Claimant for unemployment insurance benefits penalized for making willful misrepresentations to obtain benefits

Claimant for unemployment insurance benefits penalized for making willful misrepresentations to obtain benefits

2017 NY Slip Op 06489, Appellate Division, Third Department

Claimant, a part-time employee, certified that she had not earned more than $405 before taxes as a result of such employment. The Department of Labor, however, determined that Claimant was ineligible to receive unemployment benefits for specified weeks on the basis that she was not totally unemployed and her earnings exceeded the statutory limitation of $405 a week. As a result, Claimant was found to have received an over-payment of benefits and emergency benefits, which were recoverable. As a result, Claimant's right to receive future benefits was reduced by a specified number of effective days and the Department imposed specified monetary penalties on the basis that she made willful misrepresentations to obtain benefits.

Ultimately the Board reviewed the record and determined that Claimant had made a willful misrepresentations to obtain benefits for certain period of her unemployment and sustaining the charges imposed as the result of over-payments, the reductions of her right to receive certain payments in the future and the monetary penalties imposed that were associated with those misrespresented periods of unemployment. Claimant appealed.

The Appellate Division found that substantial evidence supports the Board's determination that Claimant made willful false statements to obtain certain benefits, explaining that "[i]t is well settled that the question of whether a claimant ha[s] made . . . willful misrepresentation[s] to obtain benefits is a factual issue for the Board to resolve and will be upheld if supported by substantial evidence." Significantly, the court observed that "there is no acceptable defense to making a false statement . . . and a claim that the misrepresentation was unintentional is not sufficient."

The court noted that the record shows that Claimant had received an unemployment insurance handbook that specified that she was eligible to receive partial benefits as a part-time worker if, among other things, she earned less than $405 in a week. It rejected her contention that she relied on a formula provided by a Department of Labor representative in order to calculate her weekly wage — rather than simply dividing the amount shown on her biweekly pay stub by two. The Appellate Division characterizing Claimant's argument as "unavailing," considering that "at no point did Claimant inform the representative that she was receiving biweekly pay stubs that showed that she was, in fact, earning amounts greater than $405 per week."

Finding that "[u]nder these circumstances, substantial evidence supports the Board's determination" that Claimant made willful misrepresentations, the Appellate Division affirmed the Board's decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06489.htm

Reimbursement for wages paid to workers' compensation claimant's employer for wages paid during the employee's period of disability

Reimbursement for wages paid to workers' compensation claimant's employer for wages paid during the employee's period of disability

Collins v Montgomery County Sheriff's Dept., 2017 NY Slip Op 06487, Appellate Division, Third Department

A Montgomery County deputy sheriff [Claimant] sustained a work-related injury. His claim for workers' compensation benefits was ultimately established and he was awarded disability benefits.

The Montgomery County Sheriff Department [Department] a "self-insured workers' compensation employer" paid Claimant his full weekly wages for the period November 29, 2011 through May 30, 2012 and filed a timely reimbursement request with the Workers' Compensation Board. The Department and Claimant then entered into a stipulation establishing that Claimant had sustained a 21% schedule loss of use of his right leg, payable from November 28, 2011 to February 16, 2012 at the temporary total disability rate, with the balance payable at the permanent partial disability rate and the Department was "to take credit for all prior payments."

Claimant then requested a hearing to address whether, pursuant to the terms of the parties' stipulation, the Department was entitled to reimbursement out of his schedule award for the full wages previously paid or whether a late payment penalty should be imposed against the Department for an underpayment of compensation.

A Workers' Compensation Law Judge [WCLJ] determined that the language of the stipulation permitted the Department to obtain reimbursement for the full wages paid to Claimant during compensable lost time and that there was no underpayment. The WCLJ also denied Claimant's request for imposition of a penalty. The Workers' Compensation Board affirmed the WCLJ's ruling and Claimant appeal the Board's decision.

The Appellate Division affirmed the Board's decision, noting that Workers' Compensation Law §25 (4)(a) provides that, "[i]f the employer has made advance payments of compensation, or has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid instal[l]ment or instal[l]ments of compensation due, provided [the employer's] claim for reimbursement is filed before [an] award of compensation is made."

In addition, said the court, "it is well settled that, where a claimant receives a schedule loss of use award, the employer is entitled to full reimbursement of the payments made during the period of disability."

As to Claimant's argument that the Board had "departed from prior precedent without explanation.," the Appellate Division explained that:

1. The Board was not required to explain the different holdings in the various cases cited by Claimant;

2. Here, in contrast to the Board holdings in prior cases cited by Claimant, "the parties' stipulation specifically indicated that the [Department] was 'to take credit for all prior payments' [emphasis by the Appellate Division] — without any distinction drawn between wages, awards or compensation;"

3. At the Workers' Compensation Board hearing before the WCLJ at which the stipulation was executed, Claimant indicated that he was aware that the Department was entitled to take credit for any prior indemnity payments that he had received; and

4. The WCLJ order directed the Department to "take credit for prior payments."

Although, said the Appellate Division, "[a] statutory or regulatory right may generally be waived by a stipulation or by conduct evincing an intent to forgo that right," in this instance the Board's reading of the parties' stipulation that the Department did not intend to waive its right to reimbursement is supported by substantial evidence. Accordingly, the court declined to "disturbed" the Board's determination and affirmed its decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06487.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 16, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 16, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Division of Housing and Community Renewal (DHCR): Administration of Mitchell-Lama Waiting Lists (2016-S-46)
The majority of sampled new admissions, internal transfers and successions were selected from an automated wait list (AWL) and approved by DHCR. However, in most cases, neither DHCR nor the development maintained the documentation required to confirm that tenants were selected in the order they appeared on the wait list. One development did not request or receive DHCR approval for eight of the nine succession apartments it awarded and granted three apartments to individuals who were not on the AWL. Four of the five developments did not comply with the required 3:1 internal/external ratio when offering apartments to applicants. As of July 31, 2016, one development had 51 vacant units, even though it had applicants on its internal and external AWLs. Ten of these units were vacant for as long as five years.

Department of Labor (DOL): Examination of Unemployment Insurance Benefits 2016 Annual Report (2017-BSE4-01)
Based on a selection of 57,000 transactions, auditors identified 4,864 overpayments totaling more than $1.6 million. Based on the overpayments identified, DOL assessed $217,290 in monetary penalties to 137 claimants. As the result of the current and prior years’ findings, DOL also recovered $247,483 in forfeited UI benefits from claimants who DOL determined made false statements or representations to obtain benefits to which they were not entitled. Auditors worked with DOL to identify another $238,792 in potential recoveries for past UI overpayments from 130 state employees hired during 2016.

Department of Taxation and Finance: Child and Dependent Care Credit (2017-BSE8-01)
During the period of the examination, the department processed 444,127 returns containing credits totaling $177.1 million. Auditors found it processed 29,102 personal income tax returns for tax year 2015 that contained potentially inappropriate credits valued at $18.3 million.

State Education Department: Adirondack Helping Hands, Inc., Compliance with the Reimbursable Cost Manual (2016-S-88)
For the fiscal year ended June 30, 2014, auditors identified $37,643 in ineligible costs that Adirondack reported for reimbursement for special education programs. The ineligible costs included: $22,215 in other than personal service costs that consisted and $15,428 in excess personal service costs.

New York State Insurance Fund (NYSIF): Incarcerated and Death Matches (2017-SIF)
Auditors examined $1.4 billion in payments for more than 17 million in medical and other service charges the NYSIF made on behalf of nearly 215,000 individuals during the period January 2014 through February 2017. Under state law, any person incarcerated upon conviction of a felony is ineligible for all benefits. NYSIF will not pay for medical and other service charges that occur subsequent to a claimant’s date of death.  Based on the match results and observations of the payment process, auditors concluded NYSIF has established reasonable controls to minimize the risk of improper payments in these areas. 


New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the:

Town of Barrington – Financial Management 

Village of Homer – Purchasing and Credit Cards

Plattekill Library – Budgeting Practices

Town of Scriba – Board Oversight

Terryville Fire District – Treasurer’s Duties 


Former Town of Minerva Clerk Sentenced to Prison for Embezzling Town Funds
Jordan Green, the former clerk to the supervisor for the town of Minerva, was sentenced in Essex County Court to 1 1/3 to 4 years in state prison and ordered to pay restitution.

Bedford-Stuyvesant is on the Rise
The Bedford-Stuyvesant neighborhood has experienced strong population, business and job growth in recent years, according to a report by New York State Comptroller Thomas P. DiNapoli. 

Comptroller DiNapoli's Proposal to Help Local Governments Negotiate Better Fire Protection Contracts Signed Into Law 
Bill increases transparency relating to the contract negotiation process for fire protection contracts between incorporated fire companies and districts, towns or villages.

 

 

An arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power

An arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power

Subway Surface Supervisors Assn. v New York City Tr. Auth., 2017 NY Slip Op 06444, Appellate Division, Second Department

The Subway Surface Supervisors Association [Association] and the Transit Supervisors Organization, Local 106 [Local 106] both claimed to represent certain New York City Transit Authority employees working at a bus depot [Depot] in Manhattan.

Both employee organizations filed grievances with the employer, the New York City Transit Authority [TA] under their respective collective bargaining agreements. The Association then participated in a mediation effort with Local 106 and the TA, but the mediation effort failed to resolve the conflict.

The Association next filed a "Petition for Unit Clarification and/or Unit Placement" with the New York State Public Employment Relations Board [PERB]. The petition, however, was deemed withdrawn and the matter closed. The Association agreed to arbitrate the dispute and was involved in the selection of the arbitrator.

TA sent a letter to the arbitrator indicating the parties' agreement to submit "to a tri-party arbitration ... to resolve all current disputes between the parties, including jurisdiction and representation issues involving supervisory personnel" related to the Depot. All the parties participated in the initial arbitration hearing after which the arbitrator issued an award dated December 4, 2014.

Subsequently, "by consent of all parties," Association participated in a second arbitration hearing before the arbitrator. The arbitrator issued a supplemental award dated January 29, 2015 and following the issuance of the second arbitration award the Association "participated in three telephone conferences with the arbitrator concerning additional issues that arose between the parties."

The Association then initiated a CPLR Article 75 proceeding seeking a court order vacating the arbitration award dated December 4, 2014 on the grounds that the award "violated public policy considerations embodied in the Taylor Law" [Civil Service Law Article 14] and that the arbitrator had exceeded his power under the collective bargaining agreement between the Association and the TA. The Supreme Court denied the petition and the Association appealed.

The Appellate Division, noting that a party seeking to overturn an arbitration on one or more of the grounds stated in CPLR 7511(b)(1) "bears a heavy burden," and, citing Matter of New York City Tr. Auth. v Transport Workers Union of Am., Local 100, 14 NY3d 119, noted that in that action the Court of Appeals indicated it had recognized "three narrow grounds that may form the basis for vacating an arbitrator's award—that it violates public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."  

The Appellate Division decided that the Association failed to meet the "strict standards for overturning arbitration awards on public policy grounds."

The Appellate Division further opined that "under the circumstances of this case, the [Association] waived any argument that the award exceeds a specifically enumerated limitation on the arbitrator's power," concluding that Supreme Court had properly denied the petition to vacate the arbitration award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06444.htm

Making false entries in an official record

Removal from public office by operation of law

Munroe v Ponte, 2017 NY Slip Op 02041, Appellate Division, Second Department

§30(1)(e)  of the Public Officers Law mandates the automatic removal of the incumbent from his or her public office "by operation of law" in the event he or she is found guilty of a felony or the violation of his or her oath of office. In effect, the public office is deemed vacant automatically upon the public officer's conviction of a felony or a crime involving a violation of his or her oath of office.*

The Commissioner of the New York City Department of Correction [Commissioner] summarily terminated a correction officer [Officer] pursuant to Public Officers Law §30(1)(e) following his conviction of a misdemeanor -- falsifying business records in the second degree. Officer filed an Article 78 action challenging the Commissioner's action. Supreme Court granted the Commissioner's motion to dismiss Officer's petition and Officer appealed.

Officer had been served with disciplinary charges pursuant to Civil Service Law §75 alleging various acts of misconduct included making "false entries in the . . . enhanced security post logbook." Subsequently indicted on a number of criminal charges, including falsifying business records in the second degree and attempted assault in the third degree, he was subsequently convicted of falsifying business records in the second degree in violation of Penal Law §175.05[1].

Advised that he had been terminated pursuant to Public Officers Law §30(1)(e), Officer commenced a CPLR Article 78 proceeding alleging, among other things, that the termination of his employment was arbitrary and capricious.

Pursuant to Public Officers Law § 30(1)(e), an office is deemed vacant upon an officer's "conviction of a felony, or a crime involving a violation of his [or her] oath of office."

The Appellate Division dismissed Officer's appeal, ruling that under the circumstances of this case, the Officer's petition "failed to set forth allegations sufficient to make out a claim that his termination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.

Addressing a procedural matter concerning the Commissioner's contention that Officer's Article 78 petition was untimely,  the Appellate Division noted that the four-month statute of limitations did not begin to run when Officer was personally served with a copy of the letter advising him that he had been terminated from his position in accordance with the mandate of §30(1)(e) of the Public Officers Law.

Rather, said the court, as the Commissioner was on notice that Officer had retained counsel to represent him in connection with the disciplinary charges, "once counsel has appeared" the Statute of Limitations or time requirement "cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed."

*  Police officers and correction officers are "public officers” for the purposes of §30 of the Public Officers Law. Further, in Graham v Coughlin, 72 NY2d 1014, the Court of Appeals upheld the removal of a state correction officer following his conviction of a felony under federal law. The Appellate Division had ruled that Section 30.1(e) applied in cases of the officer’s conviction of a felony under any jurisdiction. Although all public officers are public employees, not all public employees are public officers.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02041.htm