Courts, when determining if a penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness, must consider all the relevant circumstances

Courts, when determining if a penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness, must consider all the relevant circumstances

2016 NY Slip Op 08412, Appellate Division, Third Department

A police officer [Petitioner] was observed on a surveillance video pumping gasoline from his employer’s fueling system into his personal vehicle. Following an investigation by the State Police conducted an investigation. The investigation revealed that Petitioner has  access his employer’s fueling system and told the State Police investigator that he filled his personal vehicle and then made a sworn written statement describing, among other things, his accessing his employer’s fueling system to obtain gasoline.

Petitioner was charged with violating his employer’s rules of conduct by “wrongfully taking gasoline … and by making a false statement under oath. 

Following the disciplinary hearing, the Hearing Officer found:

1. The evidence did not substantiate the charges that Petitioner wrongfully took gasoline from his employer;  

2. The evidence did support a finding that he made a false statement under oath to the State Police.

As to the penalty to be imposed, the hearing officer recommended the termination of Petitioner’s employment. The appointing authority adopted the Hearing Officer's findings of fact in their entirety and the hearing officer's recommendation as to the penalty to be imposed and terminated Petitioner.

Petitioner commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order annulling the appointing authority’s and the matter was transferred to the Appellate Division.

One of the major issues raised by Petitioner concerned his contention that the penalty imposed, termination, was excessive. The Appellate Division observed that in evaluating whether the penalty is excessive, a Court "must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness." In so doing, said the court, "[t]his calculus involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

The Appellate Division said that it was mindful of "the high standard of character to which police officers are held" and the “substantiated charges of providing a false statement under oath should not go unpunished.”

Noting that all six charges pertaining to the false statement given to the State Police were sustained by the Hearing Officer, Petitioner was subject to the penalty or punishment provided in Civil Service Law §75(3), including "a reprimand, a fine not to exceed one hundred dollars . . ., suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal." 

Here, said the court, without further expansion on the Hearing Officer's findings and recommendations, the appointing authority adopted the harshest penalty, dismissal.

The Appellate Division then noted that it had sustained:

1. A two-month suspension where a police officer admitted to falsely reporting an incident;

2. A two-month suspension, letter of reprimand and $100 fine when a police officer was found guilty of improperly completing an offense report, refusing to comply with an order and refusing to report to a superior officer; and

3. A 30-day suspension and six months of probation for a State Trooper charged with misconduct for advising a friend to revoke her consent to the search of her residence by other troopers who were conducting a marihuana investigation.

As Petitioner’s personnel record does not indicate any other disciplinary actions or warnings and considering he had served as a police officer for 14 years and that the charges that he wrongfully took his employer's gasoline for his personal use were not sustained and there was no financial loss to the employer, the Appellate Division said that based on the totality of the circumstances, that the penalty imposed is so disproportionate to the offense as to shock its sense of fairness.

Accordingly, the Appellate Division remitted the matter to appointing authority for a redetermination of the disciplinary penalty to be imposed. 

___________________

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

  ___________________ 

Refusing to accept the resignation submitted by an employee

Refusing to accept the resignation submitted by an employee

Decisions of the Commissioner of Education, Decision No. 17,007

In this appeal to the Commissioner of Education, the petitioner [Petitioner] challenged a school district’s rejection of his resignation from his probationary appointment and its subsequent terminating him from his position instead. He asked the Commissioner to direct the district to either [1] rescind his appointment as a probationary employee or, in the alternative, [2] to accept Petitioner’s previously tendered letter of resignation.

The Commissioner said that as a general rule, "... a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.”

Addressing the merits of Petitioner’s appeal the Commissioner said that “In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.”

Here, said the Commissioner, Petitioner failed to allege that his termination from his probationary appointment was for an unconstitutional reason or in violation of any statute. Accordingly, the Commissioner ruled that Petitioner “failed to meet his burden” and dismissed his appeal. Thus, in this instance, the school district’s records would record Petitioner’s separation from employment as a “probationary termination” rather than a “resignation” from his position. 

Technically, in this instance the school district elected to ignore Petitioner's resignation rather than refuse it as an appointing authority may not “refuse to accept” a resignation tendered by an officer or an employee and the resignation becomes operative upon its delivery to the appointing authority. Indeed, the officer or employee usually may not withdraw or rescind his or her resignation once it has been delivered to the appointing authority without the approval of the appointing authority. 

Although an appointing authority may acknowledge the "receipt" of a resignation received from an officer or an employee or report that an individual's resignation has been accepted, all that is required for a resignation to become operative is its delivery to the appointing authority. In other words, the approval or acceptance of the resignation is not required for the resignation to take effect  unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a collective bargaining agreement (see Hazelton v Connelly, 25 NYS2d 74).

As an example of a situation where the acceptance of a resignation is mandated by statute, §2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

In contrast to "refusing to accept a resignation," an appointing authority may elect to disregard the resignation submitted by the individual under certain circumstances.

For example, 4 NYCRR 5.3(b), which applies to employees of the State as the employer  provides that in the event “… charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation."

Another example: §1133.1 of the State Education Law provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made."

Presumably an appointing authority could elect to disregard an employee's “retirement” from his or her position under similar circumstances [See Mari v.Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61].

________________________

The Discipline Book - A 458 page guide to discipline and other personnel transactions involving the removal of a public officer or employee from his or her position in the public service. For more information click on http://booklocker.com/books/5215.html

________________________

 

Teacher fined $10,000 after subjecting student to corporal punishment

Teacher fined $10,000 after subjecting student to corporal punishment

2016 NY Slip Op 08301, Appellate Division, First Department

The Appellate Division dismissed a petition to vacate an Education §3020-a disciplinary arbitration award finding that a special education teacher [Educator] inflicted corporal punishment on a special education student. The court then sustained the penalty imposed: a $10,000 fine, indicating that the penalty “does not shock our sense of fairness.”

The court found that the hearing officer’s determination:

1. Did not violate the Educator's due process rights as she was provided with notice, an appropriate hearing, and the opportunity to present evidence and cross-examine witnesses; and

2. Was supported by adequate evidence, was rational, and was not arbitrary and capricious.

As to the penalty imposed on  Educator, §3020-a(4)(a) of the Education Law, which applies to members of the teaching and supervisory staff of a school district, a board of cooperative educational services or a county vocational education and extension board, regardless of title, as described in subdivision (d) of §35 of the Civil Service Law, provides, in pertinent part, that “[i]n those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal"

______________

Challenging Adverse Personnel Decisions - A 752-page e-book 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://nypplarchives.blogspot.com/

______________

Redacting certain content in a public record when responding to a Freedom of Information request

Redacting certain content in a public record when responding to a Freedom of Information request

Laveck v Village Bd. of Trustees of the Vil. of Lansing, 2016 NY Slip Op 08150, Appellate Division, Third Department

Responding to a Freedom of Information [FOIL] request, the Village of Lansing redacted certain information, including names and addresses of individuals contained in the record, contending that such redaction was necessary "to protect information that would, if disclosed, result in an unwarranted invasion of personal privacy and could, if disclosed, endanger the life and safety of persons."

The Appellate Division, explaining that under FOIL, "[a]ll government records are . . . presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)," said that these exemptions are construed narrowly and the burden rests on "the public agency to demonstrate that 'the material requested falls squarely within the ambit of one of the statutory exemptions,'" and must provide a “'particularized and specific justification' for not disclosing requested documents."*

As to the personal privacy exemption, the Appellate Division said that the Village “failed to demonstrate that the redacted information fell into any of the categories of information that the Legislature has specifically determined would qualify as an unwarranted invasion of personal privacy if disclosed.” In the absence of such evidence, the court said it was necessary to evaluate whether disclosure would constitute an unwarranted invasion of personal privacy "by balancing the privacy interests at stake against the public interest in disclosure of the information."

Here, said the court, the Village “failed to establish that disclosure of the … names, home addresses or other personal identifying information would constitute an unwarranted invasion of personal privacy.”

Further, said the Appellate Division, the Village did not demonstrate that disclosure of the redacted information "could endanger the lives or safety" of the individuals listed in the documents.

The Village, having failed to establish the applicability of a statutory exemption, was held to have “improperly redacted the names, addresses and other identifying information” in the records and was directed to respond to the FOIL request “with unredacted copies of the requested documents, in electronic form if possible.”

The release of some public records pursuant to a FOIL regquest, however, may be  limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, submitting a formal FOIL request is not a condition precedent to obtaining public records where access is not barred by statute. Submitting a formal FOIL request becomes necessary only in the event the custodian of the public record[s] sought declines to simply provide the information or record requested. In such cases the individual or organization must file a formal FOIL request in order to obtain the desired record or information. 

It should also be noted that there is no bar to the custodian of the public record providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the statutory exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. 

In some instances, however, a statutory exception may have “sublimated” as the Appellate Division observed in DeFreitas v New York State Police Crime Lab.,2016 NY Slip Op 05676, quoting Matter of Lesher v Hynes, 19 NY3d 57. In DeFreitas the court said “the exception in Public Officers Law §87(2)(e)(i) [interfere with law enforcement investigations or judicial proceedings] no longer applies [after the individual’s] criminal proceedings and judicial review have concluded.”

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 17, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending December 17, 2016 

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR.

Waterville Central School District praised in State Comptroller's audit 

 Waterville Central School District, located in Oneida County, is conducting necessary background checks and fingerprinting of employees prior to allowing them to work with students, according to an audit released by New York State Comptroller Thomas P. DiNapoli.

 

 DiNapoli calls for state procurement reform 

On December 13, 2016 New York State Comptroller Thomas P. DiNapoli proposed changes to New York state’s procurement practices in the wake of criminal charges and allegations of corruption in the awarding of contracts for state economic development projects.

“The alleged contracting and kickback schemes uncovered by federal and state prosecutors show lax oversight over economic development spending,” DiNapoli said. “The state funneled taxpayer money to quasi-government organizations, avoiding scrutiny and sidestepping usual procurement practices. This created an environment ripe for self-dealing and abuse. New York State must take credible steps to reestablish the public’s faith in government and address the broader problems.”

By state law, the Comptroller’s office is responsible for reviewing and approving state agency contracts above $50,000 and certain contracts over $1 million for state public authorities. The Comptroller’s independent oversight helps ensure that the process is fair and gets the best value for taxpayer dollars. In 2015, the Comptroller’s office reviewed 21,381 contract transactions totaling $169.2 billion.

In recent years, executive and legislative actions have eroded the Comptroller’s contract oversight. In 2011, this oversight was eliminated for construction and construction-related services contracts, among other purchases, issued by the State University of New York (SUNY) and City University of New York (CUNY). In 2012, the Comptroller’s oversight of Office of General Services (OGS) centralized contracts was removed.

In 2015, state agencies issued over $6.8 billion in contracts without Comptroller review.

DiNapoli’s comprehensive package of reforms increases independent oversight of contracts, prohibits the state from using state-affiliated not-for-profits to do state business, makes procurement requirements uniform, and toughens ethics and transparency rules. Specific proposals include:

• Restore the Comptroller’s independent oversight for SUNY, CUNY and OGS centralized contracts. Recent allegations show widespread weaknesses in SUNY’s procurement process and lax oversight of its affiliated not-for-profits. Restoring systemic checks and balances taken away from the Comptroller can help prevent future abuses and ensure that everyone is following the same rules.

 

• Prohibit the use of not-for-profits to bypass procurement laws and transparency. All contracts for state spending should either be held directly by a state agency or public authority and subject to independent oversight. SUNY’s affiliated not-for-profits had lax oversight and poor processes in place that appear to have been manipulated in multiple ways, allowing a non-competitive contracting process to occur and business to be directed to preferred contractors. These entities should not be used for state business or to bypass the routine and well-tested rules and regulations that state agencies follow.

• Require state public authorities to follow the same procurement requirements as state agencies. The procurement rules and approval process are not the same for every entity entrusted with taxpayer funds. Public authorities can adopt their own internal guidelines and do not have to follow state agency requirements clearly set out in law. Having everyone follow uniform requirements helps give assurance of competition, fairness and best value for taxpayers.

• Review contracts over $1 million for the Research Foundation of SUNY.Currently, the Research Foundation is not required to have any independent review of its contracts, which DiNapoli would change. He proposes that his office review contracts over $1 million funded with state dollars.

• Create tougher ethics requirements and penalties for those who abuse the procurement process. DiNapoli would strengthen disclosure of conflicts for employees of state agencies or public authorities, as well as board members and others, engaged in the process. He also wants to prohibit vendors who have violated procurement law from getting state business and create a code of ethics for vendors doing business with the state.

• Increase transparency. To assure a level playing field for all potential vendors, DiNapoli would require state agencies, public authorities and their affiliates to publish in the State Contract Reporter all potential business opportunities, including notice of single or sole-source procurements.

In early November, 2016, DiNapoli took administrative actions related to the bid-rigging and fraud scandal. He put the Empire State Development Corp. (ESD) on notice that any SUNY Polytechnic Institute contracts transferred or assigned to ESD must be submitted to his office for review. He made a series of recommendations to improve the payment process for economic development projects to help prevent against fraud and address the long delays that have occurred with payments made by ESD for projects. He lowered the threshold requirements for review of contracts from $250,000 to $50,000 for SUNY Poly’s contracts and put public authorities on notice of his plan to watch them closely.

As government contracting has grown in size, scope and complexity, the Comptroller’s oversight, which was established more than 100 years ago, has become more important than ever. While DiNapoli’s office legally has 90 days to review contracts, on the average the decision to approve or reject a proposed contract is issued within nine days. The Comptroller's office is also committed to a high level of transparency and releases a monthly press release disclosing major state contracts and spending approved by his office. It also issues a detailed annual report, “State Contracts by the Numbers,” to inform the public and policymakers of actions taken.

Read DiNapoli’s letter to executive and lawmakers, or go to: http://www.osc.state.ny.us/reports/economic/cuomo_procurement_legislation.pdf

Read the bill memo, or go to: http://www.osc.state.ny.us/legislation/2015-16/oscb_nyspia_memo.pdf

Read the legislation, or go to: http://www.osc.state.ny.us/legislation/2015-16/oscb_nyspia.pdf

Read “State Contracts by the Numbers,” or go to: http://www.osc.state.ny.us/reports/economic/state_contracts_2016.pdf  

Daughter sentenced for stealing her deceased father's retirement benefits 

New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced that Renee Kanas, a resident of Tamarac, Florida, was sentenced in Albany County Supreme Court to 6 months incarceration and 5 years of probation for stealing over $148,000 in New York state pension benefits.  Kanas pleaded guilty to Grand Larceny in the Third Degree, a class D felony, in June 2016.  

Kanas had concealed her father’s death in March 2010 from the New York State and Local Employees Retirement System, and continued to collect his pension benefits for over four years.  Kanas was sentenced for stealing pension benefits intended for her father, Jacob Yudenfreund, from March 2010 through January 2015.  In total, Kanas stole $148,092.24 by accessing a joint bank account she held with her deceased father, liquidating all but $1,207.55 from the account. During this time period, Kanas lived off of the stolen money and, among other things, took multiple cruises, including to the Caribbean.

In May 2016, Kanas was arrested on a warrant by the city of Tamarac Road Patrol and Broward County Sherriff’s in Florida.  After being brought to Albany County, New York to face these charges, in June 2016, Kanas pleaded guilty before Honorable Thomas A. Breslin in Albany Supreme Court. Today, she was sentenced to 6 months incarceration and 5 years of probation, $45,000 in restitution to New York State, and signed a confession of judgment for the remaining amount stolen of $103,092.24.

The investigation was conducted by the New York State Comptroller’s Division of Investigations and the Attorney General. This case is the latest joint investigation under the Operation Integrity partnership of the Attorney General and Comptroller, which to date has resulted in dozens of convictions and more than $11 million in restitution.  Attorney General Schneiderman and Comptroller DiNapoli thank the city of Tamarac Road Patrol and Broward County Sheriff’s in Florida for their assistance.

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 Mark Spencer, Investigator Casey Quinlan and Deputy Chief Antoine Karam. Forensic accounting was performed by Associate Forensic Auditor Meaghan Scovello. The Investigations Bureau is led by Chief Dominick Zarrella. The Forensic Audit Section is led by Chief Auditor Edward J. Keegan.

This case was prosecuted by Assistant Attorney General Philip V. Apruzzese 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. 

Audits and Reports
 

Office for People With Developmental Disabilities: The Association of Neurologically Impaired Brain Injured Children, Inc. Compliance With the Consolidated Fiscal Reporting and Claiming Manual (2013-S-60)

Auditors examined whether the costs claimed by the Association for Neurologically Impaired Brain Injured Children Inc. were valid and consistent with contract terms and were properly allocated among the various programs funded by New York City, New York state, and other sources. For the three fiscal years ended June 30, 2013, auditors identified $493,172 in claimed costs that did not comply with state requirements and recommend such costs be disallowed. Among the ineligible charges identified were: $208,063 in facility-related costs for shared space, $152,500 for unallowable payments for lobbyist services; and $48,802 for unsupported and duplicate payments to a contractor.

Department of Health (DOH): Facility Structure, Safety, and Health Code Waivers (Follow-Up) (2016-F-11)
An initial audit issued in June 2015 found DOH’s waiver practices did not effectively ensure that safety and structural risks related to physical plant standards at health care facilities were appropriately addressed. In a follow-up report, auditors determined DOH officials have made significant progress in addressing the problems identified in the initial audit. The initial report’s four recommendations were all implemented.

Department of Health: Medicaid Overpayments for Certain Medicare Part C Claims (Follow-Up) (2016-F-18)

An initial audit report released in January 2015 identified 5,571 Medicare Part C claims that either had unreasonably high patient cost-sharing amounts or indicated UnitedHealthcare did not cover the service. Auditors reviewed 125 Medicaid claims totaling $151,069 and found Medicaid overpaid 54 claims (43.2 percent) by $61,711. In a follow-up, auditors determined DOH officials have made progress implementing the recommendations made in the initial audit, which included recovering overpayments and instructing providers to bill Medicare Part C claims in accordance with the existing requirements.

 

Department of Health: Improper Payments to a Physical Therapist (Follow-Up) (2016-F-7)
An initial audit issued in December 2014 found that Medicaid overpaid a physical therapist $146,225 for 3,837 claims that were submitted to the Medicaid program with incorrect Medicare payment information. In addition, the audit questioned the propriety of 5,634 claims totaling $158,990 because the therapist submitted claims using his National Provider Identifier for services that were rendered by other clinicians. 

In a follow-up report, auditors found DOH officials made some progress implementing the recommendations made in the initial audit report. Those efforts included certain steps to recover $116,298 in overpayments. However, at the time auditors completed follow-up fieldwork, none of the overpayments were actually recovered and additional actions were still needed.

 

Department of Motor Vehicles (DMV): Traffic Ticket Surcharges (Follow-Up) (2016-F-12)
An initial audit report issued in August 2015 concluded that, on an overall basis, the DMV consistently accounted for and reported all traffic ticket surcharge revenue. However, auditors identified certain areas where the DMV could make greater use of the data it maintains to better manage and improve its operations. In a follow-up report, auditors found DMV officials have made progress in implementing the recommendations identified in the initial report. However, additional improvements are still needed.

 

For access to state and local government spending and more than 50,000 state contracts, visit www.openbooknewyork.com. The easy-to-use website was created by DiNapoli to promote openness in government and provide taxpayers with better access to the financial workings of government.