Correcting errors made in determining an individual's retirement allowance even after benefits are awarded

Correcting errors made in determining an individual's retirement allowance even after benefits are awarded

Smith v DiNapoli, 2018 NY Slip Op 08606, Appellate Division, Third Department

A one-time, 30-day overtime pay earned in the last year of a member's employment is excluded from the member's final average salary calculation as such payments are deemed "termination pay" within the meaning of  §302(9)(d) of the Retirement and Social Security Law [RSSL].

A member [Retiree] of the New York State and Local Retirement System [ERS] retired in August 1998 and commenced receiving his retirement pension. In 2012, ERS notified Retiree that it had reviewed the calculation of his final average salary used to compute his retirement benefits and determined that his one-time, 30-day overtime pay earned in the last year of his employment should have been excluded from the final average salary as mandated by §302(9)(d). Retiree challenge the determination but the Comptroller adopted a Hearing Officer decision that the 30-day overtime payment was properly excluded from Retiree's final average salary as it constituted termination pay and compensation in anticipation of retirement and, as such, was not includable pursuant to RSSL §431(2) and (3). Retiree then appealed the Comptroller's decision.

Citing Matter of Chichester v DiNapoli, 108 AD3d. The Appellate Division confirmed the Comptroller's decision 924, the court explained that "[T]he Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld — even if other evidence in the record could support a contrary result."

As relevant here, Retiree's "final average salary" was defined as "the regular compensation earned from [the] employer during the twelve months of actual service immediately preceding the date of [retiree's] retirement," with certain exclusions permitted pursuant to RSSL §302[9][d]. This, said the Appellate Division was "In order to avoid the artificial inflation of that figure." In computing retirement benefits the base salary excludes, as pertinent here, "any form of termination pay" and "any additional compensation paid in anticipation of retirement."

Significantly, observed the court, "the determination of what constitutes termination pay or compensation in anticipation of retirement requires that we 'look to the substance of the transaction and not to what the parties may label it.'" As substantial evidence supported the Comptroller's determination that the payment for 30 days of overtime in retiree's final year of service is excludable in arriving at his final average salary, as it constituted a form of termination pay and compensation in anticipation of retirement.

In this instance the relevant employment contract provided that Retiree and certain other employees were required to work overtime without additional compensation until their final year of service, when they could accumulate and were paid for overtime actually earned upon their retirement, such overtime pay "restricted to one-time, one[-]year maximum of 30 days." Retiree conceded that this was taken in the final year to boost his retirement benefits.

Under these circumstances, the Appellate Division held that the Comptroller rationally excluded such sums from retiree's final average salary and corresponding retirement benefit calculation.

Retiree had contended that General Municipal Law §90 provides a basis upon which to permit the inclusion of overtime pay in his final average salary for purposes of calculating his retirement benefits. The court, noting that §90 permits the governing board of a political subdivision of the state to adopt an ordinance, local law, resolution or rule providing for the payment of overtime compensation to public officers and employees, and mandates that such payments be considered as salary or compensation for "the purposes of any pension or retirement system," this statute, which is strictly construed, requires that, for overtime payments to be considered as salary, they must be paid pursuant to "an overtime plan [adopted by the governing board] setting forth in detail the terms, conditions and remuneration for such employment."

As the overtime payment to Retiree was not made pursuant to such an ordinance or resolution adopted by the City Council., his reliance on a 1994 adopted by the City Council was "unavailing." That resolution indicated that the City Council had entered into a memorandum agreement with the police union regarding a labor relations contract, although neither document was provided. Further, observed the court, the resolution "merely authorized the mayor to enter into a labor agreement" with certain employees in the police department but there is no indication that the attached labor relations agreement entered into with Retiree and other nonunion employees — which restricted overtime to a "one-time, one[-]year maximum of 30 days" of overtime and contained no details — was ever approved by the City Council. Indeed, said the Appellate Division, that agreement expressly stated that it was "subject to approval by the City Council."

Finally, the Appellate Division rejected Retiree's argument that the Comptroller is estopped* from correcting the error due to the passage of time. Rather, said the court, "[T]he Comptroller is statutorily required to correct errors in the retirement benefits records and adjust payments accordingly to ensure the integrity of the public retirement system,"** citing Matter of Mowry v DiNapoli, 111 AD3d 1117 and RSSL §111 [c]). Indeed, said the court, noting the decision in Matter of Schwartfigure v Hartnett, 83 NY2d 296, the Comptroller's duty to correct errors is ongoing, and continues even after benefits are awarded and includes the right to recoup overpayments.

* As a general rule, estoppel may not be invoked against the state or its agencies absent a "showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon."

** It is assumed that this duty extends to correcting errors that resulted in a retiree receiving less that the amount to which he or she was entitled.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08606.htm

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

The individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

Castro v Safir, 291 A.D.2d 212

An employee may elect to retire from his or her position when charges of incompetency or misconduct have been, or are about to be, filed against the individual.

4 NYCRR 5.3(b), which applies to officers and employees of the State as the employer in the Classified Service and employees of certain other public entities, provides, in pertinent part, that "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Many local civil service commission and county personnel officers have promulgated a local law, rule or regulation similar to 4 NYCRR 5.3(b).

In certain situations an individual who seeks to retire after he or she is terminated from his or her position as the result of being found guilty of disciplinary charges may find that he or she has forfeited the pension portion of his or her retirement allowance to which he or she may have otherwise been entitled.*

In Castro, the basic issue involved the result of his disciplinary termination from his position prior to the effective date of his retirement. If he had been lawfully so dismissed from the position, any pension benefits to which he would have otherwise been entitled would be forfeited pursuant to §13-173.1 of the New York City Administrative Code.**

Castro sued the Department contending that it had terminated him in bad faith in order to frustrate his eligibility for pension benefits as the New York City Employees' Retirement System's Medical Board had earlier found Castro eligible for ordinary disability retirement.***

The Appellate Division ruled that Castro had forfeited his pension benefits as he had been dismissed from his position for cause before he effective date of his retirement on ordinary disability and thus he was not in service on the effective date of his retirement, a ruling  consistent with the Court of Appeals' holding in its Waldeck and Barbaro rulings.

In Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System, the Court of Appeals said that §13-173.1 provides that an employee's disciplinary termination prior to effective date of his or her voluntary resignation results in a forfeiture of his or her eligibility for pension benefits.

Sometimes a disappointed retiree, as did Castro, alleges his or her termination constituted the employer acting in bad faith.

In Cipolla v Kelly 26 A.D.3d 171, the Appellate Division held that “The fact that [the individual] was about to retire, or that [the individual] ultimately settled the criminal charges by pleading to a violation, does not demonstrate [that the individual’s] termination [from his or her position was made] in bad faith.”

* The decision in Blair v Horn, 2008 NY Slip Op 32581(U), not selected for publication in the Official Reports, suggests that a court could deem a retirement to be the equivalent of a resignation within the meaning of 4 NYCRR 5.3(b) [See  http://www.nycourts.gov/reporter/pdfs/2008/2008_32581.pdf].

** §13-173.1 requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her pension benefits.

*** According to the decision, Castro was terminated from his position after he had applied for ordinary disability retirement but before he was actually retired for disability.

The Castro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_00697.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 2, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 2, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Town clerk pleads guilty to attempting to increase her ERS retirement benefits 

On August 30, 2017, Springport Town Clerk Deborah Waldron pleaded guilty in Aurelius Town Court to official misconduct and attempted computer trespass, and agreed to resign for her attempts to boost her state retirement benefits by using a town computer, State Comptroller Thomas P. DiNapoli said. 

Waldron, 62, a 25-year town employee, was initially charged in May following an investigation by the Comptroller, New York State Police and the Cayuga County District Attorney’s office. Her actions were exposed during the Comptroller’s review of Springport’s monthly retirement reports. When DiNapoli’s office re-calculated her actual hours and benefits, it prevented Waldron from receiving extra money she did not earn. 

"This case is a warning to any public employee who falsifies retirement records: You are risking arrest and tarnishing your reputation," DiNapoli said. "I hope this case will deter others who attempt to defraud the New York State and Local Retirement System. I thank Cayuga County District Attorney Jon E. Budelmann for partnering with us to protect our retirement system." 

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236. Review prior cases at http://www.osc.state.ny.us/investigations/index.htm.

Employer contributions on behalf of employees will decrease for the State's 2017-2018 fiscal year

Employer contribution rates for the New York State and Local Retirement System (NYSLRS) in State Fiscal Year 2018-19 will decrease from State Fiscal Year 2017-18, New York State Comptroller Thomas P. DiNapoli announced today.

The estimated average contribution rate for the Employees’ Retirement System (ERS) will decrease from 15.3 percent of payroll to 14.9 percent of payroll. The estimated average contribution rate for the Police and Fire Retirement System (PFRS) will decrease from 24.4 percent to 23.5 percent of payroll. 

"We’ve had strong recent investment returns that have helped keep rates stable," DiNapoli said. "Stable rates are very important to our employers and provide the predictability they need to plan for their future budgets. Prudent management helps keep New York State’s pension fund one of the strongest and best funded in the country and allows our public workforce to retire with security."

The investment rate of return was 11.48 percent as of March 31, 2017, the end of the fiscal year for the state pension fund.

Employer rates are determined based on actuarial assumptions recommended by the Retirement System’s Actuary and approved by DiNapoli. A copy of the Actuary’s report can be found here.

In 2015, the Actuary conducted a review of the Systems’ economic and demographic experience for the prior five years. The Actuary proposed assumptions and methods for the actuarial valuations, which were adopted by DiNapoli. Based on that report, DiNapoli lowered the assumed rate of return in 2015 from 7.5 percent to 7 percent. The median assumed rate of return among public pension funds is 7.5, according to a February 2017 brief issued by the National Association of State Retirement Administrators.

In 2012, DiNapoli began providing employers with access to a two-year projection of their annual pension bill six weeks earlier than in previous years. Employers use this projection for preparation of their local budgets.

Projections of required contributions vary by employer depending on factors such as retirement plans, salaries and the distribution of their employees among the six retirement tiers. 

There are more than 3,000 participating employers in ERS and PFRS, and 335 different plan combinations.

Payments based on the new rates are due by Feb. 1, 2019, but may be pre-paid by Dec. 15, 2018.

In April, the Pew Charitable Trusts public policy foundation ranked New York’s pension system as the third best funded retirement system among states.

Read the report, or go to: http://osc.state.ny.us/retire/word_and_pdf_documents/reports/actuarial_assumption/aa_2017.pdf.

See a chart of historical employer contribution rates, visit: http://osc.state.ny.us/pension/images/emplyr_contribution_rates.pdf.
 

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

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system
Battisti v City of New York, 2014 NY Slip Op 07065, Appellate Division, First Department

Anthony Battistiwas found guilty of misconduct after a disciplinary hearing and terminated from his employment with the New York City Police Department [NYPD]. He appealed NYPD’s determination and asked Supreme Court to [1] vacate the disciplinary action and [2] direct that NYPD “credit [him] with certain days withheld from the calculation of his service for pension purposes.”

Supreme Court transferred so much of Battisti’s petition that challenged the disciplinary determination to the Appellate Division and denied that part of Battisti’s petition that sought an order directing that he be credited with “certain days withheld from the calculation of his service for pension purposes.”

With respect to Battisti’s challenge to the disciplinary hearing proceeding, the Appellate Division held that “Substantial evidence supports the findings of the Assistant Deputy Commissioner for Trials that [Battisti] was guilty of the proffered charges,….”*

Addressing Battisti’s claims with respect his entitlement to member service credit in the retirement system, the court noted that in the course of the Battisti’ disciplinary action he was suspended without pay for a total of 99 days.

The initial 30-day suspension followed disciplinary charges that alleged that he had "knowingly associated with …. an individual reasonably believed to have engaged in criminal activity.” A second 69-day suspension without pay followed after the disciplinary charges were amended based on criminal charges filed against him as a result of an arrest in another jurisdiction.

Battisti argued that because Civil Service Law §75(3-a), as well as Administrative Code of City of NY §14-115, cap suspensions without pay of public employees awaiting hearing and determination of disciplinary charges at 30 days, he is entitled to be credited with 69 days of member service credit and thus is eligible for a retirement allowance based on his total member service.

NYPD’s answer on this point indicated that it had issued a check to Battisti reflecting its internal determination that he had been improperly suspended without pay for 39 days and was entitled to compensation for those days. This left just 60 days of suspension without pay. Further, said the Appellate Division, NYPD did not dispute the fact that all days for which a member of NYPD is paid are to be included in the calculation of time for purposes of all benefits, including pension.

The Appellate Division concluded that, assuming arguendo, that the NYPD properly suspended petitioner without pay for two 30-day periods based on distinct offenses resulting in 60 days of suspension without pay, based on NYPD's calculations it appears that Battisti had completed twenty years of creditable service as of the effective date of his termination.

Finding that NYPD had not set forth any legal basis for its subsequent internal determination to treat nine of the 39 days that had been credited to Battisti as suspensions without pay, notwithstanding the limit set by Civil Service Law §75(3-a), the Appellate Division ruled that “[a]bsent such explanation for excluding the nine days from the calculation of creditable service, the determination to deny [Battisti] a pension was arbitrary and capricious in that it was taken "without regard to the facts."

*The court said that Battisti’s“arguments concerning [a witness’s] credibility and motive to lie at the [disciplinary] hearing are beyond the review of this Court,” citing, Berenhaus v Ward, 70 NY2d 436.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_07065.htm

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A NYC police officer “not in service” on the effective date of his or her retirement or vesting of retirement benefits forfeits the pension portion of his or her retirement allowance

A NYC police officer “not in service” on the effective date of his or her retirement or vesting of retirement benefits forfeits the pension portion of his or her retirement allowance

2013 NY Slip Op 51252(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

The Administrative Code of the City of New York requires a member of the NYC Police Retirement System to "be in service" on the effective date of his or her retirement or vesting of retirement benefits in order to be eligible for a retirement allowance. If the employee is not "in service" on that date, he or she forfeits the pension portion his or her retirement allowance.*

In this Article 78 proceeding a New York City police officer [Officer] asked the court to annul the termination of his employment as a New York City Police Department [NYPD] Police Officer following a disciplinary hearing. Officer's disciplinary termination was effective prior to a final determination regarding his application for disability retirement by the NYC Police Pension System's Board of Trustees .

In 2009 NYPD filed disciplinary charges and specifications against Officer for allegedly receiving a bribe, a violation of Penal Law §200.10, in that in 2007 Officer had accepted $400 from an acquaintance in exchange for helping him recover a car which was in NYPD custody. In 2010, NYPD filed additional disciplinary charges against Officer for allegedly failing an integrity test conducted by the Internal Affairs Bureau [IAB] involving Officer’s alleged not having properly invoiced property and allegedly not having notified IAB of the possible misconduct of other police officers.

In October 2010, Officer, who had suffered a stroke and heart attack earlier that year, applied for disability retirement under the so-called Heart Bill.** NYPD's Medical Board approved Officer’s application. However, in February 2011, Officer agreed to defer the application and final determination by the NYC Police Retirement System's Board of Trustees until the resolution of the disciplinary charges then pending, or upon "the Police Commissioner's approval of either a Negotiated Settlement or the disposition pursuant to trial."

The disciplinary hearing was conducted in July 2011 and Officer was found guilty of soliciting and accepting a bribe, and based on petitioner's plea of guilty to failing the integrity test by failing to voucher property, failing to safeguard that property and other misconduct such as transmitting a radio signal with the intent to conceal from the NYPD the existence of the property, failing to report misconduct related to the taking of the property, attempting to cover up the improper handling of the property, and trying to cover up the incident by initially failing to provide accurate information about it at an official NYPD interview.

The hearing officer recommended that Officer be terminated from his position. The Commissioner of Police accepted the hearing officer’s findings and recommendation and terminated Officer from his position.

As Officer’s termination was prior to the effective date of his retirement, he became ineligible to receive pension portion of his retirement benefits. In ruling on Officer’s CPLR Article 78 petition, Supreme Court Judge Barbara Jaffee sustained the forfeiture of the pension portion of Officer's retirement allowance, commenting that this was “a risk he took by engaging in the misconduct at issue.”

In reviewing an administrative agency's determination as to whether it is arbitrary and capricious under CPLR Article 78, said the court, the test is whether the determination "is without sound basis in reason and . . . without regard to the facts.” Further, the determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record."

Here, given the charges and findings, which rest on the credibility determinations of the hearing officer, it cannot be said, as a matter of law, that respondents' decision to terminate petitioner's employment was arbitrary and capricious.

As to the penalty imposed, Judge Jaffeet, citing Matter of Pell, 34 NY2d at 222, said that the standard for reviewing a penalty imposed after a hearing is whether the punishment imposed "is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." 

Judge Jaffee noted that “NYPD may not terminate employee in order to prevent employee from collecting [a] disability pension, [the] pension may be denied as unintended consequence of [the] termination if [the] termination [was] made in good faith." However, the fact that Officer was terminated "after his application for disability retirement had been provisionally approved” by Medical Board did not show bad faith as Officer's disciplinary investigation was not completed until after Medical Board's determination and prior to any action being taken by the Retirement System's Board of Trustees.

Accordingly, Judge Jaffee denied Officer’s petition and dismissed the action.

* §13-240 of the New York City Administrative Code, which concerns the New York City Police Pension Fund, address the termination of membership or discontinuance of service. It provides, in pertinent part,  “Should a member discontinue city-service except by death or retirement, he or she shall be paid such part of the amount of the accumulated deductions standing to the credit of his or her individual account in the annuity savings fund as he or she shall demand.” Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804 [181 A.D.2d 412] decided with Barbaro v NYC Employees' Retirement System, [181 A.D.2d 437] addresses a similar situation involving members of the NYC Sanitation Workers' Retirement System.

** See General Municipal Law §207-k

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_51252.htm
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Bipartisan Moreland Act Commission formed by Governor Cuomo to investigate public corruption

Bipartisan Moreland Act Commission formed by Governor Cuomo to investigate public corruption

Source: Office of the Governor

On July 2, 2013, Governor Andrew M. Cuomo announced the formation of the “Commission to Investigate Public Corruption” pursuant to the Moreland Act [Executive Law §6*] and Executive Law §63(8)** to probe systemic public corruption and the appearance of such corruption in state government, political campaigns and elections in New York State.

Attorney General Eric Schneiderman announced he will appoint the members of the Commission as Deputy Attorneys General,*** giving the Commission broad-based authority to investigate all matters that “involve public peace, public safety, and public justice.”

Under the Executive Order, the Commission will also have the power to subpoena and examine witnesses under oath as well as subpoena any necessary records. The Governor’s action follows several recent proven and alleged incidents of corruption and misconduct by public officials that have shown that current laws are inadequate and reforms are necessary to guard against abuses, ensure accountability in government, address the need for reform in our campaign finance laws, and restore the public’s confidence and trust in state government and state elections.

The Commission to Investigate Public Corruption will be tasked with thoroughly reviewing the adequacy of existing state laws, regulations and procedures involving unethical and unlawful misconduct by public officials, and the electoral process and campaign finance laws. The Commission will also examine whether existing laws have been fairly and vigorously enforced, and what changes must be made to such enforcement. During the Commission’s investigation, it will also review recent instances of reported misconduct by officials to determine causes and adequacy of laws and enforcement tools to more effectively prevent and punish this kind of misconduct in the future. The Commission is directed to make recommendations to toughen and improve existing laws and procedures.

Areas where the Commission will focus its investigation include but are not limited to:

*  Criminal statutes for corruption and misconduct by public officials, such as bribery laws

*  Campaign financing including but not limited to contribution limits and other restrictions; disclosure of third-party contributions and expenditures; and the effectiveness of existing campaign finance laws.

* Compliance of outside organizations and persons with existing lobbying laws, including but not limited to organizations engaged in lobbying and other efforts to influence public policies and elections, and the effectiveness of such laws.

* Adequacy and enforcement of the State’s election laws and electoral process including: the structure and composition of the State and County Boards of Elections, the Board of Elections’ enforcement, and the effectiveness of and compliance with existing election laws.

During its investigation, the Commission is mandated to promptly communicate any evidence of violations of existing law to the appropriate law enforcement agencies, including the Attorney General. In such cases, the State Police will make jurisdictional referrals to the Attorney General where appropriate.

The Commission will issue a preliminary report on its initial findings and recommendations by December 1, 2013.

The Commission’s Co-Chairs are Kathleen Rice, William J. Fitzpatrick, and Milton L. Williams, Jr.,

Ms. Rice became the Nassau County District Attorney in 2006. Rice served as an Assistant United States Attorney in Philadelphia. Rice began her career as a prosecutor in the Brooklyn District Attorney’s Office, where she prosecuted cases of domestic violence, sexual assault and armed robbery, and later, murder cases. D.A. Rice is a graduate of the Catholic University of America and Touro Law School.

Mr. Fitzpatrick has served as Onondaga County's District Attorney [D.A.] for the past 28 years. Prior to serving as D.A., he was a defense attorney. In 2007 D.A. Fitzpatrick was appointed as the New York State representative to the National District Attorney's Association, and he was elected Secretary in 2011. In 2010, New York State Chief Judge Jonathan Lippman appointed D.A. Fitzpatrick to the New York State Permanent Sentencing Commission. He is a graduate of Syracuse University and Syracuse University Law School.

Mr. Williams, Jr. is a partner in the law firm Vladeck, Waldman, Elias & Engelhard as a partner in January 2009. Prior to joining the firm, Mr. Williams was a Deputy General Counsel and the Chief Compliance Officer at Time Inc. Before working at Time, Mr. Williams was in private practice, and served as an Assistant United States Attorney in the Southern District of New York. Prior to becoming a federal prosecutor, Mr. Williams was an Assistant District Attorney in the New York County District Attorney’s Office. He is a graduate of Amherst College and the University of Michigan Law School in Ann Arbor.

The members of the Commission are J. Patrick Barrett, Richard Briffault, Daniel J. Castleman, Derek P. Champagne, Eric Corngold, Kathleen B. Hogan, Nancy Hoppock, Seymour W. James, Jr., David Javdan, Robert Johnson, David R. Jones, Lance Liebman, Joanne M. Mahoney, Gerald F. Mollen, Makau W. Mutua, Benito Romano, Frank A. Sedita III, P. David Soares, Kristy Sprague, Betty Weinberg Ellerin, Peter L. Zimroth,  and Thomas P. Zugibe.

The Commission’s staff includes Regina Calcaterra, Executive Director; Danya Perry, Chief of Investigations; Kelly Donovan, Chief Counsel; and John Amodeo, Legislative Director

Special advisors to the Commission include Joseph A. D'Amico, Superintendent of the New York State Police; Raymond W. Kelly, Police Commissioner of the City of New York; and Barbara Bartoletti, Legislative Director for the League of Women Voters of New York.

Robert M. Morgenthau, District Attorney for New York County from 1975 to 2009, will serve as Special Counsel to the Commission.

* §6 of the Executive Law provides that “The governor is authorized at any time, either in person or by one or more persons appointed by him for the purpose, to examine and investigate the management and affairs of any department, board, bureau or commission of the state. The governor and the persons so appointed by him are empowered to subpoena and enforce the attendance of witnesses, to administer oaths and examine witnesses under oath and to require the production of any books or papers deemed relevant or material. Whenever any person so appointed shall not be regularly in the service of the state his compensation for such services shall be fixed by the governor, and said compensation and all necessary expenses of such examinations and investigations shall be paid from the treasury out of any appropriations made for the purpose upon the order of the governor and the audit and warrant of the comptroller.

 “Notwithstanding any inconsistent provision of any general, special or local law, charter, administrative code or other statute, service rendered by a person appointed by the governor pursuant to this section shall not constitute or be deemed state service or re-entry into state service under the civil service law, the retirement and social security law or under any charter, administrative code, or other general, special or local law relating to a state or municipal retirement or pension system so as to suspend, impair or otherwise affect or interfere with the pension or retirement status, rights, privileges and benefits of such person under any such system or to interfere with the right of such person or his beneficiary to receive any pension or annuity benefits or death benefits by reason of the selection of any option under any such system.”

** §63 of the Executive Law sets out the general duties of the “attorney-general.”

*** All members of the Commission are attorneys licensed to practice in New York State as are a number of the members of the Special Advisers to the Commission and a numbers of those serving on the Commission's staff
.

Supreme Court tells the NYC Department of Education exactly was it must do to avoid being held in contempt of court

Supreme Court tells the NYC Department of Education exactly was it must do to avoid being held in contempt of court

Storman v New York City Dept. of Educ., 2013 NY Slip Op 50007(U), Supreme Court, New York County

A teacher employed by the NYC Department of Education for approximately 30 years challenged his receiving an unsatisfactory rating as a result of allegations of sexual misconduct and corporal punishment made by a student. The teacher contended that the student's allegations were made in retaliation for his "verbally reprimanding a student."

Ultimately Supreme Court granted the teacher’s petition to annul the unsatisfactory rating, explaining "it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment" and "the penalty imposed was excessive and shocking to the conscience." This Court ordered that the unsatisfactory rating be annulled and that "this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court's decision."

The purpose of remitting the case to DOE was for DOE and teacher's union, the United Federation of Teachers (UFT), to take the appropriate steps to remedy the consequences of the underlying false allegations so that teacher would be properly compensated and his employment status restored.

The unsatisfactory rating was annulled by DOE but DOE did not take any steps to compensate the teacher or to remedy his employment situation. The teacher then asked the court to hold DOE in contempt. Supreme Court did hold DOE in contempt for its “willful and contumacious failure to comply with the Judgment,” but this determination was vacated by the Appellate Division, which found that the Contempt Order was based on an earlier Judgment that did not contain a "clear and unequivocal mandate."

In response to the Appellate Division’s granting the teacher leave to have Supreme Court clarify its Judgment by issuing was it termed "a clear and unequivocal mandate" to DOE. Supreme Court said that “In order to finally put an end to this unfortunate saga,” which began in 2004, this Court will be perfectly clear and unequivocal about what DOE must do and by when it must be done. 

By April 5, 2013, said the court, DOE shall do the following:

1. remove all references to the underlying false accusations from the teacher’s personnel file; and

2. restore back pay, with interest, that the teacher did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits.

The court also directed that in the event a dispute arises between the parties before April 13, 2013, “the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to the teacher, the teacher is granted leave to move to have such calculation referred to a Special Referee to hear and report.”

Finally, said the court, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with the teacher about back pay, the teacher has leave to move for contempt, as DOE “can no longer maintain that its mandate is not clear and unequivocal.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_50007.htm

NYPPL summaries most often read during the month of November 2012

NYPPL summaries most often read during the month of November 2012

The following were the five case summaries most often read by the 16,138 visitors to this LawBlog during the month of November 2012.

The legal distinction between domicile and residence at:

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html

Essentials of the "Pickering Balancing Test” at:

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member at:

http://publicpersonnellaw.blogspot.com/2011/04/school-board-member-seeking-removal-of.html

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law at:

http://publicpersonnellaw.blogspot.com/2011/04/ordering-correction-officer-to-submit.html

and

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits at:

http://publicpersonnellaw.blogspot.com/2011/04/court-finds-pension-board-failure.html

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli’s office announced that the New York State Employees’ Retirement System is recalculating the pension of a former director at the state Department of Correctional Services (DOCS) after an investigation by his office found that he took Fridays off for 17 years at taxpayer expense.

Howard Dean, 66, of Locke, N.Y., pleaded guilty last year to second degree grand larceny and is awaiting sentencing by Oneida County Judge Barry Donalty. On Tuesday, Judge Donalty postponed Dean’s sentencing to May 10. The case is being prosecuted by Oneida County District Attorney Scott D. McNamara.

Meanwhile, the Comptroller’s office has cut Dean’s annual state retirement benefit by nearly $4,000 and is seeking recovery of $13,500 in pension payments made since his 2008 retirement, based on his admission that he was paid for 17 years of Fridays that he did not work.

“This recalculation and the prosecution sends a key message to any abuser entrusted with public funds: we will find you, we will hold you accountable and we will make you pay,” DiNapoli said. “My office will not tolerate abuses of the state pension system. When a person commits fraud which boosts their pension benefits, we will aggressively seek to cut their payments to account for their theft to the full extent of the law.”

DiNapoli is pushing proposed legislation to elevate official misconduct to a felony and force public officials to pay penalties of up to twice the amount gained by their crimes.

An investigation and audit by DiNapoli and the State’s Inspector General’s office found that Dean defrauded the state of nearly $500,000 in unearned salary and improper perks while serving as director of the DOCS Food Production Center in Rome, N.Y.

Dean freely admitted to auditors that he did not work Fridays for 17 years and the investigation concluded that he had the support of senior management in many of his improprieties. Since then, DOCS has indicated that it has improved internal controls and trained staff to identify fraud and abuse.

The State Comptroller encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud, corruption or abuse of taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint by mail complaint by writing to: Office of the State Comptroller, Investigations Unit, 14th Floor, 110 State St., Albany, NY 12236 or online by e-mail at investigations@osc.state.ny.us .

Decisions of interest concerning Labor and Employment Law

Decisions of interest concerning Labor and Employment Law
Source: Justia November 5, 2011

Novella v. Westchester County, et al.

Court: U.S. 2nd Circuit Court of Appeals

Docket: 09-4061

November 3, 2011

Judge: Sack

Areas of Law: Class Action, ERISA, Labor & Employment Law

This appeal and cross-appeal concerned the pension benefits owed to plaintiff, a retired carpenter, and members of a class he purported to represent. Plaintiff asserted that the pension fund was guilty of seven violations of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001 et seq., and sought declaratory and injunctive relief. The court agreed with the district court that defendants' interpretations of certain plan language was arbitrary and capricious and therefore affirmed the district court's award of summary judgment to plaintiff on his individual claims for miscalculation of pension benefits. The court concluded, however, contrary to the district court, that the six-year statute of limitations applicable to plaintiff's and each other putative class member's ERISA claims began to run when each pensioner knew or should have known that defendants had miscalculated the amount of his pension benefits, and that he was being underpaid as a result. Therefore, the court vacated the district court's judgments certifying the plaintiff class, granting summary judgment to the class, and granting prejudgment interest to the class members. The court remanded for further factfinding with regard to when each putative class member became, or should have become, aware of his alleged injury so as to begin the running of the statute of limitations as applied to him.

http://j.st/GTD

Tepperwien v. Entergy, Inc.

Court: U.S. 2nd Circuit Court of Appeals

Docket: 10-1425

October 31, 2011

Judge: Chin

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff, employed as a security officer by defendant, contended that he was sexually harassed by a co-worker and brought an action against defendant, asserting claims for constructive discharge, hostile environment sexual harassment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. The court held that the district court properly granted defendant's motion for judgment as a matter of law dismissing the retaliation claim because a reasonable employee in plaintiff's situation would not have been deterred from engaging in protected activities. The district court also correctly held that, even assuming the jury could have reasonably found plaintiff on his retaliation claim, defendant was entitled to judgment as a matter of law on the award of punitive damages because a reasonable jury could find that defendant sought to, and did, address defendant's claims in good faith. Accordingly, the court affirmed the judgment of the district court.

http://j.st/G3t

Small v. Avanti Health Systems, LLC, et al.

Court: U.S. 9th Circuit Court of Appeals

Docket: 11-55563

October 31, 2011

Judge: Reinhardt

Areas of Law: Labor & Employment Law

Petitioner sought injunctive relief in district court pursuant to section 10(j) of the National Labor Relations Act (NLRA), 29 U.S.C. 160(j), alleging that CHHP was a successor employer to Karykeion and that a majority of CHHP's registered nurses had been members of the California Nurses Association under Karykeion. Petitioner therefore alleged that CHHP's continuing failure to bargain in good faith with the chosen representative of its employees violated sections 8(a)(1) and 8(a)(5) of the NLRA. The district court granted petitioner's petition and issued a preliminary injunction, applying the test established in Winter v. Natural Resources Defense Council. The court held that the district court did not abuse its discretion in issuing the preliminary injunction and affirmed the order.

http://j.st/GUd

Kairy, et al. v. Supershuttle Int'l, et al.

Court: U.S. 9th Circuit Court of Appeals

Docket: 10-16150

November 3, 2011

Judge: Tashima

Areas of Law: Class Action, Government & Administrative Law, Labor & Employment Law

Plaintiffs, current or former "franchisee" shuttle van drivers for SuperShuttle in various parts of California, filed a putative class action alleging that plaintiffs were misclassified as "independent contractors" when, in truth, they were "employees" under California law. Plaintiffs alleged that they had consequently been deprived of the full protections provided to employees under the California Labor Code, including overtime and minimum wages, reimbursement of business expenses and deductions wrongfully taken from wages, and meal period pay. The district court granted SuperShuttle's motion to dismiss plaintiffs' state law claims holding that it lacked subject matter jurisdiction. The court held that the third prong in San Diego Gas & Electric Co. v. Superior Court (Covalt) was not satisfied, the California Public Utilities Code 1759 was not implicated, and the district court retained subject matter jurisdiction over the case. On remand, the district court could determine whether the SuperShuttle drivers were employees or independent contractors under California law without hindering or interfering with PUC decisions or policies.

http://j.st/GqZ

Anderson v. Cato Corporation

Court: U.S. 10th Circuit Court of Appeals

Docket: 11-3003

October 27, 2011

Judge: Baldock

Areas of Law: Civil Rights, Labor & Employment Law, Public Benefits

Plaintiff Cynthia Anderson appealed a district court's grant of summary judgment in favor of Defendant Cato Corporation on her claim of discrimination under the Pregnancy Discrimination Act. A month or two after Cato terminated her employment, Plaintiff asked for a letter stating the reasons for her termination so that she could apply for public health benefits. A Cato supervisor wrote that Plaintiff "was terminated due to pregnancy related illnesses. [Plaintiff] needed off three weeks for bed rest required by a doctor. However, according to Cato policy a part time sales associate has to be release[d] if she/he needs off for longer than seven days unless she/he has been employed for 365 days. [Plaintiff] did not apply to the guidelines; therefore she was forced to be terminated." The supervisor's undisputed testimony was that Plaintiff "told me that she needed me to put on [the letter] it was because of her pregnancy." After Plaintiff filed suit, Cato moved for summary judgment. The district court determined that the letter was not direct evidence of discrimination. The court considered it "significant" that Plaintiff asked for the letter and told her supervisors what the letter should state as reasons for her termination. The court concluded that Plaintiff could establish a prima facie case for discrimination but that the evidence did not raise a disputed issue of material fact. Upon review, the Tenth Circuit concluded that the letter was indeed not direct evidence of discrimination, and agreed with the district court's reasoning that Plaintiff could make a prima facie case but that summary judgment was appropriate.

http://j.st/GoN

Williams v. Cherokee Nation Entertainment

Court: U.S. 10th Circuit Court of Appeals

Docket: 11-5107

November 1, 2011

Judge: Matheson

Areas of Law: Labor & Employment Law

Plaintiff James Williams appealed a district court's denial of his motion for leave to proceed in forma pauperis (IFP) to file a complaint and have it served. In June 2011, Mr. Williams filed a complaint against his former employer, Cherokee Nation Entertainment, LLC, alleging he was terminated in violation of the Family Medical Leave Act of 1993. Plaintiff petitioned the district court for leave to proceed IFP and provided an affidavit alleging he was unemployed and disabled, and thus unable to pay the cost to file his suit. Plaintiff reported average monthly income from unemployment benefits and education assistance totaling $2,200, and monthly expenses totaling $300. Additionally, Plaintiff listed assets of $1025 and debt for unpaid medical bills. The district court determined that Plaintiff was able to pay court fees and costs and therefore denied his petition. Finding no error in the district court's ruling, the Tenth Circuit affirmed the district court. Plaintiff also petitioned for leave to proceed IFP on appeal. The Court granted that motion based upon an updated affidavit and financial declaration Plaintiff provided on appeal.

http://j.st/GS7

Carter v. Pathfinder Energy

Court: U.S. 10th Circuit Court of Appeals

Docket: 10-8112

November 3, 2011

Judge: Gilman

Areas of Law: Civil Rights, ERISA, Labor & Employment Law

Plaintiff Dennis Carter began working as a directional driller at Pathfinder Energy Services, Inc., in December 2004. Two years later, declining health had caused a reduction in Plaintiff's workload. Pathfinder fired Plaintiff for "gross misconduct" based primarily on an altercation that he had had with a coworker and his language and attitude during a conversation with his supervisor. Plaintiff sued Pathfinder in federal district court, alleging that Pathfinder had violated his rights under the Americans with Disabilities Act (ADA) and the Employee Retirement Income Security Act (ERISA). He also alleged that Pathfinder had breached his implied-in-fact employment contract. The district court granted summary judgment in favor of Pathfinder on all three claims. Upon careful review, the Tenth Circuit reversed the district court’s grant of summary judgment on Plaintiff's ADA claim, but affirmed the grant of summary judgment on the remaining claims. Specifically, the Tenth Court held that "[a] reasonable jury could conclude that [Plaintiff] has made out a prima facie case of discrimination and has established that Pathfinder’s asserted justification for his firing was pretextual. At this stage of the case, that is enough." The Court remanded the case for further proceedings on the ADA claim.

http://j.st/Gqr

Diggs. v. Dep't of Hous. & Urban Dev.

Court: U.S. Federal Circuit Court of Appeals

Docket: 10-3193

November 1, 2011

Judge: per curiam

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

The agency removed plaintiff from her position based on charges of rude, disruptive, aggressive, or intimidating behavior and misrepresentation. Plaintiff denied the charges and alleged retaliation for prior Equal Employment Opportunity claims of sex discrimination. The Administrative Judge and Merit Systems Protection Board affirmed the removal. Plaintiff petitioned the EEOC for review; that agency found that the evidence supported the conclusion that her removal was not motivated by retaliatory animus. The Federal Circuit dismissed an appeal, finding that it lacked jurisdiction to review the Board's decision on the "mixed case." The case involved both a specific type of action against an agency which may be appealed to the Board and an allegation in the nature of an affirmative defense that a basis for the action was discrimination within one of the categories” listed in 5 U.S.C. 7702(a)(1)(B). Affirmative defenses of retaliation for prior EEO activity are assertions of discrimination under Title VII and within the meaning of 5 U.S.C. 7702.

http://j.st/GwB

Douglas v. First Student, Inc.

Court: Arkansas Supreme Court

Docket: 11-361

November 3, 2011

Judge: Gunter

Areas of Law: Class Action, Government & Administrative Law, Labor & Employment Law

Petitioners, who were all employed by Respondent as public school bus drivers or dispatchers, claimed that Respondent failed to compensate them for regular and overtime wages in weeks in which they worked more than forty hours. Petitioners filed a class-action complaint in federal district court, alleging violations of the federal Fair Labor Standards Act and the Arkansas Minimum Wage Act (AMWA). Respondents opposed Petitioners' motion to amend their complaint, contending the amendment would be futile because Petitioners' AMWA claims were barred by the three-year statute of limitations set forth in Ark. Code Ann. 16-56-105. The Supreme Court accepted certification to answer what the appropriate statute of limitations was for a private cause of action pursuant to Ark. Code Ann. 11-4-218(e), which allows an employee to bring a private cause of action for relief against an employer for minimum wages, including overtime wages, but does not include a specific limitations provision. After acknowledging the Court's long history of applying section 16-56-105's three-year limitation period for statutorily created liabilities that do not contain an express limitations period, the Court answered that a three-year statute of limitations would apply to private causes of action brought pursuant to AMWA.

http://j.st/GGJ

Rigoli v. Wal-Mart Associates, Inc.

Court: Idaho Supreme Court - Civil

Docket: 37887

November 3, 2011

Judge: Burdick

Areas of Law: Labor & Employment Law, Public Benefits

Claimant-Appellant William Rigoli appealed an Industrial Commission's decision that found him ineligible for unemployment benefits because he was discharged for misconduct in connection with his employment. Claimant worked as a toy department manager for Respondent Wal-Mart, and was fired for using foul language and leaving before his assigned shift was completed. Initially, Claimant was determined by the Department of Labor to be eligible for unemployment benefits, but his employer appealed his eligibility. The Department ultimately concluded that Claimant was ineligible, and he appealed to the Industrial Commission. The Commission upheld the Department's conclusion and denied benefits. Upon review, the Supreme Court found that there was substantial and competent evidence the Commission relied upon to conclude that Claimant was discharged for employment-related misconduct, and, therefore, was ineligible for unemployment benefits.

http://j.st/GpQ

Locker v. How Soel, Inc

Court: Idaho Supreme Court - Civil

Docket: 37622

November 1, 2011

Judge: Horton

Areas of Law: Labor & Employment Law, Public Benefits

Petitioner Shanna Locker appealed the Industrial Commission’s (Commission) finding that she was insubordinate when she failed to provide a medical release at the request of her employer, Logan’s Foodtown. The Commission found that this constituted employment-related misconduct which rendered Petitioner ineligible for unemployment insurance benefits. Upon review of the record before the Commission, the Supreme Court affirmed the Commission's decision.

http://j.st/GqE

Tarbet v. J.R. Simplot Co.

Court: Idaho Supreme Court - Civil

Docket: 38096-2010

November 2, 2011

Judge: Eismann

Areas of Law: Injury Law, Insurance Law, Labor & Employment Law, Public Benefits

Claimant David Tarbet worked for Employer J.R. Simplot Company for thirty-six years until an accident in 2007 left him totally and permanently disabled. The issue before the Industrial Commission (Commission) was whether Employer was liable for all or only a part of Claimant’s income benefits. If Claimant’s total disability resulted solely from the last accident, Employer would be liable for all of the income benefits. If his total disability resulted from the combined effects of both that injury and impairments that pre-existed that injury, then Employer was liable only for that portion of the income benefits for the disability caused by the accident, and the Industrial Special Indemnity Fund (ISIF) would be liable for the remainder. The Industrial Commission found that the April 2007 accident was Claimant’s final industrial accident, that he was totally and permanently disabled as a result of the final accident, and that the impairments that existed prior to that accident did not contribute to his total disability. It found that ISIF was not liable for Claimant’s benefits and dismissed the complaint against it. Employer then appealed. Upon review of the Commission's record, the Supreme Court affirmed the Industrial Commission's order.

http://j.st/Gpp

Interlock Indus., Inc. v. Rawlings

Court: Kentucky Supreme Court

Docket: 2010-SC-000264-DG

October 27, 2011

Judge: Schroder

Areas of Law: Injury Law, Insurance Law, Labor & Employment Law

Charles Rawlings suffered injuries as he was rolling straps beside his tractor-trailer while it was being unloaded. Thirteen months after the accident, Rawlings filed an action against Defendants, his employer and the companies involved in loading and unloading the trailer. The trial court granted summary judgment in favor of Defendants and dismissed the action based on the one-year statute of limitations for personal injury claims in Ky. Rev. Stat. 413.140(1)(a). The court of appeals reversed, applying the two-year statute of limitations in the Motor Vehicle Reparations Act. At issue on appeal was whether Rawlings was in fact unloading his truck at the time of the accident, which would determine whether the one- or two-year statute of limitations applied. The Supreme Court reversed, holding (1) Rawlings's activity in releasing the straps and rolling them qualified him as a participant in the unloading process; and (2) therefore, the trial court correctly applied the one-year personal injury statute of limitations found in section 413.140(1)(a). Remanded.

http://j.st/Goz

Montgomery County v. Deibler

Court: Maryland Court of Appeals

Docket: 120/10

October 27, 2011

Judge: Barbera

Areas of Law: Injury Law, Labor & Employment Law

Employee received two knee injuries while working as a firefighter for Employer. Employee filed claims with the Worker's Compensation Commission, requesting disability compensation for the loss of income stemming from each injury. The Commission ordered that Employee should receive temporary partial disability compensation for the period in which he worked light duty after both injuries. Employer sought judicial review. At issue before the circuit court was whether a loss of Employee's ability to work overtime, and its associated loss in overtime compensation, qualified as a lessening of Employee's wage earning capacity for the purposes of Md. Code Ann. Lab. & Empl. 9-615(a). The circuit court affirmed the Commission's order, ruling that the term "wage earning capacity" could fairly include overtime compensation. The Court of Appeals affirmed, holding (1) the term "wage," as used in the phrase "wage earning capacity" in section 9-615(a), includes compensation paid for overtime hours worked prior to temporary partial disability; and (2) the Commission correctly determined that Employee's wage earning capacity was "less," under section 9-615(a), entitling him to compensation payment in accordance with the calculation scheme set forth in that section.

http://j.st/GJS

State ex rel. Lane v. Pickerington

Court: Ohio Supreme Court

Docket: 2011-0922

October 27, 2011

Judge: Per Curiam

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

For several years, Appellant Paul Lane worked for the City. Later, the interim city manager terminated Lane's employment for disciplinary reasons. Lane subsequently submitted to the City's personnel director a request for a hearing from the City Personnel Appeals Board regarding his termination. Via letter, the City declined Lane's request. Lane filed a complaint for a writ of mandamus to compel Appellees, the City and Board, to conduct a hearing and issue a determination on the merits of his appeal, reinstate him to his position of employment, and award back pay and corresponding employment benefits. The court of appeals denied the writ, determining that Lane had an adequate remedy in the ordinary course of law by administrative appeal from the Board's decision. The Supreme Court reversed, holding that in the absence of a final, appealable order by the Board on Lane's request for a hearing, he did not have an adequate remedy by way of administrative appeal to raise his claims. Remanded.

http://j.st/GJd