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

September 14, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending September 14, 2013


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending September 14, 2013
Click on text highlighted in color to access the full report. 

New York State Comptroller Thomas P. DiNapoli's office has completed audits of the following jurisdictions:











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September 13, 2013

Moreland Commission to hold the first of its public hearing in New York City


Moreland Commission to hold the first of its public hearing in New York City
Source: The Moreland Commission

The Moreland Commission to Investigate Public Corruption will hold a public hearing on Tuesday, September 17, 2013 at Pace University in New York City. 

The Commission's first public hearing will focus on federal and state criminal laws and the adequacy of existing state laws, rules and regulations addressing misconduct by public officers.

The hearing is scheduled to be held at Pace University's New York City Campus in its Multipurpose Room at 1 Pace Plaza, New York, NY. The hearing will commence at 6 p.m. (Doors will opened at 5 p.m.).

The Commission has invited law-enforcement officials to discuss several public corruption cases prosecuted in their jurisdiction. They will also speak to the inadequacy of existing anti-corruptions laws.

The confirmed speakers are:

Preet Bharara, United States Attorney, Southern District of New York

Loretta Lynch, United States Attorney, Eastern District of New York

Cyrus Vance, Jr., Manhattan District Attorney

Daniel Alonso, Chief Assistant Manhattan District Attorney

Individuals wishing to present testimony to the Commission at this hearing must complete and submit a Public Hearing Reply Form no later than 12 pm on Monday, September 16, 2013.

This form is available on the Internet at: http://publiccorruption.moreland.ny.gov/moreland-commission-public-hearing-testimony-procedures
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An arbitrator's determination made pursuant to a statutory mandate to arbitrate the dispute is subject to closer judicial scrutiny than would be the case had the arbitration been conducted voluntarily



An arbitrator's determination made pursuant to a statutory mandate to arbitrate the dispute is subject to closer judicial scrutiny than would be the case had the arbitration been conducted voluntarily
2013 NY Slip Op 05816, Appellate Division, Second Department

An educator [Teacher] submitted an application to the School District seeking employment as a physical education teacher and was appointed to the position.

The School District subsequently contended that the application, which Teacher “certified to be true and complete,” failed to disclose that he had previously held a probationary teaching position with another school district. The District also claimed that Teacher had resigned from this previous position after allegations were made that he used corporal punishment and he was told that he would not receive tenure. As a result, the School District preferred three disciplinary charges against Teacher pursuant to Education Law §3020-a.

Charge No. 1 alleged that Teacher was guilty of misconduct because he had presented an employment application to the District that was false because he knowingly omitted the fact that he had been a probationary teacher at another school district. Teacher moved to dismiss the charge, contending that it was time-barred by Education Law §3020-a, which provides that no disciplinary charge may be brought more than three years after the occurrence of the alleged incompetency or misconduct.

Charge No. 1, however, also alleged that Teacher's conduct was in violation of Penal Law §175.30. §175.30 defines the crime of offering a false instrument for filing in the second degree. While the School District agreed that “no disciplinary charge may be brought more than three years after the occurrence of the alleged incompetency or misconduct,” it contended that Charge 1 was timely under the exception to the three-year statute of limitations set out in Education Law §3020-a(1) as the charge alleged “misconduct constituting a crime when committed."

The arbitrator granted Teacher’s motion, concluding that the District had failed to plead sufficient facts to establish that Teacher’s action constituted a violation of Penal Law §175.30 and thus the School District could not invoke the exception to the three-year limitations period that applies when the charged misconduct constitutes a crime.

The District challenged the arbitrator’s ruling and filed a CPLR Article 75 petition seeking to vacate the award dismissing Charge No. 1 on the ground that it was arbitrary and capricious and lacked a rational basis. The Supreme Court granted the District's petition and reinstated Charge No. 1. Teacher appealed.

The Appellate Division affirmed the Supreme Court’s decision, rejecting Teacher's contention that the Article 75 petition should have been dismissed because courts do not have the authority to review an interlocutory award dismissing one of the charges in an arbitration proceeding brought pursuant to Education Law 3020-a.

Although, said the Appellate Division, typically a court lacks authority to entertain a petition to review an interlocutory ruling of an arbitrator on a procedural matter, here the award sought to be reviewed is not one which involves "only a very limited procedural question" but involved the dismissal the most serious disciplinary charge preferred against Teacher and the only one of the three charges which alleged that he was guilty of misconduct.

Thus, explained the court, “the award is final as to that charge” and, if allowed to stand, would prevent the School District from adducing evidence in support of the alleged misconduct at the hearing. Under these circumstances, the award dismissing Charge No. 1 can be viewed as a final determination subject to review under CPLR 7511.

Significantly, the Appellate Division noted that “Where, as here, the obligation to arbitrate arises through statutory mandate [see Education Law 3020-a.3.a.] the arbitrator's determination is subject to closer judicial scrutiny than it would receive had the arbitration been conducted voluntarily.”

In this instance the court ruled that the arbitrator’s determination that Charge No. 1 failed to plead sufficient facts to establish that Teacher had violated Penal Law §175.30 was arbitrary and capricious as Charge 1 sufficiently alleged misconduct which, if proven, would constitute the crime of offering a false instrument for filing in the second degree by alleging that Teacher presented an employment application to the District which was false because he knowingly omitted the fact that he had been a probationary teacher at another school district, and that he had presented the employment application with the knowledge or belief that it would be filed with the District.

Accordingly, the Appellate Division ruled that as Charge No. 1 was sufficient to plead conduct constituting a crime, it was not barred on its face by the three-year limitations period.

The decision is posted on the Internet at:
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Arranging trips for “senior citizens” living in the jurisdiction


Arranging trips for “senior citizens” living in the jurisdiction
Informal Opinions of the Attorney General 87-18

A number of New York State towns and villages have a senior citizen division that organize or provide various recreational opportunities for their senior residents. Such activities may include offering day trips to nearby locations and multi-day trips to more distant places.

In response to an inquiry from a municipality that wished to use the services of a travel agency in making arrangements for such trips, the Attorney General concluded that “a prohibited conflict of interest exists” should a municipal employee “charged with arranging tourist travel" on behalf of the jurisdiction senior citizen "accepts a free trip from the travel agency that sponsor the trip.”

The Attorney General explained that “When one of the travel agencies sponsoring these trips offers a free trip to the leader, we believe that an appearance of impropriety results.”

In addition to the possibility of a “common law conflict of interest” that may be operative in this instance, the Attorney General noted that “acceptance of the free trip by the leader would probably violate Section 805-a of the General Municipal Law.”
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September 12, 2013

Resolution of an impasse in collective bargaining may be referred to a financial restructuring board in lieu of referral to existing interest arbitration panel


Resolution of an impasse in collective bargaining may be referred to a financial restructuring board in lieu of referral to existing interest arbitration panel
Chapter 67 of the Laws of 2013

Chapter 67 of the Laws of 2013 amended the State Finance Law, the Local Finance Law and the Civil Service Law with respect to financial restructuring boards for local governments. In particular, the Chapter amends §209 of the Civil Service Law in relation to public arbitration panels determinations by adding a new subdivision 4-a and a new subdivision 6-a.

Karlee S. Bolaños, Esq., has addressed the impact of this legislation in the event a distressed municipality and union at impasse “jointly request” a financial restructuring board to resolve an impasse in collective bargaining in lieu referring the impasse to existing interest arbitration panels. 

The following are among the several issues considered by Ms. Bolaños in her article:

1. What are Financial Restructuring Boards and who will be members?

2. What is the role of the Financial Restructuring Board?

3. What is a fiscally eligible municipality?

4. How does interest arbitration come into play? and

5. To which agreements will the law apply?

Ms. Bolaños’ analysis and comments are posted on NYMuniBlog, a LawBlog maintained by the law firm of Harris Beach, PLLC as a public service at: http://nymuniblog.com/?p=3488

The Financial Restructuring Board for Local Government's web site is at:
http://www.frb.ny.gov/
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CAUTION

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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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; and Staff Judge Advocate General, New York Guard. 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.
New York Public Personnel Law. Email: publications@nycap.rr.com