Former municipal official found guilt of " Corrupting the Government in the First Degree"

On September 10, 2020, New York State Attorney General Letitia James and New York State Comptroller Thomas P. DiNapoli announced the sentencing of the former City of Mount Vernon Corporation Counsel Lawrence Porcari for abusing his position as a public official to engage in a scheme that defrauded the Mount Vernon Board of Water Supply of more than $300,000 to pay the personal legal expenses of the former Mount Vernon Mayor Richard Thomas and a public relations firm.* 

The jury found Mr. Porcari guilty of Corrupting the Government in the First Degree, a Class B felony; Grand Larceny in the Second Degree as a Crime of Public Corruption, a Class B felony; Defrauding the Government, a Class E felony; and other offenses.

Attorney General James said that “Any public official who lies, cheats, or defrauds New Yorkers must be held accountable to the fullest extent of the law ... public servants have a responsibility to serve with transparency, integrity, and respect for the state and all of its people. I thank Comptroller Tom DiNapoli for his partnership and continued unwavering commitment to rooting out corruption in all its forms.”

A press release issued by  Kate Gurnett of the Office of the State Comptroller notes that "Since 2011, the Attorney General and State Comptroller offices have worked together to fight corruption through their Joint Task Force on Public Integrity. They have brought charges against dozens of individuals implicated in public corruption schemes around the state — resulting in the return of more than $11 million in restitution to taxpayers through these convictions."

The Comptroller’s investigation was handled by Comptroller DiNapoli’s Division of Investigations and was handled by Investigator Angel LaPorte, under the supervision of Deputy Chief Investigator John McManus and Supervising Investigator Sylvia Rivera, and the overall supervision of Investigation Division Chief Oliver Pu-Folkes. Trial presentation assistance was provided by IT Specialist Matthew Rosenberg. Assisting in the investigation and providing forensic auditing analysis was Forensic Auditor Andre Hartley, under the supervision of Deputy Chief Auditor Sandy Bizzarro. Also assisting for the Attorney General was Legal Support Analyst Rebecca Saber.  

The case was prosecuted by Assistant Attorney General Meagan Powers and Special Counsel Brian Weinberg of the Attorney General’s Public Integrity Bureau, under the supervision of Bureau Chief Travis Hill. The Criminal Justice Division is led by Chief Deputy Attorney General Jose Maldonado and supervised by First Deputy Attorney General Jennifer Levy. 

* Mr.Porcari was sentenced to 1-3 years in prison. However, Judge David Zuckerman has temporarily stayed the execution of Porcari’s sentence. A status hearing is scheduled for November 18, 2020.

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Since taking office in 2007, State Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money can be reported by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Filing a demand for arbitration of a dispute held controlled by the terms and conditions set out in the relevant collective bargaining agreement

One of the issues presented in this appeal concerned a demand for arbitration by the aggrieved party [Petitioner] in response to a claim seeking the payment of a $1,111,124 "withdrawal liability" following Petitioner's withdrawal from a pension fund.

The relevant collective bargaining agreement provided that any arbitration would be filed with and therefore governed by the American Arbitration Association's [AAA] rules, which rules, as relevant here, required Petitioner to file a timely demand for arbitration and to submit the required AAA filing fee* in order to initiate the arbitration process.

Petitioner contended that the district court erred in granting summary judgment against it, arguing that:

[1] It had made a timely demanded for arbitration of the issue; and

[2] Any failure to make a timely demand was excused because the arbitration rules of the AAA "imposed preconditions to arbitration that were not fair or equitable."

Rejecting the claims advanced by the Petitioner, the Circuit Court concluded that the Petitioner was bound by the AAA's rules, which required Petitioner to initiate arbitration with the AAA by filing a timely formal demand for arbitration and submitting the required filing fee, and found that the Petitioner had not done so.

Accordingly, Circuit Court of Appeals affirm the federal district court’s judgment.

* In this instance the AAA filing fee was $8,200.

'The decision is posted on the Internet at: https://law.justia.com/cases/federal/appellate-courts/ca2/19-1093/19-1093-2020-09-03.html

New York State launches a "Dashboard" providing real-time tracking of COVID-19 infections and testing operations of every New York State school and school district

On September 8, 2020, New York State's Governor Andrew M. Cuomo announced the launching of New York State's "COVID-19 Report Card",* an Internet Web Site which will track real-time COVID-19 infections and testing operations of every New York school and school district.** 

The Governor issued an Executive Order directing schools, local health departments, labs and all testing sites properly collect and report COVID-19 testing data for students and staff at each school in New York State, ensuring this information can be accurately presented on the online COVID-19 Report Card.

COVID-19 report card data includes: positive cases by date of students and staff; number of students and staff on-site; percentage of on-site positive cases; number of tests administered by school, test type, lab used and lag time; date of last submission and update.

As schools reopen and districts, local health departments, and labs will begin reporting this data to the NYS Dept. of Health, the COVID-19 Report Card, which is  designed to provide parents, teachers, students with comprehensive data updated on a daily basis and includes such data as:

Positive infections by date of students and staff by school and school district;

Whether a school or a school district, and its student and staff, are in a remote, in-person, or hybrid learning mode;

The number of students and staff on-site;

The percentage of on-site students and staff who test positive;

The number of COVID-19 tests administered by the school, test type, lab used and lag time; and

The date of the last submission or update.

Visitors to the website simply type in their home address to identify their school district, select their specific school, and all reported positives, a breakdown of testing and results for students and teachers and the current enrollment will be displayed.  The "Dashboard" will feature 7-day trend charts so visitors can track results over time. 

* New York school districts will be providing the Department of Health with information on the number of people who have tested positive for COVID-19 and other COVID-19 related data daily. Once the reporting starts, the COVID-19 Report Card will be activated and relevant material posted on the Internet at https://schoolcovidreportcard.health.ny.gov/.

** See, also, Chapter 168 of the Law of 2020, "An act to amend the labor law, in relation to requiring public employers to adopt a plan for operations in the event of a declared public health emergency involving a communicable disease; and to amend the education law, in relation to certain protocols for responding to a declared public health emergency involving a communicable disease." The act requires all public employers, i.e., the State and political subdivisions of the State including school districts, to create plans to adequately protect workers in the event of another state disaster emergency involving a communicable disease.  Plans must be submitted to unions and labor management committees within 150 days, and plans need to be finalized on or before April 1, 2021.

New York State Governor Andrew M. Cuomo signs law to protect public officers and employees in New York State in the event of another COVID-19 type of health emergency.

Governor Andrew M. Cuomo announced that he signed a new law* that will protect State officers, employees and officers and employees of political subdivisions of the State and school district personnel  in the event of another COVID-19 type of health emergency.

Those entities are to provide a list of positions considered essential, descriptions of how employees would stagger to reduce overcrowding, and protocols for personal protective equipment [PPE], as well as noting what is required when an employee is exposed to the disease. 

Plans must be submitted to employee organizations and labor management committees within 150 days, and plans must be finalized no later than April 1, 2021.

Operation plans must include:

List and description of positions considered essential;

Descriptions of protocols to follow to enable all non-essential employees to work remotely;

Description of how employers would stagger work shifts to reduce overcrowding

Protocols for PPE;

Protocol for when an employee is exposed to disease;

Protocol for documenting hours and work locations for essential workers;

Protocol for working with essential employees' localities for identifying emergency housing if needed; and

Any other requirement determined by the New York State Department of Health, such as testing and contact tracing.

In addition, the New York State Department of Labor is to provide an online portal for public employees to report violations of health and safety rules for communicable diseases, including COVID-19.

* Chapter 168 of the Laws of 2020. The act requires public employers in New York State to adopt a plan for operations in the event of a declared public health emergency involving a communicable disease which shall include identification of essential personnel, needed personal protective equipment, staggering work shifts and providing necessary technology for telecommuting.

 

The failure to serve a timely notice of claim upon a municipality or public corporation may be excused under certain circumstances

General Municipal Law §50-e requires that a "notice of claim" be served upon the municipality or public corporation within 90 days of the date that the claim arose as a condition precedent to commencing an action sounding in tort against a municipality or public corporation,.* 

The failure to serve a timely the notice of claim was the issue when a petitioner [State Trooper] sought for leave to serve a late notice of claim against the County and the County Sheriff [jointly "the County"] in order to bring a lawsuit against the County for State Trooper's injury she allegedly suffered while she was responding to a 911 call and her state police motor vehicle collided with a motor vehicle operated by a Deputy Sheriff employed by the County.

Supreme Court granted State Trooper's petition seeking to serve the late notice and the County appealed.

The Appellate Division, holding that Supreme Court "providently exercised its discretion" in granting State Trooper's petition to serve a late notice of claim on the County, explained:

1. In determining whether to grant leave to serve an untimely notice of claim, the court, in exercising its discretion, must consider all relevant circumstances, including whether (1) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice, (2) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay in seeking leave would substantially prejudice the municipality or public corporation in its ability to defend against the action;

2. "The presence or absence of any one of these factors is not necessarily determinative" and "the absence of a reasonable excuse is not necessarily fatal" to the courts granting the petition; and

3. Whether the municipality or public corporation acquired timely actual notice of the essential facts constituting the claim should be accorded great weight.

In this instance the Appellate Division, citing Kuterman v City of New York, 121 AD3d 646, concluded that the County acquired timely, actual knowledge of the essential facts constituting the claim, opining that "[a]lthough a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality. Where, however, the municipality's employee was involved in the accident and the report or investigation reflects that the municipality had knowledge that its employee committed a potentially actionable wrong, "the municipality can be found to have actual notice."

The police report, said the court, indicated that the County committed a potentially actionable wrong "when its employee allegedly failed to yield the right of way to the injured [State Trooper's] vehicle even though the injured [State Trooper's] vehicle's lights and sirens were activated" and the accident report indicated that the State Trooper "was allegedly injured in the accident."

Further, noted the Appellate Division, in responding to a Freedom of Information Law for documents related to this accident, the County produced the police accident report, photographs taken of the vehicles and the accident scene, unit activity logs for the vehicles, and the County Sheriff's report regarding the accident. Accordingly, the court concluded that "the County [had] acquired timely actual knowledge of the essential facts constituting the [State Trooper's] claim."

Finding that the County had acquired timely knowledge of the essential facts constituting the State Trooper's claim, the Appellate Division held that the State Trooper met her "initial burden of showing that the County would not be prejudiced by the late notice of claim" and the County "failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits."

Addressing the issue of State Trooper's delay in seeking to file a late notice of claim, the Appellate Division ruled that as the County had actual knowledge of the essential facts underlying the claim and as no substantial prejudice to the County was demonstrated, "[State Trooper's] failure to provide a reasonable excuse for the delay in filing [her] notice of claim did not serve as a bar to [Supreme Court's] granting leave to serve a late notice of claim.

* See Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d 672.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_04840.htm