Retired State employee, after admitting to "double dipping," required to make total restitution in the amount of $156,918.20

Retired State employee, after admitting to "double dipping," required to make total restitution in the amount of $156,918.20

Source: Office of the State Comptroller

On April 3, 2018 New York State Comptroller Thomas P. DiNapoli  reported that Diane M. Cecero admitted she had been unlawfully “double-dipping" thereby receiving state retirement benefits to which she was not entitled while employed by a political subdivision of the State. The practice of drawing retirement benefits while remaining a public employee is informally known as “double-dipping,” and is prohibited by §150 of the Civil Service subject to a few exceptions, none of which exceptions applied to Ms. Cecero.

State Comptroller Thomas P. DiNapoli said that Ms. Cecero had unlawfully taken $85,000 in state pension benefits in addition to her six figure salary as an employee of a SUNY community college and that Ms. Cecero had agreed to pay back those benefits, with interest, as part of a pretrial diversion agreement.

Ms. Cecero had been a State employee from 1982 until 1996 and had been earning retirement credits as a participant in the New York State and Local Retirement System [NYSLRS]. In 1996 she joined the staff of the community college and, although she was then receiving retirement benefits from NYSLRS, she joined the State University Optional Retirement Program. [ORP].

However, Education Law §390.3, in pertinent part, provides that "No person receiving a benefit by reason of his or her retirement from any retirement or pension system of New York state or any political subdivision thereof shall be eligible to elect the optional retirement program."*

Ms. Cecero admitted that while employed by the community college [1] she had falsely filled out an Application for Service Retirement dated April 3, 2008, which resulted in NYSLRS paying her approximately $85,000 in retirement benefits to which she was not entitled during the years 2008 through 2014 and [2] she that while drawing retirement benefits from NYSLRS, she also participated in SUNY ORP. In addition, the community college had contributed more than $100,000 to the ORP for her benefit during this period.

The United States Attorney’s Office filed a wire fraud charge against Ms. Cecero. As part of the pretrial diversion agreement, it agreed that it would dismiss the charge if, within 18 months, Ms. Cecero made total restitution of $156,918.20: $116,918.20 to NYSLRS and an additional $40,000 to the community college. As part of the agreement, "Ms. Cecero did not admit to committing fraud or to any criminal wrongdoing."

This case was investigated by the Office of the State Comptroller, Division of Investigations, and was prosecuted by Assistant U.S. Attorneys Michael Barnett and Cyrus P.W. Rieck.

* ORP is not a public retirement system of the State and the public employer not liable for payment of benefits within the meaning of Article V, Section 7, of the State Constitution in that §396 of the Education Law provides that "Neither the state, nor state university, nor any electing employer or its local sponsor shall be a party to any contract purchased in whole or in part with contributions made under the optional retirement program established and administered pursuant to this article. No retirement, death, or other benefits shall be payable by the state, or by state university, or by any electing employer or its local sponsor under such optional retirement program. Such benefits shall be paid to electing employees or their beneficiaries by the designated insurer or insurers in accordance with the terms of their contracts."

Perfecting an action or special proceeding against a political subdivision of the State or other entities may require the filing of a timely notice of claim

Perfecting an action or special proceeding against a political subdivision of the State or other entities may require the filing of a timely notice of claim

Mirro v City of New York, 2018 NY Slip Op 02154, Appellate Division, Second Department 

A timely filing of a "notice of claim" may be a condition precident to maintaining and an action or special proceeding against a political subdivision of the State. General Municipal Law §50-i, for example, provides, in pertinent part, that "No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or school district or of any officer, agent or employee thereof, including volunteer firemen of any such city, county, town, village, fire district or school district or any volunteer fireman whose services have been accepted pursuant to the provisions of section two hundred nine-i of this chapter, unless, (a) a notice of claim shall have been made and served upon the city, county, town, village, fire district or school district in compliance with section fifty-e of this article.*"

New York courts, however, have recognized a "public interest exception" to this notice requirement as was an element in the plaintiff maintaining certain branches of her cause of action in Mirro v City of New York.

The plaintiff in this action, Michele Mirro, was employed by the New York City Department of Consumer Affairs [DCA]. She commenced a lawsuit against the City, DCA, and four DCA employees in which she set out causes of action to recover damages for alleged violations of her rights to free speech and to petition under the New York State Constitution, Article I, §§8-9, and discrimination on the basis of age in violation of the New York City Human Rights Law.

Supreme Court granted certain of DCA's motions and denied certain of Mirro's cross motions. Mirro appealed these rulings by Supreme Court.

The Appellate Division, noting that Mirro failed to serve a notice of claim, said this was a fatal omission and "requires dismissal of the cause of action alleging violations of the State Constitution." Rejecting Mirro's argument to the contrary, the court said that this branch of her complaint "does not fall within the public interest exception to the notice of claim requirement," as Mirro was seeking to vindicate her private rights and the disposition of those claim will not directly affect or vindicate the rights of others.

In addition, the court observed that Mirro's complaint named the individual DCA defendants in her complaint "in their individual capacities," alleging she suffered retaliation by them as part of their employment, and, thus, the notice of claim requirement applied to these claims as well.

In contrast, the Appellate Division ruled that Supreme Court erred in granting DCA's motion to dismiss Mirro's cause of action alleging age discrimination within the meaning of New York City's Human Rights Law. The court explained that Mirro's alleged disparate treatment of older employees, including herself, and that disciplinary charges that had been served upon her were based, in part, on age discrimination, sufficiently stated a cause of action to recover for age discrimination pursuant to the New York City's Human Right Law.

With respect to the exception to the notice requirement in cases that involved 1. an issue of vindication a public interest [Doyle v Deer Park Union Free School District, 230 A.D.2d 820] and 2. a case in which a collective bargaining agreement between the parties, Civil Service Employees' Association v Lakeland Central School District, 230 A.D.2d 703, was found to constitute a waiver of the notice of claim provision of law. These decision illustrate how the courts evaluate these exceptions.

In Doyle v Deer Park Union Free School District educator Velia Doyle and a number of other teachers sued Deer Park alleging it had unlawfully discriminated against them. The educators contended that the District had violated §296 of the Executive Law, the State's Human Rights Law, prohibiting age discrimination.

Doyle alleged that the District's discriminatory acts resulted in her, and the other teachers, losing certain retirement benefits.

The basic question before the Appellate Division was whether Doyle's claim involved the vindication of an issue of public interest. The court decided Doyle's action did not involve any public interest. Rather, the essential element in the action was a private interest -- damages for lost retirement benefits Doyle claimed were due to her and her co-teachers. Accordingly, her failure to file a timely notice of claim could not be excused on the grounds that she was seeking to vindicate a public interest.

Because Doyle and other teachers who had joined her in the action did not satisfy the filing requirements set out in Education Law §3813(1), the Appellate Division concluded that the lower court had properly dismissed the action as it was "barred insofar as asserted against the Board of Education."

In Civil Service Employees' Association v Lakeland Central School District, Lakeland moved to dismiss the Association's action on the grounds that CSEA failed to file a timely §3813 notice of claim.

The District's motion to dismiss was denied by a New York State Supreme Court judge. When the District appealed, the Appellate Division affirmed the lower court's ruling. The Appellate Division explained that CSEA was not required to comply with Education Law §3813's requirements because the collective bargaining agreement contained a detailed grievance procedure waiving CSEA's duty to comply with that statutory requirement.

Although exceptions to the three-month requirement exist, it would seem prudent to file a timely notice of claim as set out in "notice statutes" such General Municipal Law §50-e, §50-i, and Education Law §3813 rather than attempt to persuade a court that it was not necessary to do so in a particular situation.

* Other "notice of claim" provisions are set out in law such as those mandated by Education Law §3813 and General Municipal Law §50-e. §50-e, however, excludes claims arising under the provisions of the Workers' Compensation Law, the Volunteer Firefighters' Benefit Law, and the Volunteer Ambulance Workers' Benefit Law, together with claims filed against public corporations by their own infant wards, from such notice of claim requirements.

The Mirro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02154.htm

New appointments to New York State Governor Cuomo's administration

New appointments to New York State Governor Cuomo's administration

Source: Office of the Governor

On April 2, 2018, Governor Andrew M. Cuomo today announced the following new appointments to his administration.

  

Lindsey Boylan has been appointed Deputy Secretary for Economic Development and Special Advisor to the Governor. She previously served as Chief of Staff and Executive Vice President at Empire State Development. Prior to joining the agency, Lindsey spent several years in municipal finance, ultimately as Vice President, at RBC Capital Markets. Earlier, she served in an executive role steering operations and business development for three interconnected New York City business improvement districts, public-private partnerships best known for their restoration of Midtown's iconic Bryant Park. Lindsey also worked for noted urban planner Alexander Garvin, focusing on a master planning and management process for a 4,500-acre park in Memphis, Tennessee. She is a graduate of Columbia Business School and received her B.A. in Political Science from Wellesley College, where she was elected Student Body President. 

 

Michael Schmidt has been appointed Senior Economic Advisor to the Governor. Mr. Schmidt most recently served as Deputy Secretary for Economic Development, where he oversaw policy and operations for twelve state agencies and authorities, including Empire State Development, the Department of Taxation and Finance, the Division of Homes and Community Renewal, and the Department of State. Previously, Mr. Schmidt served as economic policy advisor to Hillary Clinton during in her 2016 presidential campaign, where he led the development of Secretary Clinton's agenda on financial regulation, trade, infrastructure, housing, small business, and economic development. He has also served in the Office of Domestic Finance at the U.S. Department of the Treasury and as a Senior Financial Analyst at the Yale Investments Office. He holds a J.D. and a B.A from Yale.

 

Zackary Knaub has been appointed First Assistant Counsel to the Governor. Mr. Knaub most recently served as Assistant Counsel to the Governor, handling energy and environmental matters. Before joining the Executive Chamber, Mr. Knaub served as Regional Attorney for the Department of Environmental Conservation, managing the Department's legal affairs for the lower Hudson River Valley. Prior to his state service, he was a partner in the Shlansky Law Group, a boutique commercial and environmental litigation law firm, and an associate in the New York City office of Beveridge & Diamond, P.C. He began his legal career as a pro se and motions law clerk for the United States Court of Appeals for the Second Circuit. He graduated cum laude from Cardozo Law School, and holds a M.A. from Columbia University, and a B.A. with honors from the University of Iowa.

 

Carolyn Pokorny has been appointed Special Counsel for Public Integrity. She most recently served as Chief Special Counsel for Ethics, Risk and Compliance. Previously, she served as Deputy Chief of Staff and Counselor to U.S. Attorney General Loretta E. Lynch. Prior, she spent nearly fifteen years with the U.S. Attorney's Office in Brooklyn, where she held a number of leadership positions, including Deputy Chief of the Criminal Division. She received the U.S. Attorney General's Award for Distinguished Service, and the Federal Prosecutor of the Year award from the Federal Law Enforcement Foundation. Ms. Pokorny began her career as a prosecutor in the Bronx District Attorney's Office and then clerked for federal judge Arthur D. Spatt on Long Island. She has a B.A. from New York University, and a J.D. from Brooklyn Law School.

 

Camille Joseph Varlack has been appointed Deputy Director of State Operations. In 2017, she was appointed New York State Chief Risk Officer and Special Counsel and will retain those titles. Ms. Varlack has served as deputy director for ethics, risk and compliance in the Executive Chamber and as a principal law clerk for the New York State Supreme Court. She has also served as Assistant Vice President and Counsel at AXA Financial, Inc. and as an Assistant District Attorney for the Kings County District Attorney's Office. Ms. Varlack holds a B.A. from the State University of New York at Buffalo and a J.D. from Brooklyn Law School.

 

Giancarlo Pellegrini has been appointed Assistant Counsel to the Governor. Mr. Pellegrini most recently practiced law at Sidley Austin LLP in Washington, D.C., and he previously served as an Empire State Fellow in the Governor's Counsel's Office. Mr. Pellegrini holds a J.D. from Harvard Law School and a B.A. from Lehigh University. 

 

Andrew Chan Wolinsky has been appointed Assistant Special Counsel for Public Integrity. Previously, he was an associate in the litigation departments of Sullivan & Cromwell LLP and Davis Polk & Wardwell LLP, where his practice focused on white-collar criminal defense, regulatory enforcement proceedings, and internal investigations. He clerked for the Honorable Jane R. Roth of the United States Court of Appeals for the Third Circuit and the Honorable Loretta A. Preska, Chief Judge of the United States District Court for the Southern District of New York. Mr. Wolinsky earned his J.D. from Fordham University School of Law and his B.A. from Tufts University. 

 

Abigail Belknap Seidner has been appointed Assistant Special Counsel for Public Integrity in the Executive Chamber. Prior to entering public service, Ms. Seidner began her legal career at Cooley LLP, where she represented numerous pro bonoclients in addition to her private litigation practice. Ms. Seidner previously served as a legal intern in the U.S. Attorney's Offices for both the Southern and Eastern Districts of New York and at the New York Civil Liberties Union. Ms. Seidner holds a B.A. from Pomona College and a J.D. from New York University School of Law.

 

Michael Donegan has been appointed General Counsel at the Justice Center for the Protection of People with Special Needs.  Mr. Donegan has been with the Justice Center since August of 2013, where he was appointed as the first Director of the Employee Discipline Unit, supervising a staff of attorneys who represented state oversight agencies at disciplinary arbitrations. Prior to coming to the Justice Center, Mr. Donegan served 16 years as the General Counsel at the State Commission of Correction. He is a graduate of SUNY Albany and Hofstra University School of Law.

 

Mark Noordsy has been appointed General Counsel and Deputy Commissioner at the Office of Mental Health. He most recently served as Deputy Counsel for Litigation at OMH. Previously, he served at the New York State Department of Health, and Office of the Medicaid Inspector General, after twenty-eight years of private practice. Mr. Noordsy received a B.A., magna cum laude, from St. Lawrence University, and a J.D., with honors, from George Washington University.

 

Karen Mintzer has been appointed General Counsel at the New York State Office of Parks, Recreation and Historic Preservation. Ms. Mintzer joined Parks from the New York State Department of Environmental Conservation, where she served as Regional Attorney - General Counsel for Region 2 (New York City). Previously, she was in private practice, most recently as special counsel at Kramer Levin Naftalis & Frankel. She holds a B.A. from Lafayette College and a J.D. from Georgetown University Law Center.   

 

Sumit Sud has been appointed Deputy Chief Special Counsel for Ethics, Risk and Compliance. In this new role, Mr. Sud will coordinate the statewide program for ethics, risk and compliance across agencies and authorities, working with the Special Counsel for Public Integrity and New York State's Chief Risk Officer. He will assume this role while continuing to act on his previous appointments as Special Counsel to the Director for the New York State Insurance Fund and the Commissioner to the New York Department of Labor. Prior to joining the state, Mr. Sud served as Senior Counsel at the New York City Law Department, where he had been for almost ten years. He holds a J.D. from Case Western Reserve University in Ohio and a B.S. from the University of Washington, Seattle. 

Diversity Management

Diversity Management

The New York State Department of Civil Service has issued General Information Bulletin (GIB) GIB 18-01, Use of the Diversity Management Option for the Professional Career Opportunities (PCO) Exam.

Text of General Information Bulletin 18-01 will be found at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB18-01.cfm

If you wish to print General Information Bulletin 18-01, we offer a version in pdf format at:

https://www.cs.ny.gov/ssd/pdf/GIB18-01.pdf

An agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request

An agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request

Abdur-Rashid v NYC Police Department, 2018 NY Slip Op 02206, Court of Appeals

Hashmi v NYC Police Department, 2018 NY Slip Op 02206, Court of Appeals

The Chief Judge of the Court of Appeals described the issue presented in this appeal as follows: "May a public entity decline to acknowledge that requested records exist in response to a Freedom of Information Law request,  Public Officers Law §84 et seq. [FOIL], when necessary to safeguard statutorily exempted information."

A majority of the court held that the public entity may, affirming the Appellate Division's determination.

The court was split, in whole or in part, in this important decision, with the opinion by Chief Judge DiFiore in which. Judges Fahey, Garcia and Feinman concur while Judge Wilson dissented in part in an opinion and Judge Stein dissented in an opinion in which Judge Rivera concurs, the full text of decision, including Judge Wilson's and Judge Stein's opinions, are posted on the Internet.

Click on the following URL to access the decision:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02206.htm