Off-duty peace officer’s display of his weapon in the course of an altercation excused based on hearing officer’s finding that he feared for his safety

Off-duty peace officer’s display of his weapon in the course of an altercation excused based on hearing officer’s finding that he feared for his safety

OATH Index No. 825/13

An off-duty Bridge and Tunnel Officer was charged with misconduct for his role in a fight at a car wash, in course of which he displayed his firearm.

OATH Administrative Law Judge Kara J. Miller found that, given the individual’s peace officer status, he could be disciplined for initiating a physical altercation, even though he was off-duty.

However, Judge Miller recommended dismissal of a charge that the officer improperly displayed his weapon, finding that he objectively feared for his safety when the workers advanced on him. She credited the officer’s testimony that he did not place his finger on the trigger and that he re-holstered his weapon when the employees retreated.

The ALJ recommended that the Officer be suspended without pay for 30-day suspension.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/98_Cases/13-825.pdf

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Click on text highlighted in color to access the full report

DiNapoli Probe Prompts $15,000 Restitution

State Comptroller Thomas P. DiNapoli Wednesday announced that former Bombay Fire Company President Bridget Martin was sentenced to pay $15,000 in restitution after an auditand investigation by his office uncovered secret bank accounts and other misdeeds.


DiNapoli: DOT Needs To Improve Railroad Bridge Monitoring Program

The Department of Transportation does not adequately monitor whether railroads in New York state comply with bridge inspection and reporting requirements or fully carry out its own bridge inspection responsibilities, possibly putting the public at risk, according to an auditreleased December 10, 2013 by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases School Audits

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

the Cleveland Hill Union Free School District,

the West Buffalo Charter School, and

the West Valley Central School District.

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New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting

New York City’s Special Commissioner of Investigation may not compel a tenured educator to testify in the course of an investigation it is conducting

2013 NY Slip Op 08368, Appellate Division, First Department

New York City's Special Commissioner of Investigation for the New York City School District (SCI) is an arm of the City Department of Investigation. It has investigatory and subpoena power and reports the results of its investigations to the Department of Education (DOE), which has the power to initiate disciplinary actions against employees.

A mother complained to the police about alleged sexual harassment of her child, who attended a New York City school, by other students. This ultimately led to a report to, and an investigation by, the SCI as to whether certain DOE employees failed to act on the mother’s complaint.

The Special Commissioner subpoenaed a tenured assistant principal in the school to testify in the course of the investigation. The assistant principal appeared in compliance with the subpoena and “gave pedigree information,” but invoked her rights under Education Law §§3020(1) and 3020-a(3)(c)(i) not to testify further.

Supreme Court, New York County denied SCI’s petition to compel the assistant principal to comply with its subpoena ad testificandumand dismissed the proceeding. The Appellate Division affirmed the lower court’s determination.

The Appellate Division explained that forcing a tenured teacher or school administrator to testify in an SCI proceeding is tantamount to forcing that employee to testify in a New York City Department of Education disciplinary proceeding. To permit SCI to do so, said the court, would directly conflict with state law and “would eviscerate” relevant provisions set out in the Education Law §§3020(1) and 3020-a.

§§3020(1) and 3020-a govern disciplinary action taken against such tenured employees and establish procedures specifically designed to protect them at disciplinary proceedings. Indeed, noted the Appellate Division, Education Law §3020-a(3)(c)(i)(c) specifically provides that the tenured employee shall not be required to testify at any disciplinary hearing.

Citing Board of Education of City School District of City of New. York v Mills, 250 AD2d 122, leave to appeal denied 93 NY2d 803, the Appellate Division noted that “no local legislative body is empowered to enact laws or regulations which supersede State statutes, particularly with regard to the maintenance, support or administration of the educational system."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08368.htm

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

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

Click on text highlighted in color  to access the full report

Audit reveals state contractor spent $20,000 legislative member item on herself and family

A Brooklyn contractor helped herself to state-funded equipment, including an iPad used by her granddaughter and a laptop her husband used for personal purposes, according to an audit released on December 13, 2013 by State Comptroller Thomas P. DiNapoli. The contractor, Homeowners Association, Inc., was paid by the state Office of Children and Family Services (OCFS) to train Brooklyn residents on ways to improve their financial situation.

The Comptroller sent his findings to the state Attorney General’s Civil Recoveries Bureau. He recommended that OCFS work with the Attorney General to make a full recovery of the $20,000.

"This vendor was supposed to help individuals achieve the American dream of homeownership. Instead, she fulfilled her own dreams and allowed her family to use state-funded equipment for homework assignments, iTunes downloads and other personal business,” DiNapoli said.  “OCFS needs to ensure that the public’s money is used appropriately. State agencies which administer grants must be held accountable for taxpayer money.”

Homeowners’ president, Carolyn Faulkner, received the grant through a state legislative member item to purchase equipment for workshops, seminars, meetings and newsletters on homeownership, credit worthiness and foreclosure preventions for residents of East New York, Brownsville and Canarsie in Brooklyn. Instead, DiNapoli’s auditors found, from 2010 to 2011, Faulkner spent all of the $20,000 on equipment that was used primarily for her family’s personal activities.

 

For a copy of the report visit: http://www.osc.state.ny.us/audits/allaudits/bseaudits/bse20131012.htm

Anyone with additional information on any matter involving public corruption or fraud is encouraged to contact the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; filing a complaint online at investigations@osc.state.ny.us; or mailing a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

On Thursday, December 12, 2013 New York State Comptroller Thomas P. DiNapoli announced the following audits had been issued:

Battery Park City Authority, Selected Aspects of Discretionary Spending (2012-S-158)
Auditors sampled 69 discretionary expenditures totaling $112,132 and questioned 53 totaling $100,700 because these transactions did not appear necessary, were not clearly related to the purpose of the authority, were not properly approved or were not adequately supported with documentation. Included in the questioned expenditures were payments totaling $61,800 for charitable contributions to various not-for-profit organizations. In these instances, the authority lacked documentation to show how it determined which organizations to select for donations, how contributing to such organization was related to or supported the authority's mission and why the donated amounts were appropriate. Our follow up showed that the authority made payments totaling $1.05 million for the audit period for charitable donations.

Office of General Services, State Agency Small-Dollar Purchases (Follow-Up) (2013-F-25)
In an initial report, issued in September 2010, auditors looked at the extent to which state agencies process small-dollar transactions using paper-based voucher processes instead of the State procurement card, and to identify potential cost savings and revenue enhancements achievable through better use of procurement cards. In a follow-up, auditors found OGS officials have made significant progress in addressing the issues identified in the initial audit. All three prior audit recommendations have been implemented.

Office for People With Developmental Disabilities, Fire Prevention, Safety and Control (2013-S-20)
Auditors found OPWDD is in compliance with applicable fire prevention, safety and control requirements that help ensure the safety of the vulnerable populations it serves and has significantly improved its fire safety procedures and practices since a 2009 fire in one of its residences that resulted in the death of four individuals.

Office of Alcoholism and Substance Abuse Services, Fire Prevention, Safety and Control (2013-S-40)
Auditors found OASAS is in compliance with applicable fire prevention, safety and control requirements that help ensure the safety of the vulnerable populations it serves.

Department of Civil Service, New York State Dental Program: Payments for Scaling and Root Planing Procedures (Follow-Up) (2013-F-20)
An initial audit report issued in July 2010 focused on Group Health Incorporated’s (GHI) controls over the payment of scaling and root planing procedures and to determine if GHI overpaid for scaling and root planing services. GHI officials have made progress in correcting the problems auditors identified in the initial report. However, improvements are still needed. Of the three prior audit recommendations, two have been implemented and one recommendation is no longer applicable.

Metropolitan Transportation Authority, Inspecting Highway Bridges and Repairing Defects (2012-S-32)
Generally, the MTA’s Long Island Rail Road its Bridges and Tunnels department perform bridge inspections and related repairs to correct flag deficiencies in a timely manner as required by state and federal regulations. However, there were a limited number of exceptions suggesting a need for further improvement.  From a sample of 116 flags, auditors found that nine B&T safety flags and two department safety flags on LIRR bridges remained unresolved for extended periods of time ranging from 12 to 45 months after being identified.  For three B&T Red Flags, the required re-inspections were performed from two to eleven days late.  Five LIRR bridges were being inspected by both the department and the LIRR.

Department of Health, Overpayments to Cabrini Medical Center - Follow-Up (2013-F-19)
An audit report issued in April 2012, identified $1.9 million in Medicaid overpayments to Cabrini Medical Center. The overpayments occurred because a billing company (hired by Cabrini) incorrectly altered information on Cabrini's claims and resubmitted the incorrect claims to Medicaid. In a follow-up, auditors found DOH officials made significant progress in addressing the problems identified in the initial audit. This included the recovery of improper payments totaling $1.46 million, in addition to $904,000 in payments prevented by the initial audit.  However, further actions are still needed. Of the six prior audit recommendations, three were implemented and three were partially implemented.

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Retirees had vested health insurance rights that could not be abrogated by successor collective bargaining agreement

Retirees had vested health insurance rights that could not be abrogated by successor collective bargaining agreement
Kolbe v Tibbetts, 22 NY3d 344

Four former non-instructional employees of the Newfane Central School District retired between 2003 and 2008. One of the employees retired while the 1999-2003 collective bargaining agreement [CBA] was in effect; the other three retired under the 2003-2007 CBA.* In January 2010, well after the four employees had retired, the CSEA and the District executed a successor CBA, which was retroactively effective to 2007 and set to expire in 2012. 

By letters dated December 30, 2009, the District informed the four retired employees that their co-pays would now be governed by the three-tier system under the terms of the 2007-2012 CBA, resulting in an increase from their previous co-pay charges.The retirees sued, alleging breach of contract in that by increasing their co-pays, Newfane had violated the terms of the CBAs in effect when they had retired.

In the words of the Court of Appeals, “This case calls on us to decide whether certain collective bargaining agreements conferred upon plaintiff-retirees a vested right to the same health insurance coverage they had when they retired and, if so, whether unilateral modifications to that coverage are nonetheless permissible under either the contract terms or the New York Insurance Moratorium Law.”

The court indicated that "As a general rule, contractual obligations do not survive beyond the termination of a collective bargaining agreement. However, '[r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement' , and we must look to well established principles of contract interpretation to determine whether the parties intended that the contract give rise to a vested right. '[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms'. The language upon which plaintiffs base their claim reads as follows: '[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires.' {citations omitted]" 

Essentially the court held that:

1. The collective bargaining agreements conferred upon plaintiff-retirees a vested right to the same health insurance coverage they had when they retired

2. Unilateral modifications to that coverage are not permissible under either the contract terms or the New York Insurance Moratorium Law.

3. Newfane's interpretation of the New York Insurance Moratorium Law relies on the erroneous conclusion that the Legislature's silence regarding contracted-for health coverage should be read as an intention to abrogate contractual rights.

4. Unions and employers are free to negotiate the terms of such provisions as they see fit and the terms of active employees' health insurance coverage during retirement are properly subjects for collective bargaining.*

The Court of Appeals' observed that "the Insurance Moratorium Law's [relied on by Newfane] primary purpose was to prevent school districts from eliminating or reducing retiree health insurance benefits that were voluntarily conferred as a matter of school district policy, not rights negotiated in the collective bargaining context.”

The court then noted that “The 1994 final report of the Temporary Task Force on Health Insurance for Retired Educational Employees, which originally recommended the legislation, proposed amending the then-temporary law to apply to contractually vested rights. Significantly, said the Court of Appeals, “the Legislature never adopted this proposal ….”

The court then remitted the case to Supreme Court, explaining that "Because an issue of fact remains as to whether the parties intended for the right to the "same coverage" to preclude any modifications to the benefits or their attendant costs, including prescription co-pays, it is necessary to remit the case to Supreme Court for a hearing on this issue" 

* The Court of Appeals, in a Footnote, stated “Despite the fact that the successor CBA was retroactively effective to 2007, it is undisputed that even those plaintiffs who retired in 2007 and 2008 effectively retired under the 2003-2007 CBA, since the subsequent CBA was not executed until 2010. This stipulation accords with the reality that these plaintiffs were not represented by the CSEA in the portion of the negotiations that took place after their retirement, and that the bargains struck in the 2007-2012 agreement would thus not be enforceable by them.”

** This implies that unions and employers are not free to negotiate the terms of such provisions with respect of the health insurance coverage then available to those already retired and such changes and modifications are not properly subjects for collective bargaining.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08290.htm
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