Forfeiture of the pension portion of the retirement allowance of a public officer found guilty of corruption in public office suggested during Moreland Commission hearing

Forfeiture of the pension portion of the retirement allowance of a public officer found guilty of corruption in public office suggested during Moreland Commission hearing

Among the suggestion made to the Moreland Commission to Investigate Public Corruption in the course of its first hearing concerning allegations of corruption on the part of public officials was that such official found guilty of violating their oath of office forfeit their membership in their public retirement system.

U.S. Attorney Preet Bjharara testified that a “show-me-the-money culture … appears rampant … and the ranks of those convicted in office have swelled to absolutely unacceptable level.”

It was reported that Mr. Biharara’s office had earlier filed a motion to include “pensions” paid by a public retirement system of the State as part of the property that convicted officials would have to forfeit.

Bills have been introduced in the State Legislature to this end but have yet to be passed and signed into law.

For example, in 2007 Member of the Assembly Burling introduced such a measure, Assembly Bill 6493, that provided that public officers convicted of a felony related to the abuse of his or her office shall forfeit their state pension. The bill was never reported out of the Governmental Operations Committee.

In 2013 Member of the Assembly DiPietro introduced a similar bill, Assembly 6464. This bill would amend public officers law by adding a new section, §74-b, to read as follows:

§74-b Felony convictions of public officers. Notwithstanding any other provision of law to the contrary, the conviction of a public officer, as defined by this chapter, for any felony crime related to abuse of his or her office shall include, in addition to any other punishment imposed pursuant to this chapter, a forfeiture of his or her state pension.

The act would take effect immediately upon being signed into law by the governor.

No “same as” bill has been introduced in the State Senate.
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The Education Law does not bar a probationer from serving an agreed upon extension of his or her probationary period.

The Education Law does not bar a probationer from serving an agreed upon extension of his or her probationary period.

2013 NY Slip Op 05818, Appellate Division, Second Department

The essential facts leading to this appeal are as follows:

1. A probationary teacher [Teacher] was advised that he would not be recommended for tenure.

2. The principal, after discussing the matter with the superintendent of the school district, met with Teacher and an employee organization representative and offered to extend Teacher’s probationary period for one year.*

3. Teacher subsequently sent a letter to the principal in which he “formally request[ed] a fourth probationary year of employment” and said that he hoped that he would be “granted tenure” the following spring.

4. The following spring, however, Teacher was told that he would not be offered a “tenured position” and he was terminated at the end of the school year.

5. Teacher then initiated an Article 78 proceeding alleging that he had acquired tenure by estoppel.

6. The school district moved to dismiss Teacher’s petition but Supreme Court denied its motion and annulled the school district’s determination to terminate Teacher.

The school district appealed and the Appellate Division reversed the lower court’s decision, explaining that "In general, estoppel is a bar which precludes a party from denying [that] a certain fact or state of facts exists to the detriment of another party who was entitled to rely on such facts and had acted accordingly."

Here, said the court, "Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term." While Education Law §3012(1) provides that certain teachers shall be appointed "for a probationary period of three years," nothing in the Education Law prevents a probationary teacher from “knowingly and voluntarily waiving the three-year probationary period."

Teacher’s letter clearly indicated that he had agreed to extend his probationary period for an additional year. Accordingly his probationary had not expired prior to the school district’s advising him that he would not be granted tenure in the position and terminated his employment. Thus, said the Appellate Division, Teacher "had not acquired a tenured position by estoppel."

* 4 NYCRR 5(b)(3)(ii), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides: If the conduct or performance of a probationer is not satisfactory, his or her employment may be terminated at any time after eight weeks and before completion of the maximum period of service. The appointing officer may, however, in his [or her] discretion, offer such probationer an opportunity to serve a second probationary term of not less than 12 nor more than 26 weeks in a different assignment, in which case the appointment may be made permanent at any time after completion of 12 weeks of service, or the employment terminated at any time after the completion of 8 weeks of service and on or before the completion of 26 weeks of service [emphasis supplied]. Many local civil service commissions have adopted a similar provision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05818.htm

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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:

the Rensselaer City School District,

the Waverly Central School District.

the Town of Chautauqua,

 the Village of Fleischmanns,

the Town of Forestport,

the Town of Grand Island,

the Town of Hartwick,

the Locust Valley Water District,

the Town of Lyndon,

the Town of Lyonsdale,

the Village of Pulaski, and

the Town of Somers.

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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:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05816.htm

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