Petitioning a court to remove certain officers of a political subdivision of the State

Petitioning a court to remove certain officers of a political subdivision of the State
Haase v DelVecchio, 2011 NY Slip Op 09127, Appellate Division, Second Department

§36 of the Public Officers Law provides for the removal of a town, village, improvement district or fire district officer except a justice of the peace, by the Supreme Court for misconduct, maladministration, malfeasance or malversation in office.

Further, an application for such removal may be made by any citizen resident of such town, village, improvement district or fire district or by the district attorney of the county in which such town, village or district is located may be made to the Appellate Division in the appropriate judicial department.

Daniel Hasse filed a petition seeking to remove Christopher DelVecchio from his public office in the Mastic Fire Department, Town of Brookhaven, Suffolk County, pursuant to §36 of the Public Officers Law.

Citing a number of decisions including Futia v Weaver, 85 AD3d 1165 and Montanio v Rowley, 39 AD3d 653, the Appellate Division dismissed Hasse’s petition holding that the allegations in the petition did not rise to the level of misconduct, maladministration, malfeasance, or malversation necessary to justify the extreme remedy of removal from office pursuant to Public Officers Law §36.

The court, however, rejected DelVecchio’s request for the imposition of sanctions against the Hasse in connection with the proceeding. DelVecchio has asked that the Appellate Division impose sanctions against Hasse pursuant to 22 NYCRR 130-1.1.

22 NYCRR 130-1.1 permits a court, at its discretion, to award a party or attorney in a civil action or proceeding before the court [except where prohibited by law] the costs actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in the regulation. In addition to, or in lieu of, awarding costs, the court, as a matter its exercising its discretion, may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in such frivolous conduct.

For the purposed of 22 NYCRR 130-1.1, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09127.htm

Contract grievance arbitration to go forward notwithstanding pending disciplinary action taken against the employee

Contract grievance arbitration to go forward notwithstanding pending disciplinary action taken against the employee

Cattaraugus Central Schools v. Cattaraugus Teacher’s Association, 84 A.D.2d 685

A teacher filed a grievance claiming a violation of the Taylor Law contract. After losing the grievance at Step 3, the teacher sought arbitration. The school district, however, obtained a stay of arbitration of the grievance in the light of a pending disciplinary action involving the teacher.  

On appeal the stay issued by Supreme Court was vacated.

The Appellate Division held that there was no bar to simultaneously pursuing remedies under the agreement and the Education Law, even if there might be different decisions as a result.

According to the decision, the only two questions to be considered by the court in connection with an attempt to stay arbitration are 

1. whether arbitration of the subject matter of the dispute is permissible under the Taylor Law ... and allowable as a matter of public policy (i.e., denial of tenure is not subject to arbitration; alleged procedural violations in connection with consideration for tenure is subject to arbitration is provided for in the agreement) and 

2. whether the parties agreed by the terms of their arbitration clause to submit the dispute to arbitration.

Unemployment Insurance Appeals Board must make an independent determination as to whether the employee was dismissed for misconduct within the meaning of the Labor Law.

Unemployment Insurance Appeals Board must make an independent determination as to whether the employee was dismissed for misconduct within the meaning of the Labor Law.

Ranni v. Ross, 84 A.D.2d 858

The arbitrator found the employee guilty of misconduct, gross insubordination and failure to properly perform his duties. The penalty of dismissal was imposed.

Later the former employee claim for unemployment benefits was denied on the basis of the arbitrator’s disciplinary determination.

The Appellate Division ruled that “an employer may be completely justified in discharging an employee, yet the grounds for the firing may not constitute misconduct within the meaning of Section 593.3 of the Labor Law.”

As the Unemployment Insurance Appeals Board relied exclusively on the arbitrator’s findings regarding the dismissal, the Court said that “there is no substantial evidence in the record (before the Board) to support the Board’s denial of the claim” and sent the matter back to the Board for further consideration.

N.B. Section 593.3 does not define “misconduct” but merely refers to it in connection with the calculation of periods of time in connection with disqualification for benefits.) One judge, in a dissent, argued that the employee should not be given the opportunity to relitigate the disciplinary action within the context of an unemployment insurance claim.

Governor Cuomo and Legislative Leaders appoint members to The Joint Commission on Public Ethics

Governor Cuomo and Legislative Leaders appoint members to The Joint Commission on Public Ethics

Source: Press Office, Office of the Governor

Governor Andrew M. Cuomo and legislative leaders today announced their appointments to the new Joint Commission on Public Ethics (JCOPE).

JCOPE is an independent enforcement unit with broad oversight of New York State government. The Commission has powers to investigate violations of law and financial disclosure requirements for all elected officials and their employees in both the executive and legislative branches. JCOPE also has expanded powers to oversee lobbyists due to newly expanded disclosure rules and a broader definition of lobbying.

JCOPE was created as part of Governor Cuomo's ethics reform package designed to address major inadequacies in the State's ethics system and to restore public trust in government. The Public Integrity Reform Act of 2011 [Chapter 399 of the Law of 2011] contains some of the most comprehensive ethics enhancements in modern history, including reforms that create transparency, require strict disclosure, and increase penalties for ethics violations.

In addition, Part C of the Act provides for "Pension Forfeiture" under certain circumstances. It amends the Retirement and Social Security Law by adding a new Article 3-B to establish a procedure whereby certain public officials who commit crimes related to their public offices may have their pensions reduced or forfeited under certain circumstances. This new article applies prospectively to officials who enter any of the applicable retirement systems. In addition, the Act amends the criminal procedure law to require that criminal defendants whose pensions may ultimately be reduced or forfeited shall be notified of that possibility by the court prior to any trial or plea entered in their criminal case.

The text of Chapter 399 is posted on the Internet at:

http://open.nysenate.gov/legislation/bill/S5679-2011

The bipartisan Commission consists of six members appointed by the Governor, at least three of whom must be enrolled members of the major political party that is not that of the Governor. It also consists of eight members appointed by the legislative leaders. The Senate Majority Leader and the Speaker of the Assembly each appoint three members and the minority leaders of both houses each appoint one member. The Governor appoints the chair from among the Commission members.

Governor Cuomo's appointments are:

Janet DiFiore, Chair. Elected in 2005 and reelected in 2009, District Attorney DiFiore is the chief law enforcement officer of Westchester County. She also serves as the president of the District Attorney's Association of the State of New York. Prior to her current position, she served as a Judge of the Westchester County Court and as a Justice of the New York State Supreme Court. District Attorney DiFiore was also appointed by former-Chief Judge Judith Kaye to serve as the Supervising Judge for the Criminal Courts in the 9th Judicial District and was appointed by Chief Judge Jonathan Lippman to serve as Co-Chair of the New York State Justice Task Force. District Attorney DiFiore received her J.D. from St. John's University School of Law and her B.A. from C.W. Post College, Long Island University.

Vincent A. DeIorio. Mr. DeIorio is the Chair of the New York State Energy Research and Development Authority (NYSERDA) Board of Directors. He is an attorney with private practices in Purchase and New York City. Mr. DeIorio has previously served on the New York State Court of Claims. Mr. DeIorio is a graduate of the Utica College of Syracuse University and the University at Buffalo Law School. Mr. DeIorio will resign from NYSERDA in order to serve on JCOPE.

Mitra Hormozi. Ms. Hormozi has served as the Chairperson of the New York State Commission on Public Integrity since her appointment earlier this year. Ms. Hormozi is a partner at Kirkland & Ellis LLP. She previously served as the Special Deputy Chief of Staff in the New York Attorney General's Office, where she supervised high-profile initiatives involving public integrity. Prior to that, she spent more than six years as an Assistant United States Attorney for the Eastern District of New York, where she was the Chief of the Organized Crime and Racketeering Section and received numerous top law enforcement awards. Ms. Hormozi is a graduate of the University of Michigan and the New York University School of Law. Ms. Hormozi will join JCOPE on January 5, 2012, one year after she left the Attorney General's Office.

Daniel J. Horwitz. Mr. Horwitz is currently a partner at Lanker & Carragher, LLP. He previously served as a New York County Assistant District Attorney in the Frauds Bureau. Prior to his legal career, Mr. Horwitz served as Legislative Director to Congressman Thomas J. Downey. Mr. Horwitz received his J.D. cum laude from the American University Washington College of Law and his B.A. from Columbia University.

Gary J. Lavine. Mr. Lavine is associated as counsel with Green & Seifter, Attorneys, PLLC. Mr. Lavine served in the U.S. Department of Energy as Deputy General Counsel for Environment & Nuclear Programs during the administration of President George W. Bush. He also served as senior vice president and chief legal officer of Niagara Mohawk Holding Inc. Mr. Lavine has served in a number of staff positions with the New York State Legislature, including legislative counsel to the Minority Leader of the Assembly. He received degrees in both business administration and law from Syracuse University.

Seymour Knox IV. Mr. Knox is the CEO of Knox International, LLC, a New York based private equity firm. For twenty years, Mr. Knox served as Vice President of Corporate Relations for the Buffalo Sabres. Mr. Knox is a graduate of Lake Forest College.

Senate Majority Leader Skelos' appointments are:

Mary Lou Rath. Ms. Rath represented the 61st district in Western New York from 1993 until her retirement in 2008. She was the first woman to serve in a leadership position in the Senate Majority and had numerous legislative accomplishments throughout her tenure, especially in the areas of health care and Medicaid reform. She has received many awards and honors in recognition of her distinguished public service in the Senate and as a member of the Erie County Legislature.

Judge Joseph Covello. Judge Covello has more than 30 years of experience in law and justice. Justice Covello stepped down from the New York State Appellate Division in 2011 to return to private practice. He spent 16 years on the bench, authoring many notable opinions. Before his appointment to the Appellate Division, he served as a trial judge in the Supreme Court, Nassau County. Prior to that, he served on the Appellate Term for the Ninth and Tenth Judicial Districts, and as a trial judge in District Court, Nassau County. He spent 16 years in private practice before becoming a judge. Justice Covello is a veteran of the United States Army, and is a graduate of the State University of New York at Buffalo and Hofstra University of Law.

George H. Weissman. Mr. Weissman served as the Managing General Counsel of the New York State Dormitory Authority for nearly a decade and as Assistant Counsel in the Office of the State Comptroller. His previous positions also included working as Program Associate for the state Senate, and Counsel with the New York State Legislative Commission on Critical Transportation Choices. He was formerly Of Counsel with Marsh, Wasserman and Associates, LLP. He received his J.D. from Albany Law School of Union University and a B.A. in Political Science at SUNY Cortland.

Assembly Speaker Silver's appointments are:

Pat Bulgaro. Mr. Bulgaro has more than twenty-five years of state government experience, serving at the highest levels of several state agencies, including the Department of Taxation and Finance and the Division of the Budget, where he served as director under former Governor Mario Cuomo. He also served as President and Executive Director of the Center for the Disabled and on the New York State Temporary Commission on Lobbying as an appointee of Speaker Silver. During his distinguished career in public service, Mr. Bulgaro was awarded the Governor Charles Evans Hughes Award for "outstanding career achievement."

Marvin Jacob. Mr. Jacob, a retired attorney, was a partner in the Business and Finance & Restructuring Department of Weil, Gotshal & Manges, where he handled matters before the bankruptcy courts and federal district and appellate courts. He has corporate bankruptcy litigation experience, serving such institutional clients as General Electric Capital Corporation and Credit Suisse First Boston. Mr. Jacob has also served as the Associate Regional Administrator, New York Regional Office, U.S. Securities and Exchange Commission. In 2010, the Speaker appointed Mr. Jacob to the task force that oversaw the implementation of the Public Authorities Reform Act of 2009.

Ellen Yaroshefsky. Ms. Yaroshefsky is currently a law professor at the Benjamin N. Cardozo School of Law, co-executive director of the Jacob Burns Ethics Center in the Practice of Law, and a former adjunct professor at Fordham Law School. She is an experienced attorney specializing in defense and civil rights litigation, and is a member of several attorney ethics review organizations, including the American Bar Association's Ethics, Gideon and Professionalism Committee, the New York State Bar Association's Committee on Standards of Attorney Conduct, and the National Association of Criminal Defense Lawyers Ethics Advisory Committee.

Senate Democratic Leader John L. Sampson's appointment is:

Ravi Batra. Mr. Batra is an attorney with a private practice. He has served as a professor of business law at Pace University. Mr. Batra has also served as the Chair of the Judicial Independence Committee of the New York State Trial Lawyers Association. He received his J.D. from Fordham University and his bachelor of business administration degree cum laude from Pace University.

Assembly Minority Leader Brian M. Kolb's appointment is:

David A. Renzi. Mr. Renzi is a partner in the law firm of Brown, Dierdorf and Renzi. He has been with this Watertown firm since 2002. The firm is recognized for their expertise in the areas of real estate, business formation, estate planning, and municipal practice. Previously, Mr. Renzi served as the Public Defender for Jefferson County and successfully prosecuted thousands of criminal cases. Mr. Renzi is a graduate of Syracuse University School of Law.

Action for alleged defamation follows disclosure of document pursuant to a FOIL request

Action for alleged defamation follows disclosure of document pursuant to a FOIL request

Gosden v Elmira City School District, 2011 NY Slip Op 08874, Appellate Division, Third Department

One of the lessons of the Gosden case is that although a settlement agreement that provided that the parties would keep its terms “confidential” may be subject to disclosure pursuant to a Freedom of Information [FOIL] request, its subsequent disclosure pursuant to FOIL does not excuse a party breaching other terms and conditions unrelated to such disclosure set out in the agreement.

Robert Gosden, earlier employed as an administrator by the Elmira City School District entered into an agreement with the school district to settle alleged overpayment it had made to him prior to his retirement from service with the district. The settlement agreement stipulated that [1] Gosden disputed “that any overpayment had occurred" and [2] that the settlement agreement would remain “confidential.”

A local newspaper subsequently obtained a copy of the agreement under the Freedom of Information Law (Public Officers Law Article 6) and published articles about it and a Comptroller's Audit report of the school district dated October 2008.

Gosden and his company, Manus Management Consultant Services, Inc., then contracted with the local Board of Cooperative Educational Services to supply certain services to area school districts, including providing financial responsibility training to Board members.

Two Elmira City School District board members, however, were “reported as being insulted and angry that Gosden would be paid to train them about financial responsibility and they were quoted as saying, among other things, that Gosden had admitted to wrongdoing regarding his annual leave payout.”  Soon thereafter the BOCES canceled a contract with Manus Management.

Manus and his company then sued the school district, alleging that it had breached their contract. Supreme Court agreed, awarding Manus and his company the $8,000 that Gosden had paid to settle the potential claims against him “plus an amount to be determined at an inquest based on lost business” suffered by Manus and his company.

The first issue considered by the Appellate Division concerned the alleged breach of contract cause of action.

The court said while the settlement agreement had set out a confidentiality provision, the parties also recognized in the agreement that it might be disclosed for a lawful purpose and they specifically set forth a clause that "permitted comments by the parties in the case of such disclosure." The agreement stipulated that "[a]ll other inquiries about this Settlement Agreement or the matter to which it pertains will be responded to by the [p]arties by stating that the matter has been 'settled to the satisfaction of the parties.'"

The terms of the agreement did, in fact, become public pursuant to a Freedom of Information Law request and the parties did not claim that this disclosure was improper. 

However two board members had been board members when the settlement was negotiated and remained board members at the time of their comments. According to the Appellate Division, their comments, which were reported in a local newspaper in November 2008 and reiterated at a Board meeting, went beyond the scope of the comments to which the parties had agreed. This, said the Appellate Division, constituted a breach of the terms of the agreement by school district.

The full decision, which address other and related issues, is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08874.htm