Reimbursement of retiree Medicare premiums found to be a form of deferred compensation may not be unilaterally discontinued by the employer

Reimbursement of  retiree Medicare premiums found to be a form of deferred compensation may not be unilaterally discontinued by the employer

Holloway v City of Albany, 2019 NY Slip Op 00940, Appellate Division, Third Department

In 2012 the Firefighters' Union [Union] filed a contract grievance and demanded arbitration when the City of Albany [Albany] said that it was ending its longstanding practice of reimbursing retired firefighters for their Medicare Part B premiums with respect to those who enrolled in the program on or after January 1, 2010.  The Union alleged that Albany's action violated §27.1 of the Collective Bargaining Agreement [CBA].* 

An arbitrator ruled that the Medicare Part B premium reimbursement was a component of "the existing health insurance plan" and that it could not be ended absent compliance with the provisions set out in §27.1 of the CBA. Subsequently the same arbitrator conducted an expedited proceedings to determine whether a health insurance plan without the reimbursement of Medicare Part B premiums provided coverage "substantially equivalent" to one with such reimbursements. The arbitrator decided that it did not and directed Albany to make whole "all individuals affected by [the reimbursement's] elimination." The arbitrator's awards were confirmed in an action taken pursuant to CPLR Article 75.

However, the Union determined that firefighters either enrolled in Medicare Part B after January 1, 2010 or will be doing so and, notwithstanding the 2012 arbitration award, had not been and would not be reimbursed by the City for their Medicare Part B premiums. Accordingly, in 2015 the Union initiated the instant action contending that Albany [1] had breached whichever CBA was in effect at each such firefighter's retirement and [2] was collaterally estopped** by the 2012 arbitration award from arguing to the contrary.

Supreme Court, however, determined that the Doctrine of Collateral Estoppel did not apply, found ambiguities in the language of §27.1 of the CBA and denied the Union's motion for summary judgment. The Union appealed. 

Acknowledging that §27.1 of the CBA, as written, is ambiguous, the Union argued that the proceedings culminating in the 2012 arbitration award resolved, with preclusive effect, that ambiguity in its favor. The Appellate Division agreed, explaining that arbitration awards are entitled to collateral estoppel effect and, citing Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, said such an award "will bar a party from relitigating a material issue or claim resolved in the arbitration proceeding after a full and fair opportunity to litigate."

Observing that it was undisputed that the arbitration proceeding afforded Albany  a "full and fair opportunity to litigate the issues therein," the Appellate Division said that the only question is whether the firefighters in this action, as the parties seeking to invoke collateral estoppel, satisfied their burden of showing the identity of the issues  "between those resolved in the arbitration awards and those in play here."

In the 2010 arbitration award, said the court, the arbitrator observed that Albany had reimbursed retired firefighters for their Medicare Part B premiums since the 1960's and did so for decades after it was no longer required, leading her to conclude that the reimbursement constituted part of the "existing health insurance plan" that could not be discontinued absent compliance with the provision set out in §27.1 of the CBA.

Albany had also contended that §27.1 had no applicability because retired firefighters were not "members of the bargaining unit" protected by that contract provision. The arbitrator also rejected this argument, holding that the reimbursement was a form of deferred compensation and was one of the health insurance benefits afforded to current employees.  In the words of the Appellate Division, although retirees are no longer part of the collective bargaining unit upon their retirement "the arbitrator determined that §27.1 applied because the reimbursement entitlement was earned by the retirees while they were working."

Noting that the 2010 and 2012 arbitration awards were never vacated and are binding and the firefighters  retired during the period that the reimbursement was provided to retirees under CBAs containing §27.1, the Appellate Division held that Albany "is obligated to reimburse retired firefighters for these payments under the CBA"

This, said the Appellate Division, Justice Mulvey dissenting, "is dispositive of the claims raised here" and thus the firefighters have met their burden of showing identity of issue, and their motion for summary judgment should have been granted by Supreme Court.

* §27.1 of the collective bargaining agreements at issue required the City to "present proposals to the [firefighters'] [u]nion for discussion and possible agreement" if it "wishe[d] to change the existing health insurance plan." In the absence of agreement, an arbitrator would be tasked with determining "whether the new . . . proposal grants substantially equivalent coverage to members of the bargaining unit" so as to be permissible.

** The Doctrine of Collateral Estoppel bars an issue that has already been litigated by the  parties from being later relitgated by those same parties..

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2019/2019_00940.htm

A public employee alleging that he or she has been "wrongful terminated" is required to bring a CPLR Article 78 proceeding seeking reinstatement and unpaid salary

A public employee alleging that he or she has been "wrongful terminated" is required to bring a CPLR Article 78 proceeding seeking reinstatement and unpaid salary

Village of Northport v Krumholz, 2019 NY Slip Op 00926, Appellate Division, Second Department

The Defendant in this action was appointed Treasurer of the Village of Northport and served in that capacity until the Village discovered that she had been appropriating Village funds to herself.*

The Village commenced this action against Defendant alleging that she had improperly written checks to herself from Village funds. Defendant filed a counterclaim alleged "wrongful termination and violation of Public Officers Law §36"** and asked the court to direct her reinstatement and payment of back salary.

Supreme Court granted the Village's motions summary judgment on its conversion and  its breach of fiduciary duty causes of actions, and dismissed, as time-barred, Defendant's counterclaim. Defendant appealed, contending that Supreme Court should not have granted Village's motion for summary judgment dismissing her counterclaim.

The Appellate Division sustained the Supreme Court's rulings, explaining that:

1. Defendant was required to bring a proceeding pursuant to CPLR Article 78 in order to pursue her claim of wrongful termination and to seek reinstatement and unpaid salary; and

2. Citing Austin v Board of Higher Educ. of City of N.Y. , 5 NY2d 430, a CPLR Article 78 proceeding is the exclusive remedy for a discharged public employee, who must seek reinstatement prior to seeking unpaid salary.

As the Village established its prima facie entitlement to judgment as a matter of law dismissing the Defendant's counterclaim as time-barred, the claim not having not been filed within the controlling four-month statute of limitations, the Appellate Division noted that Defendant "was effectively terminated" in March, 2009 but did not file her counterclaim until January 4, 2013.

* Earlier Defendant had brought an action United States District Court "seeking overtime pay under the Fair Labor Standards Act" and alleged that her employment with the Village should not have been terminated without notice and hearing. The federal court dismissed Defendant's Fair Labor Standards Act claim and declined to consider the state law questions she presented. The filing of her federal action, however, did not toll the running of the controlling statute of limitations with respect to the litigation of Defendant's state law issues. Similarly, neither the filing an appeal from an administrative decision in accordance with a grievance procedure [Matter of Matter of Hazeltine v City of New York, 89 AD3d 613] nor a request for reconsideration of a final administrative decision [Cappellino v Town of Somers, 83 AD3d 934] toll the running of the statute of limitations for bringing an Article 78 action.

** §36 of the Public Officer Law sets out the procedures for the removal of a town, village, improvement district or fire district officer other than a justice of the peace.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00926.htm

Applying compensation limitations retroactively

Applying compensation limitations retroactively

People v Edward J. Murphy, 235 A.D.2d 554

In 1993 certain limitations on the amount of compensation that a BOCES Superintendent could receive were enacted into law [Chapter 295, Laws of 1993].

In the Murphy case the Appellate Division concluded that the limitations set out in Chapter 295 did not apply retroactively.

The case arose when the State attempted to recover a portion of what the Appellate Division described as an "overly generous BOCES compensation package (which included extensive sick and vacation leave time and the right to liquidate this leave at full-pay)" granted to its then BOCES Superintendent Edward J. Murphy,

The Court said that "while improvident, BOCES' offer to Murphy, and his acceptance of the overly generous BOCES compensation package ... did not violate any articulated public policy."

Further, the Court ruled that although the law now places a limitation on the amount of compensation that a BOCES superintendent may receive, "at the time Murphy began working at BOCES and continuing throughout his tenure as the BOCES district superintendent, the law provided for no such restrictions. Accordingly, the Court decided, Murphy's employment agreements with BOCES were neither illegal nor unauthorized.

The ruling suggests that all or part of a "compensation package" in place prior to the effective date of the enactment or the amendment of a law limiting the compensation of a public officer or a public employee then in service may survive judicial challenge even if the compensation package is in excess of that authorized by the law as enacted or amended.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997789235ad2d5541272

An appointing authority may formulate and implement procedures to be used to promote its employees

An appointing authority may formulate and implement procedures to be used to promote its employees

Sinopidis v Port Authority of New York and New Jersey, 2019 NY Slip Op 00830, Appellate Division, First Department

A candidate for promotion from Port Authority of New York and New Jersey Sergeant to Lieutenant  [Petitioner] received a failing grade he received based on his performance at a Qualifications Review Meeting [QRM]. Supreme Court denied his petition seeking a court order directing the Port Authority to effect his  promotion to Lieutenant and to award him back pay and benefits, or, in the alternative, to order the Port Authority "to reconvene [Petitioner's]  interview on a pass-fail basis".  

Petitioner appealed the Supreme Court's ruling. The Appellate Division, however, affirmed the lower court decision, explaining that Petitioner:

1. failed to demonstrate that the Port Authority lacked the discretion to formulate and implement the promotional procedures it had used;

2. failed to show that on its face the procedures were unlawful or arbitrary; and

3. did not demonstrate that the failing grade he received based on his performance at a QRM was arbitrary and capricious.

In the words of the Appellate Division the Port Authority had "broad discretion to select individuals for civil service appointment and promotion."

The Appellate Division said that it would not interfere with Port Authority's  exercise of that discretion "unless there is evidence of arbitrary or unlawful conduct by the appointing officer" and insofar as Petitioner's claim that he was "essentially informed" by his superior officers that he had performed well on the QRM is concerned, this representation "does not raise an issue as to the propriety of the failing grade [Petitioner] actually received."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00830.htm

Statute of limitations for initiating administrative disciplinary action extended where the act or omission charged may constitute a crime

Statute of limitations for initiating administrative disciplinary action extended where the act or omission charged may constitute a crime

Folborg v Bratton, 227 A.D.2d 108

§75.4 of the Civil Service Law provides that disciplinary proceeding must be initiated "within 18 months of the alleged incompetency or misconduct ... provided, however, that such limitations shall not apply  where the  incompetency  or  misconduct  complained  of  and  described in the charges would,  if  proved  in  a  court  of  appropriate  jurisdiction, constitute a crime."

This exception became after a New York City police officer [Police Officer] was dismissed from his position after being found guilty of misconduct based on events that occurred more than 18 months before §75 disciplinary charges had been filed against him.

Essentially, Police Officer was alleged to have engaged in a scheme to defraud by "falsely representing that he would provide ... diamonds from Africa for manufacture and resale in this country...."

The Appellate Division said that because the allegations would, if proved in court, constitute the crime of larceny by false promise, the disciplinary actions was not time-barred under §75.4.

Making another point, the Court said that the fact that the District Attorney decided not to prosecute the police officer "was not tantamount to an assessment that [Police Officer] had not committed a crime." Accordingly, taking administrative disciplinary action against  Police Officer was not improper.

Assume an employee has been tried and acquitted of criminal charges. Courts have allowed the prosecution of administrative disciplinary action against an employee notwithstanding his or her acquittal of criminal charges involving the same acts or omissions.

Why would a court allow the disciplinary hearing to proceed in such a situation? Because the burden of proof is substantially different. An individual may be acquitted in the criminal action because his or her guilt was not proven beyond a reasonable doubt, but he or she may be found guilty under the less stringent substantial evidence standard usually applied in administrative disciplinary proceedings.

Where, however, an individual has been found guilty of criminal charges by a court, the courts have ruled that such a determination precludes a hearing body finding the individual "not guilty" in an administrative disciplinary action involving the same allegations.

In Kelly v Levin, 81 AD2d 1005, the court ruled that acquitting an employee in an administrative disciplinary action based on the same charges underlying the individual's  criminal conviction was a reversible error because the standard of proof in the criminal action was greater. The court said that an Education Law  §3020-a disciplinary hearing panel could not find an individual not guilty of a crime after he or she had been convicted of criminal charges involving the same allegations.

The Police Officer decision is posted on the Internet at:
https://www.leagle.com/decision/1996335227ad2d1081302

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. To order your copy of The Discipline Book, please go to: http://thedisciplinebook.blogspot.com/

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A school district employee's good faith in reporting allegations of child abuse in an educational setting triggers Education Law §1128(4) immunity from liability

A school district employee's good faith in reporting allegations of child abuse in an educational setting triggers Education Law §1128(4) immunity from liability
Bratge v Simons, 167 AD3d 1458

Among the issues raised by Plaintiffs in this appeal was the claim that Supreme Court erred in dismissing the complaint with respect to Plaintiffs' allegations that a school district and certain of its officers  and employees has subjected them to malicious prosecution. The Appellate Division held that Supreme Court properly dismissed this claim.

To obtain recovery for malicious prosecution, said the court, a plaintiff must establish [1] that a criminal proceeding was commenced; [2] that it was terminated in favor of the accused; [3] that it lacked probable cause; and [4] that the proceeding was brought out of actual malice."

In this instance, said the Appellate Division, it is undisputed that there was "a judicial determination of probable cause" in the underlying criminal action which "can be overcome only upon a showing of fraud, perjury or the withholding of evidence" and the Plaintiffs' complaint failed to allege such misconduct.

The Appellate Division also noted that the documentary evidence established that School District merely "furnished information to law enforcement authorities." The law enforcement authority then exercised its own judgment in determining whether criminal charges should be filed. Citing Quigley v City of Auburn, 267 AD2d 978, the court observed that "It is well settled that such actions by a civilian complainant . . . do not render the complainant liable for . . . malicious prosecution."

In addition, the Appellate Division commented that Education Law §1128(4) provides that School District employees named as defendants in such an action with immunity from liability with respect to their good faith compliance with the mandatory reporting requirements of  Education Law §1126.

§1126 sets out the duties of employees specifically enumerated in this section upon receipt of an allegation of child abuse in an educational setting. The Appellate Division said that the documentary evidence submitted by defendants in this action established that they acted reasonably and in good faith in transmitting a report of alleged child abuse in an educational setting consistent with the requirements of §1126.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08778.htm

Violations of specific safety requirements

 

State ex rel. Angelo Benedetti, Inc. v. Indus. Comm.

Court: Ohio Supreme Court

 

Docket: 20070619

Judge: Per Curiam

Areas of Law: Business Law, Government & Administrative Law, Injury Law, Labor & Employment Law

The Industrial Commission of Ohio found that Angela Benedetti, Inc. (ABI) violated two newly added specific safety requirements that resulted in an injury to an ABI employee. ABI filed a complaint in mandamus in the court of appeals, alleging that the commission abused its discretion in permitting the injured employee to amend his specific safety requirement violations application and in finding violations of the specific safety requirements. The court of appeals upheld the Commission's order and denied the writ. On appeal, the Supreme Court affirmed, agreeing with the reasoning provided by the court of appeals but not given in this opinion.

 

http://j.st/SQE

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Ficken v Suffolk Vocational Education Board, 238 A.D.2d 589

An employee of Suffolk County's Vocational Education and Extension Board [VEEB] was conducting a personal business activity while employed simultaneously being employed by VEEB. The problem was that the employee was alleged to have conducted some of her personal business on VEEB property and on VEEB time.

Although warned several times not to conduct her personal business affairs while on VEEB property and that her failure to comply with directive could result in disciplinary action, the employee persisted in conducting some of her personal business while at work.

This resulted in the employee being charged with and found guilty of, misconduct, characterized as theft of services. The penalty imposed: termination. 

The employee appealed the disciplinary action taken against her, claiming that there was no substantial evidence to support the appointing authority's determination. 

The Appellate Division disagreed and dismissed the appeal challenging the disciplinary action taken against her. The court explained that the employee's admission that she met with a client to conduct aspects of her business on VEEB property and on "VEEB time," coupled with the testimony of two co-workers that the employee typed documents related to her business activities while "at work," was "sufficient to provide substantial evidence to sustain the findings of misconduct."

As to the penalty imposed, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, said that under the circumstances, dismissal was not so disproportionate to the offense as to be "shocking to one's sense of fairness."

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Employer's "legitimate, independent, and nondiscriminatory reasons" for its personnel actions trumps employee's complaint of discrimination and retaliation

Employer's "legitimate, independent, and nondiscriminatory reasons" for its personnel actions trumps employee's complaint of discrimination and retaliation

Cubelo v City of New York, 2019 NY Slip Op 00689, Appellate Division, First Department

The Plaintiff in this action, who was born in Spain, contended that he was passed over for several promotions by the New York City Department of Transportation [DOT] as a result of DOT's giving persons of South Asian descent preference in promotions. He also claimed that DOT retaliated against him after he had filed complaints alleging unlawful discrimination and a union grievance by "transferring* him to a lesser position" in violation of the State** and City Human Rights Laws.***

The Appellate Division said that DOT had established, prima facie, "legitimate, independent, and nondiscriminatory reasons" for the personnel actions underlying Plaintiff's complaints. The court explained that the record supports DOT's explanation that the candidates selected for promotion over Plaintiff were chosen because the individuals appointed "were better qualified for the job, having advanced degrees and directly relevant experience that [Plaintiff] did not possess."

Although Plaintiff contended that these candidates were actually promoted as a result of preferential treatment toward employees of South Asian descent, the Appellate Division noted that Plaintiff failed to submit evidence that in making these decisions his supervisors took into account the fact that he was not of South Asian descent. Further, said the court, Plaintiff's contention that the real reason for the decisions constituted unlawful discrimination was undermined by the fact that a woman of Polish descent was ultimately hired to occupy one of the four positions for which he applied and that Plaintiff failed to raise an issue of fact whether DOT's proffered reasons concerning the promotions were false and a pretext for, or motivated at least in part by, discrimination.

Addressing Plaintiff's allegations of retaliation after he had filed discrimination complaints and grievances, the court said that DOT had also established prima facie that Plaintiff's departmental transfer was not made in retaliation for his complaints of discrimination because it did not constitute an "adverse employment action" or an "action that disadvantaged him."

As to Plaintiff's filing a grievance with his union, his grievance alleged that he was performing out-of-title work in his former position. The Appellate Division pointed out that Plaintiff's reassignment was initiated as a remedy for the grievance and Plaintiff continued to earn the same salary and benefits while serving in the same title in his new position.

The Appellate Division unanimously affirmed Supreme Court's granting DOT's motion for summary judgment dismissing Petitioner's complaint.  

* The movement of an individual from one position to a second position subject to the jurisdiction of the same appointing authority is typically described as a "reassignment." In contrast, the movement of an employee from one position to a second position under the jurisdiction of a different appointing authority is typically characterized as a "transfer."  Although the term "transfer" is used in this decision to describe the personnel action Plaintiff experienced, the term "reassignment" is, in opinion of NYPPL's editor, the appropriate term to describe the relevant "personnel action" in this instance. Contrast, for example, 4 NYCRR 1.2(b)(1) with 4 NYCRR 1.2(b)(2).

** See Executive Law §296.

*** See Administrative Code of City of NY §8-107.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00689.htm

Applying compensation limitations retroactively

Applying compensation limitations retroactively

People v Edward J. Murphy, 235 A.D.2d 554

In 1993 certain limitations on the amount of compensation that a BOCES Superintendent could receive were enacted into law [Chapter 295, Laws of 1993].

In the Murphy case the Appellate Division concluded that the limitations set out in Chapter 295 did not apply retroactively.

The case arose when the State attempted to recover a portion of what the Appellate Division described as an "overly generous BOCES compensation package (which included extensive sick and vacation leave time and the right to liquidate this leave at full-pay)" granted to its then BOCES Superintendent Edward J. Murphy.

The Court said that "while improvident, BOCES' offer to Murphy, and his acceptance of the overly generous BOCES compensation package ... did not violate any articulated public policy." 

Further, the Court ruled that although the law now places a limitation on the amount of compensation that a BOCES superintendent may receive, "at the time Murphy began working at BOCES and continuing throughout his tenure as the BOCES district superintendent, the law provided for no such restrictions. Accordingly, the Court decided, Murphy's employment agreements with BOCES were neither illegal nor unauthorized.

The ruling suggests that all or part of a "compensation package" in place prior to the effective date of the enactment or the amendment of a law limiting the compensation of a public officer or a public employee then in service may survive judicial challenge even if the compensation package is in excess of that authorized by the law as enacted or amended.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997789235ad2d5541272

Accessing the personnel records of law enforcement personnel

Accessing the personnel records of law enforcement personnel

Ferrara v Superintendent, Division of State Police, 235 A.D.2d 874,  Appeal dismissed, 90 N.Y.2d 829, Defendant's motion to dismiss appeal granted, 26 F.Supp.2d 410

A prisoner at the Oneida Correctional Facility, submitted a Freedom on Information request to the Division of State Police seeking "records of disciplinary action taken against members of the State Police" as the result of an internal investigation.

The Appellate Division, in sustaining the Division's refusal to provide such information, explained that such records are specifically exempted from disclosure under Civil Rights Law §50-a.

In a similar cases, Nassau County Police Department v Kevin, 237 A.D.2d 354, the Appellate Division quashed a judicial subpoena issued by a District Court that ordered the production of "internal police directives and orders" that it was alleged would establish the existence of a quota system for making arrests for driving while intoxicated on the Long Island Expressway. 

See, also, 166 Misc.2d 207. Here the driver of a motor vehicle had been arrested for allegedly driving 85 miles an hour while intoxicated by Nassau County Police. The Appellate Division said the driver presented nothing to support his claim and that a subpoena may not be used "to fish for impeaching material".

The decision is posted on the Internet at:

https://www.leagle.com/decision/19971109235ad2d8742420

Sending threatening texts messages to a co-worker

Sending threatening texts messages to a co-worker

OATH Index No. 2411/18

An employee was served with disciplinary charges pursuant to Section 7.5 of the Personnel Rules and Regulations of the Health and Hospitals Corporation alleging that he sent threatening text messages to another employee of the Corporation. The employee apologized for his actions the next day and subsequently took, and completed, five months of counseling and anger management training and received a certificate confirming that he had successfully completed the treatment program.

OATH Administrative Law Judge John B. Spooner, in consideration of the employee's sincere expressions of remorse and his substantial efforts to deal with his anger control issues, recommended that the appointing authority impose a penalty of a 60-day suspension, without credit for employee's 30-day pre-hearing suspension without pay.

Section 7.5.5 of HHC's Personnel Rules and Regulations, "Sustaining of Charges - Penalty," provides as follows:

If the charges are sustained, the penalty or punishment may consist of the following and the time which the employee is suspended without pay pending the hearing may be considered as part of the penalty:

a) A reprimand; or
b) A fine not to exceed $100.00 to be deducted from his/her salary; or
c) Suspension without pay not exceeding two months; or
d) Demotion in grade and title; or 
e) Dismissal from service.

Similarly, §75.3 of the Civil Service Law provides, in pertinent part, "that the time during which an officer or employee is suspended  without pay may be considered as part of the penalty."

However both §7.5.4 of the Personnel Rules and Regulations of the Health and Hospitals Corporation and §75.3 of the Civil Service Law, in pertinent part, state that if the employee is acquitted of the disciplinary charges, the individual shall be restored to the position with full pay for the period of the suspension without pay, less the amount of any unemployment insurance benefits or wages the individual received during that period.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-2411.pdf

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Click here to Read a FREE excerpt from A Reasonable Disciplinary Penalty Under the Circumstances, disciplinary penalties imposed on officers and employees of New York State and its political subdivisions.

NYS Liberty Defense Project and Catholic Charities of New York launch statewide pro bono project to expand legal services for immigrants

NYS Liberty Defense Project and Catholic Charities of New York launch statewide pro bono project to expand legal services for immigrants

Source: New York State's press release system

New York State’s Liberty Defense Project and Catholic Charities of the Archdiocese of New York today announced the formal launch of a new platform to support Catholic Charities and the Liberty Defense Project's Pro Bonoprogram.   

This first-of-its-kind statewide project in New York identifies immigration cases through community legal clinics and refers them to volunteer legal representatives, increasing statewide access to free legal services for low-income and vulnerable immigrants.

The URL https://www.catholiccharitiesnyprobono.org is the projects Internet site and is funded by the Liberty Defense Project. The site provides volunteers with the tools to competently and effectively assist the most vulnerable immigrants. This all-inclusive site provides volunteers with the ability to review available cases, sign up for short-term and case placement volunteer opportunities, learn more about the work of the Pro Bono Project and access a wealth of training materials and practice templates. The online volunteer portal comes with more than 100 practice tools and web-based training, with new materials added as needed.

Every Pro Bono Project volunteer advocate will receive expert legal training and mentorship in each stage of a case and at each service event in which they choose to participate, so that each client will receive the highest quality assistance in furtherance of Catholic Charities’ mission to recognize the dignity of each person and strive for a just and compassionate society.

Through the Pro Bono Project, Catholic Charities assists volunteer advocates to:

● Prepare affirmative asylum applications for individuals afraid to return to their homes;

● Litigate asylum cases for mothers and children fleeing gang violence in Central America;

● Help unaccompanied immigrant children obtain special humanitarian protection due to abuse, neglect or abandonment;

● Empower survivors of violence to find safety, stability, and status through US immigration laws designed to protect victims of crime, trafficking, and familial abuse;

● Assist immigrants to reunify with family members, both here and through overseas processing.

On the website volunteers can choose to express their interest as well as search and review available cases that need legal representation. The Pro Bono Project recruits and engages volunteer attorneys in numerous ways including bi-monthly newsletters, building on existing law firm relationships as well as creating new partnerships with firms through outreach, engagement with local bar associations throughout New York State, and individual connectivity with private bar attorneys who express interest through a variety of channels, agency-wide. Private bar pro bono volunteer advocates’ (PBVAs) caseload will be approximately one to two cases per volunteer attorney, where firms will see more of a variance, on average, two to ten per firm.

As of February 1, 2019, Catholic Charities has placed 105 pro bono cases with volunteer attorneys throughout New York State. Its Pro Bono Volunteer Advocate network has grown to more than 230 dedicated volunteer attorneys, and more than 600 New Yorkers reached out to Catholic Charities following the family separation crisis last summer to learn about how they could support efforts, including more than 265 attorneys expressing interest in joining the Pro Bono Project.

In 2017, Governor Cuomo launched the Liberty Defense Project – the first-in-the-nation, state-led public-private project to assist immigrants – regardless of status – in obtaining access to legal services and process. The project is administered by the Governor’s Office for New Americans and run in partnership with law firms, legal associations, advocacy organizations, major colleges and universities and bar associations. 

The Liberty Defense Project provides:

● Free legal consultations and screenings for immigrants throughout New York State.

● Direct representation to immigrants in deportation proceedings as well as other cases.

● Help with filing immigration applications for naturalization, employment authorization, permanent residency, etc.

● "Know Your Rights" training for immigrants and the community at large.

The New York State 2019 - 2020 Budget Bill

The New York State 2019 - 2020 Budget Bill
Senate 1506 [Same as Assembly 2006]

Division of Budget; Part A through, and including, Part Z.

The text of the Budget Bill is posted on the Internet at:

http://public.leginfo.state.ny.us/navigate.cgi?NVDTO:+&QUERYDATA=S1506+&QUERYTYPE=BILLNO

To access the text and the summary of the bill, etc., check "text" or "summary," etc., and then "click on" Search."

   StatusTextSummarySponsor's Memo

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The timely filing of a notice of claim required by Education Law §3813(1) does not toll the running of the statute of limitations for commencing a lawsuit

The timely filing of a notice of claim required by Education Law §3813(1) does not toll the running of the statute of limitations for commencing a lawsuit
Bratge v Simons, 2018 NY Slip Op 08778, Appellate Division, Fourth Department

Among the issues raised by Plaintiffs in this appeal was the claim that Supreme Court erred in dismissing the complaint as barred by statute of limitations. Plaintiffs argued that the action was timely commenced by Plaintiffs because they had served a notice of claim within the relevant limitations period. The Appellate Division disagreed, explaining that "the filing of the notice of claim did not toll the [running of the] statute of limitations" with respect to their cause of action.

Plaintiffs also argued that the breach of contract claim in their first cause of action did not accrue until they were able to access damages they allegedly suffered. Again the Appellate Division disagreed, stating that an action for an alleged breach of contract accrues at the time of the breach even if "no damage occurs until later." Consequently, said the court, "that claim accrued at the time of the alleged breach ... and thus it was time-barred under the one-year statute of limitations in Education Law §3813 (2-b)."

Plaintiffs also argued that a claim in their first cause of action alleging a violation of Plaintiffs' due process rights was not time-barred under the continuing wrong doctrine. This argument was also rejected by the Appellate Division. The court observed that the continuing wrong doctrine allows a later accrual date of a cause of action "where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed." In other words, the "continuing wrong,” is deemed to have accrued on the date of the last wrongful act.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08778.htm

Retaliation against an employee for reporting improper governmental action prohibited by Civil Service Law §75-b, the "Whistleblower Statute"

Retaliation against an employee for reporting improper governmental action prohibited by Civil Service Law §75-b, the "Whistleblower Statute"

Lilley v Greene Cent. Sch. Dist., 2019 NY Slip Op 00019, Appellate Division, Third Department

Jordon Lilley reported to Gordon Daniels, the interim superintendent of the Greene Central School District[School District], that an employee under Lilley's supervision had allegedly engaged in misconduct by texting while driving and punching in time cards of other employees who had not yet arrived at work, including the employee's daughter.

Lilley alleges that Daniels told him that "despite a recommendation from the school district's counsel to terminate [the employee]," no action would be taken against the employee. Lilley subsequently reported the employee's alleged misconduct to the State Police and appeared before the school district's Board of Education to report the same alleged employee misconduct.

According to Lilley, the day after appearing before the School Board he was placed on administrative leave and was served with charges alleging "incompetence and/or misconduct" pursuant to Civil Service Law §75. The notice of discipline set out five separate charges, including that Lilley's alleged breach General Municipal Law §800 by selling the school district field lime and rock salt from Lilley Farms, which is owned by Lilley and his wife, and that such sales constituted a conflict of interest.

Lilley then commenced this action pursuant to Civil Service Law §75-b, the so-called "Whistle Blower Statute," seeking, among other things, damages and reinstatement to his former position. Supreme Court, among other things, granted the School District's motion to dismiss Lilley's complaint, finding that documentary evidence submitted in support of the School District's motion, which included price quotes and purchase orders/requisitions regarding the sale of field lime and rock salt from Lilley Farms to the School District, warranted dismissal of Lilley's complaint. Lilley appealed.

Citing Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, the Appellate Division noted that "Civil Service Law §75-b prohibits a public employer from taking disciplinary action to retaliate against an employee for reporting improper governmental action." Although a claim pursuant to §75-b cannot be sustained when a public employer has a separate and independent basis for the action taken, "[a] disciplinary action may be retaliatory even where an employee is guilty of the alleged infraction." Further, said the court, a motion to dismiss pursuant to CPLR 3211 (a) (1) "is properly granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law."

The Appellate Division the held that Supreme Court erred procedurally and substantively in dismissing Lilley's complaint based upon documentary evidence purportedly demonstrating that he had violated General Municipal Law §800, thereby "vitiating [Lilley's] retaliation claim" as the School District's evidence failed to "conclusively establish" that Lilley possessed any of the authority enumerated in General Municipal Law §801 creating a conflict of interest. In fact, said the Appellate Division, Supreme Court's decision is devoid of any reference to the factors enumerated in General Municipal Law §801 and thus Supreme Court improperly granted the School District's motion to dismiss Lilley's petition.

The Appellate Division also found that Supreme Court erred in the substantive application of Civil Service Law §75-b with respect to the School District's contention that an independent basis existed for its placing Lilley on administrative leave.

To assert a whistle blower claim under Civil Service Law §75-b, the individual must allege (1) an adverse personnel action; (2) disclosure of information to a governmental body (a) regarding a violation of a law, rule, or regulation that endangers public health or safety, or (b) which [the individual] reasonably believes to be true and which [he or] she reasonably believes constitutes an improper governmental action; and (3) a causal connection between the disclosure and the adverse personnel action."

The element of causation requires "that 'but for' the protected activity, the adverse personnel action by the public employer would not have occurred." Supreme Court found that the purported General Municipal Law violation sufficed as a separate and independent basis for the adverse action and dismissed Lilley's claim. However, even assuming that the General Municipal Law violation is ultimately demonstrated, the trial court must make "a separate determination regarding the employer's motivation" to ensure against pretextual dismissals and "shield employees from being retaliated against by an employer's selective application of theoretically neutral rules."

The Appellate Division modified the Supreme Court's ruling "on the law" by reversing the court's granting of the School District's motion to dismiss Lilley's amended complaint and remitted the matter to the Supreme Court to permit the School District to serve an answer to Lilley's complaint.

In contrast, the Appellate Division held that Supreme Court properly denied Lilley's cross motion seeking to disqualify Lynch and his law firm as the School District's counsel, explaining that "When considering a motion to disqualify counsel, the court must consider the totality of the circumstances and carefully balance the right of a party to be represented by counsel of his or her choosing against the other party's right to be free from possible prejudice due to the questioned representation." In his affidavit, Lilley states that Lynch is a "critical witness" because he "was likely the attorney who recommended [that the employee] be terminated" and he "followed [Daniels'] directions with respect" to the disciplinary charges [filed] against [Lilley]."

Lilley, said the court, argued that the crime-fraud exception applies to the attorney-client privilege between Lynch and the School District. However the Appellate Division found that "there is no factual basis for finding that Lynch's alleged recommendation and his involvement in the disciplinary charges against Lilley are committed in furtherance of a fraud or crime." As Lynch's testimony will relate solely to the nature of his legal services rendered in the case and the disciplinary action, Lilley failed to demonstrate that he is entitled to disqualification of Lynch and his law firm from representing the Defendants.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00019.htm