Additional member service credit in a public retirement system is not available to a retired public employee upon reemployment unless he or she discontinues receiving his or her retirement allowance

Additional member service credit in a public retirement system is not available to a retired public employee upon reemployment unless he or she discontinues receiving his or her retirement allowance

Regan v DiNapoli, 2016 NY Slip Op 00415, Appellate Division, Third Department

C. Murray Regan served as a teacher and, in that capacity, he was a member of the New York State Teachers' Retirement System [TRS] for over 30 years when, in January 1998, he simultaneously began to serve as an elected town supervisor. In this latter capacity, he was also a member of the New York Stateand Local Retirement System [ERS].

Regan was subsequently advised by a representative of ERS that he could retire from teaching and continue to accrue service credit in the ERS "[a]s long as [he] continue[d] as an elected official." Regan then retired from teaching in July 1998 and began collecting his retirement allowance from the TRS while continuing to receive his salary as a town supervisor.*

Regan was unsuccessful in his bid for reelection as town supervisor in 2001 and applied for ERS retirement benefits. ERS, however, denied his application, finding that he had not yet accrued the required minimum amount of service credit. In 2004, Regan regained elective office, this time as a village justice and served in that position for eight years during which period he received both his TRS retirement allowance and a village justice's salary. During this time period the ERS sent him annual updates indicating, among other things, that he was also accruing service credit.

Regan decided not to seek reelection to his position as a village justice for the term starting in 2012 and again applied to ERS for retirement benefits. Again, ERS rejected his application, this time explaining that he was ineligible for retirement benefits and its prior advice and updates had been erroneous because, upon acceptance of his position as an elected village justice in 2004, he had not suspended receipt of his TRS pension benefits. Accordingly, said ERS, he did not resume accruing service credit in ERS.**

After exhausting his administrative remedies in an unsuccessful attempt to overturn the denial of his application for additional ERS service credit, Regan nitiated and Article 78 proceeding only to have Supreme Court deny his request for additional service credit and dismiss his petition. Regan appealed the Supreme Court’s ruling to the Appellate Division.

Regan contended that Civil Service Law §150 permits him to receive both his TRS retirement allowance and his salary as an elected official while simultaneously accruing service credit toward an ERS retirement allowance. However, the Appellate Division said it could not agree based upon its review of the language of the statute and the legislative intent behind it.

The court explained that “As relevant here, Civil Service Law §150 generally prohibits receipt of both a public pension and a salary as a public official or employee, but also provides an exception for public pensioners who become elected officials — such as [Regan].”

Although the Appellate Division said that it agreed that this exception allowed Regan to receive a salary as an elected official without suspending his TRS retirement allowance, it noted that Civil Service Law §150 “makes no express mention of service credit” and, instead, refers only to pension benefits that have already been "awarded or allotted." 

Further, noted the court, the legislative history of the measure indicates that the original purpose behind the exception for public pensioners who subsequently become elected officials was to encourage continued civic engagement by "allow[ing] a retired public employee to seek elected public office and continue to receive his/her public pension benefits." Thus, said the court, in its view, “the statute allows public pensioners to continue receiving the benefits they have already earned while also serving in paid elective office, but it does not provide for the accrual of additional credit for new or greater pension benefits.”

Regan also advanced the argument that ERS should be “equitably estopped from denying him additional service credit because his career decisions were based, in part, upon incomplete advice and erroneous information provided by ERS employees regarding his ability to earn such credit.”

The Appellate Division rejected Regan theory of equitable estoppel, explaining that the doctrine of equitable estoppel generally cannot be invoked against a state agency unless “there has been a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reliance thereon.”

Noting that ERS “readily conceded that mistakes were made regarding the information provided to [Regan],” the court said it found no evidence in the record that any of those mistakes rise above the level of "erroneous advice [given] by a government employee[, which] does not constitute the type of unusual circumstance contemplated by the exception" to the doctrine.

* §150 of the Civil Service Law mandates the suspension of the “pension and annuity”  being paid to a retiree less than 70 years of age by a public retirement of this State except as otherwise permitted by §§101, 211, and 212 of the Retirement and Social Security Law, and by §503 of the Education Law, upon the employment of the retiree in “any office, position or employment in the civil service of the state or of any municipal corporation or political subdivision of the state to which any salary or emolument is attached, except jury duty or the office of inspector of election, poll clerk or ballot clerk under the election law, or the office of notary public or commissioner of deeds, or an elective public office.”

** The court noted that Retirement and Social Security Law §40(c)(9), provides that a retired public employee entitled to public pension benefits who subsequently accepts a new public service position is considered to be an active member of the retirement system only if the pension benefits to which he or she is entitled are suspended during his or her active membership.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00415.htm

Police confrontations with mentally impaired citizens and inmates

Police confrontations with mentally impaired citizens and inmates

An AELE publication [© 2016 by Ashley Torres and AELE; 60 pages]

Americans for Effective Law Enforcement [AELE] has published a study addressing confrontations with mentally impaired citizens and inmates entitled “Accommodating the Violent: Analyzing Title II of the Americans with Disabilities Relevant to Arrests of the Armed, Violent, and Mentally Ill” by Ashley Torres.

Ms. Torres, a Whittier Law Schoolcandidate for the Juris Doctor degree and the Staff Editor of the Whittier Law Review, notes that “Although a law enforcement officer’s job is maintaining public safety and restoring order, society now demands that officers’ double as mental health proxies, counselors, and hospital transportation for persons with a mental Illness.” Ms. Torres observes that “In order to solve the public policy issue at hand, we must look to outside sources, other than the police themselves, to solve the problem and meet middle ground to keep both our officers and the mentally ill safe.”

The article is posted on the Internet at: http://www.aele.org/sheehan-torres.pdf

Unlawful discrimination on the basis of gender identity

Unlawful discrimination on the basis of gender identity

9 New York Code of Rules and Regulations (NYCRR) §466.13

The New York State Division of Human Rights adopted regulations, 9 NYCRR 466.13, prohibiting discrimination and harassment against transgender people and makes clear that transgender individuals are protected under New York State’s Human Rights Law. The new regulations expand the definition of “sex” under New York state law to include gender identity and transgender status.

The Division filed the Rule on January 5, 2016, and it took effect on January 20, 2016. The new rule clarifies how gender identity discrimination may constitute either sex or disability discrimination under the Human Rights Law.

§466.13 reads as follows:

466.13 Discrimination on the basis of gender identity.

(a) Statutory Authority.

Pursuant to N.Y. Executive Law §295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the N.Y. Executive Law, Article 15 (Human Rights Law).

(b) Definitions.

(1) Gender identity means having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.

(2) A transgender person is an individual who has a gender identity different from the sex assigned to that individual at birth.

(3) Gender dysphoria* is a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth.

(c) Discrimination on the basis of gender identity is sex discrimination.

(1) The term “sex” when used in the Human Rights Law includes gender identity and the status of being transgender.

(2) The prohibitions contained in the Human Rights Law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected category, also prohibit discrimination on the basis of gender identity or the status of being transgender.

(3) Harassment on the basis of a person’s gender identity or the status of being transgender is sexual harassment.

(d) Discrimination on the basis of gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out below is disability discrimination.

(1) The term “disability” as defined in Human Rights Law §292.21, means

(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or

(b) a record of such an impairment or

(c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

(2) The term “disability” when used in the Human Rights Law includes gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above.

(3) The prohibitions contained in the Human Rights Law against discrimination on the basis of disability, in all areas of jurisdiction where disability is a protected category, also prohibit discrimination on the basis of gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above.

(4) Refusal to provide reasonable accommodation for persons with gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above, where requested and necessary, and in accordance with the Divisions regulations on reasonable accommodation found at 9 NYCRR § 466.11 , is disability discrimination.

(5) Harassment on the basis of a person’s gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above is harassment on the basis of disability.

* Dysphoria: a state of feeling unwell or unhappy.

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

OATH Index No. 2088/15

A community liaison worker at Bellevue Hospital was charged with violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments.

OATH Administrative Law Judge Kara J. Miller sustained the charges. Evidence showed that the employee had violated patient escort procedures on three occasions by leaving patients unescorted at locations outside the facility; violated the hospital's lateness policy and in one instance, falsified her time sheet to indicate she had arrived to work on time.

ALJ Miller recommended termination of employment.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2088.pdf

__________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence

The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence
Close v Nitido, 2016 NY Slip Op 00407, Appellate Division, Third Department

Eric M. Close’s father, William Close [Decedent], died in January 2012. Decedent's mother, Peggy Eythe, was listed as his primary beneficiary on the last designation of beneficiary form filed with the New York State Employees' Retirement System, [ERS] dated November 17, 2011. On a previous designation of beneficiary form, dated July 26, 2010, Close was listed as Decedent's primary beneficiary. After Decedent's death and upon being informed that he was no longer a primary beneficiary of Decedent's death benefits, Close filed an application for Decedent’s death benefits with ERS and requested an investigation and a hearing into whether Eythe submitted a fraudulent designation of beneficiary form.

ERS informed Close that its records indicated that Decedent had submitted a notarized change of beneficiary form and that payment would be made in accordance with the last valid designation.

At the administrative hearing Close indicated that “despite his knowledge that Decedent had been diagnosed with stage four cancer, [he] had not visited Decedent — who lived in the same state and sometimes the same city — for approximately five months leading up to Decedent's death. Among the reasons given by Close “for his lack of consistent contact with Decedent prior to Decedent's death” was that he was busy "trying to inherit [an] apartment" from his recently deceased grandmother.

In contrast, as the Appellate Division’s decision notes, Eythe, the primary beneficiary of the 2011 designation of beneficiary form filed with ERS, had moved in with Decedent to help care for him. Further, although Close’s handwriting expert opined that the signature on the 2011 designation of beneficiary form was forged, Decedent’s attorney testified to the contrary, stating that he had witnessed Decedent sign the 2011 change of beneficiary form and that he then notarized that form for the Decedent.

The Hearing Officer found that Close's testimony and the testimony of his witnesses were less credible than the witnesses called by ERS and determined that Close had failed to meet his burden of establishing that the 2011 designation was invalid. The Comptroller accepted in its entirety the Hearing Officer's determination and, as a result, denied Close's application for designation as the beneficiary of Decedent’s death benefits.

Close initiated Article 78 proceeding challenging Comptroller's determination and Supreme Court, finding there was an issue of substantial evidence present, transferred the action to the Appellate Division.

Initially Appellate Division explained that [1] the Comptroller has exclusive authority to determine the validity of beneficiary designations on applications for death benefits, and each such  determination must be supported by substantial evidence and [2] an individual challenging the Comptroller's determination had the burden of proving that the beneficiary designation accepted by the Comptroller was invalid.

Given the eyewitness testimony regarding validity of Decedent's signature on the 2011 designation form, the Appellate Division said that there was “compelling evidence” explaining Decedent's motivation for changing his beneficiary from Close to Eythe and, giving due deference to the Comptroller’s credibility determinations, found that substantial evidence supported the Comptroller decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00407.htm

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony was unsupported by reliable documentary evidence

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony unsupported by reliable documentary evidence

OATH Index No. 195/16

The Department of Environmental Protection charged the employee, a city research scientist, with failing to perform the duties of his job satisfactorily. The Department presented the testimony of employee's supervisors, as well as employee's work performance evaluations.

The employee testified that after filing an Equal Employment and Opportunity complaint against one of his supervisors, he had been treated unfairly and his supervisors rated his work performance as unsatisfactory.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the testimony of the supervisors was unsupported by reliable documentary evidence and thus was not objective proof that employee was unable to meet the minimally acceptable threshold requirements with respect to performing the duties of his position satisfactorily.

Judge Zorgniotti recommended that the charges be dismissed.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-195.pdf

Where disclosure is not barred by statute, claims of “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information

Where disclosure is not barred by statute, claims of  “unwarranted invasion of personal privacy" are resolved by a court weighing "privacy interests" against the public's interest in the information
Sell v New York City Dept. of Educ., 2016 NY Slip Op 00425, Appellate Division, First Department

Peter Sell sought the records of an investigation by the New York City Department of Education [DOE] Office of Special Investigations [OSI] into a complaint he filed alleging that school administrators had improperly influenced the re-scoring of a Regents Examination with the intent of improving the number of students who passed "with distinction." DOE denied Sell’s request, citing the statutory exemptions from disclosure of unwarranted invasion of privacy and inter- or intra-agency materials set out in Public Officers Law §87[2][b], [g].

Supreme Court ordered the records in question produced for an in camera* inspection by the court and subsequently directed DOE to disclose the investigative file concerning “Office of Special Investigation Case 08-4247” except for certain pages, with any Social Security numbers redacted from such files. The DOE appealed the court’s ruling.

The Appellate Division unanimously sustained the Supreme Court’s decision after excepting from disclosure certain additional pages or portions of pages it identified in its decision, explaining that the lower court had “properly directed the disclosure of some portions of these records, notwithstanding  OSI's finding the complaint “unsubstantiated."

As DOE had conceded that none of the statutorily enumerated categories of "unwarranted invasion of personal privacy" were relevant in this action, the Appellate Division said it must determine, "by balancing the privacy interests at stake against the public interest in disclosure of the information," whether any invasion of privacy is unwarranted.

The court said that it found that “there is significant public interest in the proper academic assessment of public school students and therefore in the requested materials, which may shed light on the adequacy of OSI's investigation into the allegedly improperly influenced assessment in this case.” Further, the Appellate Division said the DOE had failed to establish that this significant public interest is outweighed by the privacy interests of those involved. 

Contrary to DOE's argument, the court found that there was no indication in the record that any interviewees were promised confidentiality, explicitly or implicitly. Rather, said the court “all contact information other than the interviewees' names and official titles (such as identification numbers, home addresses, phone numbers, and dates of birth) should be redacted,” noting that Sell had specifically clarified in his administrative appeal that he did not seek that information.

As to the statutory exemption for inter- or intra-agency materials, the Appellate Division found the Supreme Court had erred in directing disclosure of certain pages or portions of pages as they were not "factual tabulations or data" or "final agency policy or determinations." Such pages or portions of such pages set out witness statements, email correspondence, and other materials consisting of "opinions, ideas, or advice exchanged as part of the consultative or deliberative process of government decision making" rather than "factual account[s] of the witness's observations."

However, observed the court, a page in which a nonparty FOIL requester, Michael Thomas, discussed certain sensitive matters was not covered by the personal privacy exemption to FOIL because Thomas "consent[ed] in writing to disclosure" by waiving, in an affidavit, any right to confidentiality in any of the records sought. Further, said the Appellate Division, “the remaining records at issue largely relate to [Sell], who expressly waived his right to confidentiality in those records in writing.”

Regarding the remaining materials at issue, the Appellate Division said that Supreme Court had “correctly found that [DOE] failed to meet [its] burden of articulating a ‘particularized and specific justification' for withholding them or redacting them as sought” because there is no blanket exemption for handwritten reports of witness interviews, citing Ingram v Axelrod, 90 AD2d 568.

It should be noted that the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to provide the information requested.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

In addition, the Freedom of Information Law is not a bar an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to Article 14 of the Civil Service Law obtaining the name or home address of any officer, employee or retiree of a public employer, “if such name or home address is otherwise available."

* A judicial review of material alleged to be confidential or sensitive information to determine whether it should be part of the record to be made public.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00425.htm