ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

June 16, 2012

Reports from the Office of the State Comptroller


Reports from the Office of the State Comptroller
For the week of June 11 - 17, 2012

Forensic Audit Reveals Metro–North Employees Were No Shows

Metro–North Railroad employees that were supposed to monitor train conditions and crew performance were not on the job when they were scheduled to work and performed poorly when they were, according to an audit released Friday by New York State Comptroller Thomas P. DiNapoli. Auditors and investigators also found that a relative of a manager was hired at an inflated salary over other more qualified employees, a possible violation of the New York State Public Officers Law.

DiNapoli: State Agencies’ Late Approvals of Contracts with Not–For–Profits Rose to 80 Percent Last Year

State agencies were late more than 80 percent of the time in approving contracts subject to the Prompt Contracting Law with not–for–profit providers last year, according to a report released Thursday by State Comptroller Thomas P. DiNapoli. This prompted interest payments that cost taxpayers nearly $200,000, the report found.

DiNapoli: Auditors Blocked $61.5 Million in Erroneous Workers’ Compensation Payment Requests

Auditors uncovered $61.5 million in erroneous workers’ compensation payment requests, according to a report released Thursday by New York State Comptroller Thomas P. DiNapoli. The 2011 year–end report details errors caused by improper data entry or computation, among other reasons. After discussions with the Comptroller’s Office, the Workers’ Compensation Board made improvements which reduced the improper payment rate by 17 percent in November and December of 2011.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli announced his office completed an audit of the Hoosick Falls Central School District.

Comptroller DiNapoli Releases Municipal Audit

New York State Comptroller Thomas P. DiNapoli announced his office completed an audit of the City of Syracuse.

June 15, 2012

An employer may find that firefighter’s disability was not the result of a work-related injury or disease not withstanding the Retirement System’s decision to the contrary


An employer may find that firefighter’s disability was not the result of a work-related injury or disease not withstanding the Retirement System’s decision to the contrary
Davenport v City of Mount Vernon, 2012 NY Slip Op 04744, Appellate Division, Second Department

The City of Mount Vernon Fire Commissioner adopted the recommendation of a hearing officer denying a firefighter’s application for supplemental benefits otherwise available pursuant to General Municipal Law §207-a(2).* The Appellate Division confirmed the Commissioner’s decision, commenting that it was supported by substantial evidence.

The court said that the record contains evidence consisting of the reports of three orthopedic surgeons, each of whom concluded that the firefighter's condition was not caused by an accident, explaining that the Commissioner had the authority to evaluate conflicting medical evidence, and was free to credit evidence based on reports of one set of physicians over that of another set of physicians.

In Cook v City Of Utica, 88 NY 2d 833, the court ruled that while a disabled firefighter's Section 207-a benefits may depend in part on benefits paid pursuant to RSSL Section 363-c, there is no specific statutory language or anything in the legislative history concerning these measures suggesting that the Comptroller's eligibility determination with respect to RSSL benefits precluded the municipal employer from making a separate, and, as here, contrary determination with respect an individual's eligibility for GML Section 207-a benefits. Accordingly, the employer could deny granting the firefighter supplemental benefits to his or her disability retirement allowance upon a finding that the disability was not the result of a work-related injury or disease that was supported by substantial evidence.

Similarly, in Balcerak v Nassau County, 94 NY2d 25, the Court of Appeals said that "[a] determination by the Workers' Compensation Board that an injury is work-related does not by operation of collateral estoppel, automatically entitle an injured [police] officer to General Municipal Law Section 207-c benefits."

Accordingly, an employer was not precluded from determining that an individual was not entitled to Section 207-c benefits despite a prior Workers' Compensation determination in an employee had suffered an "on-the-job" injury.

* The amount of the supplement that would be paid the disabled firefighter pursuant to §207-a(2) would the difference between his or her retirement allowance and the compensation he or she would have received in active service, payable until the firefighter's mandatory age of retirement.

The decision is posted on the Internet at:


Removal of an officer of a political subdivision of the State for misconduct, maladministration, malfeasance or malversation in office


Removal of an officer of a political subdivision of the State for misconduct, maladministration, malfeasance or malversation in office
Matter of Hedman v Town Bd. of Town of Howard, 56 AD3d 1287

§36 of the Public Officers Law provides for the removal of an officer of a town, a village, an improvement district or a fire district, [other than a justice of the peace], found guilty of misconduct, maladministration [performing official duties corruptly or inefficiently], malfeasance [performing official duties inadequately or poorly], or malversation [misuse of public or other funds] while holding public office.

In this action it was alleged that a member of the Town Board attempted to conceal his relationship with an alternate energy company, and ignored an alleged conflict of interest that arose when he voted to approve a wind energy facility proposed by company that included installing a wind turbine on the Board member’s property.

The Appellate Division, citing Jones v Filkins, 238 AD2d 954, said that the removal of an official from office pursuant to Public Officers Law §36 "generally will not be granted absent allegations of self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust[,]” while allegations of  “minor neglect of duties, administrative oversights, or violations of law do not, in general, warrant removal."

The court decided no an actual conflict of interest that would warrant the removal of the Board member had been shown, explaining that the submitted evidence in support of the alleged conflict of interest that consisted solely of company's proposal for a wind energy facility in which Board member was identified as a proposed participating landowner on whose property a wind turbine would be located.

In contrast, the Appellate Division said that the Board member had established that he had not entered into any agreement with company with respect to a wind turbine at the time he voted on the proposal in favor of the company's plan for a wind energy facility. Further, the court said that the allegation that Board member had intentionally concealed his relationship with company “was based on pure speculation and thus was not entitled to any evidentiary weight.”

The full text of the decision is posted on the Internet at:

Consideration of ex parte information in a disciplinary action constitutes a denial of due process


Consideration of ex parte information  in a disciplinary action constitutes a denial of due process
Faga v Board of Educ. of Harrison Cent. School Dist., 2008 NY Slip Op 09078, Decided on November 18, 2008, Appellate Division, Second Department

An employee, terminated from his position with the Harrison Central School District, challenged the District’s action, contending that his due process rights were violated the Board of Education had “received ex parte information about the charges from the District's attorneys and the Superintendent of Schools.”

The individual also alleged that his right to due process was violated because the Superintendent submitted a statement to members of the Board before the charges were brought that he believed that charges could be sustained.

The Appellate Division found that the District established that the Board did not prejudge the matter nor did it rely on any improperly-obtained information in making its determination to dismiss the employee from his position.

In contrast, where the court finds that the rights of the accused were prejudiced because of some activity of the appointing authority, it will typically vacate the determination.

For example, in Ernst v Saratoga County, 234 AD2d 764, the Appellate Division annulled the dismissal of an individual found guilty of disciplinary charges because the chairman of the county Board of Supervisors - 
(a) met with the county’s attorneys “to discuss the pending investigation;” (b) met with the employees involved to, as the chairman phrased it, “relieve their fears;” (c) signed the notice of the charges against the individual, (d) voted to bring charges against the employee; (e) served as a witness at the disciplinary hearing; and (f) voted to accept a hearing officer’s findings of guilt and impose the recommended penalty. 


These actions, said the court, denied the employee a fair and impartial tribunal.

The Faga decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09078.htm


Placement of a candidates name on an eligible list does not give the individual a right to an appointment

Placement of a candidates name on an eligible list does not give the individual a right to an appointment
Tardif v Town of Southold, 56 AD3d 755

John J. Tardif filed a notice of claim alleging that the Town of Southold, and the Town's police department, did not appoint him as a police officer even though he had "the best qualifications" and "the number one test score" on the examination to become a police officer because of his age.*

The Town moved for summary judgment, contending it did not discriminate against Tardif because of his age but elected not to appoint him “because he submitted deceptive responses in his application to become a police officer.”

In opposing the Town’s motion, Tardif did not make any argument in support of his age discrimination claim. He, instead, contended that the Town “had violated his constitutional rights to due process and equal protection in other ways.” The Appellate Division, however, ruled that Tardif failed to raise any triable issue of fact with regard to any of his constitutional claim.

The court pointed out that Tardif does not have a protectable property interest in a position with the Town's police department that would entitle him to maintain a due process claim. In this regard, said the court, “An individual does not have a "legally protectable interest" in an appointment to the position of police officer merely because he or she achieved a sufficient score on the examination to be placed on an eligibility list,” citing Andriola v Ortiz, 82 NY2d 320 and Cassidy v Municipal Civil Service Commission of City of New Rochelle, 37 NY2d 526.

Specifically, the Appellate Division commented that "'An appointing authority has wide discretion in determining the fitness of candidates . . . This discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied . . . As long as the administrative determination is not irrational or arbitrary, this Court will not interfere with it."

As Tardif did not have a property interest in an appointment as a police officer and failed to raise a triable issue of fact as to the deprivation of a protected liberty interest, the Appellate Division held that the Supreme Court had properly determined that he had failed to raise a triable issue of fact as to whether he was deprived of his constitutional right to due process.

Finally, said the court, Tardif did not establish any right to a “name-clearing hearing” with respect to his rejection for appointment as a police officer by the Town.

*Section 54 of the Civil Service Law sets out standards for establishing age requirement for appointment to positions in the public service in general while Section 58.1(a) sets out age requirements for police officers in particular.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09381.htm


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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; Staff Judge Advocate General, New York Guard [See also https://www.linkedin.com/in/harvey-randall-9130a5178/]. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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