An appointing authority may designate another individual to review a disciplinary hearing officer’s report and make the final determination

An appointing authority may designate another individual to review a disciplinary hearing officer’s report and make the final determination

Guynup v County of Clinton, 2011 NY Slip Op 09243, Appellate Division, Third Department

A lieutenant employed by the Clinton County Sheriff's Department, Terry Guynup was served with four charges alleging various acts of misconduct, incompetence and insubordination in violation of Department rules and regulations.*

A Civil Service Law §75 Hearing Officer found Guynup guilty of two of the charges filed against him but dismissed the remaining two charges. As to the penalty to be imposed, the Hearing Officer recommended that Guynup be required to participate in an employee assistance program and be suspended without pay for 30 days.

David Favro, the Clinton County Sheriff, disqualified himself from the proceeding and designated the Clinton County Administrator, Michael E. Zurlo, to review the Hearing Officer’s findings and recommendations.**

Zurlo accepted the Hearing Officer’s findings but, in addition, found Guynup guilty of one additional charge. Zurlo, however, rejected the Hearing Officer’s recommendation as to the penalty to be imposed and ruled that Guynup should be terminated from his position with the Sheriff’s Department.

Subsequently Zurlo's determination that Guynup was guilty of the additional charge was set aside by the Appellate Division [see Guynup v. County of Clinton, 74 A.D.3d 1552] and the matter remitted to Zurlo for a new determination as to the penalty to be imposed on the surviving two charges. Zurlo again decided that Guynup should be terminated from his position and again Guynup appealed.

The Appellate Division, noting that its review of such an administrative determination is "limited to whether the penalty is so disproportionate as to be shocking to one's sense of fairness" said that Guynup’s conduct, especially when committed by an individual who occupies a senior position in law enforcement, was "clearly at odds with the strict discipline necessary to effectively operate a [Sheriff's Department]" where he is employed and supports the decision imposing termination as his penalty” and sustained Zurlo’s decision to terminate Guynup.

* One of the charges alleged that Guynup was guilty of incompetence because he could not carry a firearm and thus “could not faithfully execute his official responsibilities as an officer within the Department.”

** If a conflict exists that may implicates the appointing authority's ability to be fair and impartial, a third party with “supervisory authority over that particular employee” may be designated to review a Hearing Officer's report and, upon such a review, make determinations concerning the employee's status” [Gomez v Stout, 13 NY3d 182].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09243.htm

Unpaid employer's retirement contributions for its employees plus accrued interest must be paid to the NYS Employees’ Retirement System

Unpaid employer's retirement contributions for its employees plus accrued interest must be paid to the NYS Employees’ Retirement System

DiNapoli v Town of New Scotland, 2011 NY Slip Op 09247, Appellate Division, Third Department

When Walter Myers, then an employee of the Town of New Scotland, applied for service retirement benefits from the Retirement System [ERS], ERS discovered that New Scotland had not paid certain employer contributions due the System on behalf of Myers for the period September 1, 1972 through March 31, 1973.*

ERS sent the Town its annual invoice determination for employer contributions in which included a charge in the amount of $10,310 for "prior years adjustment," reflecting the cost of Myers' service credit for the disputed period, plus interest. New Scotland declined to pay the “prior years adjustment” and ultimately ERS sued the Town to recover the amount it alleged it was due pursuant to Retirement and Social Security Law §17(e).

Supreme Court ruled that ERS’ claim was subject to the six-year Statute of Limitations set out in CPLR §213. It then granted ERS’ motion for summary judgment finding that its petition demanding the “prior years adjustment” was timely filed. The Appellate Division agreed with Supreme Court that the six-year Statute of Limitations controlled and that whether ERS’ action was timely “turns on when the cause of action against [the Town] accrued.”

Noting that RSSL §17 requires ERS to annually "determine the amount which each participating employer is required to pay to the [R]etirement [S]ystem to discharge its obligations" for the fiscal year, which amount shall include "any additional obligation, plus interest on such amount, for fiscal years preceding the current fiscal year," the Appellate Division explained that as there is “no limit is placed on how far back in time [ERS] may bill for such obligation.”

As ERS sent the Town its annual invoice in November 2007, in which it included the “prior year's adjustment” at issue, ERS’ cause of action accrued on or about February 1, 2008 when the Town failed to make the payment reflecting the cost of Myers' service credit as required by law.

Accordingly, said the Appellate Division, ERS’ action was timely and while payment of ERS’ assessment has “potentially significant fiscal effects” on the Town due to the unanticipated obligation to pay interest computed over such a lengthy period of time, the Retirement and Social Security Law clearly “requires that such interest be assessed.”

Finding that ERS established a prima facie entitlement to judgment as a matter of law and that the Town failed to raise any questions of fact, the Appellate Division held that Supreme Court properly granted summary judgment to ERS.

* Myers had been initially employed by the Town on September 1, 1972. He then applied for membership in ERS on March 31, 1973.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09247.htm

School district not required to provide tuition-free education to certain nonresident children

School district not required to provide tuition-free education to certain nonresident children

Board of Education of the Garrison Union Free School District v Greek Archdiocese Institute of St. Basil, 2012 NY Slip Op 00023, Court of Appeals.

In this appeal the Court of Appeals was asked to determine if a school district was obligated to pay for the educational costs of the children living in a child care institution located within the district's boundaries.

The court ruled that a school district is not obligated to provide a tuition-free education to those children determined to be nonresidents of the school district.

The Court of Appeals, citing Education Law §3202[6], explained that "St. Basil is an 'institution for the care, custody and treatment of children' and the Education Law specifies that children living in such institutions are not deemed residents of the school district in which the institution is located purely by reason of their presence in the institution". Further, said the court, "The issuance of a license to operate a child care institution does not change the residence of the children living there."

The text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00023.htm