Employee found guilty of failing to comply with Department rules concerning absences for illness

Employee found guilty of failing to comply with Department rules concerning absences for illness

NYC Department of Sanitation v Kaplan, OATH Index #403/12

OATH Administrative Law Judge Kevin F. Casey sustained a number of disciplinary charges alleging that the employee failed to comply with Department rules with respect to absences on sick leave on several occasions.

The ALJ found that the employee had failed to provide required medical documentation a number of times, was AWOL once, and left his home without authorization three times while on sick leave.

Judge Casey, however, recommended the dismissal of five charges of absence from while on sick leave.

Notwithstanding the dismissal of five of the charges filed against the employer, Judge Casey, noting that he had been disciplined six times since 2000, including four times for a lack of medical documentation, recommended that the individual be suspended without pay for 53 days. 

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-403.pdf

A series of agreements providing for the distribution of a Retirement System member’s death benefit considered in determining the lawful beneficiaries

A series of agreements providing for the distribution of a Retirement System member’s death benefit considered in determining the lawful beneficiaries

Johnson v New York State & Local Retirement Sys. et al, 2012 NY Slip Op 01881, Appellate Division, Fourth Department

In this decision the Appellate Division sustained the Retirement System’s administrative ruling that Dane V. Johnson and Danika V. Johnson were to be paid Dan Johnson's New York State Employees' Retirement System's [NYSERS] death benefit.

Wendy Johnson and Dan Johnson had executed a matrimonial settlement agreement in the course of their divorce that required them to name their children, Dane V. Johnson and Danika V. Johnson as "joint irrevocable designated beneficiaries" of the death benefits provided by their retirement plans.

However, Dan, shortly before executing the matrimonial settlement agreement, had named his then girlfriend, Kimberly Leone-Johnson (Leone), as a one-third beneficiary of his NYSERS death benefit and each of his children as a one-third beneficiary. Leone was not removed as a beneficiary after the judgment of divorce was entered in May 1998 and, moreover, in June 1998 Dan designated Leone as the sole beneficiary of his NYSERS death benefit.

Subsequently Dan and Leone executed a prenuptial agreement and were married. This prenuptial agreement stated that Dan and Leone “expressly waived all rights and claims to each other's pensions and retirement plans” and later, still, they executed a separation agreement, which contained clauses that “reaffirmed the pension and retirement plan waivers contained in the prenuptial agreement and mutually released and waived all rights that [Dan] and Leone had to each other's estate”

Dan and Leone “allegedly reconciled without divorcing” just prior to Dan death. No beneficiary changes were made to Dan's NYSERS death benefit after Leone was allegedly named the sole beneficiary in 1998.

Following Dan’s death, however, the NYSERS notified Leone that Dan’s designation naming her as the sole beneficiary was invalid and that the System intended to disburse the death benefit to the children in accordance with Dan's March 1998 designation.

Wendy, Dane and Danika sued, seeking a court order designating the children, Dane and Danika, as the joint irrevocable beneficiaries of Dan's NYSERS's death benefit in compliance with the matrimonial settlement agreement and to remove Leone as a beneficiary.

Supreme Court determined that Leone and the children were each entitled to one-third of Dan's NYSERS death benefit notwithstanding Leone claim that the System erred in determining that the designation naming her as sole beneficiary was invalid.

The Appellate Division said that it agreed with Wendy, Dane and Danika that that Leone was not entitled to any part of decedent's retirement plan death benefit and reversed Supreme Court’s decision to the contrary.

The court explained that “The matrimonial settlement agreement clearly required [Dan] to name the children as the ‘joint irrevocable designated beneficiaries’ of his retirement plan death benefit.” Accordingly, said the court, Dan did not have the authority to name any other person as a partial or sole beneficiary of such death benefit.

Further, the Appellate Division held that Leone whatever right to such a benefit she would have acquired by virtue of being married to Dan “was waived by the prenuptial and separation agreements.”

Noting that Retirement and Social Security Law §803-a, provides that "the comptroller is hereby authorized ... to change or correct ...[a] beneficiary consistent with a subsequent order by a court of competent jurisdiction ...," the Appellate Division rejected Leone’s argument that the statute does not apply because it was not enacted until after Wendy and Dan divorced, ruling that. Wendy’s, Dane’s and Danika’s action against Leone was not dependant on the existence of that statute. Rather, said the court, §803-a “merely eliminated the need for the Legislature to pass a specific bill with respect to each case to achieve the same result,” citing the contents of the Bill Jacket for Chapter 300 of the Laws of 1999.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01881.htm

School employees ask the Commissioner of Education to remove members of the same family simultaneously serving on a school board from the Board

School employees ask the Commissioner of Education to remove members of the same family simultaneously serving on a school board from the Board

Appeal of Kevin Reis and Joseph R. Argus from action of the Board of Education of the Taconic Hills Central School District regarding conflicts of interest, Decisions of the Commissioner of Education, Decision #16,335

In this appeal Taconic Hills CSD employees Kevin Reis and Joseph R. Argus filed an application with the Commissioner of Education seeking the removal of Donald McComb, Robert McComb and George Lagonia, Jr. as board members and the removal of Donald McComb and George Lagonia, Jr. as varsity coaches.

§2103.3 of the Education Law provides that “ Not more than one member of a family shall be a member of the same board of education in any school district”

Reis and Argus filed an appeal with the Commissioner of Education contending that Board incumbents Robert McComb, a member of the Taconic Hills CSD Board of Education since 2007, Lagonia and Donald McComb (the brother of Robert McComb) board members since 2008, were serving in such capacities in violation of §2103.3.

Further, Reis and Argus claimed that Lagonia and Donald McComb were appointed to varsity coaching positions by the Board, which they accepted as volunteers.

Essentially Reis and Argus argued that Donald McComb and George Lagonia were ineligible to simultaneously hold positions as members of the board, citing §2103.3, and as to their serving as coaches for the district, they also violated General Municipal Law §801.* As a remedy, they asked the Commissioner to remove the three board members from their positions as members of the board and that the commissioner remove Donald McComb and George Lagonia from their coaching positions.

The board raised a number of procedural defenses, contending that the appeal and application must be dismissed for failure to state a cause of action and for failure to comply with the notice requirements of 8 NYCRR §277.1(b; that the petition and application were not properly served, and that Reis lacks standing to file the application and appeal. 

The Commissioner did not consider the merits of the allegations made by Reis and Argus, holding that “To the extent petitioners seek the removal of the individual respondents from the board, the appeal must be dismissed for failure to comply with §277.1 of the Commissioner’s regulations.”

The Commissioner explained that §277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office.  In this case, petitioners failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310. 

A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent

In addition, the Commissioner said that “The appeal and application must also be dismissed for improper service upon the individual respondents and, as a consequence, for failure to join them as necessary parties,” pointing out that §275.8(a) of the Commissioner’s regulations requires that an appeal be commenced by personal service of a copy of the petition upon each named respondent or, “if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent’s residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the commissioner.”

Here, however, the Commissioner’s Office of Counsel did not authorize alternative service. Accordingly, said the Commissioner, no personal service was made on the individual respondents by means of the service attempted by Reis and Argus and thus they failed to obtain jurisdiction over them for this reason as well.

Turning to another issue, the request filed by the members of the board seeking “a certificate of good faith pursuant to Education Law §3811(1),” the Commissioner said that “Such certification is solely for the purpose of authorizing the board to indemnify the individual respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties as board members.”

Noting that it was appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith, the Commissioner said in this instance “there has been no finding that the individual respondents acted in bad faith,” and certified “solely for the purpose of Education Law §3811(1) that they are entitled to receive the requested certificate.”

* §801of the General Municipal Law prohibits public officers and employees having a “conflicts of interest” in performing of certain official duties.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16335.html

Call “911” for assistance when an individual assaulted a fellow worker did not constitute misconduct under the circumstance

Call “911” for assistance when an individual assaulted a fellow worker did not constitute misconduct under the circumstance

NYC Human Resources Administration, OATH Index #314/12

OATH Administrative Law Judge Ingrid M. Addison found that the employee's calling 911 following a client's physical assault of an HRA security officer did not constitute misconduct.

However, the employee’s shouting at his director within the earshot of clients was misconduct.

Because the entire incident was tense and highly charged, and employee acted out of concern for his colleagues, Judge Addison recommended that the employee be suspended without pay for two days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-314.pdf

Audits of various municipalities recently issued by the State Comptroller

Audits of various municipalities recently issued by the State Comptroller

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audit:. Click on the name of the jurisdiction to download the PDF file of the audit report.

Commack Fire District

Glens Falls City School District

Patchogue–Medford Union Free School District

Silver Creek Central School District

Town of Chateaugay

Town of Concord

Town of Ghent

Town of Hartland and

Town of Tuxedo

Employee’s claim that “I was pressured” into agreeing to a plea bargain in a criminal action in the course of an administrative disciplinary hearing rejected by administrative law judge

Employee’s claim that “I was pressured” into agreeing to a plea bargain in a criminal action in the course of an administrative disciplinary hearing rejected by administrative law judge

NYC Department of Sanitation v Bongiardina, OATH Index #1971/11

OATH Administrative Law Judge Faye Lewis recommended that a NYC Department of Sanitation employee who plead guilty in criminal court to the charge that he had accepted an unlawful gratuity in violation of Penal Law Section 200.35, a Class A misdemeanor.

The employee’s plea included a statement on the record that he accepted a gratuity while performing his job duties, a violation of the Department’s code of conduct and Mayor’s Executive Order 16. Executive Order 16 provides that any City employees “convicted of a crime* relating to their office or employment, involving moral turpitude or which bears upon their fitness or ability to perform their duties or responsibilities . . . absent compelling mitigating circumstances . . .” shall be dismissed for his or her position. Judge Lewis found that this plea conclusively established that the acts underlying the crime occurred.

The ALJ rejected the employee’s claim that he was pressured into agreeing to the plea bargain by his co-defendants, finding he could not show “any concrete reason for believing that the co-defendants would retaliate against him” if he failed to do so.

The Commissioner adopted the ALJ’s findings and noted that her decision was based on the evidence and precedents.

However, considering the employee’s good work record and his lesser role in the misconduct involving his co-workers, the Commissioner elected not to terminate his employment and imposed a 30 work-day suspension without pay and the loss of 4 weeks vacation as the disciplinary penalty.

* An individual who enters a pled of guilty in a court of law is deemed to have been convicted of the charge[s] filed against him or her.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1971.pdf