Seeking a "retiree service letter" authorizing the retiree to carry a weapon

A Triborough Bridge and Tunnel Authority [Authority] Retiree requested the Authority to issue a "retiree service letter" to him in order to assist him in obtaining a special pistol carrying permit. When the Authority declined to issue such a letter, Retiree brought a CPLR Article 78 action seeking a court order compelling the Authority to issue a "retiree service letter" to him. The Appellate Division dismissed Retiree's Article 78 petition.

Citing Matter of Peckham v Calogero, 12 NY3d 424, the Appellate Division ruled that the Authority's denial of Retiree's request was not arbitrary and capricious as:

1. Retiree conceded that he was not authorized to carry a firearm under Authority's policy at the time of his separation from employment as he surrendered his firearm beforehand due to an injury, and 

2. Retiree did not seek reinstatement of such authorization. 

Accordingly, said the court, Retiree had no right to issuance of the retiree service letter "since his authority to carry firearms had been revoked . . . and had not been restored at the time he retired".* 

Turning to Retiree's claim that the Authority's refusal to issue the letter requested violated his Second Amendment rights, the Appellate Division rejected this argument explaining that the Authority's decision did not preclude him from applying for a permit "under normal legal procedures." Further, opined the court, "[e]ven assuming there is a private right of action under the Law Enforcement Officers Safety Act of 2004, [Retiree] cannot demonstrate that he met the qualification standards within one year of retirement" required to bring such an action.

Addressing Retiree's argument that the Authority's refusal to issue the retiree service letter constituted a violation of the Americans with Disabilities Act, the court noted that Retiree conceded that his injury rendered him unable to perform his duties as a law enforcement officer and found "no factual basis to conclude that [the Authority's] decision was made in bad faith rather than as part of an across the board policy.

* See Matter of Laier v McGuire, 111 AD2d 43, affd 65 NY2d 904.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01240.htm

Municipal audits issued during the week ending April 24, 2020

On April 24. 2020, New York State Comptroller Thomas P. DiNapoli announced the following local government audits have been issued.

Click on the text highlighted in color to access the complete text of the report.

Village of Bloomingburg – Financial Operations (Sullivan County)

The board did not adequately oversee the treasurer’s work or require annual audits of the treasurer’s records and reports. Auditors also found that the treasurer did not provide regular financial reports to the board or maintain adequate accounting records. In addition, the treasurer did not file Annual Update Documents (AUDs), which are the required annual financial reports, with the Office of the State Comptroller (OSC) or the board in a timely manner.

Village of Greenwich – Cash Management (Washington County)

The board did not develop and manage a comprehensive investment program to ensure interest earnings were maximized. Also, village officials did not solicit interest rate quotes from additional financial institutions or prepare any cash flow forecasts to estimate the amount of funds available for investment. Had officials invested available funds in a financial institution with higher available interest rates, interest earnings could have been increased by approximately $42,200 during the audit period.

Village of Greenwich – Water and Sewer Financial Operations (Washington County)

The Village lacked effective procedures to ensure water and sewer charges were accurately billed, collected and enforced. Board-adopted water rates were incorrectly set up in the billing and collection software. Customer bills were not accurately prepared. As a result, the customers auditors reviewed were underbilled by $4,758 and overbilled by $235. In addition, delinquent customer accounts were not always assessed penalties in accordance with the board-adopted local laws. As a result, based on the delinquent customer accounts auditors reviewed, the Village lost revenue totaling $3,244.

Village of Suffern – Budget Review (Rockland County)

Auditors found that significant revenue and expenditure estimates in the tentative budget are reasonable. The village budgeted approximately $2.13 million in metered water revenue and $2.67 million in sewer rent revenue. However, based on collections of water and sewer rents in prior years, auditors estimate the total 2020-21 collections for water and sewer revenue will be approximately $1.94 million and $2.38 million, respectively, which is approximately $190,000 less than budgeted for water revenues and approximately $290,000 less than budgeted for sewer revenues. The tentative budget includes a tax levy of $12,426,613 which is $471,753 above the limit established by law.

Cybersecurity and COVID-19

Concerns about the impact of COVID-19 individuals and the economy has resulted in a variety of efforts by some individuals to use email, text messages, telephone calls and postings on the Internet to persuade organizations and individuals to reveal financial and other confidential information to their detriment. 

Below are some of the types of messages that are currently being used in targeting government agencies, not-for-profits, businesses and individuals in an effort to obtain an organization's confidential data or information or an employee's or an individual's personal information.

A pop-up or message seeking to confirm or update the organization's or an employee's banking or other financial information. 

  

An email or text seeking contributions to "Fight the Coronavirus."*

A message offering investment opportunities in organizations "Fighting Coronavirus." 

A message seeking information to assist the organization or individual to apply for or receive an economic stimulus check or similar funds. 

Calls, emails, or other communications claiming to be from the FDIC or another federal agency or a state or municipal government organization offering COVID-19 related grants or payments upon receipt of certain financial information. 

Robocalls offering funds to organizations and businesses affected by the pandemic and selling "referral programs." 

Fraudulent checks from entities posing as a vendor.

The above information was provided by Mr. Heinan Landa, CEO and Founder of Optimal Networks, an IT services firm. Mr. Landa offers to discuss online security and what your organization can do to protect itself against COVID-19 generated scams. You may contact Mr. Landa by telephone  [240-506-5702] or email [hlanda@optimalnetworks.com].

* NYPPL received the e-mail set out below on April 23, 2020:

NOMZING TRADING N.G.O FOUNDATION
Thu, Apr 23 2020 3:06 PM

From: cvd19.relieffunds@sa. . . . .

ATTENTION:

This is pleading with all well meaning organizations and kind individuals to please come and let's join South Africa Government fight CORONA VIRUS (COVID 19) Through (NOMZING TRADING NGO FOUNDATION ) to enable us support the less privilege amongst us, So they can be able to buy Hand sanitizers, Face-Mask, Food, and other Items during this Lock-down period. It doesn't matter the country you're from, we are all one. Let's fight this together to spread love and support to our people, we can't leave this heavy load of The Pandemic to our Government alone, it is also our duty to be there for people that are not able to benefit from Government, they need our support at a time like this, Please you can support us with financial donations through the following account details, no amount is too small.

[Instructions for processing contributions deleted.]

N.B. A Google search for "NOMZING TRADING NGO FOUNDATION" reported:

"No results found for "NOMZING TRADING NGO FOUNDATION".

A CPLR challenge to an administrative determination is subject to a four-month statute of limitations

Challenges to the Retirement Systems' calculation of a member's pension benefit, an administrative determination, may be challenged to CPLR Article 78 but such a challenge is subject to a four-month statute of limitations.

In this Article 78 action a member of the New York City Teachers' Retirement System objected to the exclusion of his 2011 summer pay from the calculation of his pension benefit.* The member did not initiate a judicial challenge to the Retirement System's decision, which decision became final and binding upon member in October 2011, when he received his benefits letter from the Retirement System. 

In 2017 the member received a response to the member's inquiry concerning his pension benefit stating the "there is nothing further than can be done." 

In dismissing the member's Article 78 decision the Appellate Division opined that the Retirement System's response to the member's letter in 2017 "did not extend the [Article 78] limitations period" for bringing a timely action.

As the Appellate Division held in Baloy v Kelly, 92 AD3d 521, a request for reconsideration of an administrative determination neither extends nor enlarges the statute of limitation for filing a timely Article 78 petition.


* Essentially the retirement allowance payable to a retired member of a New York public retirement system consists of two part, a pension portion determined by the members "final average salary" and "years of service credit" and an annuity portion to which the member has made employee contributions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01968.htm

Determining if a dispute between a public employer and a public employee organization is arbitrable

In this hybrid Article 75 proceeding the Board of Education [Board] sought a court order pursuant to CPLR article 75 permanently staying an arbitration. Supreme Court denied the petition and granted the Federation of Teachers' [Federation] motion to compel arbitration. The Appellate Division affirmed the Supreme Court's ruling.

Federation had filed a grievance alleging that the Board had violated a term and condition of the relevant collective bargaining agreement [CBA] between the parties by failing to enforce a parking space assignment set out in the CBA.

The Appellate Division, citing Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 153 AD3d 617, said that "Public policy in New York favors arbitral resolution of public sector labor disputes"  but that a dispute between a public sector employer and a public sector employee organization is only arbitrable if it satisfies a two-prong test.

The first prong of this two-point test to be satisfied is the absence of any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If the court finds that there is no such prohibition against the arbitration, it must then determine if the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

In this instance the Board did not contend that arbitrating the Federation's grievance was barred by law or public policy. Accordingly, the issue to be addressed by the Appellate Division was whether the Board and Federation did, in fact, agree to arbitrate the particular dispute. To resolve this question the court must determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Recalling that in analogous cases "this Court had held that the arbitration provision of the CBA at issue here is broad,"* the Appellate Division concluded that there was "a reasonable relationship between the subject matter of the dispute, staff parking, and the general subject matter of the CBA, including conditions of employment" and affirmed the decision of the Supreme Court.

* See Board of Educ., Yonkers City School Dist. v Yonkers Fedn. of Teachers, 110 AD2d 897, 898-899; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 81 AD2d 585; and Matter of Board of Education of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 49 AD2d 753.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01343.htm