Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
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In this appeal the Appellate Division addressed a decision by the Unemployment Insurance Appeal Board that rejected of a claim for unemployment insurance benefits filed by a probationary teacher [Claimant].
Claimant had been appointed as a probationary teacher effective December 11, 2019 and on January 29, 2020, emailed her resignation from her position to her school principal indicating that January 31, 2020 would be her last day of without stating any reason for her action. In her application for unemployment insurance benefits Claimant said that she had resigned from her position for safety reasons because she had been caught in the middle of an incident involving two students in which she had been "jostled around" in mid-December 2019.
The Appellate Division's decision reports that Claimant had been appointed as a probationary teacher effective December 11, 2019 and on January 29, 2020, emailed her resignation from her position to her school principal indicating that January 31, 2020 would be her last day of without stating any reason for her action. Claimant subsequently applied for unemployment insurance benefits, but the Department of Labor held that Claimant was disqualified from receiving benefits because she had voluntarily separated from her employment without good cause.
Claimant requested a hearing in the course of which she testified that she resigned for safety reasons in response to a "verbal fight between students in mid-December 2019 and the general misbehavior of students" and that security had responded to the incident and that she had filed an incident report with school administrators. In contrast to Claimant's testimony, the principal and one of the assistant principals testified that they never received an incident report nor was any other administrator or security personnel ever informed of a December 2019 incident involving a physical confrontation between students and a teacher, "which would have triggered certain protocols and student suspensions."*
The Administrative Law Judge [ALJ] sustained the Department of Labor's determination, discrediting Claimant's testimony that she feared for her safety and filed an incident report, ruled that Claimant did not have good cause for resigning from her position. The Unemployment Insurance Appeal Board [Board] affirmed the ALJ's decision and Claimant appealed the Board's ruling.
The Appellate Division, finding that substantial evidence supported the Board's decision that Claimant had "voluntarily separated from her employment without good cause," dismissed Claimant's appeal. The court, citing Matter of Vargas [Mason ESC LLC-Commissioner of Labor, 185 AD3d 1339, explained "Whether a claimant has voluntarily left his or her employment without good cause is a factual issue for the Board to resolve and its decision will be upheld if supported by substantial evidence."
Considering the conflicting testimony and the fact that Claimant waited six weeks after the December 2019 incident to resign, the Appellate Division opined that the question as to whether Claimant genuinely feared for her safety, officially reported the incident or sought assistance to address problems in her classroom "presented a credibility issue that the Board was free to resolve in the employer's favor." In the words of the court, it found "no basis upon which to disturb the Board's finding that [Claimant] voluntarily left her employment without good cause while continuing work was available, and she was therefore not entitled to unemployment insurance benefits."**
* The Appellate Division's decision indicates although Claimant continued to work in her position until the end of January 2020, she did not attempt to discuss the incident with the school principal or assistant principals, nor did she file a grievance with her union.
** The court also held that the Board's determination that Claimant received benefits to which she was not entitled, thereby allowing for recoverable overpayments, was also supported by substantial evidence.
Click HERE to access the Appellate Division's decision.
A member of the New York State Employees' Retirement System applying for accidental disability retirement benefits has the burden of establishing that the injury he sustained during the incident giving rise to the disability in question was the result of an accident within the meaning of the Retirement and Social Security Law.
Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, the Appellate Division, in the instant appeal challenging the denial of a firefighter's application for accidental disability retirement benefits, said that the Court of Appeals has defined an accident as "a sudden, fortuitous mischance, unexpected, out of the ordinary and injurious in impact."
As the court held in Matter of Kelly v DiNapoli, 30 NY3d 674, "an injury-causing event is accidental when it is sudden, unexpected and not a risk of the work performed, but the focus of the determination must be on the precipitating cause of [the] injury, rather than on the petitioner's job assignment."
In this appeal the Appellate Division considered a number of incidents suffered by a firefighter [Petitioner] at various time in the course of his performing firefighting duties cited his application for accidental disability retirement benefits.
Petitioner's application was initially denied, which decision was upheld by a Hearing Officer, who concluded that none of the incidents described by Petitioner constituted an accident within the meaning of the Retirement and Social Security Law. The Comptroller adopted the Hearing Officer's decision, and Petitioner initiated a CPLR Article 78 proceeding challenging the Comptroller's determination.
The Appellate Division sustained the Comptroller's ruling with respect to all but one incident ... an incident in which Petitioner "was struck by the master stream of water while fighting a fire inside an automotive garage."
Petitioner testified that the master stream of water that struck him and resulted in his disability:
a. was then being pumped at an average rate of 1,500 gallons per minute;
b. it was against standard operating procedure to spray a master stream of water into a burning structure while firefighters were inside because the force could be lethal; and
c. he had no warning that the master stream of water was being utilized to fight the fire until he "actually saw it a split second before getting hit."
The Appellate Division, noting that there "is no record support for the Hearing Officer's finding that [Petitioner] knew in advance that a master stream was being operated ... such that he could have left the building," concluded that "[u]nder these circumstances, the event that precipitated [Petitioner's] injuries was sudden, unexpected and not a risk inherent in [Petitioner's] regular duties as the incident would not have occurred if proper safety protocols had been followed."
Accordingly, the court opined that this event constituted an accident within the meaning of the Retirement and Social Security Law, thus entitling Petitioner to accidental disability retirement benefits and ruled "that part of the [Comptroller's] determination finding otherwise must be annulled" and the matter remitted to Comptroller "for further proceedings not inconsistent with this Court's decision".
Click HERE to access the text of the Appellate Division's decision.
New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 1, 2021.
Click on the text highlighted in color to access the complete audit report.
Town of Lyndon – Town Clerk’s Collections (Cattaraugus County) The clerk generally recorded, remitted and reported collections accurately and in a timely manner. Collections were deposited accurately but the clerk did not always make deposits in a timely manner. Collections totaling $7,050 or 49% of the collections recorded from Jan. 1, 2020 through May 6, 2021 were not deposited within three days, as required. The board did not perform an annual audit of 2020 records, as required.
Town of Machias – Supervisor’s Financial Duties (Cattaraugus County) The supervisor did not adequately perform his financial duties and cannot provide support for almost $1.6 million in interfund loans. Although interfund loans must be repaid by the close of each fiscal year, interfund loans have grown from $246,280 in 2015 to almost $1.6 million as of Dec. 31, 2019. The supervisor also did not provide adequate oversight of the bookkeeper. The supervisor did not provide detailed monthly financial reports to the board. Auditors found the supervisor did not review monthly bank reconciliations. In addition, the supervisor did not prepare and file the annual financial reports for 2019 and 2020 with the Office of the State Comptroller in a timely manner.
Town of Stanford – Financial Management (Dutchess County) The board did not properly manage the town’s financial condition and did not adopt realistic budgets. The board adopted an unbalanced 2020 budget that was missing information and misleading, which resulted in a 58% decrease in real property taxes. The board also adopted a 2021 budget with a $749,159 increase in the tax levy over the prior year and levied more taxes than necessary to fund general fund operations. In addition, the board exceeded its fund balance policy limit by $645,366.
OTHER REPORTS
On October 1, 2021, State Comptroller Thomas P. DiNapoli, Madison County District Attorney William Gabor and New York State Police Superintendent Kevin P. Bruen announced that a second former state police mechanic [Mechanic #2] has pleaded guilty to corrupting the government in the third degree, a felony, and petit larceny, a misdemeanor. At the time of his plea, he paid back $12,865 in restitution and was placed on interim probation.
This is the second guilty plea that has resulted from the Comptroller's and the District Attorney's joint investigation.
Mechanic #2 was found to be breaking the law and will be held fully accountable. One of two non-sworn civilian employees responsible for maintaining police vehicles, Mechanic #2 he was convicted of ordering auto parts and tools for personal use on the state police-paid account at United Auto Supply.
DiNapoli’s analysis of thousands of United Auto Supply invoices found that between April 2015 and October 2020, there were over $54,000 in inappropriate purchases on the state police account.
Earlier another civilian mechanic [Mechanic #1] pleaded guilty to felony corrupting the government in the third degree and was sentenced to interim felony probation. As part of his plea, Mechanic #1 paid back $20,000. He is due back in court for sentencing in December.
State police said they recovered more than $4,800 worth of state funded auto supplies, tools and parts at Mechanic #2's home.
Mechanic #2 retired during the investigation and was not employed with the state police at the time of his arrest. He had been employed by the state police for at least 30 years.
Mechanic #2 appeared before Judge Patrick O’Sullivan in Madison County Court. He is due back in court on Dec. 2, 2021.
The proposed action would amend Part 276 and §277.1 of Title 8 NYCRR pursuant to Education Law, §§101, 207, 305, 310 and 311 with respect to Education Law §310 regarding appeals to the Commissioner and the initiation of proceedings seeking the removal of school officers.
NO HEARING(S) SCHEDULED
The text of the proposed rule amendments and any required statements and analyses may be obtained from Kirti Goswami, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov.
Data, views or arguments may be submitted to: Julia Patane, NYS Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: REGCOMMENTS@nysed.gov.
Public comment will be received until 45 days after publication of this notice. [Published in the NYS Register on September 29, 2021].