Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

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Son left father’s body in morgue in order to steal his father's pension and social security payments  

On June 14, 2015State Comptroller Thomas P. DiNapoli announced the pending sentencing of a Queens man for concealing his father’s death so he could continue to unlawfully collect pension payments electronically deposited into a checking account in the name of his father. Christopher Bunn is expected to make restitution full on based upon his guilty plea in October to grand larceny in the third degree, a Class D felony, and petit larceny. Bunn has already served six months in federal prison related to his arrest.

Bunn’s father was a designated beneficiary collecting retirement benefits that were not transferable upon his death. State Comptroller DiNapoli said that “Mr. Bunn left his deceased father’s body unclaimed at the Nassau County morgue for more than a year so he could steal his pension and social security payments.”

The Comptroller thanked District Attorney Brown and the Social Security Inspector General for their partnership and continued commitment to protecting public funds.”

Special Agent in Charge Edward J. Ryan, Office of the Inspector General, Social Security Administration said that “It is illegal to conceal or fail to report deaths to continue receiving someone else’s Social Security benefits. I am gratified by the State Comptroller’s pursuit of justice in this case.”

Queens District Attorney Richard A. Brown said that Christopher Bunn’s actions was “robbing the New York pension system and the federal government of tens of thousands of dollars in unlawfully obtained benefits. My office will continue to pursue and prosecute individuals who abuse the system for their own benefit.”            

This is one of a series of investigations by DiNapoli’s office that have led to criminal convictions and recovery of unlawful retirement payments. In 2011, DiNapoli’s investigation of a double-dipping former Rome police officer resulted in the recovery of almost $90,000. DiNapoli’s 2012 investigation of double-dipping at the Troy Housing Authority led to two guilty pleas and the recovery of almost $70,000 in unlawfully paid pension earnings. In 2015, DiNapoli’s work with the Attorney General’s Office resulted in a two- to six-year prison sentence of a Florida resident for defrauding the system of over $100,000 and pending indictments of two New Jersey residents for stealing over $100,000 in pension funds. Most recently, in May 2015, a retired Suffolk County police officer was convicted in Nassau County of defrauding the pension system of more than $465,000 and ordered to pay full restitution.  

Since taking office in 2007, DiNapoli has committed to fighting public corruption and fraud and encourages the public to help fight fraud and abuse.  Allegations of fraud involving New York taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us  or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236. 

A Ticking Clock for Job Benefits

New York State Comptroller Thomas P. DiNapoli’s “op-ed,” A Ticking Clock for Job Benefits, was published in The Albany Times Union on June 16, 2015. The Comptroller urges the state Legislature to act on his proposal to create an optional investment pool to help fund retire health insurance and other post employment benefits (OPEB).

The text of the Comptroller “op-ed” is posted on the Internet at:

http://www.timesunion.com/tuplus-opinion/article/A-ticking-clock-for-job-benefits-6328455.php

New York State Comptroller Thomas P. DiNapoli announced his office completed audits at the

Village of Brookville
http://www.osc.state.ny.us/localgov/audits/villages/2015/brookville.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Village of Canajoharie 
 http://www.osc.state.ny.us/localgov/audits/villages/2015/canajoharie.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Fairport Public Library 
http://www.osc.state.ny.us/localgov/audits/libraries/2015/fairport.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Revena-Coneymans-Selkirk Community Library
http://www.osc.state.ny.us/localgov/audits/libraries/2015/ravenacoeymansselkirk.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

Rockland County Department of Social Services

http://www.osc.state.ny.us/localgov/audits/counties/2015/rocklandco.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release

and the Town of Saugerties 
http://www.osc.state.ny.us/localgov/audits/towns/2015/saugertiesjc.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815release
 

New York State Comptroller Thomas P. DiNapoli announced his office completed audits at the following school districts:

Cheektowaga-Maryvale UFSD
http://www.osc.state.ny.us/localgov/audits/schools/2015/cheektowagamaryvale.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Corinth CSD 
 http://www.osc.state.ny.us/localgov/audits/schools/2015/corinth.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Millbrook CSD
http://www.osc.state.ny.us/localgov/audits/schools/2015/millbrook.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

and the Mount Morris CSD 
 http://www.osc.state.ny.us/localgov/audits/schools/2015/mountmorris.pdf?utm_source=weeklynews20150621&utm_medium=email&utm_campaign=061815arelease

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

2015 NY Slip Op 04550, Appellate Division, Third Department

A law firm [Firm] appealed a decision of the Unemployment Insurance Appeal Board [Board] which assessed Firm for additional unemployment insurance contributions after ruling that a claimant [Lawyer] for unemployment insurance benefits for eligible for such benefits.

Lawyer had been retained as a "contract attorney" by the Firm to perform document review services in conjunction with the litigation of a class action lawsuit. After his assignment ended, Lawyer applied for unemployment insurance benefits and . The Unemployment Insurance Appeal Board ruled that Lawyer was the Firm’s employee and assessed it for additional unemployment insurance contributions as a result.

The Appellate Division affirmed the Board’s decision explaining that "Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence." Citing Matter of LaValley, 120 AD2d 1498, the court said that "in cases where the rendering of professional services is involved, an employment relationship can be found where there is substantial evidence of control over important aspects of the services performed other than results or means."

The decision indicates that Lawyer:

1. was paid an agreed-upon hourly rate and required to work at least 45 hours a week, but not more than 50 hours per week;

2. was given specified hours each day to report to his assigned work station;

3. was required to take a daily unpaid 30 minute lunch break and was occasionally required to report to work on weekends;

4. was allowed to take unpaid days off, provided that he requested the time off in advance;

5. received daily assignments from an associate attorney employed by the Firm and who supervised Lawyer’s work; and

6. assisted in the litigation by providing written memoranda summarizing deposition testimony, work that included Lawyer's attendance at meetings with attorneys from other firms involved in the litigation.

These elements, said the Appellate Division, constituted “substantial evidence” supporting the Board's decision that the Firm retained sufficient overall control of Lawyers services to establish an employment relationship, despite evidence in the record that could support a contrary conclusion.

Significantly, the court commented that “The fact that [Lawyer] signed a written agreement designating him as an independent contractor does not compel a different result, citing Matter of Joyce, 116 AD3d 1132.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04550.htm

Anatomy of an unlawful discrimination complaint

Anatomy of an unlawful discrimination complaint

2015 NY Slip Op 04601, Appellate Division, Second Department

The Plaintiff commenced this action seeking to recover damages for alleged unlawful discrimination and retaliation within the meaning of 42 USC §§1981 and 1983, the “Civil Rights Act” and for alleged violation of Executive Law §296, the State’s Human Rights Law, in connection with his employment at a State agency [Agency].  Supreme Court granted the Agency’s motion for summary judgment dismissing the complaint and Plaintiff appealed.

In considering Plaintiff’s appeal the Appellate Division said:

1. Aplaintiff alleging discrimination in employment has the initial burden to establish a prima facie case of discrimination; and

2. To meet this burden, the plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination.

If the plaintiff is able to satisfy each of these requirements, said the Appellate Division, the burden then shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision."

If the employer is able to do so, the burden of going forward shifts to the plaintiff and in order to succeed on his or her claim, "the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason."

With respect to Supreme Court granting Agency’s motion for summary judgment dismissing Plaintiff’s complaint, the court said to prevail on a motion for summary judgment in a discriminatory employment action, “a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual.”

In this instance the Appellate Division found that after Agency demonstrated a prima facie entitlement to judgment as a matter of law while Plaintiff failed to raise a triable issue of fact as to whether any adverse employment action he allegedly suffered occurred under circumstances giving rise to an inference of discriminatory motive.

Further, the court noted that the Agency’s setting out “legitimate, nondiscriminatory reasons” for its challenged actions, said that Plaintiff failed to raise a triable issue of fact as to whether the Agency’s explanations were pretextual.

While it is unlawful to retaliate against an employee for opposing discriminatory practices, in order to make out a claim for retaliation, the plaintiff must show that (1) he or she has engaged in protected activity; (2) his or her employer was aware of such activity; (3) he or she suffered an adverse employment action based upon the protected activity; and (4) there is a causal connection between the protected activity and the adverse action.

Again, Agency demonstrated, prima facie, its entitlement to judgment as a matter of law on the causes of action alleging retaliation while Plaintiff, again, failed to raise a triable issue of fact as to whether he engaged in a protected activity or that Agency was aware of any such complaint prior to the date on which Plaintiff sent an email specifically complaining of discrimination.

The Appellate Division decided that Plaintiff did not submit sufficient evidence from which a jury could reasonably find a causal connection between any protected activity in which he engaged and any adverse employment action nor did he rebut the Agency’s evidence that any adverse action taken against him was justified by legitimate, nondiscriminatory reasons.

Accordingly, the court held that Supreme Court had properly granted Agency’s motion for summary judgment dismissing the complaint.

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2015/2015_04601.htm

Benefit available members of union pursuant to a "Memorandum of Agreement" was a “vested lifetime benefit”

Benefit available members of union pursuant to a "Memorandum of Agreement" was a “vested lifetime benefit”

Port Auth. of N.Y. and N.J. v Union of Automotive Technicians, 2015 NY Slip Op 05114, Appellate Division, First Department

Due to budget constraints, the Port Authority of New York and New Jersey [Port Authority], effective January 1, 2011, discontinued its free E-Z Pass program available to retired Port Authority employee.

The Appellate Division unanimously affirmed a decision by Supreme Court modifying an arbitration award to rule that the E-Z Pass benefit as encompassed in the parties' 2006-2011 Memorandum of Agreement was a vested lifetime benefit available to retired members of the Union of Automotive Technicians in accordance with the provisions set out in the parties' 2006-2011 Memorandum of Agreement.

The court noted that “In light of our disposition of previous appeals raising the same issue, Supreme Court reached the right result in this matter,” citing Port Authority of New York and New Jersey v Port Authority of New York and New Jersey Police Lieutenants Benevolent Association, 124 AD3d 473, among other relevant decisions.

NYPPL’s summary of the Supreme Court’s ruling in the Lieutenants’ case is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/06/article-75-petition-seeking-to-confirm.html

The Automotive Technician decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05114.htm

Challenging an unsatisfactory annual performance rating

Challenging an unsatisfactory annual performance rating

2015 NY Slip Op 04589, Appellate Division, First Department

A teacher [Teacher] brought an Article 78 action against the New York City Department of Education's (DOE) challenging her annual unsatisfactory rating for the 2011-12 school year, Supreme Court dismissed the petition and Teacher appealed.

The Appellate Division sustained the Supreme Court’s ruling holding that Teacher’s unsatisfactory annual rating was not arbitrary and capricious or contrary to law.

Teacher had contended that her supervisor administered the lesson observation on which the rating was based in an arbitrary and capricious manner. The court held that this claim was not supported by the record.*

As to Teacher’s argument that the annual performance rating was made "in violation of lawful procedure" because DOE failed to follow procedural safeguards set forth in their own guidelines, in that it failed to provide her with “a written warning” that she had to improve her performance, the Appellate Division said that Teacher’s argument “lacks merit,” explaining that DOE's rating handbook did not create “any substantive right to receive a written warning” that failure to improve "may result in an unsatisfactory rating."

The Appellate Division also noted that Teacher “went on terminal leave two months after the unsatisfactory observation report,,” retiring one month later, which precluded DOE’s making a second observation which would normally have been the case.

* The court noted that Teacher’s principal's hearing testimony clarifying the reasoning behind the unsatisfactory annual rating.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04589.htm