Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 16, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 16, 2015

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

Clark Mills Fire District,

Village of Clinton,

Elba Fire Department,

Village of Ellenville,

Village of Harriman,

Hughsonville Fire Company,

Village of Livonia,

Plattekill #1 Fire District, and the

Town of Schroeppel.

Journalists who cover the law may apply for Loyola Law School’s four-day Civil Justice Fellowship Program

Journalists who cover the law may apply for Loyola Law School’s four-day Civil Justice Fellowship Program

The Civil Justice Program at Loyola Law School, Los Angeles will host its 10th-annual Journalist Law School from Wednesday, May 27 through Saturday, May 30, 2015 on its Frank Gehry-designed campus in downtown Los Angeles. 

There is no cost to journalists to attend the Fellowship program. Instruction, lodging and most meals are included. The Journalist Law School will also cover half of travel expenses up to $300. Fellows will be housed at the nearby Hilton Checkers Los Angeles.  

The Fellowship program condenses core law-school subjects and break-out topics into a long weekend filled with courses taught by Loyola Law School faculty, practicing attorneys and judges. Journalists with at least three years of experience who cover the law in some fashion are encouraged to apply. Journalist fellows, who are competitively selected, receive a certificate of completion at the end of the four-day program. JLS alumni include almost 350 reporters, editors and producers from a wide range of local, national and international news organizations.

The application deadline is Monday, Feb. 16. The application and details are available at www.journalistlawschool.org.

Questions about the program may be directed to Brian Costello, Esq.at brian.costello@lls.edu or 213-736-1444.

Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding

Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding
Rea v City of Kingston, 2014 NY Slip Op 09079, Appellate Division, Third Department

Supreme Court, Ulster County, directed the City of Kingston to reinstate Christopher Rea to his position as Assistant Fire Chief for respondent City of Kingston with an award of retroactive back pay. The City appealed.

As indicated in a prior decision in this matter (Matter of Rea v City of Kingston, 110 AD3d 1227 [2013]), Rea was promoted from Assistant Fire Chief to Fire Chief of the City of Kingston Fire Department in January 2012. His appointment was rescinded and he was suspended without pay pending disciplinary charges. Disciplinary charges were eventually served on Rea alleging multiple specifications of misconduct, most of which pertained to time and leave issues, in August 2012.

The Appellate Division held that, consistent with the provisions of Civil Service Law §75(3),* Rea was "presumptively entitled to receive his regular compensation as Assistant Fire Chief" pending resolution of the disciplinary charges lodged against him” but that "the issue of compensation [could not] be definitively resolved on [the existing] record as [the City] contend[ed] that some [of the] delays [incurred] were either attributable solely to [Rea] or reflect[ed] periods waived by{REA]" and the matter was remitted the matter to Supreme Court "for further development of the record as to the issue of retroactive pay."

Supreme Court directed that the City conduct the disciplinary hearing within 30 days of the court's order to that effect and, notwithstanding certain unresolved factual issues, ordered the City to reinstate Rea to his position as Assistant Fire Chief with full pay and benefits, and without any offset, retroactive to March 10, 2012. Supreme Court also directed that, to the extent that City wished to pursue its claim for an offset, it could do so in the context of a separate action for recoupment.

In response the City’s appeal, the Appellate Division reversed so much the Supreme Court’s order that awarded Rea immediate back pay and benefits retroactive to March 10, 2012 and directed that City pursue any claim for an offset in a separate action, explaining that because the issue of retroactive pay could be resolved independently of Rea's disciplinary proceeding, "it should not serve as a basis for any further delay in holding the [subject] disciplinary hearing".

The decision also noted that Counsel for the City, in the course of oral argument, stated that the underlying disciplinary hearing was completed and that “the appointing authority, in turn, found [Rea] guilty of numerous specifications of misconduct and recommended that he be terminated from his employment.” Absent an appeal from this adverse disciplinary determination, presumably the only unresolved issue is the amount of back pay and benefits due Rea.

* Civil Service Law §75(3) provides for suspension pending determination of disciplinary charges and, in pertinent part, provides that “Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days.”

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2014/2014_09079.htm

The two-prong test used by the court to determine "whether a grievance is arbitrable"

The two-prong test used by the court to determine "whether a grievance is arbitrable"

In the Matter of arbitration between County of Herkimer v Civil Serv. Employees Assn., Inc., 2015 NY Slip Op 00125, Appellate Division, Fourth Department

A probation officer employed by Herkimer County, John Hight, applied for a promotion to the position of probation supervisor. The position of probation officer was included in the relevant collective bargaining agreement (CBA) but the position of probation supervisor was not so included. Herkimer promoted another, less senior, employee, although Hight scored higher on the promotional examination than the employee selected for the promotion.

CSEA filed a grievance objecting the promotion of the less senior employee selected. Herkimer denied the grievance on the ground that the position to which Hight sought to be promoted “was not encompassed by the CBA” and CSEA demanded that the matter be submitted to arbitration.

Herkimer then filed a petition pursuant to CPLR Article 75 seeking a court order staying arbitration. Supreme Court granted Herkimer’s petition and denied CSEA’s motion to compel arbitration. CSEA appealed.

The Appellate Division said that resolution of the issue before it was governed by two-prong test set by the Court of Appeals to be used to determine "whether a grievance is arbitrable" in Matter of City of Johnstown [Johnstown Police Benevolent Assn., 99 NY2d 273.*

The first prong of the test, frequently referred to as "the may-they-arbitrate' prong," concerns whether there is any statutory, constitutional or public policy prohibition against the arbitration of the grievance. If the court determines that arbitration is not so prohibited, it then applies the second prong of the test: does the CBA indicate that the parties have agreed to arbitrate the dispute at issue," -- the so-called “did-they-agree-to-arbitrate' prong."

As Herkimer did not contend that there was any statutory, constitutional or public policy prohibition against the arbitration of the grievance at issue, the Appellate Division said that it was concerned only with the application of the second prong of the Johnstown test.

The Appellate Division held that Supreme Court erred in concluding that the parties did not agree to arbitrate the subject matter giving rise to the grievance, explaining that "Where, as here, there is a broad arbitration clause and a reasonable relationship' between the subject matter of the dispute and the general subject matter of the parties' collective bargaining agreement, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them."

Finding that such a reasonable relationship exists between the subject matter of the grievance, i.e., promotion procedures, and the general subject matter of the CBA, the Appellate Division ruled that "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

Should the arbitrator determine that the parties agreed to arbitrate the subject matter giving rise to the grievance, he or she will then proceed to consider the merits of the contentions of the parties.

* See also and in the Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00125.htm

Additional Staffing changes announced by New York State’s Governor Andrew M. Cuomo

Additional staffing changes announced by New York State’s Governor Andrew M. Cuomo

Source: Office of the Governor

The Governor will nominate the following eight individuals for appointments requiring Senate confirmation:  

William Thompson to serve as Chair of the New York State Housing Finance Agency (HFA) and the State of New York Mortgage Agency (SONYMA). Mr. Thompson served as New York City Comptroller from 2002 to 2009. He then ran for Mayor of New York City in both 2009 and again in 2013. From 2010 to 2012, he chaired the Battery Park City Authority and, also in 2010, he joined Siebert Brandford Shank, the nation’s MWBE municipal bond underwriting firm, which he left when he ran for Mayor in 2013 but returned following the elections. He has a bachelor’s degree from Tufts University. 

 Dennis Rosen, Esq., to serve as Medicaid Inspector General. Mr. Rosen is currently Chairman of the New York State Liquor Authority, a position he has held since 2009. Prior to that, he was an Assistant Attorney General in the Real Estate Financing Bureau (1982-1983) and the Consumer Frauds Bureau (1983-2009) of the NYS Attorney General’s Office. Previously, he was an attorney with the NYC Legal Aid Society’s Juvenile Rights and Criminal Defense divisions. Mr. Rosen has a B.A. from Brooklyn College and a J.D. from Harvard Law School. 

Howard Zucker, Esq. to serve as Commissioner of the State Department of Health. Previously, he served as Acting Commissioner of the Department of Health as well as First Deputy Commissioner. Prior to that, he was a professor of Clinical Anesthesiology at Albert Einstein College of Medicine of Yeshiva University and a pediatric cardiac anesthesiologist at Montefiore Medical Center in the Bronx. He was also an adjunct professor at Georgetown University Law School, where he taught biosecurity law. His public policy experience began as a White House Fellow under then-Health and Human Services Secretary Tommy Thompson. He then became the Deputy Assistant Secretary of Health where he developed the nation's Medical Reserve Corps. Dr. Zucker has also served as an Assistant Director-General of the World Health Organization and as an Institute of Politics Fellow at Harvard Kennedy School. He is a pediatrician, anesthesiologist, intensive care specialist and pediatric cardiologist trained at Johns Hopkins, University of Pennsylvania and Harvard, respectively and has held faculty appointments at Yale, Columbia and NIH. Dr. Zucker has a B.S. from McGill University, an M.D. from George Washington University, a J.D. from Fordham University Law School, an LL.M from Columbia Law School, and a postgraduate diploma in global health policy from the London School of Hygiene and Tropical Medicine.


John Melville to serve as Commissioner of New York State Division of Homeland Security and Emergency Services. He is currently serving as Acting Commissioner. Mr. Melville previously served as Chief Investigator at the Orange County District Attorney’s Office from 2012 to 2014. Prior to that, he spent 31 years a sworn member of The New York State Police, holding a number of positions including most recently Deputy Superintendent of Field Commander and Superintendent. Mr. Melville has a B.S. from SUNY Cortland and an M.S. in Criminal Justice from SUNY Albany.


Roberto Velez, Esq. to serve as Commissioner of the Office of Children and Family Services. He is currently serving as Acting Commissioner. Mr. Velez previously served as Vice President for Corporate Compliance and Counsel for Acacia Network, Inc. and was a key legal advisor to the Acacia Board of Directors. Prior to that, he was the Chief Judge to the New York City Office of Administrative Trials and Hearings and held several leadership positions at the New York City Departments of Probation and Juvenile Justice. Mr. Velez has a B.A. from Columbia College and a J.D. from New York University School of Law.


Anthony J. Picente, Jr. to serve as a Trustee of the New York Power Authority (NYPA). Mr. Picente currently serves as Oneida County Executive, a position he was unanimously appointed to in 2006, was elected to a full four-year term in 2007 and was re-elected in 2011. He was named Regional Director of the Empire State Development Corporation in 2001 and, two years later, he was promoted to Vice President of ESDC, a position he held until 2006. Mr. Picente has an Associate’s degree from Mohawk Valley Community College and a bachelor’s degree from Utica College.


Floyd Flake to serve as a member of the Public Service Commission. Rev. Flake is the senior pastor of The Greater Allen African Methodist Episcopal Cathedral of New York in Jamaica, Queens. A former Senior fellow at the Manhattan Institute for Policy Research, he was President of Wilberforce University, his alma mater, from 2002 to 2008. In 1986, he was elected to the U.S. House of Representatives where he served the 6th Congressional District in Queens until 1997 when he resigned in order to return to full-time ministry at his church. Rev. Flake earned a Doctor of Ministry Degree from the United Theological Seminary and holds a B.A. from Wilberforce University.


Bethaida Gonzalez to serve as a member of the Board of the State of New York Mortgage Agency (SONYMA). Ms. Gonzalez is the Dean of University College at Syracuse University, a position she has held since 2007, and has held a number of positions at the University since 1984. She has a B.S. from State University of New York at Binghamton and a Certificate in Public Administration and M.A. from Syracuse University’s Maxwell School of Citizenship and Public Affairs.
The Governor made the following four appointments to the Executive Chamber:


Adam Spence has been appointed Assistant Secretary for Economic Development and Innovation, responsible for the implementation of Governor Cuomo’s economic development efforts through the State’s economic development agencies as well as the coordination and promotion of innovation acceleration across state government. Prior to joining the Executive Chamber, Mr. Spence served as Senior Vice President for START-UP NY in Empire State Development. Prior to joining ESD, Mr. Spence was a Managing Director and Co-Head of Sponsor Finance at American Capital, Ltd. Early in his career, Mr. Spence was with was with Lend Lease Real Estate Investments and Berkshire Capital Corporation. Mr. Spence received an A.B. in History from Harvard College.


Tamara Dews has been appointed Senior Policy Advisor for Economic Development. Ms. Dews previously worked in the Executive Chamber with the Lieutenant Governor’s Office and the Office for People with Developmental Disabilities (OPWDD) as the Acting Director for the MWBE Program Unit and Project Manager for the agency’s Front Door Initiative. Prior to joining New York State government through the Empire State Fellows program, Ms. Dews was a Manager in the Business & Legal Affairs division of Sony Music Entertainment. Tamara is currently completing her Executive M.B.A. at NYU Stern. In addition, she holds an Intellectual Property Law Certification from NYU’s School of Professional & Continuing Studies and a B.A. in History and Politics from Mount Holyoke College.


Kara Allen has been appointed to the role of Assistant Secretary for Energy. Ms. Allen previously served as Executive Director of the Sustainable Energy and Environment Coalition, a caucus of 57 members in the U.S. House of Representatives led by Reps. Paul Tonko (NY-20), Steve Israel (NY-03), and Gerry Connolly (VA-11). Prior to that, she was the Assistant Director of Federal Affairs for Vanderbilt University, and the energy and environmental aide to Rep. Jim Cooper (TN-05.) Ms. Allen received her M.S. from Johns Hopkins University and B.S. from Vanderbilt University.


Peter Walke has been appointed Assistant Secretary for the Environment. Prior to joining state government through the Empire Fellowship program, he served for nine years as an intelligence officer in the U.S. Navy from 2004-2013. Peter deployed twice in support of operations in Iraq and Afghanistan. He has a B.A. in Political Science from Williams College and a M.A. in Applied Geography from the University of Colorado at Colorado Springs.
The Governor made the following 13 appointments to State agencies: 

Empire State Development

Lourdes Zapata has been appointed Executive Director of the Division of Minority and Women’s Business Development, having previously served as Senior Vice President of Community & Economic Development for the South Bronx Overall Economic Development Corporation. Prior to that, she was Director of the Department of Planning & Development for the City of Newburgh, NY. Ms. Zapata has a B.A. from Hood College and an M.P.A. from New York University’s Robert F. Wagner Graduate School of Public Service.

Nicole Stent, has been appointed Deputy Director of Minority- and Women-Owned Business Enterprises, having previously served as District Manager of Bronx Community Board 8 and was Director of the NYC Health & Hospitals Corporation, Division of Corporate Planning, Community Health & Intergovernmental Affairs. She has a B.A. from Dartmouth College and a J.D. from Howard University School of Law.


Carey Gabay, Esq., has been appointed First Deputy Counsel, having previously served as Assistant Counsel to the Governor since 2011, a banking and finance associate at Jones Day from 2007 to 2009, and a structure products associate at Schulte Roth & Zabel LLP from 2002 to 2007. Mr. Gabay has a B.A. from Harvard College and a J.D. from Harvard Law School.


Jackie Snyder has been appointed Special Advisor for Infrastructure, having previously served as Executive Director of the Public Design Commission of the City of New York from 2004 to 2014, an advisor to the Deputy Mayor for Administration under Mayor Bloomberg and was the Acting President of the Mayor’s Fund to Advance New York City from 2002 to 2003. Ms. Snyder has a B.A. from Brown University. 

Linda Sun has been appointed Global New York Trade Manager, handling global business development, and will continue to serve in her role as Asian Outreach Director for the Office of the Governor. Ms. Sun previously served as Queens Regional Representative, Director of Operations for Congresswoman Grace Meng's 2012 congressional campaign, Chief of Staff to New York State Assemblymember Grace Meng, and Campaign Manager for Grace Meng for New York State Assembly. She has a B.A. from Barnard College, Columbia University and a M.A. from Teachers College of Columbia University. 


Office of Children and Family Services

Suzanne Miles, Esq., has been appointed Deputy Commissioner for Legal Affairs and General Counsel, having previously served as Senior Associate Counsel of Strategic Initiatives at the New York City Department of Education. Prior to that, she was an Associate at Baker Botts, LLP and LeBoeuf, Lamb, Greene & MacRae, LLP. Ms. Miles has a B.A. from SUNY Buffalo and a J.D. from Fordham University School of Law, and served as a judicial clerk to the Honorable Eric L. Clay of the United States Court of Appeals for the Sixth Circuit.


New York State Office of Homes and Community Renewal

Catie Marshall has been appointed Deputy Commissioner for Policy and Communications, having previously served as Vice President of Communications at the New York City Housing Development Corporation and Assistant Commissioner of the New York City Department of Housing Preservation and Development from 2008 to 2014. In addition to her extensive experience in city and state government, she has worked in the private and not-for-profit sectors creating and implementing internal and external communications programs and plans. Ms. Marshall has an A.B. in Biology from Brown University.


Office of Temporary and Disability Assistance

Sharon Devine has been appointed Executive Deputy Commissioner, having previously served as the Deputy Commissioner for Administration, and most recently the President for the Office of Professional Services at New York State Homes and Community Renewal. Ms. Devine has a B.A. from University of California and an M.P.A. from Atlanta University.


Division of Homeland Security and Emergency Services

Kevin Wisely has been appointed Deputy Director Office of Emergency Management for Field Operations, having previously served as Onondaga County Department of Emergency Management Commissioner and has 30 years of emergency services experience. Mr. Wisely has a B.S. from Oswego State University and a M.B.A. from Lemoyne College. He is currently enrolled in the in the Associate of Applied Science Emergency Management degree program at Fredrick Community College. 

Frank Hoare, Esq., has been appointed General Counsel, having previously served as Deputy Attorney General for Regional Affairs and Deputy Counsel to the Attorney General. He has a B.A. from SUNY Albany and a J.D. from Albany Law School of Union University. 

Thruway Authority

Matthew Howard has been appointed Chief Financial Officer, having previously served as Secretary to the State Assembly Ways and Means Committee. He has a B.S. from Springfield College and an M.P.A. from Cornell University.


Environmental Facilities Corporation

Suzanne Beddoe, Esq., has been appointed Senior Vice President and General Counsel, having previously served as Executive Director and then Commissioner of the New York City Office of Administrative Trials and Hearings since 2008. She has a B.A. and M.A. from Yale University and a J.D. from Columbia University School of Law. 

Department of Labor

Melissa R. Quesada, Esq., has been appointed Director of Outreach, Governor’s Unemployment Strike Force, having previously served as a Special Associate for the New York City Law Department. She has a B.A. from Binghamton University and a J.D. from Hofstra University School of Law.