The Jurisprudence of Yogi Berra

The Jurisprudence of Yogi Berra

Source: Brian Costello, Esq., Loyola Law School, Los Angeles 

The late Yankee baseball player Yogi Berra’s way with words reached all the way to legal academia.

In 1997, a group of Loyola Law School, Los Angeles, professors contributed to a law review article The Jurisprudence of Yogi Berra which promised to "examine Yogi's wisdom and demonstrate the parallels between judges' and legislators' comments and what Yogi said - only Yogi said it better." 

The authors included Professors Jan Costello, Bryan Hull, Laurie Levenson, Samuel Pillsbury, Katie Pratt, Ted Seto, Georgene Vairo and Gary Williams.

The law review article is available on the Internet at:

http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1707&context=facpubs

Court reviews the law of an employer’s liability for the negligent in hiring, training, supervising and retaining an employee alleged to have violent propensities

Court reviews the law of an employer’s liability for the negligent in hiring, training, supervising and retaining an employee alleged to have violent propensities

Gonzalez v City of the New York, 2015 NY Slip Op 06869, Appellate Division, First Department

This action arose from the shooting death of Shirley Fontanez by her boyfriend, a New York City Police Officer, Frederick Maselli, at his home, on July 23, 2007. After the shooting, Maselli killed himself. Plaintiff Keyla Virginia Gonzalez, as administrator of the Estate of Fontanez, alleged that numerous complaints were made to the City of New York concerning Maselli's abusive conduct toward Fontanez and her daughter, that the City was negligent in hiring, training, supervising and retaining Maselli, and in failing to take action to remove his firearm, and thereby caused Fontanez's wrongful death.

Although Supreme Court granted the City’s motion for summary judgment dismissing the action on the ground that any negligence on City's part for failing to discharge a police officer with violent propensities could not have been the proximate cause of Fontanez's death, since at the time of the fatal shooting, Maselli was off-duty and was acting outside the scope of his employment, the Appellate Division disagreed and said that the dispositive issue that to be resolved was whether the fact that the police officer was off duty when he committed the fatal shooting breaks any connection, as a matter of law, between the fatal injuries and the employer's alleged negligence regarding an employee with violent propensities.

The Appellate Division found that under the circumstances, this case presented genuine issues of material fact as to whether the City negligently supervised and retained an officer with violent propensities, and whether the intervening intentional tort of the off-duty officer was itself a foreseeable harm that shaped the duty imposed upon the City when it failed to guard against a police officer with violent propensities. When such questions of breach of duty and proximate cause exist, summary judgment is not proper. These questions of fact, said the court, must be reserved for the jury.

In its analysis of the relevant law involved, the Appellate Division noted, in part, the following:

1. Citing Haddock v City of New York, 75 NY2d 478, the court said that in this case the alleged duty owed to plaintiff stems from New York's long recognized tort of negligent hiring and retention and this tort applies equally to municipalities and private employers.

2. Under the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment in contrast to employer liability under legal doctrine of "respondeat superior," where an employer is held liable for the wrongs or negligence of an employee acting within the scope of the employee's duties or in furtherance of the employer's interests.

Here, said the court, the alleged breach of duty stems from the claim that during the Maselli’s employment with the City, the City became aware or should have become aware of problems with the police officer that indicated he was unfit (i.e. possessed violent propensities), that the City failed to take further action such as an investigation, discharge, or reassignment, and that Fontanez's damages were caused by the City's negligent retention, or supervision of Maselli. The duty not to entrust a gun to a dangerous or incompetent police officer thus extends to any person injured as a result of the negligent entrustment.

3. New Yorkcourts have held governmental employers liable for placing employees, like police officers who are known to be violent, in positions in which they can harm others.

4. The torts of negligent retention and supervision of governmental employees with dangerous propensities do not specifically require allegations that the employees' misconduct occur within the course and scope of the employment. Rather, what the plaintiff must demonstrate is a connection or nexus between the plaintiff's injuries and the defendant's malfeasance.

The Appellate Division said that in its view, both the type of harm that occurred and the person upon whom the injury was inflicted were foreseeable within a degree of acceptability recognized by New York law and it was reasonably foreseeable that such an officer would injure a member of his own family, including his girlfriend.

Finally, the Appellate Division said it was aware of the fact that all police personnel involved in this case have adamantly denied ever receiving even a single complaint about Maselli’s alleged violent propensities. In contrast, said the court, Plaintiff Gonzalezhas presented evidence that the City was informed on numerous occasions, prior to the fatal shooting, about Maselli’s abusive conduct toward Fontanez and her daughter.

Under the circumstances, the Appellate Division ruled that this case presented genuine issues of material fact as to whether the City negligently supervised and retained an officer with violent propensities, and whether the intervening intentional tort of the off-duty officer was itself a foreseeable harm that shaped the duty imposed upon the City when it failed to guard against a police officer with violent propensities.

When such questions of breach of duty and proximate cause exist, summary judgment is not proper. Reversing the ruling of the Supreme Court, the Appellate Division held that “[T]hese questions of fact must be reserved for the jury and Supreme Court should not have granted the City's motion for summary judgment on the issue of proximate cause.”

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2015/2015_06869.htm

Employee deferred compensation plan proposals requested

Employee deferred compensation plan proposals  requested

Source: New York State Register dated September 23, 2015

The Town of Lyons is requesting proposals from qualified administrative services agencies and, or, financial organizations relating to administration, trustee services and, or, funding of a deferred compensation plan for employees of The Town of Lyons meeting the requirements of Section 457 of the Internal Revenue Code and Section 5 of the State Finance Law, including all rules and regulations issued pursuant thereto.

A copy of the proposal questionnaire may be obtained from the Town of Lyons Town Clerk,  Sal Colatarci, 43 Phelps St., Lyons, NY 14489. Telephone: (315) 946-6252 (ext. 10) or e-mail the Town at  e-mail: townofly@rochester.rr.com

All proposals must be submitted no later 30 days from the date of publication in the New York State Register no later than 4:30 p.m.

A public employee’s First Amendment right of free speech involving matters of public concern is subject to the Pickering Balancing Test

A public employee’s First Amendment right of free speech involving matters of public concern is subject to the Pickering Balancing Test

Munroe v Central Bucks School District, United States Court of Appeals, Third Circuit, Docket #14-3509

It is well settled that “Public employees do not surrender all of their First Amendment rights merely because of their employment status. Thus a public employer may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." As the United States Supreme Court commented in Pickering v Board of Education, 391 U.S. 563* “Free and unhindered debate on matters of public importance constitutes a core value of the First Amendment.”

When the Central Bucks School District, a school district in Pennsylvania [Respondent] terminated Natalie Monroe [Teacher] from her teaching position, she sued the District alleging “First Amendment retaliation.” Teacher contended that her dismissal resulted from her making a number of derogatory comments about her own students on her personal Internet blog. In its defense, one Respondent witness testified that Teacher’s blog entries concerning the school and her students that “To say it was a disruption to the learning environment is an understatement.”

The United States District Court for the Eastern District of Pennsylvania granted the Respondent’s motion for summary judgment, holding that in its opinion Respondent had not violate Teacher’s constitutional right to free expression based on its determination that “as a matter of law that [Teacher’s] comments do not merit protection under the balancing test established by [Pickering and thus] ”it believed it was unnecessary to reach the question of whether [Teacher’s] speech directly caused her termination.”

Teacher appealed but the U.S. Circuit Court of Appeals, Third Circuit, sustained the district court’s ruling, holding that applying the Pickering balancing test, “[Teacher's] speech did not rise to the level of constitutionally protected expression.”

The court said that "the [public employer] has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general" and "the government as employer" possesses "far broader powers than does the government as sovereign."

The Circuit Court’s decision pointed out that should a person enter government service, he or she by necessity must accept certain limitations on his or her freedom as government employers, like their private counterparts, still "need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services."

Thus, said the Circuit Court, a public employer may impose speech restrictions that are necessary for efficient and effective operations but where employees are speaking as citizens about matters of public concern, they face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Accordingly, “speech that relates solely to mundane employment grievances does not implicate a matter of public concern.”

As to Teacher’s speech, the Circuit Court said that assuming that her speech “implicated a matter of public concern, this does not mean that her speech constituted speech protected by the First Amendment.” Further, said the court, “even if [Teacher's] speech was a matter of public concern, it was not constitutionally protected because the Pickering balancing test weighed in favor of [Respondent].”

* A summary of Pickering, “Essentials of the "Pickering Balancing Test” is posted on NYPPL at http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The decision is posted on the Internet at:

http://www2.ca3.uscourts.gov/opinarch/143509p.pdf

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation

Morse v Fusto, US Circuit Court of Appeals, Second Circuit, Docket 13-4074

Qualified immunity protects public officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights that a reasonable person would have known.

A grand jury indicted a dentist [Dentist], charging Dentist  with one count of Grand Larceny in the First Degree in violation of Penal Law §155.42 and eleven counts of Offering a False Instrument for Filing in violation of Penal Law §175.35.

These charges led to Dentist’s suspension from the New York Medicaid Program upon which his practice had depended; the liquidation of his dental practice as a consequence of such suspension; the loss of his teaching position at a New York hospital;* the public dissemination of the story of his indictment, including at least one press release issued by the Office of the Attorney General; and newspaper articles in various newspapers.

Upon his acquittal of all charges, Dentist brought an action against a Special Assistant Attorney General and an Audit-investigator [Defendants] in federal district court alleging that Defendants had deprived him of his constitutional right to a fair trial by intentionally manipulating certain information on spreadsheet summary charts before they were presented to the grand jury in order to create the false impression that Dentist billed Medicaid for dental services that he did not provide.

Essentially, Dentist contended that Defendants, acting as government officials in an investigative capacity, knowingly created false or misleading evidence.

Defendants, in rebuttal, claimed “qualified immunity,” and asked the federal district to grant them summary judgment dismissing Dentist’s complaint.

The district court denied Defendants’ motion and the jury returned a verdict in favor of Dentist based on its finding that Defendants “knowingly created false or fraudulently altered documents” to the grand jury.

Defendants appealed the district court’s denial of their motion for summary judgment, contending that “their conduct was not clearly prohibited by the Constitution and that they were therefore entitled to qualified immunity as a matter of law.”

The U.S. Circuit Court of Appeals affirmed the district court’s ruling, denying Defendant's motion for summary judgment stating that it had concluded that the Defendants were not entitled to qualified immunity. The court said that Dentist’s Constitutional rights had been violated and “the law giving rise to the violation was clearly established at the time of the violation.”

Further, the Circuit Court also concluded that “the district court did not err by declining to order a new trial despite its conclusion that one of the factual assertions upon which the verdict was based was insufficiently supported by the evidence.”

* Dentist regained his teaching position following his acquittal.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/09dd697f-b0ed-464a-9fbc-07c4e98c7a23/12/doc/14-1993_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/09dd697f-b0ed-464a-9fbc-07c4e98c7a23/12/hilite/

State’s removing a private lawsuit from State court to Federal court waives a State’s 11th Amendment immunity but may not affect its general sovereign immunity

State’s removing a private lawsuit from State court to Federal court waives a State’s 11^thAmendment immunity but may not affect its general sovereign immunity

Beaulieu v State of Vermont, US Circuit Court of Appeals, Second Circuit, Docket #13-4198-cv

704 current and former employees of the State of Vermont [Plaintiffs], brought an action in State court contending that because their weekly pay is or was reduced for partial-day absences in excess of their accrued leave, they are or were not paid on a “salary basis” under the Fair Labor Standards Act [FLSA] and are thus entitled to overtime pay at one and one-half times their regular rate.

Vermont  removed the action from Vermont   state court to the United States District Court, District of Vermont.

Vermont then moved to dismiss Plaintiff’s action based on its claim that it was immune from private lawsuit. The District Court agreed and dismissed the lawsuit “by reason of Vermont’s sovereign immunity* from private lawsuits.” Plaintiffs appealed.

The Circuit Court of Appeals affirmed the District Court’s ruling, explaining that although Vermont’s removal of Plaintiffs’ private lawsuit from Vermont state court to the United States District Court resulted in a waiver its Eleventh Amendment immunity from suit in federal court, it had not waived its general sovereign immunity from private lawsuits within the meaning of Vermont State Law.

Plaintiffs had argue that a statutory provision, Vermont Statutes Title 21, §384(b)(7) constituted an express waiver of the Vermont’s immunity from private actions brought under the FLSA. The Circuit Court disagreed, noting that although Title 21 provides that “[A]n employer shall not pay an employee less than one and one-half times the regular wage rate for any work done by the employee in excess of 40 hours during a workweek,” the statute further provides that “this subsection shall not apply to: (7) State employees who are covered by the Federal Fair Labor Standards Act.”

In the words of the Circuit Court, “Plaintiff's argument misunderstands the difference between the applicability of a federal statute to a state enacting lawful obligations upon the state, and the state's amenability to a private entity's suit to enforce such an obligation. There is no doubt that the FLSA applies to Vermont and creates a legal obligation on Vermont to pay its employees in accordance with the statute's terms. Nonetheless, Vermont's sovereign immunity—unless waived or forfeited—bars suit by a private entity seeking to enforce the FLSA's terms.”

Accordingly, said the court, “[t]he fact that Vermont state employees are covered by the FLSA does not mean that those employees are entitled to sue Vermont under the FLSA's private right of action,” concluding that the District Court correctly dismissed Plaintiffs private lawsuit on the basis of Vermont's general sovereign immunity, which Vermont had not waived. 

* The Doctrine of Sovereign Immunity holds that the state cannot commit a legal wrong and thus is immune from civil suit or criminal prosecution unless it has unequivocally waived such immunity.

 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e04cb9a1-65fc-473d-8e22-25494c8e1ec3/2/doc/13-4198_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e04cb9a1-65fc-473d-8e22-25494c8e1ec3/2/hilite/

Former NYS Member of the Assembly sentenced after being found guilty of fraud and theft

Former NYS Member of the Assembly sentenced after being found guilty of fraud and theft

Source: Office of the State Comptroller

Former New York State Assemblyman William Scarborough, of Queens, New York, was sentenced to 13 months in prison and two years of supervised release after being convicted of wire fraud and theft from a program receiving federal funds and related to his wrongful receipt of per diem payments from New York State for alleged travel expenses.

A written plea agreement required him to resign his position as a Member of the New York State Assembly.

The text of the Comptroller’s press release reporting this action is posted on the Internet at:

http://www.osc.state.ny.us/press/releases/sept15/091415.htm?utm_source=weeklynews20150920&utm_medium=email&utm_campaign=091415release

An individual is entitled to be represented by an attorney in an administrative hearing

An individual is entitled to be represented by an attorney in an administrative hearing

Matter of Odom (Commissioner of Labor), 2015 NY Slip Op 06861, Appellate Division, Third Department

Odom appealed a determination by the Unemployment Insurance Appeal Board, ultimately ruled, among other things, that Odom was disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct.

The Appellate Division reversed the Board’s determination and remanded the matter to the Board for further proceedings.

The court said that the record demonstrated that at the commencement of the administrative hearing Odom informed the Administrative Law Judge that her attorney was unavailable, but that she "would like for him to come" to the hearing. 

Notwithstanding this statement by Odom, said the Appellate Division, “the Administrative Law Judge continued to question [Odom] until she agreed to proceed pro se.”*

The court found that Odom’s right to have counsel present to represent her a the administrative hearing was violated under these circumstances.

* By proceeding pro se, Odom would be serving as her own attorney in this quasi-judicial proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06861.htm

A party's participation in the arbitration proceeding deemed a concession by the party that the arbitration panel has jurisdiction to consider and decide the matter

A party's participation in the arbitration proceeding deemed a concession by the party that the arbitration panel has jurisdiction to consider and decide the matter

D'Ropshitz v Schwartz, 2015 NY Slip Op 06814, Appellate Division, Second Department

An arbitration award dated August 20, 2012was issued by the arbitration panel. Schwartz then alerted the arbitration panel that the August 20, 2012, award had left an issue unresolved and met with the panel. This resulted in the arbitration panel issuing an award dated July 2, 2013.

When D’Ropshitz brought a CPLR Article 75 action to confirm the panel’s July 2, 2013 award Schwartz objected, contending that after issuing its arbitration award dated August 20, 2012 the arbitration panel did not have jurisdiction to issue the arbitration award dated July 2, 2013. Supreme Court, Kings Countyconfirmed the July 2, 2013 award, [in part] and Schwartz appealed the Supreme Court’s determination.

The Appellate Division affirmed the Supreme Court’s confirmation of the award [in part], explaining that Schwartz waived any argument that the arbitration panel exceeded its authority or was without jurisdiction with respect to its issuing the July 2, 2013 award by alerting the arbitration panel that the August 20, 2012, award had left an issue unresolved and then meeting with the panel, during which Schwartz suggested "that the panel members visit the subject site so that they might have a better understanding of the issue.”

Also, as the Court of Appeals held in United Federation of Teachers, Local 2 v Board of Education of the City of New York, 1 NY3d 72, "a party that participates in the arbitration may not later seek to vacate the award by claiming it never agreed to arbitrate the dispute in the first place."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06814.htm

Florida resident convicted of stealing NYS pension checks sent to his deceased mother

Florida resident convicted of stealing NYS pension checks sent to his deceased mother

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced that Marc A. Eletz, 70, a resident of Boca Raton, Florida, pleaded guilty* Thursday to the crime of Grand Larceny in the Third Degree, a class D felony, in Albany County Court. The plea stems from charges that Mr. Eletz stole over $275,000 in New York state pension benefits that were issued to his deceased mother.

Eletz admitted to stealing pension benefits from the New York Stateand Local Employees Retirement System payable to his deceased mother, Fay Eletz. According to the Comptroller and the Attorney General, Eletz’s father, Milton Eletz, was a New Yorkstate pensioner who elected to receive reduced monthly benefits so his wife, Fay Eletz, would continue to receive benefits after his death in 1988. From 1992 until July 2014, these benefits were deposited into a joint account held by the Marc Eletz and his mother.

After his mother died in April 2001, Eletz continued to receive these benefits until July 31, 2014, totaling $276,721.24. Eletz accessed these funds from the joint account and liquidated all but $1,801.08 of the pension benefits over that time period.

Eletz pleaded guilty before Judge Peter Lynch in Albany County Court and paid $150,000 in restitution. Eletz is expected to be sentenced to one year in jail and will sign a confession of judgment in favor of New York Statefor an additional $124,987.

This case is the latest joint investigation under the Operation Integrity partnership between the Attorney General and Comptroller, which has resulted in dozens of convictions and more than $6 million in restitution. 

The joint investigation was conducted with the Comptroller’s Division of Investigations. The Attorney General’s investigation was conducted by Investigators Barbara Butler and Mitchell Paurowski and Deputy Chief Antoine Karam.  The Investigations Bureau is led by Chief Dominick Zarrella. 

This case is being prosecuted by Assistant Attorney General Philip V. Apruzzese of the Criminal Enforcement and Financial Crimes Bureau.  The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chiefs Stephanie Swenton and Meryl Lutsky.  The Division of Criminal Justice is led by Executive Deputy Attorney General Kelly Donovan.

Since taking office in 2007, Comptroller DiNapoli has been 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 filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236. 

* A plea of guilty is deemed a conviction of the crime charged. 

Proposals for trustee services and/or funding of a deferred compensation plan for employees of the City of Batavia requested

Proposals for trustee services and/or funding of a deferred compensation plan for employees of the City of Batavia requested

Source: The New York State Register dated September 16, 2015

The City of Batavia is requesting proposals from qualified administrative services agencies, and/or financial organizations relating to administration, trustee services and/or funding of a deferred compensation plan for employees of the City of Batavia meeting the requirements of Section 457 of the Internal Revenue Code and Section 5 of the State Finance Law, including all rules and regulations issued pursuant thereto.

All proposals must be submitted no later than 30 days from the date of publication in the New York State Register no later than 4:30 p.m.

A copy of the proposal questionnaire may be obtained by e-mailing fairbank@batavianewyork.com .

Time required to research and prepare an appeal not a "good cause” sufficient to excuse an untimely filing of the appeal with the Commissioner of Education

Time required to research and prepare an appeal not a "good cause” sufficient to excuse petitioner's untimely filing of the appeal with the Commissioner of Education

Appeal to the Commissioner of Education, Decision #16,823

Among the issues presented to the Commissioner of Education in this appeal seeking the removal of certain members of a school board was the representation that the petitioners had “good cause” for the late filing of certain elements of their appeal in that it was necessary to “go through” Commissioner’s decisions and other public records in order to proceed with the matter. 

While the Commissioner noted that “It is unclear from the application and record, however, what exactly petitioners needed to “go through” and how this caused a delay,” the Commissioner, citing a number of rulings,* said that “To the extent petitioners may be claiming that they needed time to gather documents and evidence, perform research, and prepare their application, it is well settled that these reasons do not constitute ‘good cause’ upon which to excuse an untimely filing.”

* See, for example, Appeal of Bentley, et al., Decision No. 16,750; Appeal of Levendusky, Decision No. 16,455; Appeal of Thompson, Decision No. 15,706; and Appeal of Bayer, Decision No. 13,561).

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16823

School audits by the State Comptroller issued during the week ending September 12, 2015

School audits by the State Comptroller issued during the week ending September 12, 2015

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following reports were issued during the week ending September 12, 2015. Click on the material highlighted in color below to access the full report.

Canandaigua City School District [Procurement of Professional Services]

http://www.osc.state.ny.us/localgov/audits/schools/2015/canandaigua.pdf?utm_source=weeklynews20150913&utm_medium=email&utm_campaign=091115arelease

Fonda- Fultonville Central School District [Payroll]

http://www.osc.state.ny.us/localgov/audits/schools/2015/fondafultonville.pdf?utm_source=weeklynews20150913&utm_medium 

Monroe 2 – Orleans BOCES [Software Management]

http://www.osc.state.ny.us/localgov/audits/schools/2015/monroe2orleansboces.pdf?utm_source=weeklynews20150913&utm_medium=email&utm_campaign=091115arelease

and the 

Newcomb Central School District [Extra classroom activity fund]

http://www.osc.state.ny.us/localgov/audits/schools/2015/newcomb.pdf?utm_source=weeklynews20150913&utm_medium=email&utm_campaign=091115arelease

Pre-suit investigations by EEOC

Pre-suit investigations by EEOC

EEOC v Sterling Jewelers, Inc., USCA, 2^ndCircuit, Docket 14-1782

Before the EEOC may bring an enforcement action under Title VII against an employer, it must comply with certain administrative obligations, including receiving a formal charge of unlawful discrimination, provide notice of the charge to the employer, investigate the charge and give the employer notice of its determination that there was “reasonable cause” to believe that a violation of Title VII had occurred. EEOC must then make a “good faith effort” to conciliate the matter.*

In this Title VII action a magistrate judge issued a “Report and Recommendation” finding that EEOC not prove that it satisfied its statutory obligation to conduct a pre-suit investigation of allegations that Sterling Jewelers “engaged in a nationwide practice of sex-based pay and promotion discrimination. The magistrate judge recommended that the federal district court grant Sterling’s motion for “summary judgment” dismissing EEOC’s action.

The district court adopted the magistrate judge’s Report and Recommendation and granted Sterling’s motion seeking summary judgment. EEOC appealed.

Citing EEOC v Keco Indus., Inc., 748 F.2d 1097, the Circuit Court of Appeals ruled that the federal district court was incorrect in granting Sterling motion for summary judgment, explaining that the magistrate judge improperly reviewed the sufficiency of the EEOC investigation rather than simply whether there was an investigation. Under Title VII, said the Circuit Court, “courts may review whether the EEOC conducted an investigation, but not the sufficiency of an investigation.”

The court noted that only EEOC’s statutory pre-suit investigation obligation was at issue as the parties agreed that EEOC’s participation in the mediation would have satisfied its obligation to conciliate in the matter if it brought an enforcement action. Further, there were no allegations the EEOC had not satisfied any of its other pre-suit obligation in this instance.

As EEOC had, in fact, conducted an investigation in this case, the Circuit Court vacated the summary judgment order and remanded the matter to the district court for further proceedings.

* See 42 U.S.C. §2000e–5(b)

The decision is posted on the Internet at:

 http://www.ca2.uscourts.gov/decisions/isysquery/d59d4c2a-586c-47c8-90b3-eeebe8ab2867/5/doc/14-1782_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d59d4c2a-586c-47c8-90b3-eeebe8ab2867/5/hilite/1782_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b2f1d782-6305-4aa0-aa18-f3ee2d8b40ee/5/hilite/

Audit reports for certain governmental entities posted by the State Comptroller on September 10, 2015

Audit reports for certain governmental entities posted by the State Comptroller on September 10, 2015

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued on September 10, 2015. Click on the material highlighted in color below to access the full report.

Department of Economic Development - certain local development corporations

In April 2014, DED made a $16,250.00 advance payment to the LDC. Two months later, the LDC claimed the remaining $48,750 of the contract amount. To receive the second claim, the LDC needed to demonstrate that the entire $65,000 in expenses was incurred during the contract period for work relevant to the contract objectives, and was for expenses not previously paid from another funding source. Auditors found the LDC was able to substantiate only $4,284.09 in expenses under the contract.

http://osc.state.ny.us/audits/allaudits/bseaudits/bse20150824.pdf

Department of Environmental Conservation – oil spill funds

DEC generally collected all fees due the Oil Spill Fund for the facilities tested. However, of 11 sampled major oil storage facilities, auditors identified eight that inaccurately reported the number of barrels of petroleum products received, subject to fees and surcharges, or transshipped. For the sampled facilities, these inaccuracies did not materially affect the revenue collected. DEC’s internal controls over payment of cleanup, administrative, and indirect costs provide reasonable assurance that only appropriate expenses were charged to the fund.

http://osc.state.ny.us/audits/allaudits/093015/14s59.pdf

Department of Environmental Conservation – electronic waste fees

Auditors found DEC properly collected, recorded, and deposited fees and surcharges due, but did not segregate the responsibilities for collecting and recording cash receipts of the fees and surcharges. Also, supervisory review of revenue and deposit activities was not documented.

http://osc.state.ny.us/audits/allaudits/093015/15s18.pdf

Division of Housing and Community Renewal – modernization program at NYC Housing Authority

DHCR officials did not have accurate and up-to-date management information regarding the status of NYCHA’s projects. The information officials provided was dated February 2010. Specifically, five projects (totaling about $4.6 million) were not yet finished, although DHCR officials indicated that they were complete. In addition, eight of the ten projects officials listed as incomplete were, in fact, finished. DHCR officials paid $6.8 million for a change order for one project that was not adequately supported. DHCR did not have formal timeframes for awarding a contract once funding was approved.

http://osc.state.ny.us/audits/allaudits/093015/14s21.pdf

State Education Department – Astor services for children

Auditors identified $39,050 in costs that did not comply with SED’s requirements for reimbursement. The non-reimbursable costs included $25,565 in other-than-personal-service (OTPS) costs that were either not allowed, not properly documented, or were not reasonable or necessary. In addition, auditors identified $13,485 in non-reimbursable fundraising activities as well as two teachers and seven teacher’s assistants who did not have the required certifications for their job titles.

http://osc.state.ny.us/audits/allaudits/093015/14s66.pdf

Unified Court System – Legal Aid Society

Auditors reviewed select payments totaling $5,448,384 UCS made to Legal Aid for salaries, equipment, and real estate rentals and found Legal Aid spent these funds appropriately.  However, UCS overpaid Legal Aid $412,184 for fringe benefit expenses that were not actual and allowable under the terms and conditions of the contract.  Legal Aid did not appropriately reconcile fringe benefits at year end, moved funds in every non-personal services budget category without providing UCS with the required notification, and moved $546,803 from non-personal services budget categories to personal services budget categories without obtaining the required prior written approval from UCS.

http://osc.state.ny.us/audits/allaudits/bseaudits/bse20150826.pdf

A supervisor’s personal daily log recording observations concerning a subordinate’s performance held not to be a record “used for personnel purposes”

A supervisor’s personal daily log recording observations concerning a subordinate’s performance held not to be a record “used for personnel purposes”

Steve Poole et al, v Orange County Fire Authority, Supreme Court of California, Ct. App., G047691, G047850

The California Firefighters Procedural Bill of Rights Act (Gov. Code, §3250 et seq.) provides that a firefighter has the right to review and respond to any negative comment that is “entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer.”

In the Poole case, the California Supreme Court considered whether §3255 gives a firefighter the right to review and respond to negative comments in a supervisor’s daily log, consisting of notes that memorialize the supervisor’s thoughts and observations concerning a firefighter which the supervisor uses as a memory aid in preparing performance plans and reviews.

The court held that in this instance because the log was not shared with or available to anyone other than the supervisor who wrote the log, it does not constitute a file “used for any personnel purposes by his or her employer” and thus §3255 did not apply.

The decision is posted on the Internet at:

http://hr.cch.com/ELD/PooleOrangeCounty.pdf

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Employee's application for Workers’ Compensation Benefits based on "multiple chemical sensitivity" rejected

Employee's application for Workers’ Compensation Benefits based on "multiple chemical sensitivity" rejected

2015 NY Slip Op 06756, Appellate Division, Third Department

An employee [Claimant] sought workers' compensation benefits based upon an alleged disability resulting from her exposure to toxic mold at the workplace and her claim for hypersensitivity reaction to occupational presence of fungi was established.

Claimant was found to have a temporary total disability and an award of benefits was made. Subsequently the claim was amended to include "multiple chemical sensitivity" and awards for a marked disability were continued. In a decision filed March 31, 2010, a Workers' Compensation Law Judge (WCLJ) classified Claimant with a permanent total disability as a result of the work-related injury.

The Workers' Compensation Board modified the March 31, 2010 decision by rescinding the finding of permanent total disability and referring the matter to an impartial specialist to examine Claimant and report to the Board with respect to Claimant's disability classification.

When the matter was restored to the calendar, Theodore Them, the impartial medical specialist who examined Claimant, testified that “multiple chemical sensitivity” was not a medically-recognized condition and, in any event, it was his opinion that Claimant was not suffering from any causally-related disability.

The Board credited the testimony of Them, found no further causally-related disability, thereby reversing the WCLJ's finding of total permanent disability. In this December 19, 2012 decision the Board "closed the case."

Following a number of procedural steps by Claimant, Claimant’s employer sought Board review of a second WCLJ's ruling,*which ruling included a direction to depose Claimant's doctor. The employer contended that the Board's had promulgated a decision on December 19, 2012 that resolved the issue of Claimant's degree of disability by finding that Claimant suffered no causally-related disability and properly closed the case. The Board agreed with the employer and Claimant appealed that determination.

The Appellate Division affirmed the Board’s decision, observing that its review was limited to determining whether the Board abused its discretion or acted in an arbitrary or capricious manner in precluding further development of the record regarding the issue of Claimant's causally-related disability.

The court then ruled that the Board had “properly precluded further development of the record” since the issue of Claimant's causally-related disability was addressed and decided by the Board in its December 19, 2012 decision.

The Appellate Division then explained that “To the extent that Claimant now asserts, on the instant appeal, that the Board erred in crediting the opinion of the impartial specialist that Claimant had no causally-related disability, her remedy was to perfect her appeal from the Board's December 19, 2012 decision,” which had not been done.**

* In a ruling issued April 8, 2013 the WCLJ construed the Board's December 19, 2012 decision as rejecting his prior decision that Claimant suffered a causally-related total disability, but continued the case for further development of the record to determine Claimant's appropriate, lesser degree of disability.

** The Appellate Division noted that Claimant “filed a notice of appeal with this Court as to the December 19, 2012 Board decision, but failed to timely perfect that appeal.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06756.htm

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Some guidelines for obtaining DNA samples from sworn officers “to protect the crime scene”

Some guidelines for obtaining DNA samples from sworn officers “to protect the crime scene”

Bill v Brewer, USCA, 9^th Circuit, Docket #13-15844

In this civil rights action brought pursuant to 42 U.S.C. §1983 by three Phoenix police officers, the United States Court of Appeals for the 9^thCircuit affirmed a federal district court’s dismissal of their complaint. The three police officers had alleged that two other Phoenix police officers violated their rights under the Fourth* and Fourteenth** Amendments as the result of their obtaining DNA samples from the three officers for the purpose of excluding them as contributors of DNA at a crime scene.***

Noting that the samples had been obtained pursuant to an Arizona state court order, the Circuit Court ruled that a state court’s order authorizing the collection of DNA samples satisfied the Warrant Clause of the Fourth Amendment.

The Circuit Court also held that it was not unreasonable, under the circumstances, to ask sworn officers to provide saliva samples for the sole purpose of demonstrating that the DNA left at a crime scene was not the result of inadvertent contamination by on-duty public safety personnel.

The court explained that “The policeman’s employment relationship by its nature implies that in certain aspects of his [or her] affairs, he [or she] does not have the full privacy and liberty from police officials that he [or she] would otherwise enjoy.” It was hardly unreasonable here, said the court, to ask sworn officers to provide saliva samples for the sole purpose of demonstrating that DNA left at a crime scene was not the result of inadvertent contamination by on-duty public safety personnel.”

Although the Circuit Court said that it shared the police officers’ concerns “over potential misuse of DNA samples to reveal private information about contributors,” the court observed that “no such danger is realistically posed” in this situation as the memorandum concerning obtaining such DNA samples “expressly guarantees” that the DNA samples taken from the police officers would be used” for comparison to evidence in this report only” and would not be used for any research type testing, including race, ethnicity or health, provided to any outside organization for those purposes, entered into the employee database, or entered into CODIS, the Combined DNA Index System.**** 

The court noted that the police officers had not alleged “any plausible reason to believe that the Phoenix Police Department will not abide by these limitations,” and the federal district court did not err in declining to speculate about possible future abuse.

* The Fourth Amendment prohibits the unreasonable search of persons. The police officers alleged “obtaining, analyzing, and retaining” their DNA samples violated their rights under the Fourth Amendment.

** The Circuit Court did not specifically address the police officers’ Fourteenth Amendment arguments which presumably contended that the taking of the DNA samples violated their right to “due process.”

*** The samples had been obtained pursuant to an Arizona state court order.

**** CODIS is “a centrally-managed database linking DNA profiles culled from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence, unidentified remains, and genetic samples voluntarily provided by relatives of missing persons.”

The decision is posted on the Internet at:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/31/13-15844.pdf