Selected reports issued by the Office of the State Comptroller during the week ending May 7, 2016

Selected reports issued by the Office of the State Comptroller during the week ending May 7, 2016

Click on text highlighted in color to access the entire report

State Budget increases education aid and enacts paid family leave
The recently enacted fiscal year 2016-17 state budget includes a $1.4 billion increase in school aid, as well as increases to the minimum wage and phased-in personal income tax cuts for most taxpayers, but adds to state debt and shifts significant spending off-budget and to authorities, according to a reportreleased by State Comptroller Thomas P. DiNapoli. The report also notes the budget sacrificed public transparency both in process and content.

Remaining defendants in a multi-million dollar bid-rigging of Monroe County public contracts sentenced
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of the remaining three defendants in an elaborate bid-rigging conspiracy that illegally steered multi-million dollar public works contracts for Monroe County to favored and connected companies, resulting in the restraint of competition. The defendants profited from this scheme and defrauded the taxpayers of Monroe County. The report is posted on the Internet at:
http://osc.state.ny.us/press/releases/may16/050616a.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20160508&utm_campaign=fiscal+oversight

State audits released:

City University of New York - Controls Over Bank Accounts - Lehman College

Empire State Development Corp. - Minority and Women-Owned Business Enterprises Program; and

Ogdensburg Bridge and Port Authority - Capital Planning and Maintenance

State law governing voter registration does not require a “wet signature” and asignature can be affixed electronically if the application form is completed “on-line”

State law governing voter registration does not require a “wet signature” and asignature can be affixed electronically if the application form is completed “on-line”

Informal Opinions of the Attorney General, Informal Opinion 2016-1

Dennis M. Brown, Suffolk County’s County Attorney, explaining that Suffolk County was considering a voter registration system that would allow an individual to register to vote by completing an application online, wrote to the Attorney General to inquire if state law governing voter registration requires that the signature of a registrant be hand written, i.e., written with ink, or a “wet signature.”

Kathryn Sheingold, Assistant Solicitor General in Charge of Opinions, responding to Mr. Brown, opined that “state law governing voter registration does not require a wet signature,” indicating that a signature can be affixed electronically as the “election law does not specifically require a signature written with ink on a voter registration application.” However, cautioned Ms. Sheingold, “the technology … must capture a handwritten signature that can be incorporated into the registration records and compared with the signature that the applicant will write at the polling location at the time of voting.”*

Another element to consider relating to a registration application completed online is that the application, once so completed, would have to either (a) be printed and mailed to the local board of elections by the applicant or a third party assisting the applicant or (b) be completed by appearing at the local board of elections. Otherwise, said Ms. Sheingold, “the County would be creating a new system of registration rather than using the existing system outlined by the Legislature.”

Ms. Sheingold’s response to the Suffolk County Attorney is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2016-1_pw_0.pdf

Although the Attorney General issues Formal Opinions only to officers and departments of State government, Informal Opinions are prepared  by the Attorney General’s Office of the Solicitor General in Charge of Opinions in response to inquiries from officers of a political subdivision of the State.

* Presumably the signature written on the envelope enclosing an absentee ballot submitted by the voter would be compared with electronic signature incorporated into the voter registration records.

Supreme Court’s imposing a “lesser disciplinary penalty” upon remand found to have usurped the authority of the arbitrator under the circumstances

Supreme Court’s imposing a “lesser disciplinary penalty” upon remand found to have usurped the authority of the arbitrator under the circumstances

Fernandez v New York City Tr. Auth., 2016 NY Slip Op 03435, Appellate Division, First Department

In an earlier appeal involving the same parties, the Appellate Division vacated the arbitration award that sustained the New York City Transit Authority's (NYCTA) decision to terminate Carlos Fernandez’s employment.* The Appellate Division then remanded the matter to the Arbitrator for imposition of a lesser penalty.

On remand, however, Supreme Court granted Fernandez’s petition to the extent of restoring him, “upon his successful completion of a medical examination, to his position as a bus operator, with full benefits and accrued vacation running from the date of his reinstatement.”

NYCTA appealed and the Appellate Division “unanimously reversed” the Supreme Court’s action on the law and the facts. The Appellate Division ruled that Supreme Court’s imposing “a lesser penalty” usurped the Arbitrator's authority and the lower court should have remitting the matter to the Arbitrator for a rehearing and new determination as to the appropriate lesser penalty.

The Appellate Division explained that the matter should have been remitted to the original Arbitrator as “there has been no showing that the original Arbitrator is biased or otherwise incapable of carrying out his duties.”

* NYPPL’s summary of the earlier Appellate Division ruling is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2014/08/transcribing-hearing-in-disciplinary.html[In pertinent part, it reports that the penalty imposed by the arbitrator on the employee, termination, was vacated by the Appellate Division and the matter remanded to the arbitrator “for the imposition of a lesser penalty.” In that action the Appellate Division said that the termination of the employee, a NYCTA bus driver for 15 years, with an unblemished record of employment and who had consistently received positive performance evaluations, and had never been disciplined as the sanction “for a single, alleged transgression is grossly excessive and shocks our sense of fairness,” citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and  Mamaroneck, Westchester County, 34 NY2d 222.]

The 2016 decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03435.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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The U.S. Internal Revenue Service has scheduled a webcast concerning Accumulated Sick and Vacation Pay Deferred to 403(b) or 457(b) Plans

The U.S. Internal Revenue Service has scheduled a webcast concerning accumulated sick and vacation pay deferred to 403(b) or 457(b) Plans

Revenue Agents from the Office of Federal, State and Local Governments Lori Stieber and Patricia A. Regetz will present a webcast addressing the treatment of accumulated sick and vacation pay deferred to 403(b) or 457(b) Plans for tax purposes on June 2, 2016 at 2 p.m. Eastern Time; 1 p.m. Central Time; 12 p.m. Mountain Time, and 11 a.m. Pacific Time.

Register for this webcase at: https://www.webcaster4.com/Webcast/Page/925/15027. 

Those registered will use the same link to attend the event.

Among the topics to be covered:

1. When is accumulated sick and vacation leave pay subject to Federal Employment Taxes

2. When can taxes be deferred and for how long?

3. What is an elective contribution?

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO v New York State Unified Ct. Sys., 2016 NY Slip Op 03326, Appellate Division, Fourth Department

A hearing officer, after an administrative hearing conducted pursuant to provisions set out in a  collective bargaining agreement, found Robert Stanek guilty of certain disciplinary charges of misconduct. As a result Stanek was suspended for five days without pay. In addition, the appointing authority placed Stanek on probation for a period of six months and issued a letter of reprimand.

Stanek appealed the appointing authority’s decision but Supreme Court transferred the matter to the Appellate Division “pursuant to CPLR §7804(g)” on the ground that the petition raises a substantial evidence issue.

The Appellate Division said that the Supreme Court’s action was incorrect as the appointing authority’s determination “was not made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law.” Rather, said the court, “the determination was the result of a hearing conducted pursuant to the terms of the collective bargaining agreement."*

Notwithstanding this procedural issue, the Appellate Division retained the matter and consider Stanek’s petition “in the interest of judicial economy.”

The court then explained that although Stanek’s petition raised a substantial evidence issue, its review of this administrative determination pursuant to CPLR §7803(3) is limited to whether the determination was "affected by an error of law or was arbitrary and capricious or an abuse of discretion." If a court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the appointing authority.

Further, the Appellate Division said that “an administrative determination regarding discipline will be afforded heightened deference where a law enforcement agency such as [the court security arm of the Unified Court System] is concerned."**

Noting that Stanek did not contend that the determination is affected by an error of law, the Appellate Division concluded that, viewing the administrative record as a whole, the  determination of the appointing authority was not arbitrary and capricious, or an abuse of discretion. Further, opined the court, “There is evidence in the record that supports the determination, and that evidence was credited by the Hearing Officer and adopted by [appointing authority] in its determination.”

The court also rejected Stenak’s contention that the penalties imposed constitute an abuse of discretion, commenting that “It is well settled that ‘a penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law,” citing Pell v Board of Educ. of Union Free Sch. Dist. No. 1, 34 NY2d 222. The court then concluded that the penalties imposed on Stanek, a court security officer, did not shock its sense of fairness considering the higher standard of fitness and character that pertains to law enforcement personnel, coupled with Stanek 's refusal to accept any responsibility for his conduct.

* A collective bargaining agreement may authorize the imposition of multiple disciplinary penalties. In contrast, in disciplinary actions taken pursuant to §75 of the Civil Service Law the courts have held that "the imposition of multiple penalties was improper" as Civil Service Law §75.3 provides for a choice of penalties, thus prohibiting the imposition of more than one of the discrete penalties set out in the statute [see Matteson v City of Oswego, 186 A.D.2d 1017]. However, imposing multiple penalties is possible where there are multiple offenses involved [See Wilson v Sartori, 70 AD2d 959].

** Stanek served as a court security officer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03326.htm

 _____________________

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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