New York State Comptroller alleges retired police officer involved in a "pension padding scheme"

New York State Comptroller alleges retired police officer involved in a "pension padding scheme"
Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli announced in a press release issued on September 17, 2010 that his Department's investigators found that a retired City of Rome Police Officer, Thomas C. Hubal, was involved in a “pension padding scheme."

The Comptroller said that Hubal was indicted “for illegally collecting more than $88,000 from the New York State and Local Retirement System over a nine-year period.” According to a report* published in September 2010 by the Comptroller's Investigations Unit, investigators from the Investigations Unit and Oneida County District Attorney Scott McNamara’s office found that Hubal was working for the Rome City School District without having obtained a waiver from the State Civil Service Commission, as required by State Law,** and without notifying the Comptroller’s Office that he would be returning to public employment.

In general, §150 of the New York State Civil Service Law prohibits a retired member of a public retirement system of this state*** collecting a retirement allowance from a New York public pension system from being employed by New York State or a political subdivision of New York State and simultaneously collecting a salary in excess of statutory salary limits imposed for such retirees returning to public service by law.

There are, however, certain exceptions to this general prohibition whereby:

1. A retiree who is age 65 or more may return to public sector employment without a reduction or suspension of his or her pension regardless of the amount of his or her public sector compensation;

2. The retiree may suspend his or her retirement allowance and rejoin the Retirement System;

3. The retiree, regardless of age, may be reemployed by the State or a political subdivision of the State without any reduction or suspension of his or her pension if he or she does not earn a salary in excess of the earnings limits set out in the RSSL.

4. A retiree "may be able to temporarily (and for a finite period of time)" earn a public sector salary in excess of the limits imposed by the RSSL if the retiree and the retiree’s prosective appointing appointing authority (on his or her behalf) apply for and are granted a waiver under very specific circumstances" prescribed in §211.

Although the New York State Retirement and Social Security Law permits a retiree receiving a retirement allowance from a public retirement system of New York State to temporarily return to work for a public entity without a reduction in his or her existing retirement benefits, provided the retiree satisfies specific legal requirements to do so, Hubal, said the Commissioner, "circumvented those legal requirements."

The Comptroller said that Hubal was arraigned in Oneida County Court on Friday, September 17, 2010 and charged with second-degree grand larceny and defrauding the government, both felonies.

The Comptroller also said Department investigators found evidence suggesting that others in the school district attempted to help Hubal illegally “double-dip,” commencing with Hubal’s hiring by school district officials in 1995 and their disregarding the requirements set out in New York State's laws concerning the reemployment of individuals receiving a retirement allowance from a public retirement system of this State.

In addition, DiNapoli said that the investigators found evidence suggesting that school district officials allowed Hubal to collect funds for travel and other expenses without the required documentation to support such expenses in excess of $20,000.

A retiree's failure to obtain the required §211 waiver in a timely fashion could result in civil financial liability as well. For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had be paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.

However, there are no limitiations with respect to the reemployment of a retiree of a New York public retirement system by an employer in the private section, by the federal government or by another state or a political subdivision of another state.

* The full text of the Comptroller’s report is posted on the Internet at http://www.osc.state.ny.us/reports/investigations/Rome_Report.pdf

** See §150 of the Civil Service Law and §211 of the Retirement and Social Security Law.

*** The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
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Incompetence and misconduct in the context of a disciplinary action

Incompetence and misconduct in the context of a disciplinary action
Brey v Jefferson-Youngsville CSD, App. Div., 245 AD2d 613

Incompetence and misconduct have different meanings in disciplinary actions.

Incompetence basically refers to a lack of the ability to do the work properly; misconduct frequently involves the employee's failure to comply with instructions or ignoring appropriate procedures.

Elvira Brey, business manager for the Jefferson-Youngsville school district in Sullivan County, was charged with incompetence because she failed meet deadlines for filing various forms and applications with the State Department of Education and neglected to make timely interest payments on a series of the School District's bonds.

The charges involving misconduct arose for her alleged "failure to comply with [the Superintendent's] repeated written directives' to complete the forms required to be filed with the Education Department. The disciplinary action was brought pursuant to Section 75 of the Civil Service Law.

Found guilty of all charges and specifications, Brey was terminated from her position. She challenged the Board's action, contending that:

(1) the findings of the hearing officer were not supported by substantial evidence and

(2) the penalty imposed was "grossly disproportionate ... because she had not intentionally failed to timely file the reports and make the interest payments."

The Appellate Division was not impressed by these representations. It concluded that the Board's determination was based on the testimony of School District witnesses, Brey's admissions, and documentary evidence "amply supported by proof in the record,” which satisfied the substantial evidence test.

The Court dismissed Brey's appeal, indicating that the penalty imposed met the Pell test in that it is "not so disproportionate to the offenses as to be shocking to one's sense of fairness."

Another factor in this case was Brey's claim that she was the victim of retaliation within the meaning of Section 75-b of the Civil Service Law, the so-called "Whistle Blower" statute. After commenting that Brey "did not sufficiently establish her defense of retaliatory discharge," the Court said that "a defense under Section 75-b cannot be sustained when a public employer has a separate and independent basis for the action taken" against the individual.

The lesson here is that even in cases where the individual is able to demonstrate he or she has suffered retaliation in violation of Section 75-b, such a defense will not be sufficient to prevent an employer from disciplining an employee merely because the employee's actions are protected by Section 75-b if the employer has a separate and different basis for the disciplinary action.

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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

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Terminations based on political affiliation

Terminations based on political affiliation
Bavaro v Pataki, CA2, 130 F.3d 46 9181

In this case there was no question that Ralph Bavaro and Elizabeth Hogan were fired from their respective jobs as Associate and Assistant Counsels to "make room" for two political appointees. They sued, seeking damages and injunctive relief pursuant to 42 USC. 1983.

Were the attorneys subject to dismissal on the basis of their political affiliation or were they protected against such political patronage dismissals under the First Amendment to the United States Constitution? The U.S. Circuit Court of Appeals upheld a federal district court ruling that the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.

According to the decision, in 1976 the Supreme Court first held that patronage dismissals may infringe upon government employees' First Amendment rights to political belief and association, citing Elrod v. Burns, 427 U.S. 347. However, Elrod also holds that "[l]imiting patronage dismissals to policymaking positions is sufficient to achieve a governmental end."

In Branti v. Finkel, 445 U.S. 507, a 1980 decision, a majority of the U.S. Supreme Court reaffirmed its view that patronage dismissals may contravene the First Amendment but said incumbents would not be protected against patronage dismissals where the hiring authority able to demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved.

The Circuit Court explained that a rational connection exists between political affiliation and performance of the inherent duties of a position, when the employee:

(1) is exempt from civil service protection;

(2) has some technical competence or expertise;

(3) controls others; and

(4) is empowered to act and speak on behalf of a policymaker, especially an elected official.

The Circuit Court decided that under the circumstances, the politically motivated termination of Bavaro and Hogan did not violate their First Amendment rights.

It ruled that the positions held by Bavaro and Hogan were not protected against patronage dismissal because the four elements listed by the 2nd Circuit were satisfied.

Suppose the individual does not actually perform the duties that are actually set out in the official job description for the position. The Circuit Court said that in analyzing whether a government employee is protected under this standard, the "inherent duties of the position, not the actual duties performed by the employee in a particular case" control.

The full text of the opinion is on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/terminations-based-on-political.html
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Reasonable accommodation of employee's disability may not always trumpet collective bargaining seniority agreement

Reasonable accommodation of employee's disability may not always trumpet collective bargaining seniority agreement
Kralik v Durbin, CA3, 130 F.3d 76

The Third Circuit U.S. Court of Appeals in Philadelphia has decided that an accommodation of a disabled individual under the Americans with Disabilities Act [ADA] does not take precedence over the terms of a collective bargaining agreement.

The case focused on a conflict between employee seniority rights under a collective bargaining agreement and an employee's right to a reasonable accommodation under ADA that would adversely impact the seniority rights of other workers.

Karen Kralik, a highway toll collector, contended that she could not work "forced overtime" because her back condition prevented her from sitting for more than eight continuous hours. When her employer refused to exempt her from forced overtime, she contended that its action constituted a violation of the ADA. Kralik alleged that the reason her employer had refused to provide her with the accommodation was that it would require another employee with more seniority to work overtime and thereby infringe on the rights of these employees under the collective bargaining agreement then in place.

The U.S. Circuit Court of Appeals rejected Kralik's argument. It commented that there was a well-established precedent in place when Congress passed ADA -- reasonable accommodation under the federal Rehabilitation Act "had never been held to require trumping the seniority rights of other employees."

Why did the Court conclude that the accommodation requested by Kralik -- no forced overtime -- was not a “reasonable accommodation" under the circumstances? The Court said "even minor infringements on other employees' seniority rights impose unreasonable burdens on employers who, by reason of these infringements, must face the consequences of violating the collective bargaining agreement."
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Retirees are not employees within the meaning of the Taylor Law

Retirees are not employees within the meaning of the Taylor Law
New Action and United Federation of Teachers, 30 PERB 3048

New Action, a retiree group, asked the United Federation of Teachers [UFT] for a list of the names and addresses of its retired members. When UFT refused, New Action complained to PERB, contending UFT violated Section 209-a.2(a) of the Taylor Law. Section 209-a.2(a) prohibits an employee organization from interfering with the rights given public employees under the Act.

PERB affirmed the Director of Public Employment Practices and Representation's dismissal of New Action's claims. It agreed with the Director that UFT was permitted to refuse to provide New Action with the names of its retired members because:

1. New Action was not an employee organization within the meaning of the Taylor Law;

2. New Action's demand was not related to the terms and conditions of employment; and

3. The information sought by New Action concerned matters internal to UFT.

While PERB noted that an employee organization has a "general duty" to provide information to the employees it represents concerning their terms and conditions of employment when asked, retirees are not public employees, have no terms and conditions of employment and are not in the UFT bargaining unit.

PERB also rejected New Action's theory that it was entitled to the names and address of UFT retirees because UFT supposedly "allows retirees to vote on ratification of collective bargaining agreements and in elections for union officers." Even if true, PERB ruled, this would not matter as such participation concerns internal union affairs falling outside the scope of the Taylor Law.

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