If §75 charges of misconduct "would, if proved in a court of law constitute a crime,” the 18-month statute of limitations for bringing such charges does not apply

If §75 charges of misconduct "would, if proved in a court of law constitute a crime,” the 18-month statute of limitations for bringing such charges does not apply
Hanlon v New York State Police, 2015 NY Slip Op 08315, Appellate Division, Fourth Department

Christian Hanlon was served with disciplinary charges pursuant to Civil Service Law §75. Found guilty following an administrative disciplinary hearing held pursuant to Civil Service Law §75, the appointing authority imposed the penalty of dismissal of Hanlon’s  employment as a State Trooper.

Hanlon then commenced a CPLR Article 78 proceeding seeking a court order annulling  the determination finding him guilty of the disciplinary charges and terminating his employment, contending that “certain charges were time-barred pursuant to Civil Service Law §75(4).”

The Appellate Division disagreed, explaining that while a §75 disciplinary action must be commenced within 18 months of the occurrence of the "alleged incompetency or misconduct complained of," if the misconduct charged "would, if proved in a court of appropriate jurisdiction, constitute a crime," the 18-month limitation does not apply.*

Here, said the court, the charges alleged conduct that would, if proved in a court of law, constitute the crime of official misconduct and thus they are not time-barred.**

The court also found that appointing authority’s determination was supported by substantial evidence and the penalty imposed by the appointing authority, dismissal, was not shocking to one's sense of fairness.

* In the case of a state employee who is designated managerial or confidential pursuant to Article 14 of Civil Service Law charges of incompetency or misconduct must be brought within one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, unless the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.

** §195.00 of the Penal Law provides that "a public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit: [1] He [or she] commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions, knowing that such act is unauthorized; or [2] He [or she] knowingly refrains from performing a duty which is imposed upon him [or her] by law or is clearly inherent in the nature of [his or her] office. Official misconduct is a class A misdemeanor."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08315.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Taxpayers born before July 1, 1945 may be required to take distributions from their IRA and similar plans no later than December 31, 2015 to avoid penalties

Taxpayers born before July 1, 1945may be required to take distributions from their IRA and similar plans no later than December 31, 2015 to avoid penalties

The Internal Revenue Service has posted a reminder indicating that taxpayers born before July 1, 1945 generally must receive payments from their IRA and similar deferred compensation plans at least equal to their “required minimum distribution" (RMD) from IRAs and workplace retirement plans by Dec. 31, 2015. Failure to do so may have tax consequences.

Employees of public schools and certain tax-exempt organizations participating in a §403(b) plan, for example employees of the State University of New York, the community colleges and the Board of Higher Education of the City of New York participating in a “Special Annuity Plan” pursuant to Article 8-C of the Education Law, having accruals before 1987 should check with their employer, plan administrator or provider to see how to treat these accruals.

The IRS advisory is posted on the Internet at:

https://www.irs.gov/uac/Newsroom/Tax-Preparedness-Series:-Most-Retirees-Need-to-Take-Required-Retirement-Plan-Distributions-by-Dec.-31

Appeal to the Commissioner of Education dismissed for a number of procedural omissions

Appeal to the Commissioner of Education dismissed for a number of procedural omissions
Appeal of Michael Nelson, regarding a district policy and application for the removal of the Board of Education of the Cherry Valley - Springfield Central School District, Decisions of the Commissioner of Education, Decision No. 16,845

In this appeal to the Commissioner of Education Michael Nelson alleged that Cherry Valley - Springfield Central School District [1] permitted the district’s superintendent to use a district vehicle for personal use in violation of district policy; [2] failed to hold the superintendent accountable for his alleged violation of district policy; and [3] failed to properly investigate the matter. 

Nelson also asked the Commissioner to order the school district “to reimburse taxpayers for the reasonable expense resulting from the superintendent’s alleged improper use of a district vehicle;” investigate the alleged unauthorized use of district property; and order “the removal of members of the board.”

The Commissioner did not address the merit of Nelson’s appeal, ruling that the appeal “must be dismissed and the application denied” for a number of procedural reasons, including the following:

1. Nelson sought to bring this proceeding on behalf of other taxpayers but an appeal may only be maintained on behalf of a class only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class and the petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class. The Commissioner found that Nelson’s “pleadings are entirely devoid of any allegations addressing these criteria” and denied class status.

2. An appeal to the Commissioner must be dismissed and the application denied for failure to join necessary parties, i.e. a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.” In this instance, said the Commissioner, Nelson did not serve the individual board members he sought to have removed from office nor did he serve the superintendent, thus he failed to join necessary parties. The record indicates that Nelson served only the district, by personally serving its clerk.  There is no indication that any individual board members or the superintendent were served with a copy of the notice of petition and petition.  

3. The Commissioner said Nelson’s appeal must also be dismissed with respect to his demand that the Commissioner investigate the alleged unauthorized use of district property as appeal to the Commissioner is appellate in nature and does not provide for investigations.

4. As to Nelson’s seeking an award of monetary damages, costs or reimbursement of expenses in prosecuting his appeal, the Commissioner said that she “has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume55/d16845

Selected Reports issued by the Office of the State Comptroller during the week ending November 20, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending November 20, 2015

Click on text highlighted in color to access the full report

Son left father’s body in morgue in order to collect his retirement benefits
Christopher Bunn of Queens sentenced for concealing his father’s death to collect his pension and Social Security payments.

http://www.osc.state.ny.us/press/releases/nov15/111715a.htm?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111715arelease

Former town clerk alleged to have stolen public funds
The former town clerk of the town of Alexandria was arrested for grand larceny related to the missing $36,742 in public funds and allegedly pocketing cash paid by residents for fines, fees and surcharges.

http://www.osc.state.ny.us/press/releases/nov15/111615a.htm?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111615arelease

 


State and municipal audits

Albany Port District Commission: Financial Management Practices

Auditors found the commission’s capital planning and delinquent accounts receivable collection practices to be generally in compliance with commission procedures and laws and regulations, but also noted some minor improvements that can be made in each area.

http://osc.state.ny.us/audits/allaudits/093016/15s55.pdf

NYC Department of Education: Compliance with State Art Education requirements

An initial audit report issued in February 2014, examined whether DoE students completed an arts education curriculum that complied with State Education Department (SED) regulations. Auditors found that 46 to 64 percent of the students sampled did not meet one or more of the SED requirements. In a follow-up report, auditors determined the DoE has made significant progress in addressing the issues identified in the initial report.

http://osc.state.ny.us/audits/allaudits/093016/15f11.pdf

State Education Department – Finger Lakes United Cerebral Palsy: Compliance with the Reimbursable Cost Manual

For the fiscal year ended June 30, 2013, auditors identified $15,454 in costs charged to the state that did not comply with SED’s requirements for reimbursement. These costs included $13,570 in other than personal service costs and $1,884 in personal service costs that were either ineligible expenses, not reasonable or necessary, not properly documented, or incorrectly reported.

http://osc.state.ny.us/audits/allaudits/093016/15s10.pdf

State Education Department – Unity House of Troy: Compliance with the Reimbursable Cost Manual

For the calendar year ended Dec. 31, 2012, Unity claimed $404,952 in ineligible costs for its rate-based preschool special education programs. The ineligible costs included $322,258 in personal service costs, including $312,543 in salary and fringe benefits and $9,715 in severance pay. Unity also incorrectly charged $82,694 in other than personal service costs, which included $46,878 in costs that were incorrectly calculated, $13,653 in costs that were not related to state programs, $11,143 in gifts, $5,132 in food, $3,698 in fundraising, and $2,190 in other non-reimbursable costs.

http://osc.state.ny.us/audits/allaudits/093016/14s60.pdf

State Education Department – Upstate Cerebral Palsy: Compliance with theReimbursable Cost Manual

For the calendar year ended Dec. 31, 2012, UCP claimed $97,781 in non-allowable costs for the year covered by our audit. These costs included $83,905 in personal service costs consisting of ineligible bonuses, executive compensation above the regional median allowable salary, and non-program-related costs.  Auditors also found $13,876 in non-personal service costs that were either non-program related, not allowable, or unsupported by proper documentation.

http://osc.state.ny.us/audits/allaudits/093016/14s71.pdf

Town of Ellicott – Justice Court

http://www.osc.state.ny.us/localgov/audits/towns/2015/ellicottjc.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915arelease

Geneva Housing Authority – Cash receipts

http://www.osc.state.ny.us/localgov/audits/publicauth/2015/genevahousing.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915arelease

Town of Hadley- Claims auditing

http://www.osc.state.ny.us/localgov/audits/towns/2015/hadley.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915arelease

High Falls Water District – Water fees

http://www.osc.state.ny.us/localgov/audits/specialdists/2015/highfallswater.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915arelease

Town of Leicester – Budgeting and fiscal oversight

http://www.osc.state.ny.us/localgov/audits/towns/2015/leicester.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915arelease

City of Newburgh – Budgeting

http://www.osc.state.ny.us/localgov/audits/cities/2015/newburgh_br.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915arelease

Niagara County Court and Trust – Financial controls

http://www.osc.state.ny.us/localgov/audits/candt/2015/niagaraco.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915arelease

Village of Scottsville – Budget practices and fiscal controls

http://www.osc.state.ny.us/localgov/audits/villages/2015/scottsville.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915arelease

Town of Ulster – Fire protection services

http://www.osc.state.ny.us/localgov/audits/towns/2015/ulster.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915arelease

School audits

Bainbridge-Guilford Central School District – School lunch operations

http://www.osc.state.ny.us/localgov/audits/schools/2015/bainbridgeguilford.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915release

Greenburgh Eleven Union Free School District – Financial condition

http://www.osc.state.ny.us/localgov/audits/schools/2015/bainbridgeguilford.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915release

Niagara Falls City School District – Fuel accountability

http://www.osc.state.ny.us/localgov/audits/schools/2015/niagarafallscity.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915release

Rocky Point Union Free School District– Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2015/niagarafallscity.pdf?utm_source=weeklynews20151122&utm_medium=email&utm_campaign=111915release

Court finds procedures followed that resulted in an employee’s unsatisfactory performance rating “undermined the integrity and fairness of the process”

Court finds procedures followed that resulted in an employee’s unsatisfactory performance rating “undermined the integrity and fairness of the process”

St. Vil v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2015 NY Slip Op 08085, Appellate Division, First Department

In this action Jean St. Vil, a school teacher employed by the New York City Department of Education, challenged the unsatisfactory rating [U-rating] he was given for the school year. Supreme Court sustained St. Vil’s U-rating and he appealed.

The Appellate Division unanimously reversed the Supreme Court’s ruling on the law and vacated St. Vil’s U-rating for the school year, explaining that his rating was “not merely technical but undermined the integrity and fairness of the process.”

The court said that record demonstrates the deficiencies in the performance review process resulting in St. Vil’s unsatisfactory rating, which was based primarily on the principal's alleged personal observations as a rating officer. However, St. Vil never received any post-observation reports by the rating officer until the U-rating appeal hearing and the principal did not claim to have spoken with St. Vil following the alleged observations nor were comments critical of St. Vil's performance placed in his file.

Further, said the Appellate Division, there is no evidence that St. Vil was notified before the end of the school year that his work was considered unsatisfactory and the “mere fact that he had the assistance of a guidance counselor and literary coach at some time during the school year did not constitute warning that he was at risk of an unsatisfactory rating since [St. Vil] was never told that he was not improving in the areas of concern despite this assistance.”

The Appellate Division then remanded the matter to the Department of Education for further proceedings.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08085.htm