Termination pursuant to Civil Service Law §71 held not the exclusive procedure to separate an employee who is absent due to a work-related injury

Supreme Court denied Plaintiff's petition seeking to vacate Plaintiff's termination from her position with the New York City Department of Consumer and Worker Protection [DCWP] pursuant to Civil Service Law §75. The Appellate Division unanimously affirmed the Supreme Court's decision.

DCWP had filed disciplinary charges against Petitioner and terminated her for  "incompetence" after finding her guilty of "excessive absenteeism" following a work-related injury. 

The Appellate Division, citing Wysocki v Town of Southold, 204 AD3d 811 and other decisions, said that Plaintiff's dismissal was not arbitrary and capricious or affected by an error of law, observing that the "Petitioner was continuously absent from work for over 295 days and provided no indication as to when or whether she could return to work."

Noting that Petitioner did not allege that her disability "has not permanently incapacitated her from the performance of her civil service duties" held that her contention that DCWP erred by using Civil Service Law §75 instead of §71 to discharge her is unavailing. The court explained that "neither the statute itself nor the relevant case law mandates the use of Civil Service Law §71 as the exclusive procedure to separate an employee who is absent due to injury."

Click HERE to access the Appellate Division's decision posted on the Internet.

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Disability Leave for New York public sector personnel.

Click HERE for information and access to a free excerpt of the material presented in this e-book.

 

 

 

Municipal and School Audits released by New York State Comptroller Thomas P. DiNapoli

On September 29, 2023, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access the summary and the complete audit reports

 

Brighter Choice Charter School for Girls – Non-Payroll Disbursements (Albany County)

The board and officials did not provide adequate oversight to ensure disbursements were adequately supported, properly approved,  and for a school-related purpose. Without adequate oversight, the board and officials cannot ensure that all disbursements were made as authorized or for an appropriate purpose.

 

City of White Plains – Sexual Harassment Prevention (SHP) Training (Westchester County)

SHP training was provided to employees and elected officials. However, of the 150 total individuals tested (142 selected employees and all eight elected officials), 14 employees and one elected official did not complete the annual training.

 

Germantown Central School District – Payroll (Columbia County)

The district did not have adequate payroll processes to ensure compensation paid to employees was accurate, adequately supported and authorized by the board. For example, district officials did not properly segregate payroll processing duties and did not provide adequate oversight. Auditors identified $41,000 in payroll payments to 12 employees that were either inaccurate or not authorized by the board.

 

Rapids Fire Company – Credit Cards (Niagara County)

Credit card purchases were not always made by authorized users, and 762 purchases totaling $110,938 (97% of the credit card charges made during the audit period) lacked documentation to support the purchases, confirm whether the purchases were received, and determine whether the purchases were for appropriate company purposes.

 

Town of Amherst – Sexual Harassment Prevention Training (Erie County)

SHP training was provided to employees and elected officials. However, of the 100 total individuals tested (91 selected employees and all nine elected officials), 67 employees and eight elected officials did not complete the annual training.

 

Town of Rodman – Town Clerk/Tax Collector (Jefferson County)

The clerk accurately recorded, deposited and remitted the collections auditors reviewed. However, the collections were not always deposited or remitted in a timely manner. In addition, the clerk did not prepare bank reconciliations or compare known liabilities to reconciled bank balances and money on hand. As a result, there was an increased risk that collections could have been lost or stolen.

 

Village of Lindenhurst – Sexual Harassment Prevention Training (Suffolk County)

None of the village’s 240 total employees and six elected officials were provided SHP training during the 2021 annual training period.

 

Yates County – Sexual Harassment Prevention Training

SHP training was provided to employees and elected officials. However, of the 45 total individuals tested (23 selected employees and all 22 elected officials), three elected officials, including the sheriff and two coroners, did not complete the annual training.

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Former medical office manager arrested for scheme to defraud the New York State Health Insurance Plan

New York State Comptroller Thomas P. DiNapoli reported the Officer Manager [OM] for numerous doctors’ offices in Manhattan defraud the New York State Insurance Plan [NYSHIP] out of over $12,000 by submitting fraudulent claims for reimbursement. OM was arrested following a joint investigation conducted by Comptroller DiNapoli, Ulster County District Attorney Clegg, and the FBI Hudson Valley White Collar Crime Task Force.

The Comptroller said that OM "allegedly took advantage of her position to fund her lifestyle at the expense of the taxpayers". Di Napoli noted his partnerships with Ulster County District Attorney Clegg and the Federal Bureau of Investigation in the investigation of this fraud and said "the defendant will be held accountable.”*

The Comptroller indicated that the joint investigation "revealed that from 2018 through September of 2019, the OM submitted false claims to NYSHIP under her husband’s NYSHIP identification number claiming that medical services were provided by two out-of-network providers for whom she worked, but the services actually never occurred." Through this scheme, OM received $12,957.50 from NYSHIP to which she was not entitled and "used the funds that she received from NYSHIP to pay her personal expenses including credit card debt."

The investigation was initiated as the result of a complaint submitted by United Healthcare's Special Investigations Unit and which assisted in the investigation.

OM was arraigned in Town of Ulster Court before Judge Kesick and was charged with Grand Larceny in the third degree, Healthcare Fraud in the third degree, Offering a False Instrument for Filing in the first degree, and Falsifying Business Records in the first degree. 

* N.B. The charges filed in this case against OM are merely accusations and the OM is presumed innocent unless and until proven guilty in a court of law.

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

 

Amendments to Education Law Section 310 appeals to the Commissioner of Education proposed

On the New York State Register published proposed changes concerning appeals to the Commissioner of Education pursuant Education Law Section 310.* The proposed amendments were filed by the New York State Department of Education "to ensure that the appeals process serves as an expeditious and simple method to address questions [involving] school administration."

The text of proposed changes and any required statements and analyses may be obtained from Kirti Goswami, Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: legal@nysed.gov.

Comments, views or arguments concerning the proposed changes may be submitted to Daniel Morton-Bentley, Esq., Counsel, Education Department, Office of Counsel, 89 Washington Avenue, Room 112EB, Albany, NY 12234, (518) 474-6400, email: REGCOMMENTS@nysed.gov.

Comments from the public will be received until 60 days after publication of this notice which publication was posted in the September 27, 2023 issue [Vol. XLV, Issue 3] of the State Register.

* The proposed changes seek to amend §§275.2, 275.7, 275.9, 275.11, 276.9, 277.1 and 277.2 of Title 8 NYCRR.

 

 

New federal rules addressing employment in institutions of higher education

Inside Higher Ed notes "a new rule, which is stronger than versions released during the Obama administration, adds new disclosure requirements for all academic programs despite opposition from across the higher education industry."

Click HERE to access Higher Ed article posted on the Internet.