A public officer failing to file a timely oath of office forfeits his or her appointment or election to such office

A public officer failing to file a timely oath of office forfeits his or her appointment or election to such office

Public Officers Law §30

§30 of the Public Officers Law, among other things, provides that “Every office shall be vacant" upon the refusal or neglect of the individual to file his or her official oath or undertaking, if  one is required, before or within thirty days after the commencement of  the term of office for which he or she is chosen, if an elective office, or if an appointive  office, within thirty days after notice of his or her appointment, or within thirty days after the commencement of such term; or to file a renewal undertaking within the time required by law, or if   no time be so specified, within thirty  days  after  notice  to  him or her in   pursuance of law, that such renewal undertaking is required.*

As an example, the Schenectady Gazette recently reported that three members of the Saratoga Springs Housing Authority were removed from their respective offices because they each had failed to sign their oaths of office within thirty days of taking office as required by §30.1(h) of the Public Officers Law.

Timely filing the required oath or undertaking is critical as the Appellate Division ruled in Lombino v Town Board, Town of Rye, 206 AD2d 462. John V. Lombino contended that he had filed his oath of office on January 3. The court, however, determined that Lombino was notified of his appointment to the position of Assessor in November and began working on December 3. Thus, said the court, even if Lombino filed his oath of office on January 3 as claimed, the filing was more than 30 days after both the notification and commencement of his term and the Town Board properly declared the office of Assessor vacant.**

* Subject to other provisions, the neglect   or failure of any state or local officer to execute and file his or her oath of office and official undertaking within the time limited therefor by law shall not create a vacancy in the office if such officer was on active duty in the armed forces of the United States and absent from the county   of his or her residence at the time of his or her election or appointment.

** See, also, Scro v Board of Educ. of Jordan-Elbridge Cent. School Dist., 87 A.D.3d 1342 and Formal Opinions of the Attorney General, Opinion 98-F6.

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Maggie Miller named Chief Information Officer of the New York State Office of Information Technology Services

Maggie Miller named Chief Information Officer of the New York State Office of Information Technology Services
Source: Office of the Governor

On December 3, 2014, Governor Andrew M. Cuomo announced that he has appointed Maggie Miller Chief Information Officer of the New York State Office of Information Technology Services. Miller will oversee the agency’s centralized IT services to the State and government entities; set statewide technology policy for all state government agencies; and monitor all large technology expenditures in the state to find more efficient, low cost and innovative solutions. Ms. Miller, the former Chief Information Officer of Girl Scouts USA, is expert in IT strategy, innovation, business transformation, multi-channel strategies, M&A evaluation and integration, business intelligence and analytics, and outsourcing.

Ms. Miller will begin her position as Chief Information Officer of the State Information Technology Services on December 8, 2014. This appointment does not require Senate confirmation.

Retirement Update from the Internal Revenue Service

Retirement plan updates issued by the Internal Revenue Service

Click on highlighted text to access the complete advisory

Updated Model Notices

Updated model eligible rollover distribution notices

For Sponsors of 401(a), 403(a), 403(b) and governmental 457(b) plans to notify participants of rollover options for their distributions from Roth and non-Roth accounts, including the right to direct pre-tax and after-tax amounts to separate destinations(Notice 2014-74)

Retirement Plan Webinars

Remember to registerfor these upcoming retirement plan webinars – 2 p.m. EST:

• Dec. 4 - Properly Defining Retirement Plan Compensation 
• Dec. 11 - Retirement Plan Distributions: What Every Participant Should Know
  

Updated Publications 

• Publication 1-EP, Understanding the Employee Plans Examination Process (10-2014)
• Publication 1020, Appeal Procedures Employee Plans Examinations (11-2014)
  
  

Placing an employee on an involuntary leave pursuant to Civil Service Law §72.5

Placing an employee on an involuntary leave pursuant to Civil Service Law §72.5

OATH Index No. 2443/14

Following an investigation of several complaints of workplace violence involving an employee, Anonymous, the individual was referred to a psychiatrist for evaluation. The psychiatrist found that Anonymous presented a risk of danger in the workplace. The appointing authority placed Anonymous on involuntary leave pursuant to §72.5 of the Civil Service Law.

At the §72 disability hearing that followed, the appointing authority presented testimony from an investigator and both sides presented medical expert testimony.

OATH Administrative Law Judge Alessandra F. Zorgniotti found the opinion of  Anonymous’s expert to be “conclusory” as he did not explain how Anonymous’s culture would cause him to be paranoid and aggressive with others.

Judge Zorgniotti recommended that Anonymous remain on involuntary leave pursuant to §72.5, finding that the appointing authority had properly placed Anonymous on pre-hearing involuntary leave based upon documented instances of threats, hostility and anger to co-workers, and the evaluation of an independent psychiatrist.

With respect the placement of an employee involuntarily on leave pursuant to Civil Service Law §72.5, the appointing authority is authorized to immediately place an individual on such an involuntary leave of absence in the event the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with agency operations.

§72 leave is leave without pay. However, an employee placed on a §72.5 involuntary leave of absence is entitled to use all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit in order to remain on the payroll. If the employee declines to use his or her accumulated leave credits in order to remain on the payroll, or having elected to remain on the payroll, exhausts his or her accumulated leave credits, he or she is placed in leave without pay status.

§72.5, in pertinent part, provides that if, after the hearing, the employee is determined not to be physically or mentally unfit to perform the duties of his or her position, “he or she shall be restored to his or her position and shall have any leave credits or salary that he or she may have lost because of such involuntary leave of absence restored to him or her".

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2443.pdf
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on December 2, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on December 2, 2014
Click on texthighlighted in color  to access the full report

Village of Bainbridge – Financial Operations (Chenango County)
The board did not request adequate reports from the clerk-treasurer and was unable to make informed financial decisions. In addition, the clerk-treasurer’s records understated the total fund balance of the general, water and sewer funds by $114,572, $74,000 and $42,300. 

Village of Bellerose – Procurement and Cash Receipts (Nassau County)
Village officials do not require the use of requisitions and purchase orders when purchasing goods and services. The village did not seek competition when purchasing goods and services that are not subject to bidding and when selecting professional service providers. In addition, the board did not provide sufficient oversight of purchases made with village credit cards. 

Village of Brushton – Fiscal Oversight (Franklin County)
The clerk-treasurer did not perform monthly bank reconciliations or provide the board with complete and accurate monthly financial reports. In addition, the clerk-treasurer has not filed an annual financial report with the Office of the State Comptroller since the 2008-09 fiscal year. Also, the board did not annually audit the clerk-treasurer’s records and reports. 

Town of Day – Supervisor’s Records and Reports (Saratoga County)
Expenditures were accurately recorded in the accounting records, however, monthly reports contained inaccurate monthly cash balances. Additionally, revenues received in 2014 totaling more than $500,000 were not recorded in the accounting records or reported to the board. 

Limestone Volunteer Firemen, Inc. – Controls Over Financial Activities (Cattaraugus County)
The board did not develop and implement adequate internal controls over cash disbursement and receipt functions. Auditors found approximately $38,000 in unsupported disbursements that may not have been for appropriate company purposes, including approximately $3,800 paid to the treasurer and nearly $3,000 paid to the fire chief.