Giving effect to the plain meaning of the relevant statutory language is the clearest indicator of legislative intent

A County correction officer [Petitioner] assigned to the core central desk at the county jail, applied for performance of duty disability retirement benefits pursuant to Retirement and Social Security Law §607-c. Petitioner claimed that he was permanently disabled as a result of work-related injuries, which he asserted he had sustained when called to assist another correction officer who had arrested and handcuffed a suspect for trespassing on county property adjacent to the jail.

The New York State and Local Employees' Retirement System [NYSERS] denied Petitioner's application on the ground that, among other things, Petitioner's injuries did not result from the acts of an inmate or person confined in an institution under county jurisdiction within the meaning of §607-c(a) of the Retirement and Social Security Law [RSSL]. 

Petitioner challenged NYSERS' determination. The Hearing Officer, however, found that Petitioner had not established that his injuries were the result of "an act of an inmate or person confined in a county facility," recommended that NYSERS' determination be sustained. The State Comptroller accepted the findings of fact and conclusions of law of the Hearing Officer and denied the Petitioner's application for performance of duty disability retirement. Petitioner subsequently initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.

Citing a number of earlier court rulings including Matter of Martin v New York State Comptroller, 161 AD3d 1418, the Appellate Division affirmed the Comptroller's decision, explaining that to qualify for a RSSL §607-c performance of duty disability retirement the applicant bears the burden of establishing that his alleged incapacity was "the natural and proximate result of any act of any inmate or any person confined in an institution under [county] jurisdiction" [emphases in the court's decision].

Noting that a review of an administrative determination denying performance of duty disability retirement benefits typically is limited to whether substantial evidence exists in the record to support such determination, the Appellate Division said that where, as here, the dispositive issue is one of statutory interpretation, courts will "engage in de novo review of the statutory interpretation" and "need not accord any deference to the agency's determination." Further, said the Appellate Division, "... the clearest indicator of legislative intent is the statutory text must always be the [statutory] language itself, giving effect to the plain meaning thereof", citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.

Finding that neither the term "inmate" nor the phrase "person confined in an institution" are defined for the purposes of RSSL §607-c, the Appellate Division opined that considering the plain meaning of the statutory language and its commonly understood usage, as well as a review of the definitions given to the term "inmate" in relevant Correction Law and Penal Law provisions, in this instance the individual alleged to have caused Petitioner's injuries here does not qualify as an "inmate" or a "person confined in an institution" within the meaning of RSSL §607-c.

The Appellate Division, conceding that under the circumstances granting Petitioner §607-c "would further the legislative purpose of awarding benefits to correction officers injured in the discharge of their duties ... the restrictive language of Retirement and Social Security Law §607-c precludes such award here, as [Petitioner's] injuries were not caused by the acts of an inmate or person confined in an institution" and confirmed the Comptroller's denial of Petitioner's application for performance of duty disability retirement benefits.

Click HERE to access the Appellate Division's decision.

 

Court finds dismissal of a teacher during her probationary period supported by documentary evidence, performance evaluations and the existence of attendance issues

Supreme Court denied the CPLR Article 78 petition filed by a New York City probationary teacher [Plaintiff] seeking a court order annulling a determination of the New York City Board of Education and others [Respondents] that resulted in the termination Plaintiff's employment as a teacher.

Plaintiff appealed the Supreme Court's ruling. The Appellate Division unanimously affirmed the lower court's decision.

Citing Matter of Che Lin Tsao v Kelly, 28 AD3d 320 and other decisions, the Appellate Division held that Supreme Court "properly concluded that [Plaintiff] failed to meet her burden of demonstrating, by competent proof, that a substantial issue of bad faith existed warranting a hearing."

The Appellate Division noted that "documentary evidence, performance evaluations and Plaintiff's attendance issues" supported the lower court's determination that the Respondents' discontinuance of Plaintiff's employment during her probationary period was not made in bad faith

Further, said the Appellate Division, Supreme Court "properly determined" that to the extent the Plaintiff's Article 78 petition sought to challenge Respondents' denial of Plaintiff's request to withdraw her prior resignation, such challenge was untimely. Accordingly, the Appellate Division did not consider Plaintiff's claim that the New York City Board of Education Chancellor's Regulation C-205, which addresses the "general requirements for licensure and provisions relative to the termination and restoration of licenses," was improperly applied in her case.

Regulation C-205.28 provides, in pertinent part, that "a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation for the purpose of reinstatement to service, regardless of whether the person was tenured or not on the date of his or her resignation."

Click HEREto access the Appellate Division's decision.

 

Adopting disciplinary procedures applicable to a town's police officers pursuant to §155 of the Town Law

An employee organization [Union] brought a CPLR Article 78 proceeding seeking dismissal of disciplinary charges filed against a police officer [Officer] in the collective bargaining unit represented by the Union by the appointing authority [Town] pursuant to §155 of the Town Law and "the disciplinary procedures outlined in the police manual."

The Union contended that such disciplinary charges must be brought pursuant to §75 of the Civil Service Law and the collective bargaining agreement [CBA] between it and the Town. Unionalso sought a court order compelling the Town to reinstate Officer, who had been suspended without pay pending a disciplinary hearing to the payroll. Supreme Court granted the Article 78 petition and the Town  appealed.

The Appellate Division vacated that part of the Supreme Court's judgment prohibiting the Town from conducting disciplinary proceedings pursuant to Town Law §155 and that part of the court's order directing the Town "to abide by Civil Service Law §75 and the collective bargaining agreement regarding disciplinary issues, and by reinstating the amended charges against [Officer]."

The Appellate Division indicated that Town Law §155 states that "[t]he town board shall have the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges" against members of the town police department. Further, said the court, "although the police manual does not specifically reference Town Law §155, the police manual contains language that mirrors that statute.

Citing Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 84 AD3d 968, affd. 19 NY3d 1066, the Appellate Division concluded that the police manual "invokes the Town Law" and, contrary to [Supreme Court's] determination, the lack of any specific reference to §155 in the police manual does not mean that the police manual was not adopted pursuant to that section of the Town Law, and does not preclude the Town from using the procedures set forth in the police manual.

The Appellate Division also held that Town Law §155 does not specify the methods to be used by a town board when adopting rules and regulations regarding police discipline, and thus the statute does not require that police disciplinary procedures be adopted by passing a local law rather than a resolution.

Accordingly, the Appellate Division held that "where, as here, a town board has adopted disciplinary rules pursuant to Town Law §155, those rules are controlling and Civil Service Law §75 and any collective bargaining agreement are inapplicable." Thus, said the court, the Town had the authority to initiate disciplinary proceedings established pursuant to Town Law §155 against the Officer.

The court, however, sustained Supreme Court's reinstating Officer's salary and benefits, noting that the police manual states that, "[p]ending the hearing and determination of charges of incompetency or misconduct, an officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty (30) days."

Click HEREto access the text of the Appellate Division's decision.

 

Free webinar on Reporting Election Workers Earnings

The Tax Exempt and Government Entities Division invites interested readers toregister to watch the free webinar on Reporting Election Workers Earnings on June 24, 2021 at 1:00 p.m. (ET).

This webinar is designed to explain which workers should be treated as election workers and when taxes should be withheld from wages. It will also cover what should be included in earnings.

Questions emailed to: TEGE.outreach@IRS.gov with the subject line “Pre-submitted questions for Election Worker webinar (June 24)” will be answered as time permits. The deadline for submitting questions is June 10, 2021. 

For more information, see Webinars for Tax Exempt & Government Entities.

Audits and reports issued during the week ending May 7, 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 May 7, 2021.

Click on the text highlighted in colorto access the complete audit report.

Local Governments

Town of Potter – Town Clerk (Yates County) A former clerk did not deposit, report and remit all collections to the appropriate parties in a timely and accurate manner. Auditors identified a cash shortage of $23,838 during this former clerk’s tenure. The former clerk did not complete monthly bank reconciliations, issue or properly prepare duplicate receipts, or retain receipts for all collections. In addition, the town board did not annually audit the clerk’s records as required. As a result of the audit and subsequent investigation, the former clerk was arrested in November of 2020. The matter is still pending in court.

South Butler Fire District – Board Oversight of Financial Operations (Wayne County)The board did not provide adequate oversight of the district’s financial operations and did not adopt or enforce key financial policies. As a result, the treasurer lacked guidance to adequately perform financial duties and did not maintain sufficient banking or purchasing records. The treasurer also funded and disbursed money from reserves without authorization and paid unapproved claims. Officials could not demonstrate the district obtained the best available prices on purchases auditors reviewed. In addition, the board adopted inaccurate and structurally imbalanced budgets and did not properly establish, fund or use reserve funds. Fund balances and real property tax levies were higher than needed to fund operations.

South Butler Fire Department – Oversight of Financial Activities (Wayne County)Department officers and members did not provide adequate financial oversight. As a result, officers and members were not in a position to monitor and assess the department’s financial status. Existing bylaw provisions were not enforced and adequate accounting and fundraising records were not maintained. Petty cash funds were not properly overseen or accounted for, and $65,658 was disbursed without any review or approval. In addition, auditors found the president routinely signed blank checks. The treasurer’s books and records were not annually audited as required. Required state and federal filings were not completed, and annual budgets were not prepared.

Town of Fishkill – Information Technology (Dutchess County) Town officials did not adequately secure and protect the town’s information technology (IT) systems against unauthorized use, access and loss. The board did not adopt adequate IT policies or a disaster recovery plan. Auditors also found officials did not adequately manage user accounts for the network or financial application. In addition, town employees did not comply with the acceptable use policy and officials did not monitor the use of IT resources. Sensitive IT control weaknesses were communicated confidentially to officials.

Town of Ithaca Justice Court – Justice Court Operations (Tompkins County)The justices collected, deposited, disbursed, recorded and reported the fines and fees auditors reviewed in an accurate and timely manner. During the audit period, the justices deposited 2,111 cash receipts totaling $306,087 and made 60 disbursements totaling $318,091. Auditors reviewed a sample of 556 cash receipts totaling $78,948 and all 60 disbursements totaling $318,091. There were no recommendations as a result of this audit.

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