New York State Department of Labor regulations concerning unemployment insurance applications amended

New York State Department of Labor regulations concerning unemployment insurance applications amended

Source: Sharon Berlin, Esq., Chair, Employment Relations Committee, NYSBA Municipal Law Section

Ms. Berlin advises that the New York State Department of Labor has amended its regulations addressing processing unemployment applications, 12 NYCRR 472.12.

Section 472.12, among other things, sets out:

1. The deadline for an employer to respond to a DOL request for employee information (which now may be shorter than 10 calendar days);

2. The methods by which the DOL can communicate requests for information (which include letter, electronic communication, fax, the State Information Data Exchange System (SIDES), mail, private delivery service, phone or any other DOL approved method);

3. New criteria regarding the adequacy of the contents of an employer’s response; and

4. Sets out potential consequences of an untimely or inadequate response, which include that the employer’s account may be charged for an overpayment even for the first untimely response unless the employer provides good cause for the failure. The DOL is given the authority to relieve an employer of charges that are the result of a DOL error or a disaster emergency as declared by the Governor.

Ms. Berlin notes that the employer’s response will be deemed received by the DOL on the date indicated by the date stamp on an incoming document.

Ms. Berlin, a partner at Lamb and Barnosky, LLP, may be reached via e-mail at: snb@lambbarnosky.com
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Educator disciplined after making statements such as "hey, baby," "how you doing baby?," and "you good baby" to underage female student

Educator disciplined after making statements such as "hey, baby," "how you doing baby?," and "you good baby" to underage female student

2013 NY Slip Op 07811, Appellate Division, First Department

A disciplinary arbitrator found a male teacher [Teacher] guilty of violating the Chancellor of the New York Department of Education’s Regulation A-421 by making statements such as "hey, baby," "how you doing baby?," and "you good baby" on multiple occasions to his underage female student. The penalty imposed by the arbitrator: a fine in the amount of $1,500 to be withdrawn in equal installments from Teacher's paychecks over a twelve month period.

Although the New York City Department of Education has sought to have Teacher terminated from his position, the arbitrator declined terminating the employee and imposed the $1,500 fine instead.

Teacher file an Article 75 petition in Supreme Court seeking a court order vacating and annulling the arbitration award. Supreme Court dismissed Teacher’s petition.

The Appellate Division, affirming the dismissal of Teacher’s petition by the Supreme Court, ruled that the penalty imposed was “not so excessive and disproportionate to the offense as to be shocking to one's sense of fairness.”

The court also noted that the arbitrator had explicitly found [1] the student’ testimony credible and [2] the Teacher’s testimony to be not credible and [3] that determinations of a hearing officer involving the credibility of a witness are "largely unreviewable.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07811.htm
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Transcript of employer’s interview with police officers introduced as evidence at an administrative disciplinary hearing.

Transcript of employer’s interview with police officers introduced as evidence at an administrative disciplinary hearing.

OATH Index No. 2316/13

The New York City Fire Department filed disciplinary charges against a firefighter after he was arrested for criminal possession of cocaine, contending that the firefighter had engaged in conduct that brought reproach or reflected discredit on the Department.

In the course of the hearing the Department introduced into evidence transcripts of the Fire Department’s interviews of the arresting officers. The firefighter objected, contending that this action constituted “an end-run around the sealing of criminal records” as they were derived from police reports and records that were sealed at the conclusion of the criminal proceeding against him, which criminal action was dismissed.

Noting that “the interviews were conducted a day before the records were sealed in the criminal proceedings,” OATH Administrative Law Judge Astrid B. Gloade denied the firefighter’s objection, explaining that OATH “has declined to preclude evidence prepared by agency investigators that contained references to or summaries of information culled from subsequently sealed police records where the investigators obtained that information prior to entry of a sealing order.”

Judge Gloade said that the interviews fell within the purview of material gathered by the Department in the course of preparing a disciplinary case and were not prepared by or for a criminal investigation or prosecution.” Accordingly, said Judge Gloade, the interview transcripts were not official records subject to seal under the Criminal Procedure Law.

Finding that the firefighter guilty of having possessed cocaine, Judge Gloade recommended termination as the penalty.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2316.pdf

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Administrative Law Judge applies the Doctrine of Collateral Estoppel to establish employee’s guilt of charges of misconduct

Administrative Law Judge applies the Doctrine of Collateral Estoppel to establish employee’s guilt of charges of misconduct

OATH Index #2272/13

A Human Resources Administration public benefits fraud investigator pled guilty to federal charges for fraudulently obtaining Section 8 housing benefits.

The employee had earlier pled guilty in federal court to a felony, admitting that she failed to disclose her HRA employment to HUD and received $62,376 in Section 8 public assistance to which she was not entitled. 

OATH Administrative Law Judge Alessandra F. Zorgniotti ruled that pursuant to the doctrine of collateral estoppel, the employee’s guilty plea conclusively establishes the underlying facts of the criminal charge of federally funded program fraud.

The decision notes that the disciplinary charges of misconduct were amended to include the employee’s guilty plea.

Noting that Mayoral Executive Order No. 105 Section 5(b) mandates dismissal of an employee who commits a crime that either involves moral turpitude or bears on the employee’s fitness to perform his job, unless compelling mitigating circumstances exist, the Judge Zorgniotti said that “[I]ntentional fraud and theft of government benefits are crimes of moral turpitude that invariably lead to termination of employment,” and that defrauding HUD is an act of moral turpitude.”

Further, the ALJ said that “Not only is respondent’s crime one of moral turpitude, it bears directly on her fitness to perform the job of a fraud investigator. Respondent engaged in conduct that she is responsible for preventing, namely public assistance fraud.”

Finding that the employee failed to present any mitigating circumstances for her actions. Judge Zorgniotti sustained the disciplinary charges filed against the employee and as the penalty to be imposed, recommended her termination from employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2272.pdf

Pension Board's ignoring a long-standing interpretation of law addressing eligibility for certain retirement benefits ruled arbitrary and capricious

Pension Board's ignoring a long-standing interpretation of law addressing eligibility for certain retirement benefits ruled arbitrary and capricious

Richter v Kelly, 2013 NY Slip Op 07803, Appellate Division, First Department

The New York City Police Pension Fund's Medical Board examined an applicant for Accidental Disability Retirement [ADR], a police surgeon, and certified that this disability was the result of an accidental injury received in the performance of police duty, pursuant to General Municipal Law §207-k, the so-called Heart Bill. 

§207-k provides that in the event of an impairment of health is caused by a diseases of the heart that results “in total or partial disability or death to a paid member of the uniformed force of a paid police department or fire department who successfully passed a physical examination on entry into the service of such respective department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

The Board of Trustees of the Police Pension Fund, however, reversing a policy established by years of practice and internal memoranda, denied the police surgeon’s application on the ground that the Heart Bill did not apply to a police surgeon.

The Appellate Division, however, annulled the Board's decision and affirmed  a Supreme Court decision granting the police surgeon’s application for ADR benefits pursuant to.§207-k.

The court noted that in 1993 the City’s Assistant Corporation Counsel had written to the Pensions Section that the Corporation Counsel’s office “has interpreted the Heart Bill to apply to police surgeons.”

Rejecting Board's arguments is support of its claim that the Heart Bill did not apply to police surgeons, the Appellate Division said that “neither the title of General Municipal Law §207-k ("Disabilities of policemen and firemen in certain cities") nor the reference in the statute to ‘police officers’ creates ambiguity as to whether the statute applies to police surgeons.” Further, said the court, the Board did not show that a literal reading of the statute would frustrate its purpose.

Accordingly, the Appellate Division ruled that the Board was bound by the Medical Board's determination of regarding the police surgeon’s disability and cannot now seek "clarification" of the Medical Board's determination, explaining that in the absence of credible medical evidence that police surgeons disabling heart condition was not related to her service as a police surgeon, the Board’s determination to deny her ADR benefits under the Heart Bill lacks a rational basis and is arbitrary and capricious.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07803.htm
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