Claimant's application for unemployment insurance benefits denied because claimant found to have voluntarily left her employment without good cause

Claimant applied for unemployment insurance benefits after she left her job claiming she had left due to "lack of work'.

The Department of Labor issued an initial determination disqualifying Claimant from benefits, finding, among other things, that she had been discharged for misconduct. Ultimately an Administrative Law Judge [ALJ] found that Claimant's testimony regarding her supervisor's behavior did not rise to the level of good cause to justify quitting her job and, thus, determined that claimant had voluntarily separated from her employment without good cause, disqualifying her from receiving benefits. Finding that Claimant had willfully misrepresented the circumstances under which she left her employment as lack of work when she had voluntarily quit without good cause, the ALJ imposed a reduced forfeiture penalty of four effective days.

The Unemployment Insurance Appeal Board affirmed the ALJ's findings that Claimant had voluntarily separated from her employment without good cause and had made willful misrepresentations in filing for unemployment insurance benefits. Claimant appealed the Board's decision.

The Appellate Division affirmed the Board's determination. The court explained, "Whether a claimant has good cause to leave employment is a factual issue for the Board to resolve and its determination will be upheld if supported by substantial evidence" and "Issues of witness credibility, the evaluation of evidence and the inferences to be drawn therefrom are within the exclusive province of the Board".

While Claimant testified that her supervisor had engaged in rude, disrespectful and unprofessional behaviors toward her, had yelled at her and caused unspecified "problems," creating conflict and making her uncomfortable, the ALJ, and the Board, found that, while the supervisor may have acted in a "disagreeable manner" when interacting with claimant, the supervisor never "stepped outside the bounds of propriety." 

Further, the Appellate Division's decision reports that "Despite specific questioning, the ALJ and the Board noted, Claimant "offered only vague and generic characterizations of her supervisor's behavior and failed to recount a single incident supporting her claim that her work conditions became unbearable and that she was forced to resign." The court also observed that "Inability to get along with a supervisor does not constitute good cause for leaving employment."

Finding that substantial evidence supported the Board's factual determination that Claimant made willful misrepresentations when she filed for benefits citing lack of work when, in fact, she left under disqualifying circumstances, including claimant's own testimony acknowledging that she left her employment due to her supervisor's behavior, the Appellate Division said it discerned no basis upon which to disturb the Board's determination.

Click HERE to access the Appellate Division's decision posted on the Internet.

Son ordered to pay the New York State and Local Retirement System the $56,000 he stole from his deceased mother’s Pension Funds

On September 3, 2024, New York State Comptroller Thomas P. DiNapoli and Suffolk County District Attorney Raymond A. Tierney announced that Moses K. Johnson, 63, of Huntington and a former employee of the Town of Huntington, pleaded guilty to Grand Larceny in the Fourth Degree for stealing more than $56,000 of his mother’s public pension payments following her death in April of 2021.

“Mr. Johnson callously exploited his mother’s death to line his own pockets,” said State Comptroller DiNapoli. “I thank Suffolk County District Attorney Tierney for his partnership in bringing him to justice. My office will continue to partner with law enforcement agencies across the state and country to protect the New York State pension system from fraud.”

“The defendant’s actions were not only illegal but morally reprehensible, stealing from his own deceased mother’s pension funds,” said District Attorney Tierney.

“This case highlights the importance of our ongoing collaboration with the State Comptroller’s Office in rooting out fraud and abuse. We will continue to work tirelessly to protect the integrity of our pension systems and bring those who attempt to defraud them to justice.”

Moses’ arrest was the result of a joint investigation by the Suffolk County District Attorney and the Office of the New York State Comptroller.

According to court documents and the defendant’s admissions during his guilty plea allocution, after Johnson’s mother died on April 16, 2021, Johnson failed to notify the bank or the New York State and Local Retirement System of her death and instead, he continued to collect and spend her pension payments.

Between April 30, 2021, and June 30, 2022, Johnson collected a total of 15 unauthorized payments totaling $56,411. The stolen funds were traced from Johnson’s mother’s bank account into his bank account, from which he then spent the money.

Johnson previously worked for the Town of Huntington for over 30 years and worked in the recycling center until his retirement in 2017. As a member of the state retirement system, Johnson was aware of the pension process and knew his mother’s payments should have been terminated with her death.

On October 11, 2023, Johnson was arrested by investigators of the Suffolk County District Attorney’s Office.

On September 3, 2024, Johnson pleaded guilty to Grand Larceny in the Fourth Degree, a Class E felony, before Acting Supreme Court Justice Steven Pilewski. Justice Pilewski ordered Moses to pay restitution in the amount of $56,411. He is due back in court on Dec. 10, 2024.

Concerning obtaining a court order in the nature of a writ of mandamus

In this CPLR Article 78 action the Appellate Division noted that "Mandamus* to compel performance [by a public officer or agency] is an extraordinary remedy that is available only in limited circumstances", citing Matter of Hene v Egan, 206 AD3d 734. The court explained "[M]andamus will lie against an administrative officer only to compel him or her to perform a legal duty". 

Citing Matter of Antwine v Evans, 219 AD3d 480, the Appellate Division said a petitioner seeking mandamus to compel a public official to act must "demonstrate a clear legal right to the relief sought".

The Appellate Division then affirmed Supreme Court's ruling granting the County's motion dismiss the Plaintiff's petition, noting that Plaintiff had failed to identify any legal duty incumbent on the County that would support issuing such a "writ". 

Further, opined the Appellate Division, the action the Plaintiff sought was not a purely ministerial act, but rather an expressly discretionary act, requiring notice, an administrative hearing, and a finding supported by substantial evidence of violation of the relevant provision or provisions of law, rule or regulation.

* Other such ancients writs include a writ of prohibition issued by a higher tribunal to a lower tribunal to "prohibit" adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of injunction - a judicial order preventing a public official from performing an act; the writ of certiorari, compelling a lower court to send the record of a case to the higher tribunal for review by the higher tribunal; and the writ of quo warranto [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of surviving ancient writs.

Click HERE to access the decision of the Appellate Division posted on the Internet.

Employer Contributions to the New York State and Local Retirement systems for 2025-2026 announced

On September 3, 2024, New York State Comptroller Thomas P. DiNapoli announced employer contributions rates for the New York State and Local Retirement System [NYSLRS] for State Fiscal Year [SFY] 2025-26. Employers’ average contribution rates will increase from 15.2% to 16.5% of payroll for the Employees’ Retirement System [ERS] and from 31.2% to 33.7% of payroll for the Police and Fire Retirement System [PFRS].

NYSLRS is made up of these two systems, which pay service and disability retirement benefits to state and local public employees and death benefits to their survivors. There are nearly 3,000 participating employers in ERS and PFRS, and more than 300 different retirement plan combinations. In the SFY that ended March 31, 2024, NYSLRS paid out nearly $16.2 billion in benefits.

“Despite global tensions and market volatility, our state’s pension fund remains one of the strongest and best funded in the nation,” DiNapoli said. “These rates – in addition to our prudent management and long-term strategy – will help ensure public employees and their families receive the benefits that they have earned.”

Employer rates for NYSLRS are determined based on investment performance and actuarial assumptions recommended by NYSLRS’s actuary, who is required to review the actuarial assumptions and issue an annual report. The recommendations are reviewed by the independent Actuarial Advisory Committee and approved by DiNapoli. In addition to investment performance, other factors that impacted rates included inflation, higher salaries, recent legislative changes (including reforms to tier 6) and member retirement rates.

In 2012, DiNapoli began providing employers with access to a two-year projection of their annual pension bills. Employers can use this projection in the preparation of their budgets. Projections of required contributions vary by employer depending on factors such as the types of retirement benefit plans adopted, salaries paid and the distribution of employees among the six membership tiers.

Payments based on the new rates are due by Feb. 1, 2026, but employers receive a discount if payment is made by Dec. 15, 2025.

The New York State Common Retirement Fund’s long-term assumed rate of return will remain at 5.9%. DiNapoli has been a leader in the trend of public pension funds lowering their assumed rates of return to better enable New York to weather volatile markets. The median investment return assumption for public pension funds was 7% in July 2024, according to the National Association of State Retirement Administrators. The Kentucky Employees Retirement System was the only state with an assumed rate of return lower than NYSLRS.

DiNapoli also announced that NYSLRS had a funded ratio of 93.2% as of March 31, 2024. NYSLRS is consistently ranked among the nation’s best funded retirement systems. A high funding ratio means NYSLRS has the funds available to pay out retirement benefits to its more than 1.2 million members, which includes over 710,000 current and former state and local government employees and more than 520,000 retirees and their beneficiaries.

Click HERE to access the Actuary's Annual Report posted on the Internet.

An analysis of an application submitted to the Commissioner of Education seeking the removal of a member of a board of education

Petitioner in this appeal to the New York State Commissioner of Education sought the removal of a member of a New York State school board, hereinafter referred to as “respondent”, from the school board. 

The decision of the Commissioner of Education, Decisions of the Commissioner of Education No. 18,474, is set out below:

"Petitioner’s child (“student”) attends respondent’s high school.  During a board meeting on March 13, 2023, respondent made several remarks concerning posters advertising the middles school’s Genders and Sexualities Alliance (“GSA”). 

"Respondent argued that the GSA could be “better named” because the word “sexualities” was salacious.  Respondent further opined that the board had a degree of authority to regulate student clubs, citing the “North American Man Boy Love Association” and the (hypothetical) “intersex student pole dancing instruction club” as examples.

"At subsequent board meetings on March 27 and April 19, 2023, members of the public made comments supporting, and denouncing, respondent’s statements.  The student spoke during the public comment portion of the April 19 board meeting, objecting to of respondent’s statements during the March 13 board meeting and sharing their personal experience as a member of the LGBTQIA+ community.

"As pertinent here, respondent made additional remarks during a September 11, 2023 board meeting.  During these remarks, respondent addressed the student by name.  This application ensued.

"Petitioner argues that respondent’s comments at the March 13 and September 11, 2023 board meetings warrant his removal from the board. 

"Respondent contends that the application should be dismissed as untimely.  Respondent also contends that petitioner’s allegations do not support the relief requested.

"First, I must address a procedural matter.  Following commencement of this application, petitioner submitted additional evidence in the form of legal costs incurred by the board in connection with the student’s Dignity for All Students Act (“Dignity Act”) complaint filed against respondent.  Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5).  While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).

"Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  The board’s legal costs incurred in response to the student’s Dignity Act complaint are not relevant to the issues presented in this application.  As such, they will not be considered.

"The application must be denied as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The 30-day timeframe also applies to a removal application pursuant to Education Law § 306 (8 NYCRR 277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  Petitioner did not commence the instant appeal until February 14, 2024, almost a year after the March 2023 meeting and more than five months after the September 2023 meeting.

"Petitioner asserts that the petition is timely because it was commenced within 30 days of the board’s denial of the student’s Dignity Act complaint concerning the above remarks.  This is an insufficient basis to excuse petitioner’s delay in commencing the removal proceeding (see Appeal of Carlson, 63 Ed Dept Rep, Decision No. 18,304; Application of S.D., 60 id., Decision No. 18,009; Appeal of D.B., 59 id., Decision No. 17,807).  “It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner” (Appeal of J.B., 62 Ed Dept Rep, Decision No. 18,245).  Respondent’s statements were made during public meetings, which provided petitioner with constructive notice thereof (Appeal of L.N. et al., 61 Ed Dept Rep, Decision No. 18,105).[1]  Accordingly, the application must be denied.

"Although the application must be denied as untimely, respondent’s March 2023 remarks—particularly his invocation of a pedophile advocacy organization while discussing the propriety of the GSA—were unnecessarily inflammatory.  His argument that the word “sexualities” is provocative is unsupported by the record.  Respondent’s own code of conduct uses the phrases “sex” and “sexual orientation” several times—as does as a plain language summary thereof designed for elementary school students.[2]  I remind respondent that board members may not “us[e] a pretext of inappropriateness or obscenity” to disparage “lesbian, gay, bisexual, transgender, nonbinary and gender expansive people ...” (Appeal of Moms for Liberty of Wayne County and Marchitell, 63 Ed Dept Rep, Decision No. 18,402).

"Additionally, respondent prolonged the instant controversy by defending his remarks over the next several months.  Board members take an oath of office to uphold the law and faithfully discharge their duties (NY Const, art XIII, § 1; Public Officers Law § 10; Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315).  This includes the “duty to proceed with constructive discussions aimed at achieving the best possible governance of the school district” (Appeal of Williams, 61 Ed Dept Rep, Decision No. 18,116).  The time spent addressing respondent’s remarks and the ensuing controversy was far from constructive.  I admonish respondent to avoid such digressions in the future.

"In light of this disposition, I need not address the parties’ remaining arguments.

"THE APPLICATION IS DENIED."

Footnotes:

[1] Alternatively, petitioner demonstrated his actual knowledge of the March and September 2023 comments at meetings of the board on March 27, 2023 and September 25, 2023, respectively. 

[2] Mohonasen Central School District, “Districtwide Code of Conduct,” available at https://www.mohonasen.org/about-us/policies-and-procedures/districtwide-code-of-conduct/(link is external)  and “Code of Conduct Plain Language Summary for Elementary School Students,” available at https://www.mohonasen.org/code-of-conduct-plain-language-summary-for-elementary-students/(link is external) (last accessed Aug. 2, 2024).

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New York State Comptroller announces the New York State Employees' Pension Fund has reached climate agreements with five portfolio companies

On August 27, 2024 New York State Comptroller Thomas P. DiNapoli announced the NY State Pension Fund committed an additional $2 billion to Climate Change Index strategy.

Click on the text in color to access the text of reports posted on the Internet.

Comptroller DiNapoli, releasing the fourth annual Climate Action Plan Progress Report, reported the New York State Common Retirement Fund (Fund) "reached climate-related agreements with five portfolio companies during the 2024 proxy season and added $2 billion to the MSCI World ex-USA Climate Change Index strategy".

“As trustee of the Fund, one of my top priorities is safeguarding the investments made for the benefit of the more than one million participants in the New York State retirement system,” DiNapoli said. “To foster long-term financial success, it is essential to address the climate-oriented investment challenges faced by the Fund’s portfolio. Climate change is an increasingly urgent risk facing all investors.”

The Fund reached agreements with Southwest Airlines Inc. and steel-maker Cleveland-Cliffs Inc. to set greenhouse gas emissions (GHG) reduction targets and publicly disclose climate transition action plans. The utility WEC Energy Group Inc. agreed to publicly disclose a feasibility study on integrating climate metrics into its executive compensation plan. McDonald’s Corp. agreed to assess supply chain water-related business risks and/or set water quality and quantity targets, while Realty Income Corp., a real estate investment trust, agreed to adopt and publish a low-carbon transition plan.

DiNapoli also made an additional investment of $2 billion to a fund tracking the MSCI World ex-USA Climate Change Index, which is designed to address climate-related risks by increasing the weighting of companies that engage in climate solutions and decreasing the weighting of companies that face greater climate transition risks. The index aims to reduce its overall Scope 1, 2, and 3 greenhouse gas emissions intensity by a minimum of 30% relative to its benchmark. The investment follows an initial allocation of $1 billion made to this strategy in March 2023.

Proxy Votes:

In February, the Fund amended its proxy voting guidelines to include updates on the Fund’s expectations for portfolio companies’ climate performance including climate transition plans, and comprehensive disclosure of such plans, climate risks, risk management, governance, targets, metrics, and opportunities. It also provided more clarity regarding physical risk, deforestation, and the potential impacts of biodiversity loss.

During the 2024 proxy season, the Fund withheld support from or voted against 1,900 individual directors at over 600 portfolio companies that lacked robust climate risk management, including ConocoPhillips Co., Lockheed Martin Corp., and Exxon Mobil Corp. The fund also supported the following shareholder proposals: Southern Co., seeking disclosure of short- medium- and long-term operational GHG targets; Chevron Corp., seeking disclosure of how reductions in virgin plastic demand may impact its financial position; and Amazon.com Inc., seeking disclosure of how it is addressing the impact of its climate change strategy on key stakeholders.

SICS Investments:

To date, the Fund has deployed over $22 billion, towards its goal of $40 billion, to specific investment opportunities across asset classes in its Sustainable Investments and Climate Solutions (SICS) program, the majority of which are investments in climate solutions. Investments include actively and passively managed public equity, climate-oriented index funds, green bonds, sustainable infrastructure funds, and real estate investments with energy efficient buildings.

Investments over the past year include:

·                                 Copenhagen Infrastructure V (€300 million), a Danish investment firm specializing in renewable energy infrastructure assets, including onshore and offshore wind, that contribute to a green energy transition.

·                                 Carlyle Renewable and Sustainable Energy Fund II ($200 million), a North American private equity fund that makes targeted investments in renewable energy sources, such as solar, wind, battery energy storage systems and energy transition, electric vehicles, distributed energy resources, and decarbonization technology solutions principally in Organization for Economic Cooperation and Development markets.

·                                 EQT Fund VI ($450 million), a Swedish infrastructure fund that makes private investments with a focus on decarbonization, resource efficiency, and pollution control.

·                                 Fundamental Empire Fund ($375 million), a North American fund that opportunistically makes investments in affordable and workforce housing, renewable energy, infrastructure, and municipal assets.

In 2019, DiNapoli released a Climate Action Plan, a multi-faceted strategy to invest in sustainable companies, pursue climate solution investments, and apply minimum standards to inform engagements and potential divestment decisions. Each year since, DiNapoli has issued a progress report on the plan.

The New York State Common Retirement Fund is one of the largest public pension funds in the United States. The Fund holds and invests the assets of the New York State and Local Retirement System on behalf of more than one million state and local government employees and retirees and their beneficiaries. It has consistently been ranked as one of the best managed and best funded plans in the nation.

Report:

Progress Report on the New York State Common Retirement Fund’s Climate Action Plan

 

Disciplinary decision posted on the Internet by the New York City Office of Administrative Trials and Hearings

OATH Administrative Law Judge Tiffany Hamilton recommended termination of the employment of a Correction Officer [CO] who struck a restrained person in custody. 

CO and another correction officer were escorting a rear-cuffed person in custody when that person in custody spat at CO’s face.CO responded by punching the person in custody three times in the face with a closed fist. 

The ALJ rejected CO's argument that the use of force was necessary to protect himself against imminent bodily harm, finding there was no evidence that the person in custody was about to attack CO  and CO's use of three facial strikes was retaliatory and punitive.

Noting the egregiousness of the misconduct, coupled with CO’s extensive disciplinary record that included two prior uses of force, Judge Hamilton  determined that continued employment would be a threat to the good order of the Department. 

Click HERE to access the Administrative Law Judge's decision and recommendation posted on the Internet.

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A Reasonable Disciplinary Penalty Under the Circumstances - an e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service of the State of New York and its political subdivisions in instances where the employee has been found guilty of misconduct or incompetence. For more information and access to a free excerpt of the material presented in this e-book, click the text in color below:

http://booklocker.com/books/7401.html