Recovering missing public funds
Utica Mutual Insurance Co., as the Subrogee of the Town of Sand Lake v. Laura Avery, 261 AD2d 802, motion for leave to appeal denied, 93 NY2d 818
From time to time, a public employee resigns from his or her position after some money is found to be missing. The Utica Mutual decision provides some insights as to what might follow such an event.
A State audit had revealed discrepancies in the financial records of the Town of Sand Lake’s Justice Court, including missing funds in excess of $3,000. Town officials were sufficiently convinced that the clerk of its justice court, Laura Avery, was responsible for the loss that it demanded, and received, her resignation. It later was able to ascertain the precise amount that was missing -- $3,648 -- and filed a claim with its insurance company, Utica Mutual, for the loss. Utica Mutual paid the town $3,648.
Utica, as the town’s subrogee [standing in the place of], then sued Avery to recover the money it paid to the town. Instead of filing an answer, Avery moved to dismiss Utica’s action on the ground it was untimely. A State Supreme Court judge agreed and applying the six-year Statute of Limitations (CPLR 213 (a),[1]), dismissed Utica Mutual’s claim as time barred.
Utica Mutual appealed and lost. The Appellate Division said that “the sole issue on this appeal is whether Supreme Court correctly determined the date on which plaintiff’s cause of action accrued.” Utica had argued that the limitations period did not begin to run until the date on which Sand Lake received the Department of Audit and Control’s official audit since prior to that date the Town’s liability for the missing funds was not fixed.
Not so, said the Appellate Division, affirming the lower court’s ruling. It said that Utica’s cause of action accrued when all events essential to the claim were present so that Utica would be entitled to judicial relief. Presumably Utica would have won its lawsuit against Avery to recover the money it had paid to Sand Lake had it filed a timely action.
The Appellate Division suggested that even a shorter statute of limitations might apply is such situations, commenting that “arguably, the mishandling of the funds in question fits the definition of conversion” [stealing] ... for which the shorter three-year Statute of Limitations of CPLR 214 (3) would apply.” However, both parties adopt the position that, in the absence of a specific Statute of Limitations for an action to recover embezzled funds, the applicable limitations period is six years pursuant to CPLR 213 (1).
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
Oct 22, 2010
Disciplining an employee for off-duty misconduct
Disciplining an employee for off-duty misconduct
Anderson v Safir, App. Div., 260 AD2d 179
The Commissioner of Police found that Michael Anderson and some other New York City police officers were guilty of off-duty misconduct when they “wrongfully placed civilians in fear of imminent physical injury by displaying their guns and using racial epithets.”
The Appellate Division sustained the Commissioner’s dismissing the officers, commenting that the finding of their guilt was supported by substantial evidence, including, in particular, that the officers car pool together and that one of them owned the car described with specificity to the 911 operator at the time of the incident.
Finding that there was no basis to disturb Commissioner’s findings regarding credibility concerning the complainants’ identification testimony, the court confirmed the penalty imposed -- termination.
NYPPL
Anderson v Safir, App. Div., 260 AD2d 179
The Commissioner of Police found that Michael Anderson and some other New York City police officers were guilty of off-duty misconduct when they “wrongfully placed civilians in fear of imminent physical injury by displaying their guns and using racial epithets.”
The Appellate Division sustained the Commissioner’s dismissing the officers, commenting that the finding of their guilt was supported by substantial evidence, including, in particular, that the officers car pool together and that one of them owned the car described with specificity to the 911 operator at the time of the incident.
Finding that there was no basis to disturb Commissioner’s findings regarding credibility concerning the complainants’ identification testimony, the court confirmed the penalty imposed -- termination.
NYPPL
Failing to participate in a counseling program results in disciplinary action
Failing to participate in a counseling program results in disciplinary action
Siciliano v Safir, 259 AD2d 366
New York City police officer Matthew Siciliano was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.
Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.
The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”
The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving Department’s requirements for order, authority and discipline. It ruled that the Department’s determination to dismiss Siciliano is entitled to “great leeway.”
Commenting that the penalty imposed did not shock its sense of fairness, the Appellate Division dismissed Siciliano’s appeal.
NYPPL
Siciliano v Safir, 259 AD2d 366
New York City police officer Matthew Siciliano was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.
Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.
The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”
The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving Department’s requirements for order, authority and discipline. It ruled that the Department’s determination to dismiss Siciliano is entitled to “great leeway.”
Commenting that the penalty imposed did not shock its sense of fairness, the Appellate Division dismissed Siciliano’s appeal.
NYPPL
Terminating an educator during his or her probationary period
Terminating an educator during his or her probationary period
Green v Bd. of Ed., 262 AD2d 411
The Green decision succinctly sets out the basic guidelines used by courts in determining if an educator was lawfully terminated if he or she was dismissed during, or at the end of, his or her probationary period without being given a statement of the reasons for the termination or an administrative hearing.
Verna Green, a New York City School District probationary teacher, was dismissed by the Board of Education during probation.
The Appellate Division, affirming a lower court’s dismissal of Green’s Article 78 action seeking reinstatement, said:
1. A probationary employee may be terminated without a statement of any reasons for the termination or per-termination hearing provided the termination (1) was not made in bad faith, (2) did not constitute a violation of statutory or decisional law, or (3) was not based on any unconstitutional or illegal reasons;
2. The former probationary employee has the burden of establishing that his or her termination was made in bad faith or for illegal reasons;
3. The former probationer’s conclusory allegations that the employer acted in bad faith do not meet this burden or warrant a hearing.
In another probationary termination case, Williams v Franklin Square Union Free School District, 261 A.D.2d 628, the Appellate Division dismissed an Article 78 action brought by Jeanne M. Williams. Williams had asked the court to order the district to “restore [her] to her position as an elementary [school] teacher.”
The court dismissed her petition, stating that there was no evidence in the record that the district’s denying Williams tenure was for a legally impermissible reason. In addition, the Appellate Division held that “there is no evidence that [Williams] acquired tenure by estoppel.”
NYPPL
Green v Bd. of Ed., 262 AD2d 411
The Green decision succinctly sets out the basic guidelines used by courts in determining if an educator was lawfully terminated if he or she was dismissed during, or at the end of, his or her probationary period without being given a statement of the reasons for the termination or an administrative hearing.
Verna Green, a New York City School District probationary teacher, was dismissed by the Board of Education during probation.
The Appellate Division, affirming a lower court’s dismissal of Green’s Article 78 action seeking reinstatement, said:
1. A probationary employee may be terminated without a statement of any reasons for the termination or per-termination hearing provided the termination (1) was not made in bad faith, (2) did not constitute a violation of statutory or decisional law, or (3) was not based on any unconstitutional or illegal reasons;
2. The former probationary employee has the burden of establishing that his or her termination was made in bad faith or for illegal reasons;
3. The former probationer’s conclusory allegations that the employer acted in bad faith do not meet this burden or warrant a hearing.
In another probationary termination case, Williams v Franklin Square Union Free School District, 261 A.D.2d 628, the Appellate Division dismissed an Article 78 action brought by Jeanne M. Williams. Williams had asked the court to order the district to “restore [her] to her position as an elementary [school] teacher.”
The court dismissed her petition, stating that there was no evidence in the record that the district’s denying Williams tenure was for a legally impermissible reason. In addition, the Appellate Division held that “there is no evidence that [Williams] acquired tenure by estoppel.”
NYPPL
Oct 21, 2010
Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun
Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun
Materials For the Arts (MFTA) is a program within the New York City Department of Cultural Affairs that collects donated materials and makes them available to not-for-profit arts groups.
Jesse Charland managed a warehouse where items donated to MFTA, including theatre props, are inventoried and stored.
Charland was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he had pointed a replica of a handgun at a supervisor while making threatening comments about “going postal” and needing only “one bullet.”
OATH Administrative Law Judge Kevin Casey credited the supervisor's testimony that the gun looked real and that she felt threatened.
As for Charland's claim that he was only joking, even Charland's witness acknowledged that if one was unfamiliar with Charland's sarcastic sense of humor, “you would take” it as a threat.
ALJ Casey also found that Charland disobeyed orders and was discourteous. The penalty recommended by the ALJ: termination.
Other disciplinary actions taken against public employees involved in “practical jokes” or “horseplay” include:
1. The Corning City School District charging a teacher with using physical force against a student -- pinching the student with a pair of pliers. Disciplinary Hearing Officer James R. Markowitz did not accept the teacher's efforts to excuse the episode as merely classroom "horseplay" and suspended the teacher for two weeks without pay. [NYS Department of Education Disciplinary File 3310].
2. Disciplinary action taken against a supervisor who engaged in a number of off-duty practical jokes resulted the supervisor’s demotion and being placed on a disciplinary probation for six-months [Sguanci v Commissioner of Public Works, Broome County, 158 AD2d 788].
3. A teacher being suspended without pay for one-year after playing practical joke on a supervisor using a fake spider. [Decisions of the Commissioner of Education, 10842].
The decision, Dept. of Cultural Affairs v Charland, OATH #1766/10, is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1766.pdf
NYPPL
Materials For the Arts (MFTA) is a program within the New York City Department of Cultural Affairs that collects donated materials and makes them available to not-for-profit arts groups.
Jesse Charland managed a warehouse where items donated to MFTA, including theatre props, are inventoried and stored.
Charland was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he had pointed a replica of a handgun at a supervisor while making threatening comments about “going postal” and needing only “one bullet.”
OATH Administrative Law Judge Kevin Casey credited the supervisor's testimony that the gun looked real and that she felt threatened.
As for Charland's claim that he was only joking, even Charland's witness acknowledged that if one was unfamiliar with Charland's sarcastic sense of humor, “you would take” it as a threat.
ALJ Casey also found that Charland disobeyed orders and was discourteous. The penalty recommended by the ALJ: termination.
Other disciplinary actions taken against public employees involved in “practical jokes” or “horseplay” include:
1. The Corning City School District charging a teacher with using physical force against a student -- pinching the student with a pair of pliers. Disciplinary Hearing Officer James R. Markowitz did not accept the teacher's efforts to excuse the episode as merely classroom "horseplay" and suspended the teacher for two weeks without pay. [NYS Department of Education Disciplinary File 3310].
2. Disciplinary action taken against a supervisor who engaged in a number of off-duty practical jokes resulted the supervisor’s demotion and being placed on a disciplinary probation for six-months [Sguanci v Commissioner of Public Works, Broome County, 158 AD2d 788].
3. A teacher being suspended without pay for one-year after playing practical joke on a supervisor using a fake spider. [Decisions of the Commissioner of Education, 10842].
The decision, Dept. of Cultural Affairs v Charland, OATH #1766/10, is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1766.pdf
NYPPL
Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law
Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law
Toshunbe and Buffalo Board of Education, 32 PERB 3026
Doris Toshunbe was served with disciplinary charges alleging 21 counts of incompetence, 12 counts of insubordination and 11 counts of misconduct. The arbitrator, “apparently ... based on the disciplinary charges before him ... found that Toshunbe was ‘stubborn, abstinent [sic] and lack [sic] respect for authority.’” He ordered that Toshunbe be suspended for two weeks without pay, which the district could deem “a progressive disciplinary action.”
Toshunbe challenged the arbitrator’s decision by filed an improper practice charge with PERB, alleging “improper motivation” by the district. After discussing a number of the procedural issues concerning timeliness, PERB rejected her petition on the basis of “lack of jurisdiction.”
PERB said that “review of an arbitrator’s award is not available in an improper practice proceeding against an employer ... review of that award is available under Civil Practice Law and Rules [CPLR] Article 75.”
Explaining that “to avoid our becoming a substitute for or an alternative to the statutory review procedures, a CPLR proceeding should be the preferred mechanism for the review, modification or vacatur of disciplinary arbitration awards, absent extraordinary circumstances,” PERB sustained the Director of Public Employment Practices and Representation’s determination.
.
Toshunbe and Buffalo Board of Education, 32 PERB 3026
Doris Toshunbe was served with disciplinary charges alleging 21 counts of incompetence, 12 counts of insubordination and 11 counts of misconduct. The arbitrator, “apparently ... based on the disciplinary charges before him ... found that Toshunbe was ‘stubborn, abstinent [sic] and lack [sic] respect for authority.’” He ordered that Toshunbe be suspended for two weeks without pay, which the district could deem “a progressive disciplinary action.”
Toshunbe challenged the arbitrator’s decision by filed an improper practice charge with PERB, alleging “improper motivation” by the district. After discussing a number of the procedural issues concerning timeliness, PERB rejected her petition on the basis of “lack of jurisdiction.”
PERB said that “review of an arbitrator’s award is not available in an improper practice proceeding against an employer ... review of that award is available under Civil Practice Law and Rules [CPLR] Article 75.”
Explaining that “to avoid our becoming a substitute for or an alternative to the statutory review procedures, a CPLR proceeding should be the preferred mechanism for the review, modification or vacatur of disciplinary arbitration awards, absent extraordinary circumstances,” PERB sustained the Director of Public Employment Practices and Representation’s determination.
.
Selection of arbitrators
Selection of arbitrators
Suffolk Co. PBA v Suffolk, Sup. Ct., Suffolk Co., [Not selected for publication in the Official Reports]
May a legislative body limit the parameters used to select arbitrators in connection with collective bargaining, impasse resolution and contract administration?
Yes, if the reasons are legitimate and the action is consistent with the relevant collective bargaining agreement, the Supreme Court of Suffolk County ruled. Suffolk County PBA sought court review of Suffolk County’s Resolution No. 377-1998, in which the county legislature set out a policy “for the selection of arbitrators in all areas of collective bargaining.”
The reason given for the resolution: The county legislature said that the county has been adversely affected from a fiscal standpoint by the selection of arbitrators for the handling of binding arbitration matters, for collective bargaining agreements voluntarily submitted to arbitration, and for the resolution of labor disputes because of a predilection towards choosing either the same arbitrator or an arbitrator who has used arbitration decisions from an adjacent County rendered by him or her as a ping-pong to ratchet up labor benefits in Suffolk County.
The resolution stated that the county would not consent to use arbitrators who had been involved in any proceeding in which Nassau County was a party during the prior three years.
The Taylor Law contract between the Suffolk County PBA and the county provided that the American Arbitration Association (AAA) would appoint an arbitrator to conduct hearings pursuant to AAA’s voluntary rules in disciplinary proceedings and grievance proceedings.
These rules provided that in the event a party does not return the list of arbitrators sent to it by AAA, all persons are deemed acceptable to act as arbitrators. The rules further provide that if an appointment cannot be made from the submitted lists, the administrator of the AAA may appoint “other members of the panel without submission of any additional list.”
According to the decision, if the county is unable to select any arbitrator as a result of Resolution 377-1998, the AAA may appoint arbitrators without the consent of the county under the terms of the Taylor Law agreement.
PBA sued, claiming that the resolution constituted a unilateral modification of the grievance procedures for both contract violations and employee discipline in violation of the Taylor Law. Supreme Court Justice Cannavo noted, “once the parties have reached an agreement and entered into a collective bargaining agreement, the public employer cannot unilaterally change a term or condition of the contract, citing Roma v. Ruffo, 92 NY2d 489.
However, the court said that the resolution did not change any of the express provisions of the contract by limiting the selection of an arbitrator. According to the ruling, “the PBA and the County bargained and reached an agreement whereby the County was given the unfettered ability to reject arbitrators for any or no reason.”
This, said Justice Cannavo, meant that the county’s ability to reject an arbitrator was not affected by the adoption of Resolution 377-1998 insofar as it limits the selection of arbitrators. Therefore, the resolution did not constitute a unilateral change in the terms of the contract.
The court dismissed the PBA’s petition. It found that the underlying purpose of the resolution “is to control the County’s selection of arbitrators to prevent the ‘ratcheting’ up of salaries in those situations where the County has any discretion concerning the choice of arbitrators, and this bears on a legitimate concern of government.”
NYPPL
Suffolk Co. PBA v Suffolk, Sup. Ct., Suffolk Co., [Not selected for publication in the Official Reports]
May a legislative body limit the parameters used to select arbitrators in connection with collective bargaining, impasse resolution and contract administration?
Yes, if the reasons are legitimate and the action is consistent with the relevant collective bargaining agreement, the Supreme Court of Suffolk County ruled. Suffolk County PBA sought court review of Suffolk County’s Resolution No. 377-1998, in which the county legislature set out a policy “for the selection of arbitrators in all areas of collective bargaining.”
The reason given for the resolution: The county legislature said that the county has been adversely affected from a fiscal standpoint by the selection of arbitrators for the handling of binding arbitration matters, for collective bargaining agreements voluntarily submitted to arbitration, and for the resolution of labor disputes because of a predilection towards choosing either the same arbitrator or an arbitrator who has used arbitration decisions from an adjacent County rendered by him or her as a ping-pong to ratchet up labor benefits in Suffolk County.
The resolution stated that the county would not consent to use arbitrators who had been involved in any proceeding in which Nassau County was a party during the prior three years.
The Taylor Law contract between the Suffolk County PBA and the county provided that the American Arbitration Association (AAA) would appoint an arbitrator to conduct hearings pursuant to AAA’s voluntary rules in disciplinary proceedings and grievance proceedings.
These rules provided that in the event a party does not return the list of arbitrators sent to it by AAA, all persons are deemed acceptable to act as arbitrators. The rules further provide that if an appointment cannot be made from the submitted lists, the administrator of the AAA may appoint “other members of the panel without submission of any additional list.”
According to the decision, if the county is unable to select any arbitrator as a result of Resolution 377-1998, the AAA may appoint arbitrators without the consent of the county under the terms of the Taylor Law agreement.
PBA sued, claiming that the resolution constituted a unilateral modification of the grievance procedures for both contract violations and employee discipline in violation of the Taylor Law. Supreme Court Justice Cannavo noted, “once the parties have reached an agreement and entered into a collective bargaining agreement, the public employer cannot unilaterally change a term or condition of the contract, citing Roma v. Ruffo, 92 NY2d 489.
However, the court said that the resolution did not change any of the express provisions of the contract by limiting the selection of an arbitrator. According to the ruling, “the PBA and the County bargained and reached an agreement whereby the County was given the unfettered ability to reject arbitrators for any or no reason.”
This, said Justice Cannavo, meant that the county’s ability to reject an arbitrator was not affected by the adoption of Resolution 377-1998 insofar as it limits the selection of arbitrators. Therefore, the resolution did not constitute a unilateral change in the terms of the contract.
The court dismissed the PBA’s petition. It found that the underlying purpose of the resolution “is to control the County’s selection of arbitrators to prevent the ‘ratcheting’ up of salaries in those situations where the County has any discretion concerning the choice of arbitrators, and this bears on a legitimate concern of government.”
NYPPL
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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
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