Expulsion of a public employee in a collective bargaining unit from membership in an employee organization recognized or certified for the purposes of the Taylor Law

Expulsion of a public employee in a collective bargaining unit from membership in an employee organization recognized or certified for the purposes of the Taylor Law

Montero v Police Assn. of the City of Yonkers, Inc., 2017 NY Slip Op 02040, Appellate Division, Second Department

Raymond Montero asked the Appellate Division to review a determination by Supreme Court that sustained the Police Association of the City of Yonkers, Inc., also known as Yonkers Police Benevolent Association [YPBA], expulsion of Montero from its membership. The Appellate Division annulled the lower court ruling, on the law, with costs, and granted Montero's petition.

YPBA had notified Montero of charges alleging he was guilty of certain misconduct and of a hearing scheduled to consider such charges. Montero chose not to appear at the hearing. Apparently YPBA conducted Monero's hearing in absentia and made a determination to expel him from membership in the organization.

Citing Matter of Kelly v Northport Yacht Club, Inc., 44 AD3d 858, the Appellate Division set out the standard for assuming jurisdiction in the matter as follows: "[W]here the constitution and by-laws of a voluntary association reasonably set forth grounds for expulsion and provide for a hearing upon notice to the member, judicial review of such proceedings is unavailable, unless the reason for expulsion is not a violation of the constitution or by-laws or is so trivial as to suggest that the action of the association was capricious or corrupt, or unless the association failed to administer its own rules fairly."

Here, said the court, YBPA determined that Montero committed conduct that was "prejudicial to the welfare of the Association," in violation of the bylaws, was arbitrary and capricious.

Montero was charged with providing "information" to the author of articles published online, providing that author with an email from the YPBA's president to the members, publishing that email online himself, with comments, and being involved in an altercation with another member. The court noted that "Other than the single identified email, there is no basis in the record on which to determine what, if any, other information was provided to the author of the articles by [Montero], and whether such unidentified information was detrimental to [YPBA]."

Although YPBA characterized the email as "confidential," the Appellate Division opined that there is no reason to conclude that the email, which was sent to all of the YPBA's members, was confidential as the email merely contained a statement indicating that the sharing of the email was "discouraged." Further, said the court, while Montero's was alleged to have disseminated "certain misinformation," during a time when YPBA was negotiating a contract with the City of Yonkers complicated the contract negotiations, YPBA failed to explain how the shared email, or the comments made by Montero, had such an effect or was detrimental to the welfare YPBA.

Quoting from Polin v Kaplan, 257 NY 277, the court observed that "If there be any public policy touching the government of labor unions, and there can be no doubt that there is, it is that traditionally democratic means of improving their union may be freely availed of by members without fear of harm or penalty. And this necessarily includes the right to criticize current union leadership. . . . The price of free expression and of political opposition within a union cannot be the risk of expulsion or other disciplinary action. In the final analysis, a labor union profits, as does any democratic body, more by permitting free expression and free political opposition than it may ever lose from any disunity that it may thus evidence."

Lastly, the court said that there was no rational basis for the conclusion that a brief physical altercation between Montero petitioner and another YPBA member "prejudice[d] the welfare" of organization.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02040.htm

Applying the Doctrine of Abatement in a criminal action

Applying the Doctrine of Abatement in a criminal action

United States v Libous, USCA, 2nd Circuit, Docket#15-3979

Under the Doctrine of Abatement, the government has no right to retain fines imposed pursuant to a criminal conviction that is subsequently vacated.

In this case, the Executrix of the estate of Thomas W. Libous, a former New York State Senator, moved to [1] withdraw his then pending appeal; [2] vacate the underlying judgment of conviction of making false statements to the FBI; and [3] remand the matter to the district court for dismissal of the indictment and a order refunding the fine and special assessment imposed upon Libous' conviction to his estate.

A federal jury had convicted former New York State Senator Thomas W. Libous of making false statements to the FBI in violation of 18 U.S.C. §1001. At sentencing, the district court imposed a two-year term of probation on Libous, whose physicians had determined had less than a year to live, along with a $50,000 fine imposition of the mandatory $100 special assessment.

Although the government consented to the abatement of Libous’ conviction, it opposed the return of the fine and special assessment. Incorrect said the Circuit Court, ruling that the government had no right to retain fines imposed pursuant to a conviction that is subsequently vacated and granted the Executrix's  motion in its entirety.

The court explained that "Under the well-established Doctrine of Abatement, ab initio, when a convicted defendant dies pending an appeal as of right, his [or her] conviction abates, the underlying indictment is dismissed. Further, his or her estate is relieved of any obligation to pay a criminal fine imposed at sentence. In effect, all proceedings in the prosecution from its inception are abated."

To comply with this common law rule, said the court, “[T]he appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he [or she] had never been indicted or convicted.” In other words, “Under the doctrine of abatement ab initio . . . the defendant stands as if he [or she] never had been indicted or convicted.”

This is so because, in the interests of justice, "a defendant does not stand convicted without resolution of the merits of an appeal and to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served.”

As the Supreme Court held in Nelson v. Colorado, 137 S. Ct. 124, “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,” the state is required under the Fourteenth Amendment’s due process guarantee “to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.”

Once a defendant’s conviction is “erased, the presumption of [his or her] innocence [is] restored,” and the state “has no interest in withholding from [a defendant] money to which the [s]tate currently has zero claim of right.”

The Supreme Court, however, said "We express no view on how abatement operates, if at all, in the event the defendant commits suicide pending an appeal as of right, suggesting that it may distinguish the impact on the Doctrine in cases of suicide from the impact of the Doctrine in the event of death as the result of natural causes, accident, or events other than suicide while such an appeal is pending.

The Circuit Court then granted the Executrix's motion and vacated Libous' judgment of conviction. It also remanded the matter to the federal district court "for the dismissal of the indictment and the return of the fine and special assessment imposed on Libous pursuant to his now-vacated conviction"

The decision is posted on the Internet at:

http://law.justia.com/cases/federal/appellate-courts/ca2/15-3979/15-3979-2017-05-30.html

Determining if an individual is an employee of an employer

Determining if an individual is an employee of an employer

Griffin v. Sirva Inc., USCA, 2nd Circuit, Docket No. 15-1307

The New York Court of Appeals answered a certified question from the Second Circuit, holding that liability under §296(6) and under §296(15) of the New York State Human Rights Law [NYSHRL] is limited to an aggrieved party's employer.

The New York Court of Appeals then answered a second certified question by identifying the four factors to use in determining whether an entity is an aggrieved party's employer. On the basis of New York case law, the court identified the four factors as follows:

1. The selection and engagement of the employee by the entity;

2. The payment of salary or wages by the entity;

3. The power of dismissal of the individual by the entity; and

4. The entity's power of control over the employee's conduct.

In this case, two individuals had filed suit alleging that Sirva, Inc., as Allied's parent, can be held liable under the NYSHRL for employment discrimination on the basis of the individuals' respective criminal convictions.

Based on the answers to the certified questions by the Court of Appeals, the Second Circuit vacated the district court's grant of summary judgment and remanded the matter for further proceedings.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/doc/15-1307_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/hilite/

Claiming the affirmative defense of "privilege"

Claiming the affirmative defense of "privilege"

Casey v State of New York,  2017 NY Slip Op 01922, Appellate Division, Third Department

Office of Court Administration's [OCA] sole contention is that the Court of Claims court should have found that its "detention" of Colleen Casey, a senior court officer, was privileged* on the ground that a designated superior's authority to command Casey through lawful orders carried with it a privilege to keep Casey under the supervisor's supervision and to control her movements when Casey did not immediately comply with the lawful order to surrender her personal firearms.

The Appellate Division, observing that OCA bore the burden of proof to establish any claim of an affirmative defense of privilege, said that "There is nothing in this testimony that supports [OCA's] current claim that [Casey] was so noncompliant that it was reasonably necessary to confine her or restrict her movements to ensure her compliance, or so distraught that close supervision was required to ensure her safety and that of others until the firearms [sought] were secured."

OCA, relying upon Casey's testimony in her Court of Claims action to support its claim of privilege, argued that the testimony that Casey she was upset and uncooperative establishes that it was reasonable under the circumstances for the supervisor and the other officers to confine her and restrict her movements. However, said the Appellate Division, as it "previously noted, it was [OCA's] burden, not [Casey's], to prove the claim of privilege."

Having made no claim at trial that the officers' actions were based in any way upon Casey's alleged insubordination or required by any threat to public safety, and having instead presented contradictory evidence to the effect that Casey consented to almost everything she was directed to do, "[OCA] cannot now meet its burden by relying on the same testimony that it sought to discredit at trial."

Addressing OCA's contention that the supervisor "was privileged to confine [Casey] restrict her movements," under the governing rules and procedures to ensure Casey's compliance with lawful orders, the Appellate Division observed that "the rules that require court officers to comply with their supervisors' lawful orders and to turn over their firearms when directed to do so are solely directed at the subordinate officer's obligations, and do not directly address the extent of a supervisor's authority to compel compliance."

Further, said the court, "Nothing in any of the provisions relied upon by [OCA] expressly authorizes a supervisor to use confinement or force to compel a subordinate to comply with an order" nor do the rules that require an officer to comply promptly with lawful orders unequivocally forbid all resistance to every order. Rather the rules provide that the officer "shall not obey any order which is inconsistent with the law," must request clarification or confer with a supervisor when in doubt as to whether an order is lawful, and must obey an order that he or she believes to be unlawful only if the supervisor fails to modify the order after being respectfully informed of the subordinate's belief that it is unlawful.

Accordingly, the Appellate Division said that it agreed with the Court of Claims conclusion that OCA did not meet its burden to that the conduct of the officers in confining Casey and restricting her movements was "reasonable under the circumstances and in time and manner," and therefore OCA failed to prove that its supervisor's conduct was privileged.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01922.htm

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* A particular benefit, advantage, or immunity available to a particular entity, person or class of persons.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 17, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 17, 2017

Click on text highlighted in color  to access the full report

Audits of State Departments and Agencies

Department of Health: Fiscal Oversight and Monitoring of AIDS Institute Service Provider Contracts (2016-S-30)

The AIDS Institute has taken several steps to update its procedures to address problems with contractor cost claims that were identified prior to this audit. However, the institute needs to further improve its internal controls to provide effective oversight and monitoring, and ensure that claimed contractor expenses are program appropriate and consistent with contract requirements.

Department of Health (DOH): Criminal History Background Checks of Unlicensed Healthcare Employees (2016-S-65)

DOH is generally meeting its obligations for conducting background checks on unlicensed employees of nursing homes, adult care facilities (ACF), and home health care (HHC) providers, according to state requirements. However, auditors identified 24 criminal history record check applicants whose determination letters were not completed on time. As a result, the individuals could have been allowed to work for periods ranging from 2 months to as long as 28 months. Of these, auditors found only eight applicants (who were ultimately denied eligibility) actually worked on a provisional basis, for periods between 3 and 14 months while their background checks were pending.

Housing Finance Agency and Homes and Community Renewal: The 80/20 Housing Program (2015-S-83)

The 80/20 program provides low-interest financing to multifamily rental developers who commit to designating at least 20 percent of a development's units to low-income households. Based on the rents charged and the regulatory agreements for our four sampled developments, auditors concluded that the proper numbers of affordable apartment units were made available to low-income tenants. However, auditors found higher earners with apartments and several areas that could use improvement.

New York State Health Insurance Program: United HealthCare (UHC): Insurance Company of New York Empire Plan Drug Rebates (Follow-Up) (2017-F-6)

An initial audit report issued in December 2015, identified $710,284 in rebate revenues from agreements with 114 drug manufacturers that were not credited to the state Department of Civil Service from Jan. 1, 2011 through Dec. 31, 2013. In a follow-up report, auditors found UHC officials made progress in addressing the issues identified in the initial audit. This included the remittance of $338,649 in drug rebate revenue to Civil Service. In addition, UHC officials agreed to remit another $67,386 in rebate revenues.

New York State Health Insurance Program: UnitedHealthcare: Empire Plan Drug Rebate Revenue (Follow-Up) (2017-F-5)

An initial audit report issued in November 2016, found that UHC did not remit $1,498,719 in drug rebate revenue to the Department of Civil Service as it was required to do during from Jan, 1, 2010 through Dec. 31, 2013. In a follow-up, auditors found UHC officials had remitted the rebate revenue to Civil Service.

Port Authority of New York and New Jersey: New York City Airport Lease (2014-S-28)

Based on testing, auditors found the Port Authority complied with the terms related to base rent payments to the city. However, the Port Authority had not fully complied with the terms of the ancillary agreements, which included an obligation to provide information and support to the Airport Board.

State Education Department: Elmcrest Children's Center Inc., Compliance with the Reimbursable Cost Manual (2016-S-62)

For the fiscal year ended June 30, 2014, Elmcrest claimed $54,250 in ineligible costs for the rate-based preschool special education program that it operated. The ineligible costs included: $18,264 in personal service costs, including bonuses and employee fringe benefits; $16,578 in overstated expenses; $12,911 in improperly allocated costs; and $6,497 in other than personal service costs, including undocumented vehicle costs, ineligible consulting services costs and non-reimbursable auditing fees. Elmcrest did not disclose related-party transactions with two vendors as required.

New York City Department of Probation: Oversight of Persons Convicted of Driving While Intoxicated (Follow-Up) (2016-F-30)

An initial audit report issued in October 2015 found that for the period from January 1, 2015 to December 31, 2016, the courts ordered the installation of 1,084 Ignition Interlock Devices (IIDs) for offenders under the Probation Department's supervision. Auditors found only a small percentage of the IIDs were installed in the cars of persons cited for alcohol-related motor vehicle violations and that probation officers often did not provide sufficient oversight of DWI offenders. Auditors also found that referral of probation violators were not made to the appropriate courts and district attorneys as required. In a follow-up, auditors found that probation officials made considerable progress in correcting the problems that were identified. However, additional improvements are still needed.

State Education Department: Variety Child Learning Center, Compliance with the Reimbursable Cost Manual (2016-S-77)

Variety, a not-for-profit organization located in Syosset, is a provider of special education services. Variety offers a range of special education services and programs to children with disabilities from birth to eight years of age. For the fiscal year ended June 30, 2014, auditors identified $6,719 in other-than-personal-service costs that did not comply with the requirements for state reimbursement.

Department of Taxation and Finance: Personal Income Tax Refunds (2016-1A-001)

During 2016, the tax department processed almost 7.6 million refunds totaling over $9.6 billion. After the tax department processes refunds, DiNapoli's office is charged with serving as a second set of eyes to ensure that only proper refunds are paid. Auditors returned 12,335 refunds totaling almost $43.9 million to the department that it had approved for payments. DiNapoli's auditors found red flags and other questionable information that led them to determine that the refunds were fraudulent or inappropriate.

Worker's Compensation Board: Annual Audit

Auditors identified $1,224,077 in inappropriate claims. They also identified two high-dollar outlier claims that resulted in $2,633,204 in total savings. For these claims in particular, board staff members entered incorrect data in fields used to calculate the payment amount resulting in artificially higher amounts to be paid. Auditors also reviewed claims processed by the board on a post payment basis to identify potential duplicate payments. For calendar year 2016, they identified 210 potential duplicate payments totaling $344,000.

Municipal Audits

Bethpage Fire District – Credit Card and Travel Expenditures (Nassau County)

The board needs to improve its policies and procedures over credit card use and travel related expenditures to ensure that all such expenditures are adequately supported and for necessary district purposes. Credit card charges totaling $32,860 were either not adequately supported or did not comply with the district's purchasing policy. In addition, credit card charges for conferences totaling $6,185 were not supported by proof of attendance and district officials paid travel credit card charges for meals for individuals who were not authorized by the board to travel.

Town of Bombay – Justice Court Operations (Franklin County)

A total of $5,681 in documented collections received during the audit period had not been deposited into a court bank account. The justices did not provide adequate oversight of the clerks responsible for receiving, recording and reporting cash receipts, and did not compare manual cash receipt records to the bank deposits. Accurate and complete bail records were not maintained and bank reconciliations and accountability analyses were not performed. The justices did not establish policies and procedures for enforcing unresolved traffic tickets.

Town of Hempstead Sanitary District Number 14 – Board Oversight (Nassau County)

The board has not established an internal control environment that fosters compliance and transparency due to its lack of policies, guidelines and monitoring. For example, claims to be paid were not presented on an abstract, and board minutes did not indicate that the board authorized, via resolution, the payment of claims audited and reviewed. In addition, the district has not submitted its statutorily required financial statements to the Office of the State Comptroller.

Village of Morris – Fund Balance (Otsego County)

The village accumulated significant fund balances without clear plans to use this money. Over the last three years, the general fund balance increased by 42 percent to $338,000, or 159 percent of actual expenditures, and the water fund balance increased by 58 percent to $238,700, or 240 percent of actual expenditures.

For access to state and local government spending, public authority financial data and information on 130,000 state contracts, visit Open Book New York. The easy-to-use website was created to promote transparency in government and provide taxpayers with better access to financial data.