Disabled firefighters on §207-a leave not entitled to same leave benefits as are available to active firefighters

Disabled firefighters on §207-a leave not entitled to same leave benefits as are available to active firefighters

Chalachan v. City of Binghamton, 81 A.D.2d 973, affd. 55 N.Y.2d 989

The Appellate Division considered a claim by firefighters receiving disability benefits under Section 207-a of the General Municipal Law that in addition to those benefits, they were entitled to vacation benefits under their collective bargaining agreement.

The court dismissed the claim holding that “if every benefit provided active firefighters in the collective bargaining agreement was intended to include disabled firefighters covered by Section 207-a...the contract should contain language to so provide...(the) contention that they are members of their union...entitled to each and every fringe benefit for which active firefighters work daily is without merit. They do not work to earn vacation pay. They are already paid 52 weeks each year and their construction of the agreement to give them pay for 56 weeks (per year) is rejected”.

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law

Source: Justia December 10, 2011

Younies v. Merit Sys. Prot. Bd.

Court: U.S. Federal Circuit Court of Appeals

Docket: 11-3031

December 5, 2011

Judge: Prost

Areas of Law: Government & Administrative Law, Labor & Employment Law

Plaintiff applied for a position with the Department of Labor and responded "no" to whether he had been convicted or put on probation during the preceding 10 years. After he was hired, he signed the form, certifying the answers as true. It came out that plaintiff had been on probation for disturbing the peace He insisted that he had been arrested and placed on "informal probation," but not convicted. His attorney explained that plaintiff had pled guilty; the order stated that the plea was vacated and that "a plea of not guilty be entered, and that the accusatory filing is dismissed. ... does NOT relieve the defendant of the obligation to disclose the conviction" in application for public office. The Department terminated plaintiff during his probationary period. An ALJ dismissed his appeal, finding that the firing was based on conduct during the probationary period. The Merit System Protection Board and Federal Circuit denied appeals. To invoke 5 C.F.R. 315.806(c) for MSPB jurisdiction, plaintiff would have to identify facts in the record amounting to a non-frivolous assertion that the Department actually relied on a pre-employment condition in terminating his employment. Plaintiff failed to do so; the termination letter expressly referenced his signature on the application after he was hired.

http://j.st/NpY

Bakalekos v. Furlow

Court: Arkansas Supreme Court

Docket: 11-526

December 1, 2011

Judge: Goodson

Areas of Law: Business Law, Constitutional Law, Government & Administrative Law

Appellants were retired police officers who did not receive the benefit of all the monthly benefit increases for retired members of a municipal police pension and relief fund. The increases were authorized by the fund's Board of Trustees. Appellants mounted a multi-pronged challenge to the increase in benefits. The circuit court granted summary judgment for the Board. The Supreme Court affirmed, holding that the circuit court did not abuse its discretion in (1) ruling that the additional payments were authorized by Ark. Code Ann. 24-11-102(a); (2) finding that the statute did not constitute an unconstitutional delegation of legislative authority; (3) finding that the Board did not breach its fiduciary duties by increasing benefits to current retirees and not to future retirees, an action that was expressly authorized by statute; and (4) in ruling that the statute, as applied, did not violate the equal protection clause of the state Constitution as there was a rational basis for the Board's disparate treatment of current and future retirees.

http://j.st/NSu

Westmoreland v. Sutherland

Court: U.S. 6th Circuit Court of Appeals

Docket: 10-3766

December 6, 2011

Judge: Guy

Areas of Law: Civil Rights, Communications Law, Constitutional Law, Labor & Employment Law

The city disbanded its dive team because of budget cuts, after which two children drowned. Plaintiff, a fire department employee and member of the disbanded dive team, spoke at a city council meeting, indicating that the budget cuts caused the deaths and would cause more deaths. Plaintiff was ordered to serve unpaid suspension, equivalent to three 24 hour shifts, on grounds of insubordination, malfeasance, misfeasance, dishonesty, failure of good behavior, and conduct unbecoming of an officer. After a grievance hearing the mayor affirmed the suspension, finding that plaintiff’s statements had been false. The district court granted summary judgment for the city. The Sixth Circuit remanded for determination of whether the statements were false; whether any false statements were knowingly or recklessly made; whether a reasonable official would have believed any false statements were knowingly or recklessly made; and, if necessary, whether plaintiff’s interest in speaking as a citizen on a matter of public concern outweighed the city’s interest in promoting the efficiency of the public services it performs through its employees.

http://j.st/NG9

Glenn v. Brumby

Court: U.S. 11th Circuit Court of Appeals

Docket: 10-15015, 10-14833

December 6, 2011

Judge: Barkett

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff filed a complaint seeking declaratory and injunctive relief pursuant to 42 U.S.C. 1983 for alleged violations of her rights under the Equal Protection Clause of the Fourteenth Amendment, claiming that defendant fired her from her job as an editor because of sex discrimination. Plaintiff also claimed that her constitutional rights were violated because defendant terminated her employment due to her medical condition, known as Gender Identity Disorder. The district court granted summary judgment to plaintiff on her sex discrimination claim and granted summary judgment to defendant on plaintiff's medical discrimination claim. Both parties timely appealed. The court held that a government agent violated the Equal Protection Clause's prohibition of sex-based discrimination when he or she fired a transgender or transsexual employee because of his or her gender non-conformity. The court also held that defendant had advanced no reason that could qualify as a governmental purpose, much less an "important" governmental purpose, and even less than that, a "sufficiently important government purpose" that was achieved by firing plaintiff because of her gender non-conformity. Therefore, the court affirmed the judgment of the district court granting summary judgment in favor of plaintiff on her sex-discrimination claim. In light of this decision, which provided plaintiff with all the relief she sought, there was no need to address plaintiff's cross-appeal.

http://j.st/NN3

New York State's Attorney General and the State's Comptroller report indictments in alleged "member item theft scheme"

New York State's Attorney General and the State's Comptroller report indictments in alleged "member item theft scheme"
Source: Offices of the State Comptroller and the Attorney General


N.B. The charges and allegations set out below are merely accusations and all the individuals named in the following press release are presumed innocent unless and until proven guilty in a court of law.

On December 7, 2011 Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli announced the indictments of four individuals accused of participating in a scheme to pocket taxpayer dollars intended for public services in New York City. In what was described as "A groundbreaking public integrity initiative" between the Offices of the Attorney General and State Comptroller exposed a nonprofit allegedly set up by New York State Senator Shirley L. Huntley that funneled member item funds to those associated with it, including the senator’s aide and an individual who shares a residence with the senator.

According to Attorney General Schneiderman’s indictment, the president and treasurer of the Parent Workshop, Inc., submitted fraudulent documents to New York State to obtain public money from a legislative member item. Instead of providing the promised programs, the two defendants allegedly pocketed approximately $29,950. Two additional defendants were charged with falsifying documents to cover up the theft once the investigation commenced.

Since 1999, the New York State Legislature has distributed more than $900 million through legislative member items to more than 20,000 nonprofit entities.

“This personal profit-making scheme defrauded taxpayers, all the while depriving communities of much-needed funds. Now it's time to hold those behind it accountable,” Attorney General Schneiderman said. “The charges announced today send a strong message that those who abuse their positions to rip off taxpayers will be prosecuted. My office’s partnership with the Comptroller is designed to combat such corruption, and we will continue to work tirelessly to protect every penny of taxpayer money during these challenging economic times.”

“Taking money intended for families in need is unconscionable” State Comptroller DiNapoli said.  “Abuse and fraud will not be tolerated. By combining forces, my office and the Attorney General have exposed and are prosecuting this egregious theft of state funds which were intended for the public good.”

The charges accuse Patricia D. Savage, the nonprofit’s president and Senator Huntley’s aide, as well as Lynn H. Smith, the nonprofit’s treasurer and an individual who shares a residence with the senator, of engaging in a fraudulent scheme to steal member item funds. The defendants falsely asserted that Parent Workshop, Inc. would use the member item funds secured by Senator Huntley to hold workshops for and conduct outreach to parents on the workings of the New York City public school system.

Instead, the indictment alleges that Ms. Savage and Ms. Smith never intended to hold any such events.  Furthermore, the indictment alleges that they falsely asserted in multiple submissions to the New York State Department of State that, from April 2008 through March 2009, the Parent Workshop had held workshops and conducted outreach, when no such workshops were ever held and no such outreach was ever conducted.  Based on these submissions, the Department of State provided $29,950 to the Parent Workshop – the sum the two defendants are charged with stealing.

According to the indictment, Ms. Savage and Ms. Smith submitted a fraudulent contract and five fake vouchers to illegally obtain that money.  Each is charged with 11 total counts of Grand Larceny in the Third Degree and Offering a False Instrument for Filing in the First Degree.

The indictment also alleges that after the Attorney General’s Office issued a subpoena to the Parent Workshop, defendant David R. Gantt falsified records in an effort to claim that he was paid in cash for conducting workshops as a consultant. In fact, he never conducted any workshops.  Mr. Gantt is charged with four counts of Falsifying Business Records in the First Degree. 

Defendant Roger N. Scotland, the President of the Southern Queens Park Association, a separate nonprofit corporation located in Queens, also created a false record in an attempt to hide the theft from investigators.  Mr. Scotland is charged with Falsifying Business Records in the First Degree, Tampering with Physical Evidence, and conspiracy to engage in those crimes.

The joint investigation began after contact with the New York State Department of State. 

Prosecuting the case are Senior Counsel Emily Bradford and Assistant Attorney General Jerrold Steigman, under the supervision of Public Integrity Deputy Bureau Chief Stacy Aronowitz, Chief William E. Schaeffer, and Executive Deputy Attorney General for Criminal Justice Nancy Hoppock.  The joint investigation was conducted the Comptroller’s Bureau of State Expenditures and Legal Services Division’s Investigations Unit.

The Attorney General and the State Comptroller encourage anyone with additional information on this matter or any other alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Providing for the representation and indemnification of public officers and employees of political subdivisions of the State and similar entities in the event they are sued

Providing for the representation and indemnification of public officers and employees of political subdivisions of the State and similar entities in the event they are sued

Informal Opinions of the Attorney General; 2011-9

Concluding that the Independent Livery Drivers Fund was not a public entity, the Attorney General said that benefits available to officers and employees set out in Public Officers Law §18,* providing for the representation and indemnification of public officers and employees, could not be claimed by members of the Fund’s Board of Directors.

§18, explained the Attorney General, provides that a public entity may adopt a local law, by-law, resolution, rule or regulation to indemnify and save harmless its employees from liability in the event there is a judgment against them resulting of an act or omission as a result of the individual acting within the scope of his or her public employment or duties.

However, a public entity, for the purposes of §18, means a county, city, town, village or any other political subdivision or civil division of the state, a school district, a BOCES or other entity operating a public school, a college, community college or university, a public improvement or special district, a public authority, commission, agency or a public benefit corporation. It also includes “any other separate corporate instrumentality or unit of government.” The Fund, said the Attorney General, was not such a public entity.

* §17 of the Public Officers Law provides similar protections for officers and employees of the State as the employer.

That no injury resulted from a school bus driver's unsafe acts does not diminished the severity of the employee's misconduct

That no injury resulted from a school bus driver's unsafe acts does not diminished the severity of the employee's misconduct

Ronkese v. Highland Central School District, 82 A.D.2d 1011

A school bus driver was disciplined pursuant to Section 75 of the Civil Service Law for unsafe driving.

Found guilty of seven incidents of unsafe driving, the employee was dismissed.

On appeal the Appellate Division held repetition of unsafe acts endangering the safety of school children cannot be diminished because no accident or injury occurred.

The decision noted that Ronkese had received a number of reprimands for such conduct previously and the punishment was not shocking to one’s sense of fairness.

The driver’s claim that the Section 75 determination was based on a large measure of hearsay evidence was rejected as compliance with the technical rules of evidence was not mandated by Section 75. The court then determined that the record contained sufficient evidence to support the appointing authority’s determination.