Comptroller’s audit alleges that a former Village of Wolcott clerk-treasurer made unauthorized payments to herself

Comptroller’s audit alleges that a former Village of Wolcott clerk-treasurer made unauthorized payments to herself

An audit report issued by the State Comptroller's Division of Local Government and School Accountability  alleges that a former Village of Wolcott clerk-treasurer misappropriated more than $68,000 of the village's funds over a four-year period.

The village had contacted the Comptroller's office. After reviewing the village's financial records the auditors reported that the village’s accounting records indicated that unauthorized disbursements in the form of extra payroll payments, unauthorized overtime payments, excessive health insurance buyouts, unearned leave payouts, overpayment of vital statistics fees, and payments inappropriately charged to the village’s records management grant had been made.

The audit report recommended the village:

1. Ensure the village's clerk-treasurer maintains adequate, accurate and timely records and reports on an ongoing basis;

2.Require and review detailed monthly financial reports, which should include cash balances, cash receipts and disbursements made during the month, a comparison of actual revenue and expenditures to budget amounts, and bank reconciliations with copies of the bank statements.

3. Adopt and distribute a Code of Ethics, as required by law; and

4. Monitor cash disbursement records to ensure accuracy.

The Division's audit report is posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/villages/2012/wolcott.pdf

An internal investigation of a sexual harassment complaint prior to the filing of a complaint with EEOC not a protected activity within the meaning of Title VII

An internal investigation of a sexual harassment complaint prior to the filing of a complaint with the EEOC not a protected activity within the meaning of Title VII

In a case characterized by the U.S. Court of Appeals, Second Circuit, as one of “first impression,” the court ruled that internal investigations by conducted by an employee of alleged acts of unlawful discrimination in accordance with the employer's policy but initiated prior to the filing of a Title VII complaint does not qualify as a “protected activity.”

The genesis of the case was a complaint made to the employer’s Human Resources Director [HRD] by an employee alleging she had been sexually harassed by a corporate executive.

The HRD began to conduct an internal investigation of the allegations. However, before completing the investigation, the HRD was terminated by employer. Contending that her termination was in retaliation for her participation in the internal investigation, the HRD brought an action againt the employer claiming her investigation activities constituted a protected activity within the meaning of Title VII’s anti-retaliation provision.*

The federal district court granted the employer’s petition for summary judgment, holding that the  HRD’s participation in an internal employer investigation into the employee’s sexual harassment allegations, “an investigation that was not connected to any formal charge with the EEOC,” did not qualify as protected activity under the participation clause of Title VII’s anti-retaliation provision.

Citing Correa v. Mana Prods, Inc., 550 F. Supp. 2d 319, the district court said that “[i]n order to gain protection under the participation clause, the participation must be in an investigation or proceeding covered by Title VII, and thus not in an internal employer investigation.”  In this instance the court found that the HRD’s investigation was conducted pursuant to the employer’s internal procedures and were not  associated with any Title VII proceeding. 

The Court of Appeals agreed with the district court’s ruling.**

Noting that EEOC had submitted an amicus brief urging the court to adopt a  “contrary interpretation of the participation clause, one that embraces internal employer investigations,” the Circuit Court said that although EEOC’s views are entitled to deference to the extent they have the power to persuade, “it did not find the EEOC’s interpretation persuasive in this case and affirmed the district court’s granting of summary judgment dismissing the HRD’s Title VII retaliation claim. 

* Title VII's anti-retaliation provision extends protection both to employees who have "opposed any practice made an unlawful employment practice" under Title VII (the "opposition clause") and to employees who have "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under" Title VII (the "participation clause)." On January 24, 2011 the United States Supreme Court unanimously supported a broad reading of Title VII’s anti-retaliation provision. The high court said that the alleged victim of retaliation has standing to sue even if he or she was not the person who engaged in protected activity [Thompson v. North American Stainless LP, 131 S.Ct. 863, 2011 U.S. LEXIS 913]. In Thompson the court ruled that, under certain circumstances, a third-party termination may constitute an unlawful reprisal under Title VII’s anti-retaliation provision and that “a person claiming to be aggrieved … by an alleged employment practice” and who 'falls within the zone of interests protected by Title VII' has standing to sue his employer." Second Circuit Judge Raymond Lohier, in a concurring opinion, cited Thompson and said that Congress should clarify whether the kind of investigation the HR conducted falls within the protective sweep of the participation clause.

** The court said that it expressed no opinion as to whether participation in an internal investigation that is begun after a formal charge is filed with the EEOC falls within the scope of the participation clause, noting that some courts “have answered this question in the affirmative noting that in Abbott v. Crown Motor Co., 348 F.3d 537, the USCA, 6th Circuit, held that “Title VII protects an employee’s participation in an employer’s internal investigation into allegations of unlawful discrimination where that investigation occurs pursuant to a pending EEOC charge.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/855b7c0d-e303-49c2-a5f6-399603d29346/1/doc/09-0197_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/855b7c0d-e303-49c2-a5f6-399603d29346/1/hilite/

Average weekly wage based on concurrent employments may be used to determine Workers’ Compensation Law benefit

Average weekly wage based on concurrent employments may be used to determine Workers’ Compensation Law benefit

A “year-round” lifeguard employed by the Staten Island Developmental Disabilities Services Office was involved in an automobile accident in the course of his employment and applied for Workers’ Compensation Law benefits.

In determining the individual’s workers’ compensation benefits, the Workers’ Compensation Board’s administrative law judge included the employee's earnings “from concurrent seasonal employment as a lifeguard for the City of New York.” Staten Island appealed but the Workers’ Compensation Board ultimately sustained the administrative law judge’s determination.

The Appellate Division affirmed the Board’s ruling, noting that “The record demonstrates that the claimant was employed on weekends by Staten Island year round for 12 years and had been seasonally employed for the City of New York between the months of May and September since 1978.”

As the lifeguard had worked for both employers concurrently during the previous 12 summers, participated in training and received a promotion with respect to his seasonal employment during the off season and returned to his seasonal lifeguard position following the injury, the Appellate Division concluded that “substantial evidence supports the Board's finding that claimant was concurrently employed.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03490.htm

Police officer found to have testified in his “official capacity” when he referred to his job as a police sergeant

Police officer found to have testified in his “official capacity” when he referred to his job as a police sergeant

The New York City Police Department's Patrol Guide Procedure No. 211-09 requires a police officers to give notice of his or her intention to testify at a criminal trial to the Police Commissioner or to the Department's Legal Bureau.

When a police officer testified at his cousin's criminal trial without complying with Procedure 211-09, he served with disciplinary charges and found was guilty of failing to notify the Police Commissioner and, or, the Legal Bureau that he intended to provide character testimony at a criminal trial and that he did in fact provide testimony, at a trial. The penalty imposed: a forfeiture of 15 days of vacation accruals.

The Appellate Division sustained the disciplinary determination, holding that it was rational and supported by substantial evidence.

The court said that the Assistant Deputy Commissioner of Trials had a rational basis for finding that the police officer had testified in his "official" capacity at the criminal trial given that he referred to his job as a Police Department Sergeant and the judge in the case referred to him as "Sergeant."

Further, said the Appellate Division, the Assistant Deputy Commissioner also had a rational basis for finding that, even if the police officer had not testified in his "official capacity," Patrol Guide Procedure No. 211-09 still applied because the police officer conceded that it was his understanding that he was going to provide character testimony, among other things.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03561.htm

The physician-patient privilege and HIPPA both held to yield to a subpoena duces tecum issued by an administrative agency pursuant to its statutorily assigned functions

The physician-patient privilege and HIPPA both held to yield to a subpoena duces tecum issued by an administrative agency pursuant to its statutorily assigned functions
New York City Health & Hosps. Corp. v New York State Commn. of Correction,2012 NY Slip Op 03571, Court of Appeals

The New York State Commission of Corrections, on behalf of its Medical Review Board, served a subpoena duces tecum on Elmhurst Hospital, a health care facility operated by the New York City Health and Hospitals Corporation (HHC), seeking its records concerning its care and treatment of a deceased correctional inmate in the custody of the City of New York.

Initially the subpoena was quashed upon the ground that it sought material shielded from disclosure by the physician-patient privilege.* The Court of Appeals, however, ruled that the records sought were not properly withheld from the Commission by reason of the alleged physician-patient privilege and that the subpoena should be honored.

The court noted the Board has statutorily assigned functions, powers and duties in the "[i]nvestigat[ion] and review [of] the cause and circumstances surrounding the death of any inmate of a correctional facility."

However, HHC refused to turn over the sought records, contending that the inmate had been treated at Elmhurst in a non-prison unit, and, in view of that circumstance, HHC argued that the Commission had no special entitlement to the deceased inmate's medical records.

The Court of Appeals disagreed, holding that the Legislature intended for the Board to have plenary authority to "investigate and review the cause and circumstances surrounding the death of any inmate ofa correctional facility" and the “Legislature cannot be supposed to have allowed that the thoroughness of the Board's inquiry would vary with the site of an inmate's pre-mortem medical care — that the inquiry respecting the death of an inmate who in the period preceding his or her death was treated in a prison or a prison unit in a hospital would be conducted with the benefit of a full medical record, whereas one respecting an inmate who had received pre-mortem treatment in a non-prison unit would have to be performed without such a record in the event that a waiver of the physician-patient privilege could not be obtained.”

The Court of Appeals then considered an alternative argument advanced by HHC -- the HIPPA Privacy Rule. The court said that the Privacy Rule does not prohibit disclosure of the records sought by the Commission as HIPPA specifically allows for disclosures "required by law," citing 45 CFR 164.512 [a]. This, said the court, includes disclosures pursuant to "subpoenas . . . issued by . . . an administrative body authorized to require the production of information."

The subpoena HHC sought to be suppressed, which the court ruled was enforceable despite CCH’s claim of physician-patient privilege, was held to fall “comfortably within” 45 CFR 164.512 [a].

* On the issue of physician-patient privilege, CPLR 4504 (a) provides, in pertinent part: "[u]nless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing [or] licensed practical nursing . . . shall not be allowed to disclose any information which he [or she] acquired in attending a patient in a professional capacity, and which was necessary to enable him [or her] to act in that capacity. The relationship of a physician and patient shall exist between a medical corporation . . . and the patients to whom [it] . . . render[s] professional medical services."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03571.htm