ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

November 02, 2016

A discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer


A discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer
Bevilacqua v DiNapoli, 2016 NY Slip Op 07077, Appellate Division, Third Department

Police Captain Larry A. Bevilacqua applied for accidental disability retirement benefits alleging that he was permanently incapacitated from performing his job duties as the result of an incident that occurred in the course of his investigating an armed robbery.

Captain Bevilacqua testified that he fallen because certain steps had been painted with glossy paint and the top step was sloped in a downward angle. He also testified that, after he fell, he observed that his boots were damp from crossing “the neighbors' lawns.”

However, both the police department's incident report and two other reports signed by Captain Bevilacqua that were created on the day of the incident attribute the fall to his wet boots slipping on the painted porch, with no mention of the sloped step.

The Appellate Division explained that such a discrepancy between the contemporaneous incident reports and disabled individual's testimony at the subsequent hearing presented a credibility issue for the Hearing Officer* and State Comptroller to resolve.

The Hearing Officer denied Captain Bevilacqua’s application, concluding [1] that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law and [2] that the earlier written descriptions of the accident were more credible than Captain Bevilacqua’s testimony attributing his fall to the sloped step. The State Comptroller sustained the Hearing Officer’s determination** and Captain Bevilacqua appealed the Comptroller’s decision.

The Appellate Division sustained the Comptroller’s determination, explaining that “[e]ven accepting [Captain Bevilacqua’s] testimony, the Hearing Officer concluded that [Captain Bevilacqua], who grew up in the area and described the porch as ‘one of those big old North Buffalo porches,’ should have reasonably anticipated that the ‘steps might have not been level.’"

As, in the Appellate Division’s view, substantial evidence supported the Comptroller’s determination that the conditions that caused Captain Bevilacqua 's fall and “the painted surface of the steps, his wet boots and even the sloped step — were readily observable  and that the fall resulted from Captain Bevilacqua 's own misstep or inattention.” The court explained that an application for accidental disability retirement bears the burden of demonstrating his or her entitlement to such benefits and the Comptroller’s determination will be upheld if supported by substantial evidence.

Further, said the court, "an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties."

* A hearing officer’s determinations regarding the credibility of witnesses "are largely unreviewable" by a court [see Board of Educ. of the City School Dist. of the City of New York v Ostrin, 120 AD3d 1105].

** Although Captain Bevilacqua’s application for accidental disability retirement was denied, he was awarded performance of duty disability retirement benefits.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_07077.htm

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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November 01, 2016

A public officer threatening to do something that he or she may lawfully due does not constitute coercion


Public officer threatening to do something that he or she may lawfully do does not constitute coercion
City of Dodge City v Webb, Kansas Supreme Court, #109634

The Kansas Supreme Court sustained the conviction of Orie J. Webb of driving under the influence of alcohol. Webb argued that that he had been unconstitutionally coerced into submitting to a breath test for alcohol because police officers threatened to obtain a warrant to have him submit to a "blood test."  The court said that as Kansas law permits law enforcement officers to to obtain a warrant for a blood draw after a breath test refusal, and therefore, the threat to do so was not coercive.

Sometimes an employee may be threatened with disciplinary action if he or she does not immediately resign from the position. Does such a demand constitute coercion?

In Rychlick v Coughlin, 63 NY2d 643, a case challenging an appointing authority's demand that an employee resign from the position or be served with  disciplinary charges, the Court of Appeals ruled that threatening to do what the appointing authority had a right to do -- file disciplinary charges against the employee -- did not constitute coercion so as to make the resignation involuntary.

New York’s Court of Appeals has also addressed the question of using an employee’s statement made under the threat of dismissal from his or her employment in a criminal action taken against the individual. 

In People v Corrigan, 80 NY2d 326, the court ruled that under both state and federal law any statement made under the threat of dismissal from one's position is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.”

Further, in Kastigar v United States, 406 U.S.441, the Supreme Court held that in the event an employee believes information obtained under threat of disciplinary action is going to be used against him or her in a pending criminal proceeding, he or she may request what is now referred to as a “Kastigar hearing” to determine whether the prosecution made any use of either a compelled, immunized statement or any evidence derived directly or indirectly from such a statement in the criminal action.

The decisions is posted on the Internet at:
http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/2014/20140613/109634.pdf


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The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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Civil rights statutes trump collective bargaining agreement’s arbitration clause unless the wording of the clause regarding arbitrating civil rights complaints is “clear and unmistakable”



Civil rights statutes trump collective bargaining agreement’s arbitration clause unless the wording of the clause regarding arbitrating civil rights complaints is “clear and unmistakable”
Lawrence v. Sol G. Atlas Realty Co., Inc., USCA, 2nd Circuit, Docket 15-3087

If the relevant collective bargaining agreement’s arbitration clause does not include language requiring the arbitration of statutory discrimination or retaliation claims with wording that is “clear and unmistakable,” the employee may seek to vindicate his or her claims of unlawful discrimination or retaliation as provided in the controlling statute or statutes. The court vacated the district court's grant of defendants' motion to compel arbitration and dismissed the complaint.

The decision is posted on the Internet at:

October 30, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending October 29, 2016


New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending October 29, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

School DistrictAudits

Caledonia-Mumford Central School District – Online Banking

Genesee Valley Board of Cooperative Educational Services– Purchasing

Heuvelton Central School District – Payroll

Syracuse City School District – Claims Audit Process

Your Home Public Library – Financial Management
Your Home Public Library

 Other audit reports published 

Gingerbread  Learning Center, Inc. – claimed reimbursement for ineligible expenses.
Gingerbread is a not-for-profit organization that provides center-based (full-day, half-day and integrated) preschool programs and Preschool Special Education Services, formerly known as the Special Education Itinerant Teacher (SEIT) program, to children ages three through five years. State Education Department (SED) contracts with Gingerbread to provide these programs to children throughout Staten Island and neighboring boroughs. The State Comptroller said that Gingerbread claimed nearly $1 million in expenses that did not qualify for reimbursement from taxpayers, including bonuses that were never paid to staff, liquor store purchases and holiday parties. The audit report is posted on the Internet at http://www.osc.state.ny.us/audits/allaudits/093017/14s79.pdf.

The Attorney General and the State Comptroller encourage anyone with information on alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

October 29, 2016

Arizona man convicted of theft of over $130,000 in NYS pension benefits intended for his deceased mother


Arizona man convicted of theft of over $130,000 in NYS pension benefits intended for his deceased mother
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in color.

On October 28, 2016, New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the conviction of John H. Eydeler III, 66, a resident of Glendale, Arizona, on his guilty plea to Grand Larceny in the Second Degree, a Class C felony.  

Eydeler admitted to stealing pension payments from the New York State and Local Employees Retirement System intended for his mother, Dorothy Eydeler, a retired nurse who died in October of 1998. Today, he was sentenced to a five-year term of probation and a judgment in the amount of $131,038.60.

“My office has exposed more than $2.75 million in pension fraud in recent years, and we aggressively pursued prosecution in each case,” said State Comptroller Thomas P. DiNapoli. “If you’re stealing from the retirement system, we will track you down no matter where you live and make sure you pay it back. I thank Attorney General Schneiderman for his prosecution of this case and others through our Operation Integrity partnership.”

“The New York pension fund cannot serve as a personal piggy bank for those looking to scam the system,” said Attorney General Schneiderman. “I will continue to work with Comptroller DiNapoli to protect our pension system and send a message that fraudsters who steal from the state will be punished.”

Eydeler concealed his mother’s death in 1998 from the New York State and Local Employees Retirement System. As a result, between October 1998 and January 2010, over $130,000 in pension benefits were deposited into a bank account in the name of Eydeler’s deceased mother. Eydeler then diverted these monies to himself by claiming to have power of attorney for his mother and writing checks to himself every month for over a decade. Eydeler altered his scheme to conceal the theft, and used the monies to prop up a small automotive repair business that he owned in Glendale, Arizona.

In August 2016, the Attorney General filed an indictmentagainst Eydeler charging him with Grand Larceny in the Second Degree, a Class C felony.  Eydeler pleaded guilty to the indictment on October 12, 2016. Today, he was sentenced by the Honorable Stephen W. Herrick in Albany County Court to a five-year term of probation. Eydeler also confessed to a judgment being entered against him for the entire restitution amount of $131,038.60.

This case is the latest joint investigation under the Operation Integrity partnership of the Comptroller and the Attorney General, which to date has resulted in dozens of convictions and more than $11 million in restitution.
 
The Comptroller’s investigation was conducted by the Comptroller’s Division of Investigations, working with the New York State and Local Retirement System.

The Attorney General’s investigation was conducted by Investigator Mitchell Paurowski and Deputy Chief Antoine Karam.  

The Investigations Bureau is led by Chief Dominick Zarrella. This case was prosecuted by Assistant Attorney General John R. Healy 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 Chief Stephanie Swenton.
  
The Attorney General and the State Comptroller encourage anyone with additional information on this matter or any other alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at 1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com