Retired former police officer denied a "retiree service letter" which would assist in obtaining a special pistol carrying permit

Retired police officers often request a "retiree service letter" [RSL]to assist the retiree in obtaining a special pistol-carrying permit. 

In this CPLR Article 78 action, a retiree [Plaintiff] sought a court order annulling his former employer's [Agency] determination which denied Plaintiff's request for a RSL and asked the court to issue an order compelling that such a letter be issued. Supreme Court dismissed Plaintiff's petition and he appealed the court's ruling.

Citing Peckham v Calogero, 12 NY3d 424, the Appellate Division unanimously affirmed the lower court's ruling, without costs, holding that the Agency's denial of Plaintiff's request was neither arbitrary nor capricious.

The Appellate Division explained that Plaintiff conceded that he was not authorized to carry a firearm at the time of his separation from employment, as he had earlier surrendered his firearm due to an injury, and he had not sought reinstatement of such authorization. Accordingly, said the court, Plaintiff "had no right to issuance of" the RSL "since his authority to carry firearms had been revoked ... and had not been restored at the time he retired"

Further, opined the court, the Agency's decision not to issue the RSL did not violate Plaintiff's Second Amendment rights, since it did not preclude him from applying for a permit under normal legal procedures set out in §400.00 on New York State's Penal Law.

In addition, the Appellate Division observed that:

1. Assuming there is a private right of action under the Law Enforcement Officers Safety Act of 2004, Plaintiff "cannot demonstrate that he met the qualification standards within one year of retirement";

2. Plaintiff cannot demonstrate a violation of the Americans with Disabilities Act based on his former agency's refusal to issue the RSL as he concedes that his injury rendered him unable to perform his duties as a law enforcement officer; and

3. There is no factual basis to conclude that the Agency's decision refusing to provide Plaintiff with a RSL was made in bad faith rather than as part of an across the board policy.

Click HERE to access the Appellate Division's decision.

 

Live Webinar addressing continuity of goverment in a crisis

Government Technology has scheduled a Webinar addressing Continuity of Government: Maintaining Constituent Services and Employee Collaboration in a Crisis to be held on Tuesday, June 29 | 2:00pm Eastern.

Noting that today’s headlines are filled with reports of increasingly sophisticated and disruptive cybercrimes, Government Technology observes that "government agencies have become primary targets for ransomware attacks that lock up vital systems and data", and that:

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"And, of course, many state and local jurisdictions face greater cyber risk due to expanded adoption of remote work and digital service delivery, coupled with a greater dependence on their IT infrastructure."

Click here to Register to attend.

 

 

The disability finding of the Social Security Administration is not dispositive of the Retirement System's Medical Board's disability determination

The determination to deny petitioner's application for accident disability retirement was not arbitrary and capricious, and was supported by some credible evidence (see Matter of Merlino v Teachers' Retirement Sys. of the City of N.Y., 177 AD3d 430, 430 [1st Dept 2019], citing Matter of Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756, 760 [1996]). The finding of respondent's Medical Board that petitioner was not disabled was supported by its physical examination and interview of petitioner (see Matter of Fusco v Teachers' Retirement Sys. of the City of N.Y., 136 AD3d 450, 451 [1st Dept 2016]). Upon examination, petitioner was able to move around unassisted, had normal strength and range of motion in his shoulders, elbows, wrists, and hips, and had little or no tenderness in his neck and back. 

In addition, the Medical Board noted that petitioner had not had standard of care epidural injections, trigger point injections, or any other procedures to improve his current complaints. Petitioner claims that the Medical Board ignored his medical history, but resolution of conflicting evidence was for the Medical Board to resolve (see Matter of Athanassiou v Kelly, 101 AD3d 517 [1st Dept 2012]; Matter of Bell v New York City Employees' Retirement Sys., 273 AD2d 119, 120 [1st Dept 2000], lv denied 96 NY2d 701 [2001]).

The disability finding of the Social Security Administration was not dispositive of the Medical Board's disability determination (see Fusco, 136 AD3d at 451, citing Matter of Barden v New York City Employees' Retirement Sys., 291 AD2d 215, 216 [1st Dept 2002]). Nor did the [*2]finding of the medical arbitrator, who examined petitioner after the Medical Board made its determination, warrant article 78 relief (see id.).

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_01256.htm

 

Audits and reports issued during the week ending June 26, 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 June 26, 2021.

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

 MUNICIPAL AUDITS

Brasher-Winthrop Consolidated Fire District – Board Oversight (St. Lawrence County) The board did not provide adequate oversight of district financial activities. The board did not establish compensating controls over the work of the treasurer, who was responsible for receiving and disbursing cash, signing district checks and maintaining the accounting records. The board also did not audit district claims prior to payment and conduct an annual audit of the treasurer’s records. In addition, the board did not ensure the treasurer filed required annual financial reports for 2017 through 2019 and they did not complete mandatory fiscal oversight training. Auditors reviewed all $44,227 disbursements made during the audit period and found that they were for proper district purposes.

City of Dunkirk – Billing Enforcement (Chautauqua County) The city treasurer did not properly enforce and the common council did not properly monitor delinquent water, sewer and tipping fee balances. The treasurer did not follow the enforcement procedures prescribed by the city code.

Town of Morris – Justice Court Operations (Otsego County) The justice collected, deposited, disbursed, recorded and reported the fines and fees we reviewed in an accurate and timely manner. During the audit period, the justice deposited cash receipts totaling $25,398 and made disbursements totaling $30,398. Auditors reviewed a sample of 42 cash receipts totaling $7,307 and all disbursements totaling $30,398.

Town of Pawling – Procurement (Dutchess County) Town officials did not always use a competitive process to procure goods and services. Officials did not develop detailed procedures for procuring professional services in their procurement policy. Auditors also found officials did not seek competition for professional services obtained from eight service providers. In addition, officials did not competitively bid for sanitation services totaling $186,821.

Theresa Fire District – Board Oversight and Financial Management (Jefferson County) The board did not provide adequate oversight to ensure that financial activities were properly recorded and reported. They did not properly manage fund balance. The treasurer did not maintain adequate accounting records or provide regular financial reports to the board. She also did not file required annual financial reports with the Office of the State Comptroller in a timely manner. The 2017 through 2019 annual reports were filed between 331 and 1,018 days late. The board did not audit all claims prior to payment and did not annually audit the treasurer’s records. In addition, the board did not adopt realistic budgets based on historic trends. The district ended 2019 with $345,000 in surplus fund balance – enough to fund nearly two years’ of expenditures. Auditors project the district will end 2020 with a surplus of about $308,800 (177% of 2021’s budget).

Town of Wolcott – Financial Management (Wayne County) The board did not effectively manage the town’s financial condition. They did not have a clear understanding of the laws governing the finances of the general fund tax bases and did not have an understanding of the finances for the closed landfill. In addition, the board did not treat taxpayers equitably when budgeting for and allocating certain revenues and expenditures in the “town-wide” and “town-outside-village” general funds. Town-wide funds are used for the benefit of residents of the entire town, including the village. Town-outside-village funds are used only for the benefit of residents in the portion of the town that lies outside of the village. The board also adopted unrealistic budgets and did not maintain reasonable levels of fund balance. They also did not adopt a multiyear financial and capital plan or detailed reserve plan. The board’s ability to effectively manage the town’s financial condition is further hampered by not requiring regular financial reporting.

Town of Wolcott – Information Technology (Wayne County) The board did not ensure that information technology (IT) assets were adequately safeguarded. The board also did not adopt any IT policies or a disaster recovery plan. They did not provide users with cybersecurity awareness training. In addition, the board did not ensure the financial software, town clerk’s software and justice court software had the necessary controls to maintain data integrity. Sensitive IT control weaknesses were communicated confidentially to officials.

SCHOOL DISTRICT AUDITS

Argyle Central School District – Medicaid Reimbursements (Washington County) The district did not maximize Medicaid reimbursements by submitting claims for all eligible Medicaid services provided. The district lacked adequate procedures to ensure Medicaid claims were submitted and reimbursed. Claims were not submitted for 1,251 eligible services totaling $26,637. Had these services been claimed, the district would have realized revenues totaling $13,319 – 50% of the reimbursement.

Greenwich Central School District – Extra-Classroom Activities (Washington County) District officials did not ensure that extra classroom activity (ECA) funds were adequately safeguarded or that the collections were always properly supported. ECA disbursements were properly accounted for. The faculty auditor did not adhere to the district’s ECA policy, which resulted in insufficient oversight of and inadequate reviews of their collections and records. The student treasurers did not maintain adequate supporting documentation for 69% of the collections reviewed – 32 of the 70 collections totaling $30,970 – which prevented district officials from determining whether the collections were remitted intact and in a timely manner. Student treasurers also did not maintain adequate supporting documentation for three of the seven fundraising events reviewed. This prevented district officials from ensuring all the ECA clubs’ fundraising activities collections were properly supported.

Jefferson Central School District – Procuring Services (Delaware County and Schoharie County) District officials did not always seek competition for services. Officials paid $135,000 to 10 of the 14 service providers reviewed without seeking competition. Officials also paid $6,410 to an employee’s private business for lawn care services without public written disclosure of his interest in the contract with the district.

New Lebanon Central School District – Network User Accounts (Columbia County) Officials did not establish adequate controls over the district’s network user accounts to protect against unauthorized use, access and loss. Officials also did not disable 26 unneeded generic accounts of the 48 generic network accounts examined. They did not ensure acceptable use policy compliance. In addition, officials did not monitor the use of the information technology (IT) resources. They did not provide IT security awareness training to all employees using IT resources. Sensitive information technology (IT) control weaknesses were communicated confidentially to officials.

Smithtown Central School District – Claims Processing and Travel-Related Expenses (Suffolk County) The board ensured the claims auditors reviewed were adequately documented, for appropriate purposes and properly audited and approved prior to payment. However, the board could have saved the district $1,855 by adopting federal per diem rates for travel expenses.

Valley Central School District – Information Technology (Orange County and Ulster County) The board and district officials did not ensure information technology (IT) systems were adequately secured and protected. District officials did not monitor compliance with the district’s computer acceptable use policy. The district also did not have a contingency plan to recover in the event of a significant service interruption. In addition, the Board did not physically control access to or establish environmental controls over the server room. Sensitive IT control weaknesses were communicated confidentially to officials.

West Canada Valley Central School District – Non-Payroll Disbursements (Herkimer County and Oneida County) District officials did not implement adequate internal controls to ensure that non-payroll disbursements were authorized and proper. The business manager/treasurer did not control when her electronic signature was used by another employee to sign checks. The claims auditor did not approve medical, vision, and dental insurance claims totaling $3.9 million. The board also did not develop an online banking policy or procedures to verify that transactions are proper.

Whitesville Central School District – Information Technology (Allegany County and Steuben County) District officials did not adequately secure access to the network and information systems. District officials also did not disable six unnecessary user accounts. They did not establish written policies or procedures to monitor shared accounts or for adding, modifying or disabling user permissions to the network and information systems. District officials also did not establish a written agreement with the Erie 1 Board of Cooperative Educational Services (BOCES) to define information technology services to be provided. In addition, sensitive IT control weaknesses were communicated confidentially to officials.

Disciplinary proceedings instituted by the Attorney Grievance Committee for the First Judicial Department

Rudolph W. Giuliani, Esq. challenged the Attorney Grievance Committee for the First Judicial Department's seeking a court order pursuant to Judiciary Law §90(2) and the Rules for Attorney Disciplinary Matters (22 NYCRR) §1240.9(a)(5), immediately suspending him from the practice of law based upon his alleged violations of rules 3.3(a); 4.1; 8.4(c) and 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0) (Rules of Conduct or RPC).

Concluding that there was uncontroverted evidence that Mr. Giuliani communicated demonstrably false and misleading statements to courts, lawmakers and the public at large in his capacity as lawyer for former President Donald J. Trump and the Trump campaign in connection with Trump's failed effort at reelection in 2020, the Appellate Division opined that "These false statements were made to improperly bolster respondent's narrative that due to widespread voter fraud, victory in the 2020 United States presidential election was stolen from his client."

Conceding that interim suspension is a serious remedy, available only in situations where it is immediately necessary to protect the public from the respondent's violation of the Rules, the Appellate Division held that Mr. Giuliani's conduct "immediately threatens the public interest and warrants interim suspension from the practice of law." 

Accordingly, the court granted the Attorney Grievance Committee's motion and suspended Mr. Giuliani from the practice of law in the State of New York "until such time as disciplinary matters pending before the Committee have been concluded, and until further order of this Court."

Click Here to access the court's decision.