An analysis of a New York State Court of Claims' decision addressing claims made by a nontenured faculty member following termination

In 2014, Claimant accepted an appointment with the Employer as an associate professor and lecturer. The initial appointment was for three years, beginning in 2014, but the contract of employment provided that "[t]o give [Claimant] the security of at least two years of employment, the appointment will be reviewed annually for possible extension by another year". Claimant was also notified that, as a nontenured professor, he would be in a collective bargaining unit represented by the recognized employee representative, which had a collective bargaining agreement [CBA] with Employer.

As described in the Appellate Division's decision, in February 2018, Employer notified Claimant in writing that it had opened a disciplinary investigation of him and that, "effective immediately", he would be required to work from home on an "alternate assignment." Employer further told Claimant that he was prohibited from communicating with any of the Employer's current or former students or employees without the Employer's written approval. The alternative assignment letter cited the relevant section of the CBA, which provided that an "alternative assignment shall not be regarded as discipline." Claimant refused to sign the letter, but immediately ceased work on his research projects and grant requests, missed scheduled events and remained home.

Employer cancelled Claimant's access to Employer's facilities and blocked him from using his Employer email account. 

A disciplinary investigation looked into allegations that Claimant, while attending an overseas conference, had engaged in unwelcome sexual conduct with a student of the Employer. Upon conclusion of the investigation, Employer recommended that Claimant attend a Title IX training session, but declined to file disciplinary charges against him. The following August Employer informed Claimant that it would not be renewing his employment and that Employer would terminate Claimant effective immediately and pay him the remainder of the term's one-year salary, an amount greater than $50,000.

Claimant subsequently filed a verified notice of claim against Employer initiating an action in the Court of Claims alleging, among other things, that Employer [a] had breached provisions of the relevant CBA; [b] terms of a contract with Claimant; [c] had wrongfully terminated him; and [d] had caused significant damage to his professional reputation and credibility. 

Following a three-day nonjury trial, the Court of Claims issued a judgment in favor of Employer, dismissing the claim filed by Claimant. Claimant appealed.

The Appellate Division, citing Orser v Wholesale Fuel Distribs. CT, LLC, 173 AD3d 1519, leave to appeal denied, 34 NY3d 909, and other decisions, affirmed the Court of Claims' ruling, explaining that "When conducting a review 'of a nonjury trial verdict,'this Court . . . independently review[s] the probative weight of the evidence, together with the reasonable inferences that may be drawn therefrom, and grant[s] the judgment warranted by the record while according due deference to the trial court's factual findings and credibility determinations".

The Appellate Division then said "To establish a cause of action for breach of contract, a party must establish the existence of a contract, the party's own performance under the contract, the other party's breach of its contractual obligations, and damages resulting from the breach" and in the event "a state agency contracts for value exceeding [$50,000], the contract is not enforceable until approved by the [New York State] Comptroller". 

Although a collective bargaining agreement is an exception to this requirement for Comptroller approval, the court, citing §112[4] of the State Finance Law and §204 Civil Service Law, opined that "a supplemental undertaking that is 'totally distinct from the terms and conditions' of the collective bargaining agreement must be approved by the Comptroller."

The Appellate Division held the Court of Claims had correctly determined that Claimant was barred from asserting any provisions of the appointment letter as it was not signed by the Comptroller. 

In the words of the Appellate Division, "Claimant is seeking to enforce the terms of his appointment letter as an agreement supplemental to the CBA, rendering it subject to the approval requirements of State Finance Law §112". 

Because the appointment letter was for a salary greater than $50,000 but was not approved by the Comptroller, the Appellate Division held it "null and void". The court, noting the CBA required only one year notice prior to nonrenewal, said "Employer acted in accordance with the CBA when it terminated Claimant with one year's notice". 

Because Claimant did not have a valid contract requiring more than one year's notice, the Appellate Division held that the Court of Claims [1] "correctly dismissed the causes of action for breach of contract and wrongful termination" and [2] properly dismissed Claimant's cause of action for defamation, as Employer neither published any untruthful statements about him nor made any statements that could be read as defamatory by implication.

The Appellate Division also observed that "Statements to the effect that there was an 'ongoing investigation' of Claimant cannot be considered defamatory, as a reasonable [person] would understand the statements [Employer] made about [Claimant] as mere allegations to be investigated rather than as facts", citing Brian v Richardson, 87 NY2d 46.

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

 

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

On January 9, 2025, New York State Comptroller Thomas P. DiNapoli issued the following local government and school audits

Click on the text highlighted in color to access the item posted on the Internet

 

Main-Transit Fire Department – Credit Cards (Erie County)
Of the credit card purchases totaling $216,961 examined, purchases totaling $70,042 were not adequately supported, and $62,903 in discretionary purchases did not follow any specific guidelines. Although the board approved the credit card bills for payment, it did not ensure the related voucher packets had adequate supporting documentation to confirm the expenses were appropriate. As a result, 273 purchases were missing invoices or receipts. Auditors also found the board did not establish written policies or procedures for discretionary spending, and as a result, 353 purchases may not have been for proper department purposes.

Main-Transit Fire Department – Banquet Hall Disbursements and Collections (Erie County)
The manager made proper and supported disbursements from Jan. 1, 2022 through Sept. 30, 2023. However, the manager’s duties were not segregated, and he did not maintain prenumbered contracts, receipts or another suitable record to demonstrate amounts of collections due to the department. The manager booked rentals, collected and deposited rental fees, issued refunds and disbursed funds for rental hall purchases and operating expenses. He also calculated his own compensation and prepared and signed his own compensation checks without a board member or department official confirming the payment was supported and accurate.

Rush-Henrietta Central School District – Credit Cards and Purchase Cards (Monroe County)
District officials did not ensure that credit card and purchase card charges were properly approved and supported. Therefore, they could not be determined whether all charges were for appropriate district purposes. Additionally, officials did not ensure that credit card charges were reconciled in a timely manner and audited. Auditors reviewed 680 credit card and purchase card charges totaling $168,831 and determined that 538 charges totaling $156,982 had one or more exceptions. 410 charges totaling $144,142 were paid prior to audit and approval by the claims auditor. Another 355 charges totaling $104,258 required pre-approval but were not properly approved, and 82 charges totaling $6,199 for the facilities and transportation departments were not independently audited. The claims auditor who reviewed and approved the charges also maintained and administered the purchase cards for these departments. Auditors found 288 charges totaling $64,925 did not have adequate support, including a specific district purpose, a receipt or the required business expense reports.

Remittance (Wyoming County)
The tax collector did not remit collections to the town supervisor and county treasurer within the timeframes established by state law. As a result, funds were not provided to finance town and county operations in a timely manner. The tax collector did not remit taxes to the town supervisor at least weekly, as required by state law. The tax collector made one payment totaling approximately $800,000 to the county treasurer in April 2024, instead of paying three separate required payments totaling $706,991 in February, $53,702 in March and $36,747 in April. As of Sept. 25, 2024, the tax collector had not yet remitted approximately $1,600 in interest and penalties to the town supervisor, which were collected for late real property tax payments.

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New York State Comptroller Thomas P. DiNapoli again warns that “People who steal from the New York State public employees' retirement systems will be caught and held accountable"

On December 30, 2024, a woman was sentenced to five years' probation and paid full restitution after being convicted of stealing nearly $85,000 in New York state pension payments. Deanna Hansen, the retiree's daughter, pleaded guilty to felony grand larceny in June 2024 before Judge Roger D. McDonough in Albany County Court.”

Hansen’s father had retired from the state in March 2003 and was receiving a direct deposit of his pension into a bank account. He died in April 2020, at which time the pension payments should have stopped. 

In July 2022, the state retirement system learned Hansen’s father had died and stopped payments. However Hansen's daughter had access to her deceased father’s bank account and ultimately stole $84,754.13 in New York State pension payments to which she was not entitled.  

The Comptroller also reported a Rochester woman pleaded guilty to stealing more than $121,000 in state pension checks that were sent to her deceased grandmother. 

The Comptroller thanked his partnership with Monroe County District Attorney Doorley and Sheriff Baxter, together with Assistant District Attorney Greg Clark and Chief of the Public Integrity/Economic Crimes Bureau, "for prioritizing these offenses that victimize our entire state.” 

DiNapoli said. “My office will continue partnering with law enforcement to protect the pension system and its members.” “Elona Roberts abused a system that is meant for dedicated public servants who spend long careers working for the people of their communities,” noted District Attorney Doorley said. “

After Elona Roberts' grandmother retired from her job as a maintenance supervisor for Monroe County in December 1998, she received a monthly pension check. When she passed away in 2017, the state pension system was not informed of her death and checks continued to be sent. Roberts forged her grandmother’s name as an endorsement and deposited 66 checks into her own back account. She spent the money on personal expenses such as household bills, jewelry, and hotels, in addition to making cash withdrawals.

When the pension system learned that Roberts’ grandmother had passed away, DiNapoli’s office launched an investigation, culminating in Roberts’ confession to the crime.

Roberts pleaded guilty on Monday to grand larceny in Monroe County Court before Judge Stephen T. Miller. She is due back in court for sentencing on March 7. 

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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. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by emailing a complaint to investigations@osc.ny.gov or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Termination of a hospital investigator's employment recommended by a New York City Office of Administrative Trials and Hearings Administrative Law Judge

Administrative Law Judge [ALJ] Michael D. Turilli recommended termination of a hospital investigator [Employee] found guilty of engaging in a pattern of discourteous conduct, insubordination, and unsatisfactory work performance.

At the trial the Employee’s co-workers, subordinates, and supervisors testified to her behavior at work, which included instances of name-calling, yelling, failing to supervise her employees, making false statements, and refusing to perform certain assignments.

Although Employee denied the allegations and testified that she believed she was being harassed and targeted by management, the ALJ found that appointing authority had adequately proved Employee was discourteous, insubordinate, and incompetent over the course of 18 months, and recommended Employee be dismissed from her position.

Because the Employee had ample notice that her unprofessional conduct could result in disciplinary action and still failed to change her performance, choosing instead to blame management and deny accountability, Judge Turilli determined that termination of the Employee was the appropriate remedy, notwithstanding  her minor disciplinary record over her long tenure within the hospital system.

Click HERE to access Judge Turilli's findings and recommendation posted on the Internet, which recommendation was adopted by the appointing authority. 

A Reasonable Disciplinary Penalty Under the Circumstances - A NYPPL e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click on the URL below:

http://booklocker.com/books/7401.html

Another OATH ruling recently posted on the Internet reported that Administrative  Law Judge Kevin F. Casey denied respondents’ and intervener’s motions to dismiss a prevailing wage proceeding, finding that Article 9 of the New York State Labor Law was applicable to workers who cleaned and disinfected subway cars during the COVID-19 pandemic. Click on Office of the Comptroller v. LN Pro Services, LLC & Fleetwash, Inc. to access Judge Casey's ruling posted on the Internet.

N. B.: OATH posts employment opportunities on the New York City's Jobs portal and on its website. Click here to View current openings. Just posted: Oath's Trials Division is currently seeking a Calendar Unit Supervisor, a Chief Law Clerk, and a Law Clerk.

Work product of an attorney protected from disclosure under color of New York State's Freedom of Information Law

The Appellate Division unanimously affirmed a Supreme Court's sustaining an agency's Records Access Officer's denial of an attorney's Freedom of Information Law request for access to a District Attorney's Datasheet concerning the attorney's client.

The Appellate Division opined the Supreme Court "properly concluded, after an in camera inspection of the Datasheet that the subject datasheet constituted attorney work product protected from disclosure by CPLR 3101(c)* and that it need not be disclosed to the attorney subject to redactions."

* See Public Officers Law §87[2][a]

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