A NYC police officer “not in service” on the effective date of his or her retirement or vesting of retirement benefits forfeits the pension portion of his or her retirement allowance

A NYC police officer “not in service” on the effective date of his or her retirement or vesting of retirement benefits forfeits the pension portion of his or her retirement allowance

2013 NY Slip Op 51252(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

The Administrative Code of the City of New York requires a member of the NYC Police Retirement System to "be in service" on the effective date of his or her retirement or vesting of retirement benefits in order to be eligible for a retirement allowance. If the employee is not "in service" on that date, he or she forfeits the pension portion his or her retirement allowance.*

In this Article 78 proceeding a New York City police officer [Officer] asked the court to annul the termination of his employment as a New York City Police Department [NYPD] Police Officer following a disciplinary hearing. Officer's disciplinary termination was effective prior to a final determination regarding his application for disability retirement by the NYC Police Pension System's Board of Trustees .

In 2009 NYPD filed disciplinary charges and specifications against Officer for allegedly receiving a bribe, a violation of Penal Law §200.10, in that in 2007 Officer had accepted $400 from an acquaintance in exchange for helping him recover a car which was in NYPD custody. In 2010, NYPD filed additional disciplinary charges against Officer for allegedly failing an integrity test conducted by the Internal Affairs Bureau [IAB] involving Officer’s alleged not having properly invoiced property and allegedly not having notified IAB of the possible misconduct of other police officers.

In October 2010, Officer, who had suffered a stroke and heart attack earlier that year, applied for disability retirement under the so-called Heart Bill.** NYPD's Medical Board approved Officer’s application. However, in February 2011, Officer agreed to defer the application and final determination by the NYC Police Retirement System's Board of Trustees until the resolution of the disciplinary charges then pending, or upon "the Police Commissioner's approval of either a Negotiated Settlement or the disposition pursuant to trial."

The disciplinary hearing was conducted in July 2011 and Officer was found guilty of soliciting and accepting a bribe, and based on petitioner's plea of guilty to failing the integrity test by failing to voucher property, failing to safeguard that property and other misconduct such as transmitting a radio signal with the intent to conceal from the NYPD the existence of the property, failing to report misconduct related to the taking of the property, attempting to cover up the improper handling of the property, and trying to cover up the incident by initially failing to provide accurate information about it at an official NYPD interview.

The hearing officer recommended that Officer be terminated from his position. The Commissioner of Police accepted the hearing officer’s findings and recommendation and terminated Officer from his position.

As Officer’s termination was prior to the effective date of his retirement, he became ineligible to receive pension portion of his retirement benefits. In ruling on Officer’s CPLR Article 78 petition, Supreme Court Judge Barbara Jaffee sustained the forfeiture of the pension portion of Officer's retirement allowance, commenting that this was “a risk he took by engaging in the misconduct at issue.”

In reviewing an administrative agency's determination as to whether it is arbitrary and capricious under CPLR Article 78, said the court, the test is whether the determination "is without sound basis in reason and . . . without regard to the facts.” Further, the determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record."

Here, given the charges and findings, which rest on the credibility determinations of the hearing officer, it cannot be said, as a matter of law, that respondents' decision to terminate petitioner's employment was arbitrary and capricious.

As to the penalty imposed, Judge Jaffeet, citing Matter of Pell, 34 NY2d at 222, said that the standard for reviewing a penalty imposed after a hearing is whether the punishment imposed "is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." 

Judge Jaffee noted that “NYPD may not terminate employee in order to prevent employee from collecting [a] disability pension, [the] pension may be denied as unintended consequence of [the] termination if [the] termination [was] made in good faith." However, the fact that Officer was terminated "after his application for disability retirement had been provisionally approved” by Medical Board did not show bad faith as Officer's disciplinary investigation was not completed until after Medical Board's determination and prior to any action being taken by the Retirement System's Board of Trustees.

Accordingly, Judge Jaffee denied Officer’s petition and dismissed the action.

* §13-240 of the New York City Administrative Code, which concerns the New York City Police Pension Fund, address the termination of membership or discontinuance of service. It provides, in pertinent part,  “Should a member discontinue city-service except by death or retirement, he or she shall be paid such part of the amount of the accumulated deductions standing to the credit of his or her individual account in the annuity savings fund as he or she shall demand.” Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804 [181 A.D.2d 412] decided with Barbaro v NYC Employees' Retirement System, [181 A.D.2d 437] addresses a similar situation involving members of the NYC Sanitation Workers' Retirement System.

** See General Municipal Law §207-k

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_51252.htm
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Service as an independent contractor does not count in qualifying for unemployment insurance benefits

Service as an independent contractor does not count in qualifying for unemployment insurance benefits

Matter of Tkachyshyn (Commissioner of Labor), 2013 NY Slip Op 06057, Appellate Division, Third Department

Volodymyr I. Tkachyshyn, a substitute teacher and math tutor, filed three claims for unemployment insurance benefits.

Although initially deemed eligible for benefits in each instance, following Appellate Division’s decision in Leazard v TestQuest, Inc., 74 AD3d 1414, the Department of Labor issued revised decisions finding that earnings in connection with tutoring services through TestQuest, Inc. was not covered employment for the purposes of qualifying for unemployment insurance benefits “given that tutors such as [Tkachyshyn] were independent contractors.”

The Appellate Division commented that in “TestQuest, Inc. tutors such as claimant were deemed by this Court to be independent contractors … which decision is conclusive and binding upon all such persons employed by TestQuest, Inc.,” citing Labor Law §620[1][b].*Thus, said the court, those earnings cannot qualify for inclusion as remuneration in the base periods to determine eligibility for unemployment insurance benefits.**

As the record establishes that Tkachyshyn did not have sufficient covered earnings to file a valid original claim pursuant to Labor Law §527 in either his base period or alternate base period for any of the three claims, the Appellate Division found that substantial evidence supports the Board's decision and dismissed his appeal.

* §620[1][b] of the Labor Law, in pertinent part, provides that the hearing officer’s “decision shall not be deemed limited in its effect to the immediate claimant making the claim for benefits but shall be deemed a general determination of such questions with respect to all those employed by such person or employer for all the purposes of this article, and such decision shall be conclusive and binding upon the claimant and such person or employer…”.

** The Appellate Division noted that “notwithstanding the absence of any fault on the part of Tkachyshyn, he was charged with a recoverable overpayment of federal emergency unemployment compensation funds. Whether Tkachyshyn was eligible for a waiver of recoverability of those benefits was referred back to the Department of Labor and was not at issue on this appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06057.htm
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October is Cyber Security Awareness Month in New York State - ACT – Achieve Cyber security Together

October is Cyber Security Awareness Month in New York State - ACT – Achieve Cyber security Together Source: Office of the Governor - Thomas D. Smith, NYS Chief Information Security Officer

Governor Andrew M. Cuomo announced the start of Cyber Security Awareness Month in New York State and issued a proclamation in support to raise citizen awareness about cyber based threats and how to stay safe online at: http://www.dhses.ny.gov/go/proclamation2013.  The NYS Office of Information Technology Services, Enterprise Information Security Office (ITS EISO) is providing a number of educational resources to the public, including an electronic Cyber Security Awareness Toolkit.  The Toolkit includes cyber security themed posters, calendars, guides, brochures, and other content that can be downloaded to help promote and reinforce cyber safety in practical, informative, entertaining, and usable ways.  The Toolkit material may be found at www.dhses.ny.gov/ocs/awareness-training-events/#awareness. N.B. In conjunction with Cyber Security Awareness Month, the NYS ITS EISO is coordinating a statewide cyber security poster contest for students in grades Kindergarten-12.  This is a timely opportunity for school art and technology teachers to promote keeping children safe online in a fun way.  Entries may be used in state, regional, and national computer security awareness campaigns.  New York State winners will be featured on the ITS website and entered into the National Contest with the opportunity to be featured in the 2015 Cyber Security Calendar.  For more information on the poster contest, please visit http://www.dhses.ny.gov/ocs/awareness-training-events/events/2013/index.cfm and click on the Poster Contest tab. While there are many steps that can be taken to keep personal information and data secure, below are some helpful cyber security tips to follow provided by the Governor’s Office: Secure your computer:  Keep your operating system and application software updated and patched. Be sure to check that your anti-virus and anti-spyware software is running and receiving automatic updates.  Confirm that your firewall is enabled. Use Strong Passwords:  Passwords should have at least eight characters and include letters (uppercase and lowercase), numbers, and special characters.  It is important to maintain separate passwords for different accounts to reduce the likelihood that the compromise of one password will make other accounts vulnerable as well.  Developing good password practices will help keep your personal information and identity secure. Secure your online transactions:  When submitting sensitive information, look for the "lock" icon on the browser's status bar to be sure your information is sent securely during transmission.  Also be sure that "https" appears in the website's address bar before making an online transaction.  The "s" stands for "secure" and indicates that communication with the webpage is encrypted. Don't reveal personal information online:  The less information you post, the less data you make available for a cyber criminal to use in a potential attack or scam. Protect your laptop, smartphone, or other portable devices when traveling:  Just as your wallet contains lots of important and personal information that you wouldn't want to lose, so do your portable devices.  Don't let them out of your sight.  Never store your laptop in checked luggage.  If there is a room safe available at your hotel, use it to securely store your devices.  In addition, make sure you have strong passwords on these devices in the event they are lost or stolen. Be aware that public computers and public wireless access are not necessarily secure:  Cyber criminals can potentially access any information you provide, such as credit card numbers, passwords or other confidential information.  Do not conduct any sensitive transactions on public Wi-Fi sites. Do not email sensitive data:  Beware of emails requesting account or purchase information.  Legitimate businesses do not solicit sensitive or confidential information through email. Dispose of information properly:  When it's time to dispose of your computer or mobile device, make sure you have a process in place to completely erase your information or physically destroy the hard drive. Properly erasing your hard drive thwarts efforts to steal your information. More information on Cyber Security Awareness Month is posted on the Internet at: http://www.dhses.ny.gov/ocs/awareness-training-events/events/2013/index.cfm. .

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 5, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending October 5, 2013

Click on text highlighted in color  to access the full report 

A.G. Schneiderman & Comptroller Dinapoli Announce Arrest Of Highway Superintendent For Stealing More Than $50k In Goods & Services

Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli announced Tuesday the arrest of Roger Burlew, Highway Superintendent for the Town of Erin, for stealing more than $50,000 in goods and services. The Attorney General’s criminal complaint alleges Burlew stole the money by submitting fraudulent vouchers for payment to the Town of Erin. The Joint Task Force on Public Integrity is a cooperative effort between Attorney General Schneiderman’s and Comptroller DiNapoli’s offices to root out public corruption and maximize the resources of each office.

DiNapoli: Binghamton Parks & Rec Director Allegedly Stole Nearly $108,000

The director of Binghamton’s Parks and Recreation Department pocketed nearly $108,000 in taxpayer funds and allegedly used the cash to pay for his mortgage, summer rental, car lease, and loans to his sons, according to an auditby New York State Comptroller Thomas P. DiNapoli.

DiNapoli: County Jail Inmates Received Improper Welfare and Unemployment Insurance Benefits

An auditof five counties by State Comptroller Thomas P. DiNapoli’s office found that hundreds of county jail inmates received inappropriate payments totaling more than $236,000 from various social welfare programs and almost $325,000 in state unemployment insurance (UI). The inappropriate benefits were caused by deficiencies in how four of the five counties monitored the eligibility of jail inmates for welfare payments, and by a combination of potential fraud and delays providing the state Department of Labor (DOL) with information about inmates receiving UI benefits.

DiNapoli: Audit Cites Town of Shandaken Employee for Stealing Funds

The secretary of the Ulster County town of Shandaken highway department misused more than $20,000, including $5,000 in federal funding that was earmarked for flood cleanup costs, according to an audit released by State Comptroller Thomas P. DiNapoli. The findings of the Comptroller’s audit and investigation were referred to the New York State Police. They arrested Florence Sullivan on July 17 and charged her with one count of grand larceny in the third degree, one count of falsifying business records in the first degree and one count of scheme to defraud in the first degree.

DiNapoli Tours Rochester–based Vnomics to Promote Pension Fund’s In–State Private Equity Program

State Comptroller Thomas P. DiNapoli toured Vnomics Corp., a Rochester-based provider of fleet management software, to highlight investments made by the State Common Retirement Fund’s In–State Private Equity Program in companies emerging from New York’s universities. The Fund has invested more than $500,000 in the company since 2011 through High Peaks Venture Partners.

DiNapoli Releases Bond Calendar for Fourth Quarter

New York State Comptroller Thomas P. DiNapoli announced a tentative schedule for the planned sale of obligations for the State, New York City, and their major public authorities during the fourth quarter of 2013.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of:

the Hudson City School District,

the Islip Union Free School District, and

the Ramapo Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of:

the Cayuga County Probation Department,

the Coldspring Fire District, and

the Town of Stockport.

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Disclosure of public records pursuant to the Freedom of Information Law

Disclosure of public records pursuant to the Freedom of Information Law

Cook v Nassau County Police Dept., 2013 NY Slip Op 06364, Appellate Division, Second Department

An individual submitted a Freedom of Information [FOIL] request for certain “records” that were held in the police department’s files. The custodian of the records declined to disclose certain documents sought by the individual.

The individual filed a petition pursuant to CPLR Article 78 seeking those records that had been withheld and Supreme Court ruled that some of the records sought by the individual were to be disclosed and others could be withheld by the custodian of the records.

The individual appealed that branch of his petition that Supreme Court denied while the police department cross-appeal from so much of the same judgment, that, in effect, granted those branches of the petition which were to direct it to disclose certain letters, redacted email messages, and a redacted one-page record from an internal affairs investigation.

The Appellate Division affirmed the Supreme Court’s decision, noting that “The Freedom of Information Law … was enacted "to promote open government and public accountability" and "imposes a broad duty on government to make its records available to the public," citing Gould v New York City Police Dept., 89 NY2d 267.

The court explained that FOIL provides that government records are presumptively open for public inspection unless they fall within one of the exceptions specified by Public Officers Law §87(2), which permits an agency to deny access to records which "are specifically exempted from disclosure by state or federal statute."

One such statute, said the Appellate Division, exempting records from disclosure is Civil Rights Law §50-a(1),*which provides, in relevant part, that "[a]ll personnel records used to evaluate performance toward continued employment or promotion" of police officers "shall be considered confidential and not subject to inspection or review." However, "when access to an officer's personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law §50-a to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer."

In this instance the court found that Supreme Court properly determined, after an in camera inspection,**that the only portion of an internal affairs investigation report which should be disclosed pursuant to FOIL was a redacted one-page "Citizen Complaint Summary."

The Appellate Division rejected the police department’s argument that that the redacted "Citizen Complaint Summary" also should have been shielded from disclosure pursuant to Civil Rights Law §50-a(1). That portion of the internal investigation report, as redacted, said the court, does not "contain any invidious implications capable facially of harassment or degradation of the officer in a courtroom."

* Other public records, the release of which is limited by statute, include Education Law, §1127 - Confidentiality of records and  §33.13, Mental Hygiene Law - Clinical records; confidentiality].

**  A legal proceeding is in camera when a hearing is held before the judge in his or her private chambers or when the public is excluded from the proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06364.htm

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