The positions of village clerk/treasurer and village court clerk when filled by the same individual are incompatible

The positions of village clerk/treasurer and village court clerk when filled by the same individual are incompatible
Informal Opinions of the Attorney General 2014-1

This opinion indicates that typically a village court clerk transmits certain funds to the village treasurer, and the a village treasurer maintains the funds and transfers some portion of them to the county and State.

Accordingly, the two officials serve as a fiscal check on each other and a safeguard for these funds.

In this instance, said the Attorney General, one person serves as both village treasurer and village court clerk. In the opinion of the Attorney General performing such a dual role would compromise this neccessary fiscal check. He advised that in his view the duties of the positions therefore conflict and the positions are incompatible.

The opinion's conclusion: One person may not perform the duties of both positions simultaneously, whether they are combined into one or the same person is appointed to both.

The opinion is posted on the Internet at:
http://www.ag.ny.gov/sites/default/files/opinion/2014-1_pw.pdf

Supplemental military leave benefits

Supplemental military leave benefits
I.D. No.CVS-14-14-00001-P

The New York State Department of Civil Service has proposed to amend 4 NYCRR 21.15 and 4 NYCRR 28-1.17, both of which provided supplemental military leave benefits to eligible officers and employees of the State as the employer. whereby the availability of supplemental military leave benefits for would be extended until December 31, 2014.

The text of proposed rule and any required statements and analyses may be obtained from Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598. You may email Ms LaPlante at: shirley.laplante@cs.state.ny.us .

Data, views or arguments may be submitted to Ilene Lees, Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624 or they may be e-mailed to her at: ilene.lees@cs.state.ny.us

Public comment will be received until 45 days after publication of this notice in the State Reporter dated April 9, 2014.

Individual is required to make a timely demand for reinstatement following submission of his or her resignation allegedly made under duress

Individual is required to make a timely demand for reinstatement following submission of his or her resignation allegedly made under duress
2014 NY Slip Op 01905, Appellate Division, Fourth Department

Petitioner, a former police officer, filed a petition pursuant to CPLR Article 78 seeking to compel his former employer to reinstate him to his former position with back pay, alleging that although he had submitted his resignation, it was obtained under duress -- i.e., threats of criminal prosecution were made by City officials against him.* Thus, Petitioner argued, the resignation was invalid.

Supreme Court dismissed  Petitioner’s complaint on the ground that it was untimely, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that "Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee's demand for reinstatement is refused." The court then observed that such a “demand must be made within a reasonable time after the right to make the demand occurs or . . . within a reasonable time after [Petitioner] becomes aware of the facts which give rise to his [or her] right of relief," noting that the four-month limitations period of CPLR article 78 proceedings has been "treat[ed] . . . as a measure of permissible delay in the making of the demand."

In this instance, said the court, Petitioner's right to demand reinstatement to his position arose, at the latest, when he received a letter from the District Attorney stating that he bore no civil or criminal responsibility for the acts of misconduct alleged against him, and that the matter would not be presented to the grand jury.

Petitioner, however, did not demand reinstatement to his position until approximately nine months later, well over the four-month guideline. The Appellate Division ruled that Supreme Court "it was [well] within [its] discretion to determine that Petitioner unreasonably delayed in making the demand."

* In Rychlick v Coughlin, 63 NY2d 643, the court said that the threat to file formal disciplinary charges if the employee did not resign does not constitute duress as it is not duress to threaten to do what one has the legal right to do.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01905.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

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Treatment of Marriages of Same-Sex Couples for Retirement Plan Purposes

Treatment of Marriages of Same-Sex Couples for Retirement Plan Purposes

The IRS has issued Notice 2014-19, which provides guidance on how qualified retirement plans should treat the marriages of same-sex couples following the Supreme Court’s decision in United States v. Windsor. The Windsor decision invalidated Section 3 of the 1996 Defense of Marriage Act (DOMA) that barred married same-sex couples from being treated as married under federal law.

The notice:

• gives examples of Code requirements under which the marital status of the participants is relevant to the payment of benefits,
• provides guidance on how to satisfy those requirements in light of Windsor and Revenue Ruling 2013-17, and
• describes when retirement plans must be amended to comply with Windsor, Revenue Ruling 2013-17, and Notice 2014-19

Recognition of marriages of same-sex couples for tax purposes

Following the Windsor decision, the IRS issued Revenue Ruling 2013-17, which holds that married same-sex couples are now treated as married for all federal tax purposes where marriage is a factor, if the couple is lawfully married under the laws of one of the 50 states, the District of Columbia, a U.S. territory or a foreign jurisdiction. Notice 2014-19 gives additional guidance on how qualified retirement plans should treat the marriages of same-sex couples.

Plan amendments required with respect to plan provisions inconsistent with Windsor

• If its terms are inconsistent with Windsor or Revenue Ruling 2013-17, a retirement plan must be amended to comply with Windsor and Revenue Ruling 2013-17. For example, a plan must be amended if it defines “spouse” by reference to section 3 of DOMA, or only as a person of the opposite sex.
• Not all plans need to be amended in order to be in compliance. An amendment generally is not required if a plan’s terms are not inconsistent with Windsor or with Revenue Ruling 2013-17.
• Required amendments must be adopted by the later of December 31, 2014, or the applicable date under the IRS’ general amendment guidance for qualified retirement plans, Revenue Procedure 2007-44.

Optional amendments

• Plan sponsors may also, but are not required to, reflect the outcome of Windsor for periods prior to the date Windsor was decided.
• In such a case, a plan amendment is required.
• Such optional amendment must be adopted by the later of December 31, 2014, or the applicable date under Revenue Procedure 2007-44.

FAQs for more information
See the FAQs on the treatment of same-sex marriages for additional guidance, including:

• beneficiary designations in profit-sharing plans after Windsor,
• amendments that reflect the outcome of Windsor for periods before the decision was issued, and
• application of the outcome of Windsor to 403(b) plans.

Additional resources

• IRS News - For Same-Sex Couples and Certain Domestic Partners
• Revenue Ruling 2013-17 – treatment of same-sex marriage for federal tax purposes
• FAQs on treatment of same-sex marriage for retirement plans

New York State's Human Rights Law and the New York City's Human Rights Law are not identical

New York State's Human Rights Law and the New York City's Human Rights Law are not identical

2014 NY Slip Op 02098, Court of Appeals

Initially employed by the NYC Health and Hospitals Corporation [HHC] in 1979, Plaintiff was diagnosed with an occupational lung disease. In 2007, HHC terminated Plaintiff. About a year later Plaintiff filed a complaint pursuant to State Human Rights Law (SHRL) and the City Human Rights Law (CHRL) alleging HHC HC had unlawfully discriminated on the basis of his disability.

Supreme Court granted HHC motion seeking summary judgment, holding that Plaintiff could not, even with a reasonable accommodation, perform the essential functions of his job. The Appellate Division affirmed.

The Court of Appeals ruled that HHC was not entitled to summary judgment with respect to Plaintiff’s SHRL and CHRL claims, explaining that summary judgment in favor of an employer under SHRL or CHRL where the employer has failed to demonstrate that it responded to a disabled employee’s request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation.

The Court of Appeals set out the following guidelines in its decision:

1. An employer's failure to consider the reasonableness of a proposed accommodation for a generally qualified employee's disability via a good faith interactive process precludes the employer from obtaining summary judgment in the action.

2. The State Human Rights Law and the City Human Rights Law set forth distinct legal standards for establishing the existence of a covered disability that can be reasonably accommodated.

3. These statutes generally preclude summary judgment in favor of an employer where the employer has failed to demonstrate that it responded to a disabled employee's request for a particular accommodation by engaging in a good faith interactive process regarding the feasibility of that accommodation.

4. An employee's complaint states a prima facie case of discrimination under both the State HRL and City HRL if the employee suffers from a statutorily defined disability and the disability caused the behavior for which the employee was terminated.

Turning from the summary judgment burden to the substance of the statutes at issue, the SHRL forbids employment discrimination on the basis of an employee's disability, and the CHRL provides even greater protection against disability-based discrimination.

As to SHRL:

1. Under the State HRL, if an employee has a physical impairment that prevents the employee from performing the core duties of his or her job even with a reasonable accommodation, the employee does not have a disability covered by the statute, and consequently, the employer is free to take adverse employment action against the employee based on that impairment.

2. If a reasonable accommodation would permit the employee to perform the essential functions of the employee's position, the employee has a "disability" within the meaning of the State statute, and the employer cannot disadvantage the employee based on that disability.

3. A "reasonable accommodation" for an employee's impairment is one which "permit[s] an employee with a disability to perform in a reasonable manner activities involved in the job" and does not impose an "undue hardship" on the employer's business.

4. A proper State HRL claim must be supported by substantiated allegations that, "'upon the provision of reasonable accommodations, [the employee] could perform the essential functions of [his or] her job,'" and the employee bears the burden of proof on this issue at trial.

5. The SHRL's definitions of "reasonable accommodation" and "disability" requires that, where the employee seeks a specific accommodation for his or her disability, the employer must give individualized consideration to that request and may not arbitrarily reject the employee's proposal without further inquiry.

6. At a trial on a State HRL claim, the plaintiff employee bears the burden of proving the existence of a reasonable accommodation that would have enabled the employee to perform the essential functions of his or her position

As to the CHRL:

1. The CHRL's definition of 'disability' does not include 'reasonable accommodation' or the ability to perform a job in a reasonable manner," but rather "defines 'disability' solely in terms of impairments."

2. The CHRL forbids employment discrimination against physically and mentally impaired individuals, and employers may raise the inability of disabled employees to "with reasonable accommodation, satisfy the essential requisites of the[ir] job[s]" only as an affirmative defense to a CHRL claim.

3. The CHRL places the burden on the employer to show the unavailability of any safe and reasonable accommodation and to show that any proposed accommodation would place an undue hardship on its business.

4. At trial on a CHRL claim, the employer does not automatically fail to establish the affirmative defense premised on the lack of any reasonable accommodation solely because it did not participate in an interactive process, though that failure poses a formidable obstacle to the employer's attempt to prove that no reasonable accommodation existed for the employee's disability

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02098.htm
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