Recovering missing public funds

Recovering missing public funds
Utica Mutual Insurance Co., as the Subrogee of the Town of Sand Lake v. Laura Avery, 261 AD2d 802, motion for leave to appeal denied, 93 NY2d 818

From time to time, a public employee resigns from his or her position after some money is found to be missing. The Utica Mutual decision provides some insights as to what might follow such an event.

A State audit had revealed discrepancies in the financial records of the Town of Sand Lake’s Justice Court, including missing funds in excess of $3,000. Town officials were sufficiently convinced that the clerk of its justice court, Laura Avery, was responsible for the loss that it demanded, and received, her resignation. It later was able to ascertain the precise amount that was missing -- $3,648 -- and filed a claim with its insurance company, Utica Mutual, for the loss. Utica Mutual paid the town $3,648.

Utica, as the town’s subrogee [standing in the place of], then sued Avery to recover the money it paid to the town. Instead of filing an answer, Avery moved to dismiss Utica’s action on the ground it was untimely. A State Supreme Court judge agreed and applying the six-year Statute of Limitations (CPLR 213 (a),[1]), dismissed Utica Mutual’s claim as time barred.

Utica Mutual appealed and lost. The Appellate Division said that “the sole issue on this appeal is whether Supreme Court correctly determined the date on which plaintiff’s cause of action accrued.” Utica had argued that the limitations period did not begin to run until the date on which Sand Lake received the Department of Audit and Control’s official audit since prior to that date the Town’s liability for the missing funds was not fixed.

Not so, said the Appellate Division, affirming the lower court’s ruling. It said that Utica’s cause of action accrued when all events essential to the claim were present so that Utica would be entitled to judicial relief. Presumably Utica would have won its lawsuit against Avery to recover the money it had paid to Sand Lake had it filed a timely action.

The Appellate Division suggested that even a shorter statute of limitations might apply is such situations, commenting that “arguably, the mishandling of the funds in question fits the definition of conversion” [stealing] ... for which the shorter three-year Statute of Limitations of CPLR 214 (3) would apply.” However, both parties adopt the position that, in the absence of a specific Statute of Limitations for an action to recover embezzled funds, the applicable limitations period is six years pursuant to CPLR 213 (1).
NYPPL

Disciplining an employee for off-duty misconduct

Disciplining an employee for off-duty misconduct
Anderson v Safir, App. Div., 260 AD2d 179

The Commissioner of Police found that Michael Anderson and some other New York City police officers were guilty of off-duty misconduct when they “wrongfully placed civilians in fear of imminent physical injury by displaying their guns and using racial epithets.”

The Appellate Division sustained the Commissioner’s dismissing the officers, commenting that the finding of their guilt was supported by substantial evidence, including, in particular, that the officers car pool together and that one of them owned the car described with specificity to the 911 operator at the time of the incident.

Finding that there was no basis to disturb Commissioner’s findings regarding credibility concerning the complainants’ identification testimony, the court confirmed the penalty imposed -- termination.
NYPPL

Failing to participate in a counseling program results in disciplinary action

Failing to participate in a counseling program results in disciplinary action
Siciliano v Safir, 259 AD2d 366

New York City police officer Matthew Siciliano was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.

Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.

The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”

The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving Department’s requirements for order, authority and discipline. It ruled that the Department’s determination to dismiss Siciliano is entitled to “great leeway.”

Commenting that the penalty imposed did not shock its sense of fairness, the Appellate Division dismissed Siciliano’s appeal.
NYPPL

Terminating an educator during his or her probationary period

Terminating an educator during his or her probationary period
Green v Bd. of Ed., 262 AD2d 411

The Green decision succinctly sets out the basic guidelines used by courts in determining if an educator was lawfully terminated if he or she was dismissed during, or at the end of, his or her probationary period without being given a statement of the reasons for the termination or an administrative hearing.

Verna Green, a New York City School District probationary teacher, was dismissed by the Board of Education during probation.

The Appellate Division, affirming a lower court’s dismissal of Green’s Article 78 action seeking reinstatement, said:

1. A probationary employee may be terminated without a statement of any reasons for the termination or per-termination hearing provided the termination (1) was not made in bad faith, (2) did not constitute a violation of statutory or decisional law, or (3) was not based on any unconstitutional or illegal reasons;

2. The former probationary employee has the burden of establishing that his or her termination was made in bad faith or for illegal reasons;

3. The former probationer’s conclusory allegations that the employer acted in bad faith do not meet this burden or warrant a hearing.

In another probationary termination case, Williams v Franklin Square Union Free School District, 261 A.D.2d 628, the Appellate Division dismissed an Article 78 action brought by Jeanne M. Williams. Williams had asked the court to order the district to “restore [her] to her position as an elementary [school] teacher.”

The court dismissed her petition, stating that there was no evidence in the record that the district’s denying Williams tenure was for a legally impermissible reason. In addition, the Appellate Division held that “there is no evidence that [Williams] acquired tenure by estoppel.”
NYPPL

Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun

Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun

Materials For the Arts (MFTA) is a program within the New York City Department of Cultural Affairs that collects donated materials and makes them available to not-for-profit arts groups.

Jesse Charland managed a warehouse where items donated to MFTA, including theatre props, are inventoried and stored.

Charland was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he had pointed a replica of a handgun at a supervisor while making threatening comments about “going postal” and needing only “one bullet.”

OATH Administrative Law Judge Kevin Casey credited the supervisor's testimony that the gun looked real and that she felt threatened.

As for Charland's claim that he was only joking, even Charland's witness acknowledged that if one was unfamiliar with Charland's sarcastic sense of humor, “you would take” it as a threat.

ALJ Casey also found that Charland disobeyed orders and was discourteous. The penalty recommended by the ALJ: termination.

Other disciplinary actions taken against public employees involved in “practical jokes” or “horseplay” include:

1. The Corning City School District charging a teacher with using physical force against a student -- pinching the student with a pair of pliers. Disciplinary Hearing Officer James R. Markowitz did not accept the teacher's efforts to excuse the episode as merely classroom "horseplay" and suspended the teacher for two weeks without pay. [NYS Department of Education Disciplinary File 3310].

2. Disciplinary action taken against a supervisor who engaged in a number of off-duty practical jokes resulted the supervisor’s demotion and being placed on a disciplinary probation for six-months [Sguanci v Commissioner of Public Works, Broome County, 158 AD2d 788].

3. A teacher being suspended without pay for one-year after playing practical joke on a supervisor using a fake spider. [Decisions of the Commissioner of Education, 10842].

The decision, Dept. of Cultural Affairs v Charland, OATH #1766/10, is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1766.pdf
NYPPL

Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law

Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law
Toshunbe and Buffalo Board of Education, 32 PERB 3026

Doris Toshunbe was served with disciplinary charges alleging 21 counts of incompetence, 12 counts of insubordination and 11 counts of misconduct. The arbitrator, “apparently ... based on the disciplinary charges before him ... found that Toshunbe was ‘stubborn, abstinent [sic] and lack [sic] respect for authority.’” He ordered that Toshunbe be suspended for two weeks without pay, which the district could deem “a progressive disciplinary action.”

Toshunbe challenged the arbitrator’s decision by filed an improper practice charge with PERB, alleging “improper motivation” by the district. After discussing a number of the procedural issues concerning timeliness, PERB rejected her petition on the basis of “lack of jurisdiction.”

PERB said that “review of an arbitrator’s award is not available in an improper practice proceeding against an employer ... review of that award is available under Civil Practice Law and Rules [CPLR] Article 75.”

Explaining that “to avoid our becoming a substitute for or an alternative to the statutory review procedures, a CPLR proceeding should be the preferred mechanism for the review, modification or vacatur of disciplinary arbitration awards, absent extraordinary circumstances,” PERB sustained the Director of Public Employment Practices and Representation’s determination.
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