ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

April 16, 2015

Summaries of recent disciplinary decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]



Summaries of recent disciplinary decisions posted on the Internet by the New York CityOffice of Administrative Trials and Hearings [OATH]
Source: NYC Office of Administrative Trials and Hearings
Click on text highlighted in color to access the text of the decision.

Correction officer may not engaged in undue familiarity with an inmate
OATH Administrative Law Judge Kara J. Miller found that a correction officer had engaged in undue familiarity with an inmate by failing to notify the Department that her husband had been arrested and incarcerated on Rikers Island, by taking telephone calls from him on her post phone and cell phone while on duty, and by disclosing Department business to him during the calls. The officer also threatened and assaulted a woman who she believed was having an affair with her husband after he was released from jail. Termination of employment recommended.   Dep't of Correction v. Harris, OATH Index No. 2383/14

Removal of an individual’s name from a published OATH decision
OATH Administrative Law Judge Faye Lewis denied a correction officer's motion to remove his name from a published OATH decision. Reports and recommendations issued by OATH, an independent tribunal, are not "under the control" of the Department of Correction and thus do not fall within the confidentiality provisions of section 50-a of the Civil Rights Law.   Dep't of Correction v. Victor, OATH Index No. 388/15.

 Employee’s being provoked a mitigating factor in imposing disciplinary penalty
OATH Administrative Law Judge Kara J. Miller recommended dismissal of charges that a sewage treatment worker had left his assigned work location, threw a clipboard at a co-worker and neglected his duties. She sustained a charge that he had used threatening language towards the co-worker, but found he was provoked and recommended a reprimand as the penalty. ALJ Miller recommended dismissal of all charges brought against a second sewage treatment alleged to have challenged a co-worker to a fight and to have cursed the co-worker.   Dep't of Environmental Protection v. Butcher, OATH Index Nos. 297/15 & 299/15

Including inappropriate language in official correspondence
OATH Administrative Law Judge Faye Lewis found that a case worker had sent official correspondence to a client that contained insulting language and was insubordinate and discourteous to a supervisor by failing to complete an assignment and instead ripping up a document in protest, in view of co-workers.   Human Resources Admin. v. Lovell, OATH Index No. 2477/14 

April 15, 2015

Seeking indemnification for legal expenses pursuant to Public Officers Law §18



Seeking indemnification for legal expenses pursuant to Public Officers Law §18
Paul W. Mossman as Commissioner of Social Services of Columbia County v County of Columbia (Two Proceeding), 2015 NY Slip Op 03005, Appellate Division, Third Department

In Proceeding No. 1 pursuant to CPLR Article 78 Commissioner Mossman [Mossman], among other things, sought a court order annulling the County’s determination that he was not entitled to a legal defense pursuant to Public Officers Law §18 “in connection with a certain grand jury proceeding.”

In Proceeding No. 2 pursuant to CPLR Article 78 Mossman sought a court order directing the County “to provide such a legal defense in connection with a subsequent grand jury proceeding.”

In March 2013 the Columbia County District Attorney issued a subpoena demanding that Mossman appear before a grand jury with various documents related to the official actions of Columbia County Department of Social Services employees. Mossman thereafter sought to retain outside counsel and requested that the County indemnify him pursuant to Public Officers Law §18 and Columbia County Code §36-1. The County denied Mossman’s request stating that those provisions of law did not apply to "potential criminal matters."

Mossman challenged the County’s decision and a Supreme Court granted his petition in a December 2013 judgment.

In March 2014 the Columbia County District Attorney served a similar subpoena on Mossman and the County again denied Mossman request to be indemnified for his legal expenses. Mossman initiated an second CPLR Article 78 proceeding and Supreme Court, relying upon its rationale in Proceeding No. 1, issued a judgment in April 2014 granting Mossman‘s petition.

The County appealed both the December 2013 and April 2014 Supreme Court judgments. The Appellate Division, however, affirmed both Supreme Court rulings, explaining:

1. The County had adopted Public Officers Law §18, and was thus obliged to "provide for the defense of [an] employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his [or her] public employment or duties," citing Public Officers Law §18[3][a]). 

2.      As “a conflict of interest” prevented the Columbia County Attorney from representing Mossman, Mossman was entitled to representation "by private counsel of his choice."
  
3.      Mossman satisfied the notice requirements of Public Officers Law §18 and is an employee of the County, and the subpoenas clearly stem from actions undertaken in the course of his public duties.

The Appellate Division rejected the County’s argument that the grand jury proceeding did not constitute a "civil action or proceeding" for the purposes of Public Officers Law §18 as the County “failed to demonstrate" what was the objective of the grand jury proceeding and admitted that the District Attorney had not made his "intentions [known] in relation to the potential for criminal charges." The court also noted that although grand juries may indict a person for a criminal offense “they are also empowered to make presentments as to noncriminal misconduct or neglect by public officers and employees."*

The court said that because there was no indication that criminal charges are actually being contemplated, Supreme Court properly "reject[ed] [the County’s] claim that because the [g]rand [j]ury proceeding[s] could have resulted in criminal charges against [Mossman ], the proceeding[s] [were] not civil in nature" and that any other holding “would defeat the clear intent of the statute, which insulates public employees from litigation expenses arising out of their employment."**

* The Appellate Division said that the subpoenas served on Mossman sought information regarding "all of [Mossman] employees and subordinates." Contrary to the County’s contention, the Appellate Division said that the statutory power to report on the noncriminal misconduct of any public servant bears no connection to the separate constitutional right of a grand jury to investigate and indict public officers.

** Public Officers Law §19.2, which applies to employees of the State as the employer, provides, in pertinent part, "it shall be the duty of the   state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his  or  her  defense  of  a  criminal   proceeding in  a  state  or  federal court arising out of any act which   occurred while such employee was acting within the scope of  his  public   employment  or  duties  upon  his acquittal or upon the dismissal of the criminal charges against him or reasonable attorneys' fees  incurred  in   connection  with an appearance before a grand jury which returns no true   bill against the employee where such appearance was required as a result of any act which occurred while such  employee  was  acting within  the   scope  of  his public employment or duties unless such appearance occurs   in the normal course  of  the  public employment  or  duties  of  such   employee.

The decision is posted on the Internet at: 

April 14, 2015

Asking an administrative body to reconsider its earlier decision does not revive an expired statute of limitation without a fresh examination of the matter based on newly presented evidence



Asking an administrative body to reconsider its earlier decision does not revive an expired statute of limitation without a fresh examination of the matter based on newly presented evidence

The Board of Education denied a teacher’s request for family health insurance benefits in May 2008, explaining that she was not eligible for coverage under the terms of the relevant collective bargaining agreement.

In May 2012, the teacher submitted another request for family health insurance benefits. This request was, again, denied by the School District in August 2012. In November 2012 the teacher commenced a CPLR Article 78 proceeding challenging the School District’s decision.

In its answer to the teacher's petition the School District contended that the proceeding was untimely, arguing that the second request for family health insurance benefits did not renew or revive the statute of limitations. Supreme Court disagreed, holding that the teacher’s Article 78 petition was timely and the School District appealed.

The Appellate Division, contrary to the Supreme Court's determination, ruled that the School District was correct.

The court explained that as a general rule, a proceeding pursuant to CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding on the petitioner and that the initial determination controls "unless the agency conducts a fresh and complete examination of the matter based on newly presented evidence.” The Appellate Division concluded that the August 2012 determination did not serve to revive the limitations period, as the School District adhered to its initial determination without a fresh examination based on newly presented evidence.

Accordingly, the Appellate Division ruled that “this proceeding is barred by the four-month statute of limitations set forth in CPLR 217(1).”

The decision is posted on the Internet at:

April 13, 2015

New York State Comptroller Thomas P. DiNapoli proposes legislation to assist State and local governments pay for retiree health care premiums


New York State Comptroller Thomas P. DiNapoli proposes legislation to assist State and local governments pay for retiree health care premiums
Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli today announced legislation to create an optional investment pool to help the state and local governments fund retiree health insurance and other post employment benefits (OPEB). DiNapoli estimates the unfunded OPEB liability of New York state to be $68.2 billion and an additional $68.3 billion for local governments outside of New York City that have reported data.

When a public employee retires, the individual is often eligible for benefits including a pension and health insurance. While pension costs are pre-funded and invested to help pay for these future benefits, most governments, including New York state, do not set aside funds for retiree health insurance and instead fund it on a “pay-as-you-go” basis or out of pocket. The funding mechanism DiNapoli is proposing would give public employers another option to help fund these benefits for present day employees.

“New York is behind the eight ball on this issue. More than thirty states have already put rules in place that allow public employers to set aside money today to pay for these benefits,” DiNapoli said. “The numbers are daunting, but there is a real cost to doing nothing and leaving the bill for future generations of taxpayers to cover. The legislation would establish the legal structure for creating trusts that the state and local governments could use to start saving the funds needed to pay for these benefits. The responsible, good government thing to do is to start preparing for the future and plugging the hole before we reach a crisis moment.”

In state fiscal year (SFY) 2013-14, the state’s total unfunded OPEB liability is estimated at $54.3 billion for state agencies and $13.9 billion for the State University of New York (SUNY). Together, New York state and SUNY paid $1.5 billion for retiree health insurance in SFY 2013-14, which is half of what is needed to fully fund the OPEB liability. Costs for retiree health insurance are expected to grow as the workforce ages, people live longer and health care costs continue to increase. Current estimates project at least 6 percent annual increases for health insurance premiums – which means OPEB costs will double within 12 years.

If the state were to begin making regular annual contributions to a trust and earn a return on investments, it would potentially save billions of dollars in future OPEB cash payments.

The unfunded OPEB liability for the 837 of 2,293 local governments that reported it to DiNapoli’s office totaled $68.3 billion.

Moody’s Investors Service estimates the total national unfunded liability at $530 billion for states alone. New York is second to California in highest total OPEB liability, but it lags other states in starting to address this problem. Thirty-three states already have funding mechanisms to set aside funds to pay for OPEB costs.

DiNapoli’s proposal (Assembly 5525/Abbate) would:

1. Authorize the creation of irrevocable OPEB trusts, not part of the New York State Common Retirement Fund, so that New York state and its local governments can, at their option, help fund their OPEB liabilities;

2. Establish an OPEB investment fund in the sole custody of the State Comptroller for the investment of OPEB assets of the state and participating eligible local governments;

3. Designate the president of the Civil Service Commission as the trustee of the state’s OPEB trust and the governing boards as trustee for local governments; and

4. Allow school districts to transfer excess reserve balances to an OPEB trust once it is established.

Under DiNapoli’s proposal, there is no limit on how much or how little a government can deposit into the trust.

New York City, which has already begun funding its $89.5 Billion OPEB liabilities would be grandfathered in under its own statute. In 2006, the city established the Retiree Health Benefits Trust (RHBT), which currently has a balance of $2.4 billion. New York City Councilman Daniel Garodnick has proposed a City Charter amendment that would require the city to put at least 5 percent of its annual retiree health insurance expenses into a reserve fund under certain circumstances.

Since 2004, the Governmental Accounting Standards Board (GASB) has required state and some local governments to report their OPEB liabilities on their financial statements as obligations accrued during an employee’s entire period of service.

In 2015, GASB is finalizing additional accounting and financial reporting requirements, which will standardize how local governments report their OPEB liabilities.

DiNapoli notes that governments with no plan to deal with their large OPEB liabilities could see their bond ratings suffer and borrowing costs increase down the road.

Information concerning the proposed legislation is posted on the Internet at:




An entity claiming that it is not subject to the State’s Freedom of Information Law has the burden to provide documentary evidence that conclusively establishes such a defense as a matter of law


An entity claiming that it is not subject to the State’s Freedom of Information Law has the burden to provide documentary evidence that conclusively establishes such a defense as a matter of law
Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 2015 NY Slip Op 02972, Appellate Division, Second Department

The Nassau County Community College Foundation [Foundation] denied Nassau Community College Federation of Teachers, Local 3150’s [Local 3150] request for certain information pursuant to the Freedom of Information Law [FOIL], Public Officers Law, Article 6. Foundation contended that it “is not a governmental agency and, therefore, is not subject to FOIL”.

In response to Local 3150’s Article 78 petition, Foundation moved to dismiss the petition insofar as it was  asserted against it. Supreme Court granted Foundation's motion but the Appellate Division reversed the lower court’s ruling and reinstated Local 3050’s petition insofar as asserted against the Foundation.

What is an “agency?” The Appellate Division said that an "agency" is "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature," citing Public Officers Law §86[3].

The court then noted that Nassau Community College [College] is a public college, chartered under Education Law Article 126, sponsored and partially funded by Nassau County, and Foundation is a not-for-profit corporation created in 1979 to support the College's mission.

The Appellate Division explained that FOIL "was enacted to promote open government and public accountability and imposes a broad duty on government to make its records available to the public" and all "public agencies" are subject to FOIL,” citing Perez v City University of New York, 5 NY3d 522.

As to Foundation’s motion to dismiss Local 3150’s petition with respect to it, the Appellate Division said that Foundation had the burden to provide documentary evidence that "utterly refute[d] [Local 3150’s] factual allegations, conclusively establishing a defense as a matter of law.

Foundation failed to meet this burden, said the court, as it did not establish that it lacks the attributes of a public entity. Accordingly, Foundation was deemed a public agency and Supreme Court should have denied Foundation’s motion to dismiss Local 3150’s petition insofar as asserted against it.

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com