Once the appointing authority of an employee in the classified service has received his or her resignation, the resignation may not be withdrawn or rescinded without the approval of the appointing authority

Once the appointing authority of an employee in the classified service has received his or her resignation, the resignation may not be withdrawn or rescinded without the approval of the appointing authority

Cowin v New York State Div. of Criminal Justice Servs., 2015 NY Slip Op 08683, Appellate Division, Third Department

While employed as a Criminal Justice Program Representative 1 by the Division of Criminal Justice Services (DCJS) Thomas C. Cowin was served with a notice of discipline alleging that he had violated certain sections of the DCJS Employee Handbook and Penal Law §220.03* as the result of his alleged receipt of a controlled substance from a coworker that was not prescribed to him. Cowin filed a grievance under the applicable collective bargaining agreement and, after declining an initial offer of settlement from DCJS, arbitration of the matter was placed in abeyance pending the outcome of further settlement discussions.

On July 11, 2013 Cowin received a provisional offer of employment from the Justice Centerfor the Protection of People with Special Needs (Center). Four days later Cowin hand-delivered his letter of resignation to Karen Davis, DCJS's Director of Human Resources Management, [Davis], in which Cowin stated that his last day of work would be July 30, 2013.

Then on July 18, 2013, the Center notified Cowin that its offer of employment with the Center had been rescinded. Cowin immediately sent an email to Davisseeking to withdraw his letter of resignation but by letter dated July 26, 2013, Cowin was told that his request to rescind or withdraw his letter of resignation was denied. This decision was subsequently confirmed by Michael Green, the Acting Commissioner of DCJS, who again advised Cowin that DCJS did not consent to the withdrawal of his resignation.**

Cowin initiated a CPLR Article 78 proceeding alleging, among other things, that DCJS's refusal to permit him to withdraw his resignation was arbitrary and capricious, an abuse of discretion and affected by error of law. Supreme Court partially granted Cowin’s petition, annulling DCJS's determination and ordered that Cowin be reinstated to his former position with back pay and benefits. DCJS appealed.

The Appellate Division said that “Contrary to the conclusion reached by Supreme Court, [Cowin] was not entitled to unilaterally withdraw his resignation without [the] consent” of DCJS. The court cited 4 NYCRR 5.3(c), which, in pertinent part, provides that a resignation delivered to the appointing authority by an employee in the Classified Service "may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority."

The court explained that Green, as the Acting Commissioner of DCJS charged with the administration of the agency, was the "appointing authority" and had the statutory authority to delegate any of his powers to appointed "deputies, directors, assistants and other officers and employees, committees and consultants as he may deem necessary." As Green had delegated his power to receive employee resignations to the Director of Human Resources Management, Davis, the delivery of Cowin’s letter of resignation to Davisconstituted delivery to Green. Thus Cowin could not withdraw his resignation with the consent of the appointing authority or his or her designee.

The Appellate Division said that it found that DCJS’ consent was not improperly withheld, explaining that permitting an individual to withdraw his or her delivered letter of resignation was a matter committed to the sound discretion of the appointing authority and “such a determination will be disturbed only if it constituted an abuse of discretion or was arbitrary and capricious.”

The court found that Green's decision to refuse Cowin’s request to withdraw his resignation was based upon his consideration of several relevant facts and circumstances, including Cowin's unequivocal admission to accepting a controlled substance from a coworker and ingesting it at work in violation of both DCJS's drug-free work policy and the Penal Law. As such conduct could have a potentially detrimental effect on DCJS's reputation, and Cowin's ability to perform his job duties, the court viewed the appointing authority’s denial of Cowin's request to rescind his resignation as neither arbitrary and capricious nor an abuse of discretion.

The Appellate Division then dismissed Cowin’s petition “in its entirety.”

* §220.03 - Criminal possession of a controlled substance in the seventh degree.

** In contrast, an individual's notice that he or she has decided to withdraw, cancel or rescind the resignation may be received by the appropriate official or body before the resignation is actually "delivered" to such person or body. In such situations the courts usually rule that the receipt of a withdrawal of a resignation before the resignation itself is delivered effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08683.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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Reimbursement of improperly withheld GML §207-c benefits

Reimbursement of improperly withheld GML §207-c benefits

Baker v Clinton County, 2015 NY Slip Op 08898, Appellate Division, Third Department

Craig Baker, a correction officer with the Clinton County Sheriff's office allegedly injured at work on August 8, 2013, was placed on leave, filed a workers' compensation claim and began receiving benefits pursuant to General Municipal Law §207-c. On November 5, 2013, Baker's doctor cleared him to return to work in a light-duty capacity.

The Sheriff, however, did not allow Baker to return to work and on November 25, 2015 served him with disciplinary charges pursuant to Civil Service Law §75. The charges and specifications included allegations that Baker “had falsely reported his injuries.” Baker was suspended without pay as authorized by CSL §75 and a disciplinary hearing was held in January 2014.  Restored to the payroll on January 28, 2014, Baker was subsequently again removed from the payroll on February 12, 2014.

In March 2014, Baker filed a combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment challenging the Sheriff's determination to terminate his General Municipal Law §207-c benefits during the pendency of the disciplinary hearing.* In its answer Clinton County argued that, among other things, Baker had forfeited his claim to recover §207-c benefits under the doctrine of "unclean hands."

Supreme Court granted Baker’s petition and directed Clinton County to pay Baker the §207-c benefits it had withheld from him. The County appealed.

The Appellate Division said that General Municipal Law §207-c provides that when a correction officer suffers a disabling injury in the line of duty, that officer is entitled to continue to receive his or her full salary during the pendency of the disability. The receipt of such benefits, said the court, "constitutes a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated."

The court explained that although a municipality may discipline an officer even if that officer is receiving General Municipal Law §207-c benefits, the statutory benefit may not be withheld without a pretermination evidentiary hearing. Further, where, as is here the case, there was no negotiated §207-c administrative procedure in place, the municipality may, but is not obligated to, use the procedures set forth in Civil Service Law §75 as a means to discontinuing the statutory benefit. Thus, said the Appellate Division, “The pertinent question is whether the officer is afforded the requisite due process.”

There was no dispute that Baker’s §207-c benefits had been suspended prior to the conclusion of the disciplinary hearing. Accordingly the Appellate Division ruled that Supreme Court had properly granted Baker’s petition and directed the Sheriff to restore the unlawfully withheld benefits to Baker.

The Appellate Division disagreed with the Sheriff’s argument that Supreme Court had "misappl[ied]" the unclean hands doctrine and should have dismissed Baker’s petition “based on his misconduct.” Citing National Distillers & Chem. Corp. v Seyopp Corp., 17 NY2d 12, the court explained that the unclean hands doctrine applies where "the [petitioner] is guilty of immoral, unconscionable conduct and even then only when the conduct relied on is directly related to the subject matter in litigation."

In this action, said the court, the subject matter of the proceeding was whether the County  provided Baker the process to which he was entitled prior to terminating his statutory benefits, not whether he was entitled to §207-c benefits. It noted that Baker had only contended that he was entitled to §207-c benefits during the pendency of the disciplinary hearing. Where, as here, there is a finding that an individual is terminated for misconduct, there is no legal authority to recoup the payments made to the individual prior to such a finding of misconduct.

The Appellate Division said that it did not believe that Baker was perpetuating any fraud or committing a wrongdoing by asserting his right to notice and an opportunity to be heard prior to the termination of his §207-c and that it agreed with Supreme Court that the unclean hands doctrine did not apply in this instance.

Turning to the Sheriff’s removing Baker the payroll when he was served with the §75 notice of disciplinary charges on November 25, 2013, restoring him to the payroll on January 28, 2014, then removed him again on February 12, 2014, the court noted that Baker had asked that the disciplinary hearing, initially scheduled for December 6, 2013 within the notice of disciplinary charges, be adjourn. Baker, in turn, agreed that he would be suspended without pay for up to 30 days as authorized by CSL §75[3] and further, until the hearing resumed in January 2014.

In response to the Sheriff’s contention that Supreme Court awarded excessive damages the Appellate Division said that “§207-c benefits are not wages”**and Baker did not concede or otherwise relinquish his benefit rights pursuant to §207-c. According, said the court, “we discern no error in Supreme Court's determination that reimbursement of the improperly withheld benefits was just and proper relief.”

* On April 24, 2014, the Hearing Officer issued his determination recommending that Baker be terminated based on his finding that petitioner had engaged in the misconduct as alleged and on May 2, 2014, the appointing authority terminated Baker from his employment as a correction officer.

** §207-c [“Payment of salary, wages, medical and hospital expenses”] provides that any eligible individual injured in the performance of his or her duties or who is taken sick as a result of the performance of his or her duties so as to necessitate medical or other lawful remedial treatment “shall be paid by the municipality by which he [or she] is employed the full amount of his [or her] regular salary or wages until his [or her] disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08898.htm

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Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions addressing disability and similar leaves absence. For more information click on http://booklocker.com/3916.html

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Selected Reports issued by the Office of the State Comptroller during the week ending December 4, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending December 4, 2015

Click on text highlighted in color to access the full report

Connect with Comptroller DiNapoli on Facebook
Visit and like  the Comptroller’s Facebook page for updates, photos, event listings and more from this office. The Comptroller always encourage engagement and feedback, so feel free to comment, like, and share hsi page with your family and friends.

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State Comptroller DiNapoli positions New York Employee Retirement System investments for a “low carbon future”

New York State Comptroller Thomas P. DiNapoli announced an investment strategy that will raise the New York Common Retirement Fund’s (Fund) commitment to sustainable investments to $5 billion. The cornerstone of DiNapoli’s plan is the creation of a $2 billion index that will exclude or reduce investments in companies that are large contributors to carbon emissions like the coal mining industry, and increase the Fund’s investments in companies that are lower emitters. DiNapoli announced the new low emission index in Paris, where he is participating in an investors’ panel as part of the United Nations Climate Change Conference.

http://www.osc.state.ny.us/press/releases/dec15/120415.htm?utm_source=weeklynews20151206&utm_medium=email&utm_campaign=120415release

State Comptroller notes that limited regulation of adult day care programs poses potential risks to vulnerable adults
Many social adult day services programs (SADS) in New York operate without regulations or licenses, leaving disabled adults or seniors at potential risk, according to an Audit released by State Comptroller Thomas P. DiNapoli. The audit is the first in a series looking at issues affecting the elderly in New York.  

http://www.osc.state.ny.us/press/releases/dec15/120215.htm?utm_source=weeklynews20151206&utm_medium=email&utm_campaign=120215release

The dismissal of a probationary employee will not survive judicial review if the court finds that it was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law

The dismissal of a probationary employee will not survive judicial review if the court finds that it was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law

Rieser v New York City Dept. of Educ., 2015 NY Slip Op 08119, Appellate Division, First Department

Michael Rieser, a probationary teacher employed by the New York City Department of Education [DOE], received an unsatisfactory performance rating and ultimately DOE terminated him from his position. Rieser than filed a CPLR Article 78 petition seeking a court order annulling DOE’s decision to discontinue his employment by DOE and to expunge the unsatisfactory rating of Rieser’s performance as a probationary teacher. Supreme Court granted Rieser’s petition and DOE appealed.

The Appellate Division unanimously reversed the Supreme Court’s ruling on the law and the facts and dismissed Rieser’s Article 78 petition.

The court explained that Rieser failed to show that DOE's determination to discontinue his probationary employment was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law.

As to the unsatisfactory performance rating given Rieser, the Appellate Division said that he failed to show that the unsatisfactory rating was arbitrary and capricious.

The court noted that Rieser’s performance rating was “rationally supported by, among other things, witness statements and the principal's letter describing his investigation and finding that [Rieser] had used corporal punishment on a special education student” and there was no indication that the principal or DOE made their decisions in bad faith.

Another issue raised by Rieser concerned the composition of the Chancellor's Committee that reviewed his performance rating. However the court said that Rieser did not raise this issue at his administrative hearing and thus it was not preserved for the purposes of appeal. In any event, said the Appellate Division, “a substantial [due process] right of Rieser was not violated, since the Committee ruled unanimously in his favor.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08119.htm

State Comptroller has launched a new Academy For Local Government Officials

State Comptroller has launched a new Academy For Local Government Officials

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli has launched a new Academy for New York State Local Officials that will provide an enhanced training program to help local administrators and employees become more effective in the day-to-day operations of their government.

The Academy, operated by the Comptroller’s Division of Local Government and School Accountability, increases the number of classroom training sessions and web-based seminars offered on a wide range of topics, including governmental accounting, fiscal responsibilities, board oversight, cybersecurity and policy development.

The Academy provides in-person and online training opportunities, including accounting schools, regional seminars and monthly webinars. There are also interactive training segments aimed at newly elected local officials, such as supervisors, clerks, board members, highway superintendents, attorneys and other fiscal personnel. These sessions will help individuals learn more about open meetings laws, conflicts of interest, financial reporting and requirements of the Freedom of Information Law.

The Comptroller’s office also regularly produces technical advisory bulletins and publications that address a variety of topics that are vital to understanding and managing local governments’ interests.

In 2014, more than 10,000 local officials received training through the Comptroller’s efforts.

To find out more about the Academy for New York State Local Officials, call 1-866-321-8503 or visit: http://www.osc.state.ny.us/localgov/academy/index.htmThe website has a full course catalogue and course calendar, and allows local government officials to choose their courses based on their position or topics of interest.