hearing is "unassailable," and the determination must be confirmed if the testimony credited by the ALJ is supported by substantial evidence.

With respect to Monti’s complaint the court said that it concluded that substantial evidence supported the ALJ's determination that Monti failed to establish a prima facie case of unlawful retaliation and that Monti’s termination was based upon legitimate, nondiscriminatory reasons.

Addressing Corinne Zajac’s appeal, the Appellate found that Zajac had not met her burden of establishing that Local 200 had engaged in unlawful discrimination when it terminated her employment. Zajac had alleged that she had been terminated by Local 200  in “retaliation for filing an age discrimination complaint.” Nor, said the court, did Zajac submit any complaint, much less evidence, that Local 200 had further retaliated against her by denying her severance benefits.

The Monti decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07092.htm

The Zajac decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07097.htm
Motion to appeal: Motion, insofar as it seeks leave to appeal as against respondent Service Employees International Union, Local 200 United, dismissed as untimely (see CPLR 5513[b]); motion, insofar as it seeks leave to appeal as against respondent New York State Division of Human Rights, denied.

Selected Reports issued by the Office of the State Comptroller during the week ending November 7, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending November 7, 2015

Click on text highlighted in color to access the full report 

Guilty plea of the theft of $78,000 of NYSERS pension benefits

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Terence Fitzpatrick, 53, of Monmouth County, New Jersey, to the crime of Attempted Grand Larceny in the Second Degree, a class D felony, in Albany County Court. Fitzpatrick faces a maximum penalty of 2 and 1/3 to 7 years in prison.

http://www.osc.state.ny.us/press/releases/nov15/110515a.htm?utm_source=weeklynews20151108&utm_medium=email&utm_campaign=110515arelease 

New York State Comptroller Thomas P. DiNapoli”s office completed the following audits of political subdivisions of the State:

Village of Clayville – Board Oversight

The clerk-treasurer did not provide the board with comprehensive financial reports so that it could properly oversee the village’s financial activities. In addition, the board did not ensure that the clerk-treasurer filed the village’s annual financial reports in a timely manner.

http://www.osc.state.ny.us/localgov/audits/villages/2015/clayville.pdf

Cortland Housing Authority – Financial Condition

Housing authority officials have worked effectively to maintain a strong financial position by controlling expenditures.

http://www.osc.state.ny.us/localgov/audits/publicauth/2015/cortlandhousing.pdf

Essex Fire District #2 – Cash Disbursements

The board does not provide adequate oversight of the district’s cash disbursements. The treasurer did not prepare monthly bank reconciliations or reports, or prepare and file the district’s annual reports with the Office of State Comptroller for the past two years.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/essex2.pdf

Lockport Public Library – Claims Processing

The board did not routinely audit and approve claims prior to payment. Instead, claims were audited and approved for payment by the director, who also signed the disbursement checks to pay the claims.

http://www.osc.state.ny.us/localgov/audits/libraries/2015/lockport.pdf

Port WashingtonFire Department – Budgeting

The board’s adopted budgets have not accurately portrayed expected department operating costs to the companies and the public. Furthermore, by relying on net assets to fund budget shortfalls, the department is not adopting structurally balanced budgets and is instead funding recurring expenditures with one-shot uses of accumulated net assets.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/portwashington.pdf

Roosevelt Fire District – Fire Station Project

Auditors reviewed the process used to construct a new fire station as well as construction-related expenditures and found that the expenditures were within the board-approved amount. However, the board did not enter into written agreements with four contractors that provided services during the project.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/roosevelt.pdf

Town of Sidney – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The town took appropriate action to implement or resolve recommendations contained in the 2014 budget review report issued in November 2014. The town’s proposed budget complies with the property tax levy limit.

http://www.osc.state.ny.us/localgov/audits/towns/2015/sidney_br.pdf

Stony Creek Volunteer Fire Company – Cash Disbursements

The board did not establish effective internal controls to address a lack of segregation in the treasurer’s cash disbursement duties. The board did not establish policies or implement any procedures governing debit card use or review or approve any card-related transactions.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/stonycreek.pdf

Western Sullivan Public Library – Library Operations

The library’s fixed costs for operating its three buildings are high, and officials did not perform any comparative cost analysis of operations or segregate cost information by building.

http://www.osc.state.ny.us/localgov/audits/libraries/2015/westernsullivan.pdf