The State's Pension Fund will not be raided to balance State's budget
Statement by New York State Comptroller Thomas P. DiNapoli
“There have been a number of outrageous and unfounded rumors and erroneous press reports that I will allow a raid of the pension fund to balance the state budget. “Let me be very clear: The pension fund will not be used to balance the budget.
“The Pew Center recognized New York as one of only four fully-funded state pension systems. New York’s strong position has been achieved through long-term, fiscally responsible practices.
"My first job as state comptroller is to protect the one million members, and the rest of New York State taxpayers, from the irresponsibility that has left New Jersey, Illinois, California and dozens of other public pension funds across the nation dangerously under-funded. I will fight any raids on the New York State Common Retirement Fund.
“Shame on those individuals who are playing politics, trying to mislead taxpayers and scare members and retirees who rely on the fund for their financial security. The fund is not a political football.
“The fund is strong. I recently reported that SFY 2009-10 was the third best investment year in the past 20 years. The Pew Report found that our fund is one of the best managed funds in the nation. I will not sacrifice that strength to a dysfunctional budget process.
“The State Comptroller’s office has a long history of protecting the fund from raids. I will protect the fund from any raids under any circumstances.”
Facts about the Fund:
1. Third Highest Return in Last 20 Years: The pension fund posted a 25.9 percent rate of return for the fiscal year ended March 31, 2010, driving the value of fund assets to approximately $132.6 billion.
2. Nationally Recognized for Excellence by Pew Center: In February, the Pew Center on the States issued a report calling New York one of the best managed pension funds in the country. Only four states in the country are fully-funded: New York, Florida, Washington and Wisconsin.
3. Safe, Strong and Secure: The pension fund is one of the best funded public pension funds in the nation and can cover its current and future obligations.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
June 14, 2010
Whistleblower must blow the whistle to claim the whistleblower protection provided by the Whistleblower Statute, Civil Service Law §75-b
Whistleblower must blow the whistle to claim the whistleblower protection provided by the Whistleblower Statute, Civil Service Law §75-b
Hastie v State Univ. of N.Y. Coll. of Agric. & Tech. At Morrisville, 2010 NY Slip Op 04911, Decided on June 10, 2010, Appellate Division, Third Department
Civil Service Law §75-b protects an officer or employee in the event he or she reports what he or she in good faith believes is an improper governmental action to a governmental body.*
James Hastie was employed by SUNY Morrisville. Among his job duties was overseeing SUNY Morrisville’s development program and fundraising efforts. In the course of reviewing an Internal Revenue Service tax form (IRS form 8283) prepared by a third party involving property donated to Morrisville, Hastie became concerned about the truthfulness of statements regarding the property's appraised value.**
Sharing his concerns with Morrisville's president and its vice-president for administrative services, they directed him to sign the form. Hastie refused and his employment was terminated shortly thereafter.
Hastie then sued Morrisville, claiming he had been subjected to “a retaliatory discharge” within the meaning of Civil Service Law §75-b, the so-called the whistleblower statute. Supreme Court, however, granted Morrisville’s motion to dismiss his petition.
The Appellate Division, in reviewing Hastie’s appeal from the Supreme Court’s ruling, said that notwithstanding its accepting Hastie’s allegations in his complaint as true, it must, nevertheless, affirm the Supreme Court’s ruling.
Explaining that although an adverse employment action may not be taken against a public employee based upon his or her disclosure of information "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action" to a governmental body, in this instance the alleged wrongdoing consisted of Morrisville’s president and vice-president directing Hastie to sign the receipt section of the IRS form 8283.
Hastie, however, had not reported the alleged improper directive to any governmental body other than the alleged wrongdoers themselves. As §75-b requires that the employee to advise the appointing authority prior to his or her reporting the information to a “governmental body,” the court apparently concluded that neither Morrisville’s president or vice-president qualified as a “governmental body” for the purposes of §75-b in this instance.
Accordingly, the Appellate Division ruled that Hastie had not undertaken “the notification efforts which are a procedural prerequisite to invoke the protections of the statute.”***
In Hastie’s case, the single possible improper governmental action was not the submission of the allegedly flawed tax form by a third party but, rather, “the directives from the alleged wrongdoers, [Morrisville’s] president and vice-president, that [Hastie] sign the receipt section of the form.”
As Hastie had not reported this “directive” to any “governmental body,” he failed to undertake the notification effort that constitutes the procedural prerequisite to his invoking the protections of the statute.
* See, also, Labor Law §740, which essentially applies to employers in the private sector.
** IRS form 8283 required an acknowledgment from Morrisville that it had received the property.
*** Civil Service Law §75-b 2, in pertinent part, provides: “(a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.” Further, sub-paragraph (b), in pertinent part, requires that the individual “Prior to disclosing information pursuant to paragraph (a) … shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action….”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04911.htm
Hastie v State Univ. of N.Y. Coll. of Agric. & Tech. At Morrisville, 2010 NY Slip Op 04911, Decided on June 10, 2010, Appellate Division, Third Department
Civil Service Law §75-b protects an officer or employee in the event he or she reports what he or she in good faith believes is an improper governmental action to a governmental body.*
James Hastie was employed by SUNY Morrisville. Among his job duties was overseeing SUNY Morrisville’s development program and fundraising efforts. In the course of reviewing an Internal Revenue Service tax form (IRS form 8283) prepared by a third party involving property donated to Morrisville, Hastie became concerned about the truthfulness of statements regarding the property's appraised value.**
Sharing his concerns with Morrisville's president and its vice-president for administrative services, they directed him to sign the form. Hastie refused and his employment was terminated shortly thereafter.
Hastie then sued Morrisville, claiming he had been subjected to “a retaliatory discharge” within the meaning of Civil Service Law §75-b, the so-called the whistleblower statute. Supreme Court, however, granted Morrisville’s motion to dismiss his petition.
The Appellate Division, in reviewing Hastie’s appeal from the Supreme Court’s ruling, said that notwithstanding its accepting Hastie’s allegations in his complaint as true, it must, nevertheless, affirm the Supreme Court’s ruling.
Explaining that although an adverse employment action may not be taken against a public employee based upon his or her disclosure of information "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action" to a governmental body, in this instance the alleged wrongdoing consisted of Morrisville’s president and vice-president directing Hastie to sign the receipt section of the IRS form 8283.
Hastie, however, had not reported the alleged improper directive to any governmental body other than the alleged wrongdoers themselves. As §75-b requires that the employee to advise the appointing authority prior to his or her reporting the information to a “governmental body,” the court apparently concluded that neither Morrisville’s president or vice-president qualified as a “governmental body” for the purposes of §75-b in this instance.
Accordingly, the Appellate Division ruled that Hastie had not undertaken “the notification efforts which are a procedural prerequisite to invoke the protections of the statute.”***
In Hastie’s case, the single possible improper governmental action was not the submission of the allegedly flawed tax form by a third party but, rather, “the directives from the alleged wrongdoers, [Morrisville’s] president and vice-president, that [Hastie] sign the receipt section of the form.”
As Hastie had not reported this “directive” to any “governmental body,” he failed to undertake the notification effort that constitutes the procedural prerequisite to his invoking the protections of the statute.
* See, also, Labor Law §740, which essentially applies to employers in the private sector.
** IRS form 8283 required an acknowledgment from Morrisville that it had received the property.
*** Civil Service Law §75-b 2, in pertinent part, provides: “(a) A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.” Further, sub-paragraph (b), in pertinent part, requires that the individual “Prior to disclosing information pursuant to paragraph (a) … shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action….”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04911.htm
Employee disciplined for failing to wear a vehicle seat belt properly
Employee disciplined for failing to wear a vehicle seat belt properly
Department of Sanitation v Parker, OATH Index #1923/10
The New York City Department of Sanitation sought discipline against Michael Parker, a sanitation worker, for improperly wearing his seatbelt while operating a Department vehicle.
A Sanitation Department safety inspector observed Parker driving with his shoulder belt tucked behind his left arm, and issued a ticket when, the inspector alleged Parker became belligerent after receiving a warning.
ALJ Ingrid Addison found Parker guilty of improperly wearing his seat belt while on duty and recommended that Parker be fined two days' pay.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1923.pdf
Department of Sanitation v Parker, OATH Index #1923/10
The New York City Department of Sanitation sought discipline against Michael Parker, a sanitation worker, for improperly wearing his seatbelt while operating a Department vehicle.
A Sanitation Department safety inspector observed Parker driving with his shoulder belt tucked behind his left arm, and issued a ticket when, the inspector alleged Parker became belligerent after receiving a warning.
ALJ Ingrid Addison found Parker guilty of improperly wearing his seat belt while on duty and recommended that Parker be fined two days' pay.
The decision is posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1923.pdf
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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