County's False Alarm Law alleged to violate the due process rights of alarm owners

Federal District court dismissed Plaintiff's law suit against the County defendant upon concluding that the County’s False Alarm Law [1] did not violate the due process rights of County alarm owners; [2] did not effectuate an unlawful taking under the Fifth Amendment; and [3] did not violate New York state law.

The United States Court of Appeals, Second Circuit, affirming the district court's ruling, explained:

1. "The false alarm fines for non-residential alarm owners range from $100 to $500 and are not so high as to have a severe economic impact on a business establishment;

2. "The False Alarm Law does not require alarm owners to disable the alarm or to remove the alarm after a false alarm;

3. "Law enforcement does not stop responding to alarms from a particular establishment if it has responded to a false alarm at that establishment in the past;

4. "The investment-backed expectation—that the alarm system protects its establishment in the event of an emergency—has not been frustrated; and

5. "Because the False Alarm Law aims to preserve law enforcement resources for true emergencies rather than false alarms, the cost associated with false alarm fines would be an expected cost of maintaining an alarm system that calls for law enforcement to respond rather than a departure from the expectations a business would have when investing in such an alarm system."

The text of the Circuit Court's decision is posted on the Internet  HERE 

 

 

Accessing the New York State Workers' Compensation Board's latest information via social media

Did you know the New York State Workers' Compensation Board [WCB] is available on social media? 

For the latest WCB and NY Paid Family Leave news, events, training, and more, access the WCB via the following social media addresses:

FACEBOOK = @NYSWCB

TWITTER = @NYSWorkersComp

INSTAGRAM = @NYSWorkersCompBoard

UTUBE = www.youtube.com/NewYorkStateWorkersCompensationBoard

 

 

Court rules appointing authority's imposing the disciplinary penalty of termination "shocking to one's sense of fairness" under the circumstances

Petitioner in this CPLR Article 78 proceeding challenged the appointing authority's [Town] dismissing her from her position with the Town after she was found guilty of four charges alleging misconduct and insubordination arising from an incident in which Petitioner "took approximately $181 from the Town's petty cash fund."*

At her Civil Service Law §75 disciplinary hearing Petitioner maintained that she intended only to borrow the money and to replenish the fund later. Addressing this representation, the Appellate Division said "it was undisputed that [Petitioner] left a note in the [Town's] petty cash envelope indicating that she owed money to the fund."

The Appellate Division modified the Town's determination "on the law" and annulled that part of the Town's determination finding Petitioner guilty of charges 1 and 2,  finding charges 1 and 2, which charged her respectively with theft and larceny, was not supported by substantial evidence** and vacated the penalty of termination.

The court explained that "A person "commits larceny when, with intent to deprive another of property or to appropriate the same to him[- or her]self or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof." Here, said the Appellate Division, it concluded that Petitioner's actions, "particularly the creation and placement of the note" indicating that she "owed money to the fund" are inconsistent with an intent to deprive or appropriate and annulled that part of the Town's finding Petitioner guilty under charges 1 and 2.

However, said the court, with respect to charges 3 and 4, alleging Petitioner had violated certain Town's policies, Petitioner's contention that the charges 3 and 4 are not supported by substantial evidence of insubordination "is not properly before us because it [was] not raised in the petition."

In light of Petitioner's "32 years of service to the Town, her impending retirement, and the absence of grave moral turpitude," the majority of the court, citing the so-called Pell Doctrine,*** concluded that the penalty of termination was "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." 

The matter was then remitted to the Town for imposition of an "appropriate penalty less severe than termination."

* The decision notes that Petitioner contended, and the Town "correctly conceded," imposing a penalty of a six-month suspension without pay would be "illegal."

** Presiding Justice Carni and Justice Curran, dissenting, said that in their view [1] the determination of Petitioner's guilt with respect to charges 1 and 2 was supported by substantial evidence; [2] there was evidence from which a reasonable mind could conclude that Petitioner did not intend to return the funds taken; and [3] the penalty of termination was not "so disproportionate to the offense[s] as to be shocking to one's sense of fairness and thus does not constitute an abuse of discretion as a matter of law."

*** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Click HERE to access the text of the Appellate Division's ruling.

 

If, in the course of collective negotiations, the parties agree to certain terms until "an agreement is reached by the parties," such terms become inoperative when the contemplated agreement between the parties is reached

Supreme Court granted the motion submitted by Board of Education of the City of New York [DOE] to dismiss a hybrid CPLR Article 78 proceeding brought by a Union [UFT] for failure to state a cause of action. The UFT complaint-petition* had alleged:

[1] a breach of contract by DOE; and 

2] DOE's decision not to give retroactive salary increases  to union-member managers that were given to City-wide managerial employees paid pursuant to the Pay Plan for Management Employees was arbitrary and capricious.

The Appellate Division unanimously affirmed the Supreme Court's decision, explaining that the "complete, clear and unambiguous terms of the "Agreement" entered into by the parties require that union-member managers receive the same salary increases received by nonunion managers "[u]ntil an agreement is reached." In other words, as characterized by the court, the Settlement Agreement was operative only as long as collective bargaining negotiations between DOE and the UFT were "ongoing"

The Appellate Division pointed out that UFT's complaint-petition alleged that the nonunion managers received the salary raise and benefits demanded by the Union approximately one year after UFT and DOE entered into the Memorandum of Agreement [MOA]. In the words of the Appellate Division, "[t]hus, the receipt of the salary increase occurred outside the time period contemplated by the Settlement Agreement."

The Appellate Division then opined that UFT's claim that the Settlement Agreement requires the UFT-represented managers to receive retroactive raises granted even after the MOA has taken effect, would inappropriately "add or excise terms or distort the meaning of ... particular words or phrases." Thus, said the court, the breach of contract claim was correctly dismissed by Supreme Court.

Pointing out the UFT's claim that the failure to provide the raise to the union-member managers was arbitrary and capricious was correctly dismissed by the lower court for the reasons stated in the above paragraph, the Appellate Division opined that "DOE determined rationally that the Mayor's Personnel Order, which applied to management-level employees 'in active pay status in a position under the Pay Plan for Management Employees' as of the day before the raise was made retroactive and in active status on the date of this order,' excluded the union-member managers at issue."

* The Appellate Division noted that the complaint-petition alleged that the union-member managers' salaries "were governed by the MOA, not the Pay Plan for Management Employees," when the MOA became effective in November 2017.

Click HERE to access the Appellate Division's decision.

 

Audits and reports issued during the week ending April 30, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending April 30, 2021.

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

MUNICIPAL AUDITS

Brighton Fire Department, Inc. – Board Oversight of Financial Operations (Monroe County) The board did not provide adequate oversight of financial operations. The department lacked detailed financial procedures and the board did not enforce compliance with existing bylaw and policy provisions. They also did not present the statutorily-required annual directors’ report or any interim financial information to the membership. Of 220 disbursements reviewed totaling $545,658, 155 (70 percent) totaling $190,160 did not have documented approval and 93 (42 percent) totaling $92,605 did not have adequate supporting documentation.

Brighton Fire District – Non-Payroll Disbursements (Monroe County) District officials did not ensure non-payroll disbursements were properly procured, approved or adequately supported. Of 97 disbursements tested totaling $1.13 million, seven disbursements totaling $568,648 lacked adequate documentation. Of 19 professional service providers paid $769,931 in 2019, officials did not seek competition or provide documentation that competition was sought for 11 totaling $133,567. The district may have saved about $7,100 for meals and lodging if the United States General Service Administration per diem rates were used. The financial software allowed changes to transaction data without approval and officials did not use available software controls to further safeguard transactions.

Town of Marcy – Justice Court Operations (Oneida County) The justices generally provided adequate oversight of court financial activities and ensured collections were deposited timely and intact and were properly reported and remitted. However, the justices did not document their review of the clerk’s monthly bank reconciliations and accountabilities. They did not ensure the court clerk properly handled or made reasonable efforts to collect payment on 12 pending traffic tickets (30 percent) of 40 tickets tested. The justices also did not ensure the court was using the most up-to-date and secure recordkeeping software.

Town of Milo – Financial Condition (Yates County) The board did not effectively manage the town’s financial condition. More real property taxes and user fees were levied than needed to fund operations. The board did also not adopt realistic budgets for each of its funds from 2017 through 2020, multiyear financial and capital plans or the following policies in fund balance, reserve and budgeting. As of December 31, 2020, the general, highway and water funds unrestricted fund balances were excessive, ranging from 97 percent to 178 percent of 2020 expenditures.

Town of New Windsor – Information Technology (Orange County) Town officials did not ensure information technology systems were adequately secured and protected against unauthorized use, access and loss. Officials did not provide employees with cybersecurity training. They did not have a disaster recovery plan. In addition, officials did not ensure online banking agreements comply with New York State General Municipal Law. Sensitive IT control weaknesses were communicated confidentially to officials.

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