New York State Comptroller Thomas P. DiNapoli offers proposal to encourage better local government budgeting practices

New York State Comptroller Thomas P. DiNapoli offers proposal to encourage better local government budgeting practices

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli has introduced a proposed bill* aimed at helping local governments across New York improve their long-term budget planning. The bill would provide reimbursement from the state to municipalities for costs incurred for hiring financial advisors to assist in the development of multi-year budget plans.

Key elements of the proposed legislation include providing for counties, cities, towns and villages identified as fiscally stressed to be reimbursed by the state’s Financial Restructuring Board for Local Governments for all or part of the costs associated with long-term budget planning and multi-year financial planning to enable these entities to develop revenue and expenditure trends, establish long-term priorities and goals, and take into consideration the impact of near-term budgeting decisions on future fiscal years.

* Comptroller’s Program Bill #35. The proposed legislation is part of the Comptroller’s fiscal stress initiative that includes the creation of a Fiscal Stress Monitoring System for local governments. The system, implemented in 2013, uses financial indicators that include year-end fund balance, cash position and patterns of operating deficits to create an overall fiscal stress score which classifies whether a municipality is in “significant fiscal stress,” in “moderate fiscal stress,” is “susceptible to fiscal stress,” or “no designation.” As of April 22, 2014, DiNapoli’s monitoring system has identified a total of 142 municipalities in some level of fiscal stress. This includes 16 counties, 18 towns, five cities, 16 villages and 87 school districts.

The Comptroller’s proposal is posted on the Internet at:
http://www.osc.state.ny.us/legislation/2013-14/oscb35.htm
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The Warren M. Anderson Breakfast Series Seminar’s Campaign Finance session is scheduled for April 29, 2014

The Warren M. Anderson Breakfast Series Seminar’s Campaign Finance session is scheduled for April 29, 2014

Source: Government Law Center, Albany Law School

The Albany Law School’s Government Law Center will host the next 2014 Annual Warren M. Anderson Breakfast Seminar Series, a nonpartisan hour-long breakfast program, on April 29 from 8-9 a.m. in the Assembly Parlor, at the State Capitol, 3rd FL. The program continues to be offered free of charge, but space is limited.

Richard Brodsky and John Faso will discuss Campaign Finance.

For those interested, each seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”

To register or to obtain more information, contact Ms. Amy Gunnells at agunn@albanylaw.eduor telephone 518-445-2329.

Applying for accidental disability retirement and performance of duty disability retirement benefits

Applying for accidental disability retirement and performance of duty disability retirement benefits

2014 NY Slip Op 02120, Appellate Division, Third Department

The Appellate, considering the application of a correction officer [Plaintiff] to review a determination of New York Employees’ Retirement System that denied her applications for accidental disability and performance of duty disability retirement benefits, dismissed the action on the grounds that Petitioner’s application for such benefits was untimely filed.

Petitioner was injured when she slipped on ice while on her way to the building where her locker was located in order to change out of her uniform. Thereafter, she returned to work for only one day and received her last payroll check in July 2009. Petitioner was then placed on unpaid approved medical leave of absence and received workers' compensation benefits.

In January 2011, Petitioner applied for accidental disability retirement benefits under Retirement and Social Security Law §507-a, alleging that she was permanently incapacitated as a result of the injuries she sustained when she slipped on ice some two years earlier. In the alternative, Plaintiff filed an application for performance of duty disability benefits pursuant to §507-b of the Retirement and Social Security Law.

In February 2011, Petitioner was terminated and issued a check representing her accrued vacation pay. In the alternative, Plaintiff filed an application for performance of duty disability benefits. Both applications were denied and petitioner timely requested a hearing and redetermination.

Addressing the issue of the timeliness of Petitioner’s applications for accidental disability retirement benefits the Appellate Division explained that §507-a(b)(2) specifically provides that such an application "must be filed within three months from the last date the member was being paid on the payroll or within twelve months of the last date he [or she] was being paid on the payroll provided he [or she] was on a leave of absence for medical reasons without pay during such twelve month period provided the member was disabled at the time he [or she] ceased being paid."

Noting that Petitioner did not file her application for accidental disability retirement benefits within these time limits, the court ruled that neither her receipt of workers' compensation benefits nor the check she received for accrued vacation time qualifies as payments "on the payroll" for purposes of the statute, citing Matter of Schwartz v McCall, 300 AD2d 887.

Accordingly, the Appellate Division held that the Retirement Systems determination “that [Petitioner's] application [for accidental disability retirement benefits] was untimely is rational and supported by substantial evidence."

Turning to the denial of Petitioner's §507-b application for performance of duty disability retirement benefits, the court conclude that there was substantial evidence supporting Retirement System's determination as both Petitioner and her counsel conceded at the hearing that the January 2009 incident was not caused by an act of an inmate and no proof that would support such a finding was produced at the hearing. Thus, said the Appellate Division, Petitioner's current claim that her fall must have been caused by negligent maintenance on the part of an inmate is speculative and lacks support in the record.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2014/2014_02120.htm

Temporary appointments

Temporary appointments

130 A.D.2d 72, affirmed 72 N.Y.2d 986

§64.3 of the Civil Service Law provides that “Notwithstanding the provisions of subdivisions one and two of this section, the civil service department or municipal commission having jurisdiction may authorize a temporary appointment, without examination, when the person appointed will render professional, scientific, technical or other expert services (1) on an occasional basis or (2) on a full-time or regular part-time basis in a temporary position established to conduct a special study or project for a period not exceeding eighteen months. Such appointment may be authorized only in a case where, because of the nature of the services to be rendered and the temporary or occasional character of such services, it would not be practicable to hold an examination of any kind.”

However, §64.2, which provides for “Temporary appointments from eligible lists,” states that ”A temporary appointment for a period not exceeding three months may be made without regard to existing eligible lists. A temporary appointment for a period exceeding three months but not exceeding six months may be by the selection of a person from an appropriate eligible list, if available, without regard to the relative standing of such person on such list. Any further temporary appointment beyond such six month period or any temporary appointment originally made for a period exceeding six months shall be made by the selection of an appointee from among those graded highest on an appropriate eligible list, if available.”

When Suffolk County dismissed its consulting firm supervising the construction of a sewer project, the State and Federal governments threatened to cut off funds unless the County provided for the required supervision of the project.

Relying on §64.3 of the Civil Service Law, which provides for temporary appointments without examination, the County hired an inspection staff without making such appointments from available eligible lists. The Court found that such lists could have been used for the appointments.

Holding that exceptions to the general civil service policy of filling vacancies in the classified service from appropriate eligible lists is to be strictly construed, the court declared the §64.3 appointments unlawful.

Although §64.3 permits appointments without the use of eligible lists, such appointments are authorized only in exceptional cases. Significantly, the provision requires that it would not be practical to hold an examination of any kind to fill the vacancy. The court's finding that suitable eligible lists were already available proved to be a critical consideration as it obviated any argument that it would not be practical to hold such tests.
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Applying the doctrine of res judicata

Applying the doctrine of res judicata 

2014 NY Slip Op 02005, Appellate Division, Second Department

When the employee [Plaintiff] filed a lawsuit alleging that he had been the victim of unlawful discrimination, Supreme Court dismiss the complaint on the ground that the action was barred by the doctrine of res judicata.*

The Appellate Division affirmed the Supreme Court’s ruling.

Plaintiff was served with disciplinary pursuant to Civil Service Law §75, alleging various types of work-related misconduct, and he was suspended for 30 days without pay. After a hearing, an administrative law judge upheld several of the charges and recommended that the plaintiff be suspended for a period of 30 days, to be satisfied by the prehearing suspension he had already served.

While the disciplinary charges were pending, Plaintiff commenced an action in the Supreme Court alleging defamation and intentional infliction of emotional distress. Supreme Court granted Plaintiff’s employer’s motion for summary judgment dismissing the complaint, which order was affirmed by the Appellate Division in Bayer v City of New York, 60 AD3d 713.

Plaintiff subsequently filed another action in Supreme Court, this time alleging age discrimination and the creation of a hostile work environment in violation of Executive Law §296. Supreme Court granted Plaintiff’s employer’s motion to dismiss the complaint in the instant action on the ground that the action was barred by the doctrine of res judicata.

Explaining that "Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding."

Further, said the court, "The fact that causes of action may be stated separately, invoke different legal theories, or seek different relief will not permit relitigation of claims," citing Pondview Corp. v Blatt, 95 AD3d 980.

The test applied to determine if an action is ripe for application of the doctrine of res judicata is a pragmatic one, involving an analysis of how the facts are related as to time, space, origin or motivation, whether they form a convenient trial unit and whether treating them as a unit conforms to the parties' expectations or business understanding. Further, to apply the doctrine there must have been a final judgment on the merits in the prior proceeding.

Finding that Plaintiff’s causes of action arose out of the same transaction or series of transactions as those raised in the initial action. Further, said the court, as Plaintiff commenced his second action, during the pendency of the first action, all of the causes of action asserted here could have been raised in the initial action.

The bottom line: The Appellate Division held that notwithstanding the fact that the causes of action and legal theories alleged in this action are different from those alleged in the initial action, and some of the defendants are different, the Supreme Court properly granted the employer's motion to dismiss the complaint on the ground that the instant action was barred by the Doctrine of res judicata.

* Applying the Doctrine of Res Judicata bars a claim that has either been litigated or that could have been litigated from being litigated again.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02005.htm
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