Reviewing a determination of the State Comptroller denying petitioner's application for accidental disability retirement benefits

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent denying petitioner's application for accidental disability retirement benefits.

In September 2015, petitioner — a police detective — filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries to, among other things, his right hip and back that, in turn, were sustained while pursuing a fleeing suspect in October 2014. The New York State and Local Police and Fire Retirement System denied petitioner's application upon the ground that the incident did not constitute an accident within the meaning of Retirement and Social Security Law §363.

Petitioner acknowledged that, as a police officer, he had a duty to respond to an accident or a crime that he witnessed — even if he was "on [his] own personal time" — and the record reflects that, after the suspect fled the scene of the initial collision, petitioner immediately reported the event to his employer, sought assistance and gave chase. Petitioner acknowledged that "[p]ursuing and subduing a fleeing suspect is an ordinary employment duty of a police officer" (Matter of Quartucio v DiNapoli, 110 AD3d 1336, 1337 [2013] [internal quotation marks and citations omitted]), and he agreed that such pursuits could entail "chasing [suspects] across all different types of terrain, uneven ground, jumping fences" and the like (see Matter of Sweeney v New York State Comptroller, 86 AD3d 893, 893-894 [2011]; Matter of Neidecker v DiNapoli, 82 AD3d 1483, 1484 [2011]).

Additionally, the particular hazard encountered by petitioner, i.e., the elevation change lying beyond the third fence, "could have been reasonably anticipated" (Matter of Stancarone v DiNapoli, 161 AD3d 144, 148-150 [2018]; see Matter of Scofield v DiNapoli, 125 AD3d 1086, 1087 [2015]), notwithstanding petitioner's testimony that vegetation partially obscured his view of the terrain.

Hence, even setting aside the inconsistencies between petitioner's testimony and the description of the incident as set forth in the relevant incident reports, which presented credibility issues for the Hearing Officer and respondent to resolve (see Matter of Verille v Gardner, 177 AD3d 1068, 1070 [2019]; Matter of Angelino v New York State Comptroller, 176 AD3d at 1379; see also Matter of Harris v New York State & Local Retirement Sys., 191 AD3d at 1086), substantial evidence supports respondent's finding that this incident was not an accident within the meaning of Retirement and Social Security Law § 363.

The full text of the Appellate Division's decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04409.htm

 

The Freedom of Information Law's application to evidence collected in a criminal action

To the extent that petitioner's contentions on appeal relate to the cotton swabs stored in evidence box number seven, we reject petitioner's contentions. In order to meet his burden on his motion, respondent was required to provide documentary evidence that "utterly refute[d] [petitioner's] factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Matter of Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 127 AD3d 865, 866-867 [2d Dept 2015]). 

Here, in support of his motion, respondent established that Executive Law § 838-a deals with sexual offense evidence kits, whereas the only cotton swabs in evidence box number seven had been used to collect a "grease-like substance [found] on the washer/dryer" in the home of the victims, and thus no sexual offense evidence existed in petitioner's criminal case. 

Because respondent was "under no obligation to furnish [materials that he did] not possess" (Matter of Rivette v District Attorney of Rensselaer County, 272 AD2d 648, 649 [3d Dept 2000]; see generally Matter of Council of City of N.Y. v Bloomberg, 6 NY3d 380, 388 [2006]), the evidence submitted by respondent "utterly refute[d] [petitioner's] factual allegations" with respect to the cotton swabs in evidence box number seven, thereby "conclusively establishing a defense as a matter of law" thereto (Goshen, 98 NY2d at 326; see generally Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]).

The full text of the decision is posted on the Internet at: https://www.nycourts.gov/reporter/3dseries/2021/2021_04416.htm

 

Elements considered in a court review of the denial of certain records demanded pursuant to the Freedom of Information

The Agency [Custodian] of certain records demanded in a Freedom of Information Law [FOIL] request appealed a Supreme Court judgment that, among other things, directed the Custodian to disclose certain documents to petitioner [Plaintiff].

The Appellate Division "unanimously modified on the law" the Supreme Court's judgment with respect to certain pages identified by "Bates stamp"* and certain emails attached to certain pages of documents that were otherwise subject to disclosure. In addition, with respect to certain documents containing identifying information of private citizens, the court ordered such personal information to be redacted from the documents. The Appellate Division then affirmed "as modified" the Supreme Court's judgment without costs."

Citing Gould v New York CityPolice Dept., 89 NY2d 267, the Appellate Division noted that "All government records are ... presumptively open for public inspection and copying unless they fall within one of the enumerated exemptions of Public Officers Law §87(2)", typically referred to as FOIL.  However, observed the court, FOIL permits an agency to deny access to records or portions thereof that are "inter-agency or intra-agency materials" that are (i) not "statistical or factual tabulations or data"; (ii) not "instructions to staff that affect the public"; (iii) not "final agency policy or determinations"; or (iv) not "external audits, including but not limited to audits performed by the comptroller and the federal government."

Further, said the court, the agency bears the burden of establishing that a document is exempt from disclosure.

Following an in camera** review of the documents in issue, the Appellate Division concluded that the lower court erred in ordering the disclosure of certain documents that it identified by its "Bates number". However, contrary to the Custodian's contention, the Appellate Division opined that Supreme Court "properly ordered disclosure of the remaining documents and portions of documents submitted for [its] review on the ground that the Custodian failed to establish that Public Officers Law §87(2 (g) exempted them from disclosure."

* Bates Numbering, also known as Bates Stamping, is an indexing method used for legal, business and medical documents (PDFs in most cases).

** "In private" and typically taking place in the private chambers of a judge, with the press and public excluded.

Click HEREto access the Appellate Division's decision. 

 

Former police chief sentenced for "pension double-dipping"

In a press release issued on July 19, 2021, New York  State Comptroller Thomas P. DiNapoli announced that a former police chief was sentenced for "pension double-dipping." The former Village of Chatham Chief of Police Peter Volkmann is required to pay $92,829 in restitution and perform 200 hours of community service today for defrauding the New York State pension system by concealing his unlawful post-retirement public income and for stealing from the village through sham requests for reimbursement. 

The former police chief's fraud was discovered during a joint investigation by State Comptroller Thomas P. DiNapoli, Columbia County District Attorney Paul Czajka, and the New York State Police.

“No one is above law, including Volkmann who, as the chief law enforcement officer of the village, not only defrauded the state retirement system but also stole from his community,” said DiNapoli. “I thank District Attorney Paul Czajka and the New York State Police for their partnership in helping us bring justice to this case.”

"Mr. Volkmann stole funds from the citizens he was sworn to protect and serve as police chief of the Village of Chatham," District Attorney Paul Czajka said. "In doing so, he undermined much of the good he did in helping and providing assistance to so many suffering from addiction. With his conviction before Judge Koweek, those funds were returned in full to the Village of Chatham and the New York State Retirement System. I thank and commend the New York State Police, Comptroller Thomas DiNapoli and their highly trained and proficient investigators for bringing this complex case to a successful resolution. With the assistance of the Comptroller and the State Police, we continue to investigate the Village’s finances, as well as that of another institution."

“Our investigation determined that the suspect in this case violated the public trust by circumventing retirement laws and stealing from village funds,” said State Police Superintendent Kevin P. Bruen. “We will continue to aggressively investigate any case that involves public corruption, and I want to commend our members and the Comptroller’s Office and Columbia County District Attorney’s Office for their partnership to ensure that justice was served.”

Columbia Court Judge Richard Koweek also sentenced Volkmann to two years of conditional discharge and ordered that 100 hours of the 200 in community service he was sentenced to be done by July 2022. As part of his plea deal, Volkmann paid a total amount of $92,829 in restitution before his sentencing.

Volkmann pleaded guilty in February to grand larceny in the fourth degree for circumventing New York state’s post-retirement income restrictions and cheating the New York State and Local Retirement System out of $74,222. Volkmann hid public-source income from 19 municipalities and school districts in excess of the statutory limit by funneling the earnings through a private business, PF Volkmann & Associates. He also pled to official misconduct, a misdemeanor, for stealing $18,607 from the Village of Chatham by falsifying mileage vouchers and other reimbursements to increase his income. 

The practice of using a public office or position of trust for one's own gain or advantage is referred to as Jobbery [see https://educalingo.com/en/dic-en/jobbery].

Audits and reports issued during the week ending July 23, 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 July 23, 2021

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

 MUNICIPAL AUDITS

Copiague Fire District – Procurement (Suffolk County)

District officials did not always use a competitive process to procure goods, services or professional services or ensure no conflicts of interest existed. Auditors found no competition was sought for professional services. Officials paid the 12 providers $388,628. In addition, required verbal or written quotes were not always obtained when goods and services were procured. Auditors also found 23 purchases totaling $129,696 reviewed required competition. Only one purchase totaling $2,076 was competitively procured. A Commissioner, employed by a company the district contracts with, did not disclose his company’s interests or abstain or recuse himself from approving claims and warrants. The district has been contracting with the company for about 10 years.

 

City of Glen Cove Industrial Development Agency – Project Approval and Monitoring (Nassau County)

The board and officials did not properly approve and monitor projects or take action when goals were not met. Auditors found required annual financial disclosure statements that are meant to help identify conflicts of interest were not filed. Payments in lieu of taxes (PILOTs) billing and collections were not monitored or correctly allocated to affected taxing jurisdictions. In fact, 52 of 115 payments were late and late fees totaling $259,303 were not billed or collected. In addition, Nassau County received $375,914 more than it should have. These funds should have been paid to the City of Glen Cove, $75,039, and to the school district and library, $300,875. Tax exemptions disclosed in audited financial statements were overstated.

 

Village of South Floral Park – Budgeting and Financial Oversight (Nassau County)

The board did not provide appropriate oversight and management of budgets and fund balance or ensure annual audits were completed. More real property taxes were assessed than necessary to fund operations each year. The board also failed to hold budget hearings before April 15 each year (from two to 11 days late) to discuss the 2017-18, 2018-19 and 2019-20 budgets, and the budgets presented were not in the proper form, as required. Inaccurate budgeting led to underestimated revenues totaling $289,565 (19%) over these years. As of May 31, 2020, unassigned fund balance was $463,948, which is 78% of the 2020-21 appropriations. The Village has excess fund balance and the board did not adopt a fund balance policy.

 

Henrietta Fire District – Financial Condition (Monroe County)

The board did not effectively manage the district’s financial condition and presented budgets indicating the district needed to both increase real property taxes and use appropriated fund balance to close projected budget gaps. As a result, more real property taxes were levied than needed. The board also did not adopt realistic budgets from 2017 through 2021. As a result, fund balance increased to $4.4 million on December 31, 2020, which is excessive and enough to pay 41.5% of the District’s 2020 expenditures.

In addition, the board unnecessarily overrode the 2019 and 2020 tax cap. The 2021 tax cap override will likely be unnecessary because the 2021 budget overestimated appropriations by approximately $1.4 million, and the $1 million appropriated fund balance will likely not be used. The board did not adopt budgeting, fund balance or reserve policies or multiyear financial and capital plans.

 

Town of Otselic – Records and Reports and Conflict of Interest (Chenango County)

The Supervisor did not maintain complete, accurate and timely financial records and reports, and the board did not ensure there were no prohibited conflicts of interest. Auditors found the supervisor did not provide the board with accurate financial reports and did not record deposits totaling $127,000, cash withdrawals totaling $199,000 and fund transfers totaling $874 in the accounting records. She also recorded one deposit for $25,000 twice. Auditors also found, the required 2016 through 2019 annual financial reports were not filed with the Office of State Comptroller, as required. As of May 5, 2021, the reports were late and remained unfiled. In addition, a board member had a prohibited interest in the contracts between the town and his auto parts businesses. The board did not comply with General Municipal Law by adopting a code of ethics and did not audit the supervisor’s records, as required..

SCHOOL DISTRICT AUDITS

Mount Pleasant Central School District – Information Technology User Accounts (Westchester County)

District officials did not establish adequate controls over the district’s user accounts to prevent unauthorized use, access and/or loss. Officials did not monitor compliance with the district’s acceptable use policy. Officials also did not adequately manage network user accounts. Sensitive information technology control weaknesses were communicated confidentially to officials.

 

Williamson Central School District – Non-Payroll Disbursements (Wayne County)

The board did not ensure that non-payroll disbursements were appropriately procured, properly audited and approved, adequately supported and for valid district purposes. The claims auditor did not audit and approve claims before payment as required.