Former treasurer of a volunteer fire company indicted for wire fraud and subscribing to false tax returns

Former treasurer of a volunteer fire company indicted for wire fraud and subscribing to false tax returns

Source: Office of the State Comptroller

[N.B. The charges contained in an Indictment are merely accusations and the defendant is presumed innocent until proven guilty.]

Preet Bharara, the United States Attorney for the Southern District of New York, Thomas P. DiNapoli, New York State Comptroller, Shantelle P. Kitchen, the Special Agent in Charge of the New York Field Office of the Internal Revenue Service - Criminal Investigation (“IRS-CI”), Diego Rodriguez, the Assistant Director-in-Charge of the New York Field Division of the Federal Bureau of Investigation (“FBI”), and George Beach, Superintendent, New York State Police reported the arrest of Michael Klein, the former treasurer of the Mahopac Volunteer Fire Department (“MVFD”), on charges of wire fraud and subscribing to false tax returns.

Klein, Fire Department’s elected treasurer, is alleged to have stolen $5.7 million of the Fire Department’s monies over a period of more than 13 years.  

Details concerning the allegations involving Michael Klein are posted on the Internet at:

http://www.osc.state.ny.us/press/releases/june16/061516.htm

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  Individuals can report allegations of fraud involving public funds by calling the toll-free Fraud Hotline at 1-888-672-4555, by transmitting an e-mail to investigations@osc.state.ny.us, by filing a complaint online at http://osc.state.ny.us/investigations/complaintform2.htm or by mailing a complaint to Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Correction Officers’ Benevolent Assoc. v City of New York, USDC, Southern District of New York, 15-CV-5914

The New York City Department of Corrections established a “zero tolerance” drug policy providing for the termination of any employee, uniformed (i.e., correction officers), or civilian, who violated the policy. Its justification: the policy serves important functions by acting as a deterrent against drug traffic in its facilities and ensured that “the security of penal institutions is not breached.”

A federal judge dismissed the Correction Officers’ Benevolent Association’s [COBA] challenge to the New York City's requiring its correction officers to be searched when “drug-sniffing dogs” react positively to the individual. An officer could be suspended if he or she refused to submit to the search for contraband.

Judge Alison Nathan rejected COBA’s argument that searches aided by the drug-sniffing dogs violated its members' constitutional rights as well as New York State's Civil Service Law.

Judge Nathan ruled that COBA cannot claim its member's constitutional rights were being violated by their employer’s efforts to detect individuals attempting to transport drugs into the facility in violation of the law and the controlling Collective Bargaining Agreement. The court also rejected COBA claim that “drug-sniffing dogs” could produce “false positives.”

Other decision testing New York City’s Zero Tolerance Drug Policy include:

Roberts v New York City Office of Collective Bargaining, 113 AD3d 97, [Fire Department's determination of an appropriate penalty for illegal drug use relates to its primary mission of providing public safety];

New York City Fire Department v Armbruster, OATH Index #1350/12 [Firefighter who tested positive for cocaine in a random workplace drug test failed to demonstrate that he consumed the cocaine unknowingly];

Dept. of Corrections v Robbins, OATH 2030/99, [there are instances, particularly where a civilian employee is involved, when the “automatic penalty” under the department’s zero tolerance drug policy should not be applied].

The Doctrine of Election of Remedies bars an individual from attempting to litigate a matter involving the same issue earlier adjudicated in a different forum

The Doctrine of Election of Remedies bars an individual from attempting to litigate a matter involving the same issue earlier adjudicated in a different forum

Nizamuddeen v New York City Tr. Auth., 2016 NY Slip Op 04418, Appellate Division, Second Department
Appeal of Matthew Nadolecki, Decisions of the Commissioner of Education, Decision No. 16,894, 

The New York City Transit Authority, [MTA] hired Arif Nizamuddeen as a bus operator subject to a probationary period of employment. The Nizamuddeen had notified MTA that in 2006 he had been diagnosed with non-Hodgkin's lymphoma, which was in remission, when he was selected for employment.

After numerous extensions of Nizamuddeen’s period of probation, in March 2014 MTA terminated the Nizamuddeen’s employment “due to his unsatisfactory attendance record after multiple episodes of absences from work.”

Nizamuddeen filed a complaint with the New York State Division of Human Rights [SDHR] alleging that MTA terminated his employment because of his disability in violation of Executive Law Article 15, New York State’s Human Rights Law. SDHR dismissed Nizamuddeen’s discrimination claim on the merits.*

Nizamuddeen subsequently commenced a CPLR Article 78 proceeding against MTA in the Supreme Court, asserting allegations essentially identical to those set out in the complaint he had filed with SDHR. Supreme Court denied Nizamuddeen’spetition and dismissed the proceeding on the ground that Nizamuddeen was precluded from maintaining the proceeding by the election of remedies provision in Executive Law §297(9). 

Nizamuddeen appealed the Supreme Court’s determination.

The Appellate Division sustained the Supreme Court’s ruling, explaining that Executive Law §297(9) provides that an individual claiming to be aggrieved by unlawful discrimination on the part of the employer may sue in court "unless such person had filed a complaint [with the SDHR]." Thus the individual’s filing of a complaint with SDHR precludes the commencement of an action in the Supreme Court asserting the same discriminatory acts.* Nizamuddeen, said the Appellate Division, “is barred from maintaining this CPLR Article 78 proceeding by the election of remedies doctrine because the instant claims are based on the same allegedly discriminatory conduct asserted in [Nizamuddeen’s] complaint filed with [SDHR].”

The Appeal of Matthew Nadolecki, Decisions of the Commissioner of Education, Decision No. 16,894, provides another example of the application of the Doctrine of Election of Remedies.

The Commissioner said that “It is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Nadolecki brought a "Level 1" grievance in which he alleged that the district’s efforts to terminate him violated provisions set out in the controlling collective bargaining agreement and asserted that certain other contractual provisions regarding evaluations and observations were not adhered to. As relief, he sought an arbitration award directing the rescission of his termination. Both this and “the Level 2 grievance” were denied.

The Commissioner found that Nadolecki was attempting to raise the same issues in this appeal that he had raised in the contract grievance, rejecting his argument that because he only grieved school district’s “intention” to terminate his employment, he is entitled to commence an appeal on those same issues with respect to his "actual termination."  

The Commissioner explained that in his grievance Nadolecki’s claimed that the school district violated the provisions of the collective bargaining agreement and these was the same issues he presented in his appeal to the Commissioner. 

Accordingly, the Commissioner dismissed his appeal “for lack of jurisdiction,” noting that Nadolecki’sclaims “would be dismissed under the doctrine of election of remedies in any case.”  The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner. 

* In contrast to SDHR’s dismissing Nizamuddeen’s complaint on the merits, had SDHR  dismissed his complaint for “administrate convenience” or had Nizamuddeen, prior to the hearing before the SDHR hearing officer, successfully requested that SDHR dismiss his complaint and annul his “election of remedies” to submit to the jurisdiction of SDHR, he could have pursued his Human Rights Law claim in a judicial forum.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04418.htm

Consolidation of Investigator titles in State Department and Agencies

Consolidation of Investigator titles in State Department and Agencies

New York State Department of Civil Service  

General Information Bulletin No. 16-03, Investigator Titles Consolidation

Scott DeFruscio, New York State Department of Civil Service Director of Staffing Services has posted New York State Department of Civil Service General Information Bulletin No. 16-03 explaining the changes to investigator titles described in a memorandum from the Department’s Director of Classification and Compensation dated May 20, 2016, and which took effect on June 16, 2016.

Bulletin No. 16-03 describes the Investigator series replacing the numerous titles currently in use and provides information developed to guide departments and agencies addressing the hiring and career mobility of employees in these new title series.

The result of the changes in the Investigator series on existing titles could result in a title consolidation, a reallocation, or a title change. Therefore, the impact of this change on employee mobility and eligible list usage may differ depending on relevant circumstances.

The Classification and Compensation memorandum is posted on the Internet at:

http://www.cs.ny.gov/businesssuite/News-and-Advisories/Classification-and-Compensation-Memos/index.cfm

General Information Bulletin No. 16-03 is posted on the Internet at:

https://www.cs.ny.gov/ssd/pdf/GIB16-03.pdf

 

Reimbursment of Medicare premiums paid by retirees participating in their former employer’s health insurance plan

Supreme Court, Broome County, granted Theodora Q. Bryant’s CPLR Article 78 application to annul a determination of Chenango Forks Central School District to terminate reimbursement of certain Medicare premiums.* 

The Public Employment Relations Board directed the School District to rescind its June 2003 memorandum in which it notified employees and retirees that it was terminating its practice of reimbursing Medicare Part B premiums.

In a companion case PERB ruled that the school district must reinstate its former practice of reimbursing retirees for Medicare Part B premiums -- the same relief sought in the current proceeding.

The Appellate Division noted that PERB's order in the companion case has been upheld by the Court of Appeals [see 2013 NY Slip Op 04039 (2013)]. Accordingly, Bryant received the full relief challenged by School District in the current appeal as a result of that determination, . Accordingly, the court ruled that the instant appeal is now moot.

As to argument advanced under color of an exception to the mootness doctrine, the Appellate Division held that the claimed exception “does not apply in that, although the issue advanced herein may recur and is significant, it is not likely to evade review.”

* The underlying facts are set forth in the Appellate Division’s prior decision (21 AD3d 1134 [2005]) and in the companion case brought by the Chenango Forks Central School District (Matter of Chenango Forks Cent. School Dist. v New York State Pub. Empl. Relations Bd., 95 AD3d 1479 [2012], affd ___ NY3d ___, 2013 NY Slip Op 04039 [2013]). See, also, NYPPL’s summary of that decision posted on the Internet at http://publicpersonnellaw.blogspot.com/search?q=bryant

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04379.htm