State’s removing a private lawsuit from State court to Federal court waives a State’s 11th Amendment immunity but may not affect its general sovereign immunity

State’s removing a private lawsuit from State court to Federal court waives a State’s 11^thAmendment immunity but may not affect its general sovereign immunity

Beaulieu v State of Vermont, US Circuit Court of Appeals, Second Circuit, Docket #13-4198-cv

704 current and former employees of the State of Vermont [Plaintiffs], brought an action in State court contending that because their weekly pay is or was reduced for partial-day absences in excess of their accrued leave, they are or were not paid on a “salary basis” under the Fair Labor Standards Act [FLSA] and are thus entitled to overtime pay at one and one-half times their regular rate.

Vermont  removed the action from Vermont   state court to the United States District Court, District of Vermont.

Vermont then moved to dismiss Plaintiff’s action based on its claim that it was immune from private lawsuit. The District Court agreed and dismissed the lawsuit “by reason of Vermont’s sovereign immunity* from private lawsuits.” Plaintiffs appealed.

The Circuit Court of Appeals affirmed the District Court’s ruling, explaining that although Vermont’s removal of Plaintiffs’ private lawsuit from Vermont state court to the United States District Court resulted in a waiver its Eleventh Amendment immunity from suit in federal court, it had not waived its general sovereign immunity from private lawsuits within the meaning of Vermont State Law.

Plaintiffs had argue that a statutory provision, Vermont Statutes Title 21, §384(b)(7) constituted an express waiver of the Vermont’s immunity from private actions brought under the FLSA. The Circuit Court disagreed, noting that although Title 21 provides that “[A]n employer shall not pay an employee less than one and one-half times the regular wage rate for any work done by the employee in excess of 40 hours during a workweek,” the statute further provides that “this subsection shall not apply to: (7) State employees who are covered by the Federal Fair Labor Standards Act.”

In the words of the Circuit Court, “Plaintiff's argument misunderstands the difference between the applicability of a federal statute to a state enacting lawful obligations upon the state, and the state's amenability to a private entity's suit to enforce such an obligation. There is no doubt that the FLSA applies to Vermont and creates a legal obligation on Vermont to pay its employees in accordance with the statute's terms. Nonetheless, Vermont's sovereign immunity—unless waived or forfeited—bars suit by a private entity seeking to enforce the FLSA's terms.”

Accordingly, said the court, “[t]he fact that Vermont state employees are covered by the FLSA does not mean that those employees are entitled to sue Vermont under the FLSA's private right of action,” concluding that the District Court correctly dismissed Plaintiffs private lawsuit on the basis of Vermont's general sovereign immunity, which Vermont had not waived. 

* The Doctrine of Sovereign Immunity holds that the state cannot commit a legal wrong and thus is immune from civil suit or criminal prosecution unless it has unequivocally waived such immunity.

 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e04cb9a1-65fc-473d-8e22-25494c8e1ec3/2/doc/13-4198_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e04cb9a1-65fc-473d-8e22-25494c8e1ec3/2/hilite/

Former NYS Member of the Assembly sentenced after being found guilty of fraud and theft

Former NYS Member of the Assembly sentenced after being found guilty of fraud and theft

Source: Office of the State Comptroller

Former New York State Assemblyman William Scarborough, of Queens, New York, was sentenced to 13 months in prison and two years of supervised release after being convicted of wire fraud and theft from a program receiving federal funds and related to his wrongful receipt of per diem payments from New York State for alleged travel expenses.

A written plea agreement required him to resign his position as a Member of the New York State Assembly.

The text of the Comptroller’s press release reporting this action is posted on the Internet at:

http://www.osc.state.ny.us/press/releases/sept15/091415.htm?utm_source=weeklynews20150920&utm_medium=email&utm_campaign=091415release

An individual is entitled to be represented by an attorney in an administrative hearing

An individual is entitled to be represented by an attorney in an administrative hearing

Matter of Odom (Commissioner of Labor), 2015 NY Slip Op 06861, Appellate Division, Third Department

Odom appealed a determination by the Unemployment Insurance Appeal Board, ultimately ruled, among other things, that Odom was disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct.

The Appellate Division reversed the Board’s determination and remanded the matter to the Board for further proceedings.

The court said that the record demonstrated that at the commencement of the administrative hearing Odom informed the Administrative Law Judge that her attorney was unavailable, but that she "would like for him to come" to the hearing. 

Notwithstanding this statement by Odom, said the Appellate Division, “the Administrative Law Judge continued to question [Odom] until she agreed to proceed pro se.”*

The court found that Odom’s right to have counsel present to represent her a the administrative hearing was violated under these circumstances.

* By proceeding pro se, Odom would be serving as her own attorney in this quasi-judicial proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06861.htm

A party's participation in the arbitration proceeding deemed a concession by the party that the arbitration panel has jurisdiction to consider and decide the matter

A party's participation in the arbitration proceeding deemed a concession by the party that the arbitration panel has jurisdiction to consider and decide the matter

D'Ropshitz v Schwartz, 2015 NY Slip Op 06814, Appellate Division, Second Department

An arbitration award dated August 20, 2012was issued by the arbitration panel. Schwartz then alerted the arbitration panel that the August 20, 2012, award had left an issue unresolved and met with the panel. This resulted in the arbitration panel issuing an award dated July 2, 2013.

When D’Ropshitz brought a CPLR Article 75 action to confirm the panel’s July 2, 2013 award Schwartz objected, contending that after issuing its arbitration award dated August 20, 2012 the arbitration panel did not have jurisdiction to issue the arbitration award dated July 2, 2013. Supreme Court, Kings Countyconfirmed the July 2, 2013 award, [in part] and Schwartz appealed the Supreme Court’s determination.

The Appellate Division affirmed the Supreme Court’s confirmation of the award [in part], explaining that Schwartz waived any argument that the arbitration panel exceeded its authority or was without jurisdiction with respect to its issuing the July 2, 2013 award by alerting the arbitration panel that the August 20, 2012, award had left an issue unresolved and then meeting with the panel, during which Schwartz suggested "that the panel members visit the subject site so that they might have a better understanding of the issue.”

Also, as the Court of Appeals held in United Federation of Teachers, Local 2 v Board of Education of the City of New York, 1 NY3d 72, "a party that participates in the arbitration may not later seek to vacate the award by claiming it never agreed to arbitrate the dispute in the first place."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06814.htm

Florida resident convicted of stealing NYS pension checks sent to his deceased mother

Florida resident convicted of stealing NYS pension checks sent to his deceased mother

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced that Marc A. Eletz, 70, a resident of Boca Raton, Florida, pleaded guilty* Thursday to the crime of Grand Larceny in the Third Degree, a class D felony, in Albany County Court. The plea stems from charges that Mr. Eletz stole over $275,000 in New York state pension benefits that were issued to his deceased mother.

Eletz admitted to stealing pension benefits from the New York Stateand Local Employees Retirement System payable to his deceased mother, Fay Eletz. According to the Comptroller and the Attorney General, Eletz’s father, Milton Eletz, was a New Yorkstate pensioner who elected to receive reduced monthly benefits so his wife, Fay Eletz, would continue to receive benefits after his death in 1988. From 1992 until July 2014, these benefits were deposited into a joint account held by the Marc Eletz and his mother.

After his mother died in April 2001, Eletz continued to receive these benefits until July 31, 2014, totaling $276,721.24. Eletz accessed these funds from the joint account and liquidated all but $1,801.08 of the pension benefits over that time period.

Eletz pleaded guilty before Judge Peter Lynch in Albany County Court and paid $150,000 in restitution. Eletz is expected to be sentenced to one year in jail and will sign a confession of judgment in favor of New York Statefor an additional $124,987.

This case is the latest joint investigation under the Operation Integrity partnership between the Attorney General and Comptroller, which has resulted in dozens of convictions and more than $6 million in restitution. 

The joint investigation was conducted with the Comptroller’s Division of Investigations. The Attorney General’s investigation was conducted by Investigators Barbara Butler and Mitchell Paurowski and Deputy Chief Antoine Karam.  The Investigations Bureau is led by Chief Dominick Zarrella. 

This case is being prosecuted by Assistant Attorney General Philip V. Apruzzese of the Criminal Enforcement and Financial Crimes Bureau.  The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chiefs Stephanie Swenton and Meryl Lutsky.  The Division of Criminal Justice is led by Executive Deputy Attorney General Kelly Donovan.

Since taking office in 2007, Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse.  New Yorkers can report allegations of fraud involving 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 plea of guilty is deemed a conviction of the crime charged.