Town tax collector admits she falsified her personal tax payments

Town tax collector admits she falsified her personal tax payments

Source: Office of the State Comptroller

An audit and investigation by State Comptroller Thomas P. DiNapoli’s staff led to the July 20, 2015arrest of the Town of DePeyster's Town Clerk and Tax Collector Michelle Sheppard. The Comptroller reported that Sheppard admitted she falsified her personal town and county tax payments of $4,303 and that she has been charged with nine counts of tampering with public records in the first degree, a Class D felony, and official misconduct, a misdemeanor, for crimes dating back to 2011.

As the Town’s tax collector, Sheppard was responsible for recording, depositing, remitting and reporting all real property tax moneys collected in a timely and accurate manner. Her actions were uncovered during an audit and investigation by the Comptroller’s staff. The auditors noticed discrepancies in the Town's books and obtained a confession from Sheppard. Comptroller DiNapoli indicated that the audit of DePeyster’s Town Clerk and tax collection has not yet been completed and Sheppard has since repaid the bulk of her delinquent tax bills.

DiNapoli’s audits and investigations have led to more than 90 arrests and $18 million in ordered restitution since 2011. Since taking office in 2007, DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Allegations of fraud involving taxpayer money may be reported by calling the Comptroller's 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.

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Determining if an alleged violation of a collective bargaining agreement may be submitted to arbitration

Determining if an alleged violation of a collective bargaining agreement may be submitted to arbitration

Matter of Board of Educ. of the Catskill Cent. Sch. Dist. (Catskill Teachers Assn.), 2015 NY Slip Op 06190, Appellate Division, Third Department

The Board of Education of the Catskill Central School District [Board] and the Catskill Teachers Association [Association] were parties to a collective bargaining agreement [CBA] that was in effect during the relevant time period.

The Board filed grant applications with the State Education Department seeking funding for a universal prekindergarten program pursuant to Education Law §3602-e. In anticipation of the award of funds, the Board entered into a contract with a private sector instruction provider to retain the services of a prekindergarten teacher. The Association submitted a grievance alleging that the Board had violated the terms of the CBA by failing to “post the position” and appointing an individual “who was not a member” of the Association without its consent. The Board denied the grievance and the Association demanded that the matter be submitted to arbitration.

The Board filed an application with Supreme Court pursuant to CPLR Article 75 seeking a court order staying the arbitration. The Association, in response, filed a motion to compel arbitration. Supreme Court, finding the dispute was subject to arbitration, granted the Association’s motion. The Board appealed Supreme Court’s ruling, contending that arbitration of the subject matter of the dispute is barred by Education Law §3602-e and public policy.

The Appellate Division commenced its review of the Board’s appeal by noting that determining whether the subject matter of a dispute is arbitrable involves a two-step inquiry. The first test is “whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.” If no such prohibition is found, does it meet a second test: “whether the parties agreed to submit the subject matter of the dispute to arbitration.”

The court noted that "[I]n order to overcome the strong [s]tate policy favoring the bargaining of terms and conditions of employment, any implied intention that there not be mandatory negotiation must be plain and clear or inescapably implicit in the statute."

Rejecting the Board’s contention to the contrary, the Appellate Division said that language set out in §3602-e does not suggest a legislative intent “that school districts be given wholly unfettered freedom to disavow existing, bargained-for contractual agreements for the purpose of entering into contracts with outside agencies for prekindergarten instructional services.” A more natural reading of §3602-e, said the court, supports a finding that the statute permits school districts to enter into such contracts, without in any way necessarily affecting the enforceability of a bargained-for agreement to secure such services through a CBA nor did the Appellate Division find that there was any intention by the Legislature to "prohibit, in an absolute sense" the arbitrability of the subject matter of the Association’s grievance.

Having found that there was no statutory, constitutional or public policy prohibition to submitting the Association’s grievance to arbitration, the Appellate Division addressed the second test: did the parties agreed to submit the subject matter of the dispute to arbitration.

The court found that the both Association’s grievance and the CBA concern the procedures that the Board must follow in hiring new employees, as well as the terms and conditions of employment. Noting that the Board contended that the absence of any specific reference to prekindergarten teachers in the CBA indicating that the parties did intend to bind themselves to arbitration on this subject, the Appellate Division ruled that "[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator."

Finding “a reasonable relationship” between the subject matter of the CBA and the dispute at issue, the Appellate Division sustained the Supreme Court’s ruling requiring the dispute to be submitted to arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06190.htm

New York State Comptroller is holding $14 Billion in Unclaimed Funds

New York State Comptroller is holding $14 Billion in Unclaimed Funds
[Click on text highlighted in colorto access the Comptroller "Unclaimed Funds website] 

New York State Comptroller DiNapoli has made it a priority to reunite rightful owners with their lost money. This year, New York again set a national record for paid claims, with more than $427 million returned. An overview report of the State's unclaimed funds program is available online at the Comptroller’s website.*

These monies are not simply those “forgotten” by individuals and businesses. State and local agencies, school districts, labor unions and law firms may also have “forgotten” funds being held by the Comptroller.

Listed below are some of the govenmental entities having funds being held in the Comptroller’s “Abandoned Property Fund:"

DEPARTMENT OF LAW Reported By YUM BRANDS RESTAURANTS SERVICE GROUP INC & AFFILIATES

SUNY DOWNSTATE Reported By STAPLES INC

COUNTY OF CORTLAND,  Reported By NATIONWIDE RETIREMENT SOLUTIONS

TOWN OF COLONIE Reported By ANTHEM INC

VILLAGE OF CANTONPOLICE DEPT Reported By GALLS LLC

SCHOOL DISTRICT OF ALBANY Reported By CDW LLC

UFSD-22 FARMINGDALE NY Reported By NATIONAL GRID

CSEA LOCAL 1000 AFSCM Reported By STATE OF CALIFORNIA

DEPARTMENT OF HOMELAND SECURITNSHIP Reported By NEW YORKSTATE DIVISION OF THE TREASURY

With the recent improvements to the Comptroller's online search function, the process is now easier than ever. The online search tool is compatible with mobile devices so users can check to see if there are any unclaimed funds in their name or in the name of their organization using a number of electronic devices such as a "smart" phone, a tablet, or a computer. On average, the Comptroller returns $1 million a day to rightful owners.

To get the process started is go to https://ouf.osc.state.ny.us/ouf/  and enter your name or the name of your organization in the appropriated space. However, finding a particular entity may require some imagination. For example, entering “SUNY Albany” and entering  “Albany Universityat Albany” as the name of the entity both returned different “hits” as indicated below.

SUNY ALBANY Reported By XEROX CORP and by COCA COLA REFRESHMENTS USA INC. and by ELRAC LLC

ALBANY UNIVERSITYAT ALBANY Reported By YOUNG & RUBICAM INC

* https://www.osc.state.ny.us/ouf/ouf_ar_sfy2014_15.pdf

Using the job description of the individual assigned to light, limited or restricted duty in determining eligibility for disability retirement benefits

Using the job description of the individual assigned to light, limited or restricted duty in determining eligibility for disability retirement benefits

2015 NY Slip Op 04557, Appellate Division, Third Department

The Comptroller denied a retirement system member’s [Member] petitioner's for disability retirement benefits. Member had sustained multiple injuries in a 2008 motor vehicle accident and, upon his return to work on July 30, 2008, was placed on limited-duty assignment. Member, a detective, had not returned to his full duties and was absent on multiple occasions for varying periods due to his injuries.

In November 2010, Member applied for accidental disability retirement benefits. The Comptroller, ruling that the light duty standard set out in 2 NYCRR 364.3(b)*was applicable, found that Member was not permanently incapacitated from the performance of his duties and denied his application.

Member then initiated a CPLR Article 78 proceeding challenging the Comptroller’s decision.

Member contended that because he was not continuously assigned to light duty work for a period of two years given that the employer placed him on "no duty" assignment during the periods that he was absent from work the Comptroller improperly measured his application against the light duty standard rather than his "full duties" as a detective. The Appellate Division disagreed.

The court explained that where an applicant "'has been continuously assigned to light, limited or restricted duties for at least two years prior to the date [of his or her] application, the determination of permanent incapacity is to be based upon 'such light, limited or restricted duty assignment' rather than full duties." Continuously assigned, in this context does not mean continuous performance and is not interrupted by absence from work [due to the injuries], which, said the court, is a rational, reasonable reading of the regulation.

Noting that the record establishes that Member's absences from work were due to his injuries and not as the result of any reassignment of duties by the employer, the Appellate Division sustained the Comptroller’s application of the regulation.

* Subdivision (b) of NYCRR §364.3, Job descriptions for individuals assigned to light, limited or restricted duty, provides that “In the case of an applicant who, in connection with an alleged illness, disease, disability or physical limitation, has been continuously assigned to light, limited or restricted duties for at least two years prior to the date application for disability retirement benefits was filed with the Comptroller (whether or not the assignment was made pursuant to an organized light duty or restricted duty program) the employer shall provide a written description of the duties and/or physical or psychological job requirements which have been applicable to the applicant since such reassignment to light, limited or restricted duties. With respect to such applicants, the Retirement System shall render its determination on the issue of permanent incapacity on the basis of such light, limited or restricted duty assignment.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04557.htm

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Determining the availability of Jarema credit for the purposes of attaining tenure

Determining the availability of Jarema credit for the purposes of attaining tenure

2015 NY Slip Op 04847, Appellate Division, Second Department

Pursuant to Education Law §3012(1)(a), teachers were appointed for a probationary period of three years.*However, in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years and has been appointed to teach the same subject on an annual salary, the probationary period is limited to one year. Although service as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher, a substitute teacher's three-year probationary period can be reduced to one year through so-called "Jarema" credit, so named for the sponsor of the bill that provided for this calculation of credit.**

A certified teacher [Petitioner] in elementary education and special education was employed by the School District as a permanent substitute teacher in a general education kindergarten class during the 2008-2009 school year. She subsequently taught as a probationary special education teacher during the 2009-2010, 2010-2011, and 2011-2012 school years in first and fourth grade integrated co-teaching classes.

On May 22, 2012, based on the recommendation of the Superintendent of Schools, the  School District’s Board of Education terminated Petitioner's employment without a hearing effective June 22, 2012. Petitioner, contending that she had attained tenure by estoppel and thus could not be terminated without a hearing, commenced a CPLR Article 78 proceeding in the nature of mandamus seeking a judgment compelling her reinstatement as a tenured teacher by the School District with back pay.

The Supreme Court denied the petition and dismissed the proceeding, concluding that the Petitioner did not establish that she had acquired tenure by estoppel and thus was not entitled to a hearing before her employment could be terminated. As to attaining tenure by estoppel, in McManus v Board of Education, Hempstead UFSD, 87 NY2 183, the Court of Appeals held that "Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term."

The Appellate Division said that Supreme Court properly concluded that Petitioner did not acquire tenure by estoppel,*** explaining:

1. Petitioner did not acquire tenure by estoppel in the special education tenure area, as the Petitioner did not teach in that area for a period of time exceeding the three-year probationary period required for gaining tenure.

2. Probationer was not entitled to Jarema credit for the additional year she taught general-education kindergarten, as such service was not in the same "subject" area as special education.

3. Petitioner failed to establish that she acquired tenure by estoppel in the elementary education tenure subject area as during the 2009-2010, 2010-2011, and 2011-2012 school years, Petitioner was employed as a probationer in the special education tenure subject area, not the elementary tenure subject area and she taught as a special education teacher in co-teaching classrooms along with general education teachers.

4. Petitioner failed to establish that she devoted at least 40% of her time to teaching elementary education in the co-teaching classes, as opposed to teaching special education in those classes.

Thus, said the Appellate Division, the record does not support Petitioner’s contention that she was entitled to tenure by estoppel as an elementary education teacher.

* See http://publicpersonnellaw.blogspot.com/2015/04/amendments-to-education-law-included-in.htmland http://publicpersonnellaw.blogspot.com/2015/07/education-department-posts-proposed.htmlfor recent amendments to tenure requirements.

**  Jarema credit cannot exceed two years and the service as a substitute teacher must be continuous for at least one school term.

*** “Tenure by estoppel” is sometimes referred to as “tenure by acquisition,” “tenure by default,” or “tenure by inaction.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04847.htm