Workers’ Compensation benefits for injury as a participant in an “off-duty athletic event” depends of the nature of the employer’s sponsorship

Workers’ Compensation benefits for injury as a participant in an “off-duty athletic event” depends of the nature of the employer’s sponsorship
Huff v Department of Corrections, 52 AD3d 1003

Cheryl Huff, a correction officer, was employed at the Greene Correctional Facility in Greene County. She was injured while practicing volleyball for the employer's "Olympics," while playing on a team representing another correctional facility.

The Workers' Compensation Board approved Huff’s application for workers’ compensation benefits, ruling that her injury arose out of and in the course of her employment. The employer and its Workers’ Compensation Insurance carrier appealed the Board’s ruling.

Initially the Appellate Division noted that where an employee is neither required nor compensated to participate in an off-duty athletic-related activity, an injury attributable to such participation is compensable only when the employer "otherwise sponsors the activity," citing Section 10.1 of the Workers' Compensation Law.

As to what constitutes sponsorship, the court said sponsorship has been found when there is an affirmative act or overt encouragement by the employer for the employee to participate in the activity.

The problem, here, however, was that the Workers’ Compensation Appeals Board's finding that Huff was eligible for workers’ compensation benefit for the injury that she sustained in the course of training for the Olympics for another Corrections facility’s team was contrary to a previous Board decision having almost identical facts.

The Appellate Division pointed out that the Board had previously ruled that a corrections employee's injury while training to represent the facility in a statewide athletic competition was not compensable because the employer did not sponsor or encourage participation in the activity.

In such situations the Appellate Division said that is was incumbent on the administrative body to “set forth a rational explanation for doing so or such determination will be deemed arbitrary and capricious.”

Holding that the Board has not provided a rational basis for departing from its own precedent, the Appellate Division vacated its ruling and remitted the matter to the Workers' Compensation Board “for further proceedings not inconsistent with this Court's decision.”

Deeming an individual’s absence without permission a resignation from, or abandonment of, the position

Deeming an individual’s absence without permission a resignation from, or abandonment of, the position
New York State Off. of Mental Health v New York State Div. of Human Rights, 53 AD3d 887

Former Section 5.4(d) of the State Civil Service Commission's Rules for the Classified Service [4 NYCRR 5.4(d)] provided that an employee who was absent without permission and without explanation for ten or more days would be deemed to have resigned from his or her position effective the first day of such unauthorized absence. 4 NYCRR 5.4(d) was held to violate due process. [See, for example, Bernstein v Industrial Commissioner, 57 AD2 767] and was subsequently repealed.

However, this type of provision may survive in collective bargaining agreements, as demonstrated in this action.

An individual began working as a safety officer for the Office of Mental Health and subsequently entered an inpatient rehabilitation program for alcohol abuse. However the individual did not report back to work, but made several telephone calls to his supervisor, informing him that he would not be returning to work for various reasons, including an injury to his leg.

The personnel office then sent a letter to the employee stating that, pursuant to the collective bargaining agreement (CBA) between the State and Purse's union, the individual was deemed to be absent from duty without authorization and he would be terminated from the position by a specified date unless he provided a satisfactory explanation for his absence since his release from the program.

Ultimately the individual was removed from the payroll and he thereafter filed a verified complaint with the State Division of Human Rights (SDHR) charging OMH with an unlawful discriminatory practice based on his status as a recovering alcoholic. SDHR determined that it had jurisdiction and after a number of hearings before an Administrative Law Judge determined, that OMH had engaged in a discriminatory practice and awarded the complainant $5,000 for emotional distress and in addition awarded Purse $385,750 for back pay.

The Appellate Division commenced its analysis of the case by noting that it “accords considerable deference to the determinations of SDHR due to its expertise in evaluating discrimination claims, and we will uphold such if supported by substantial evidence.”

Further, said the court, "[a] determination may not be set aside 'merely because the opposite decision would have been reasonable and also sustainable” and upheld SDHR's determination that OMH engaged in an unlawful discriminatory practice.

Referring to the CBA, the Appellate Division noted that it, in relevant part, that "[a]ny employee absent from work without authorization for ten consecutive workdays shall be deemed to have resigned from his [or her] position if he [or she] has not provided a satisfactory explanation for such absence on or before the eleventh workday following the commencement of such unauthorized absence." 

Here, the court noted, the record demonstrates that, after failing to report to work, OMH was contacted by telephone and put on notice of the employee’s medically excused absence, followed with telephone calls, during the last of which OMH was advised that the individual would be absent for an indefinite period of time.

Further, said the court, OMH placed the individual in “a holding status” until he furnished the proper documentation, which he submitted in the form of medical reports substantiating his absence.

This, said the court, provides substantial evidence to support SDHR's determination that OMH's proffered reason for terminating the employee was a pretext; that OMH engaged in an unlawful discriminatory practice; and that employee was entitled to an award of $5,000 for emotional distress.

The Appellate Division, however, rejected SDHR's determination that the individual was entitled to an award for back pay.

The purpose of back pay, said the court, is to make a person whole and redress the economic injury that has resulted from unlawful employment discrimination. Thus, where losses in salary are attributable to disability and not the result of discrimination, as is here the case based on the individual’s own explanation of his absence, an award of back pay should not be made.

Further, said the court, the record demonstrates that the individual was removed from OMH’s payroll and, as the result of a retroactive award, began receiving disability benefits effective on that same day. Thus, said the court, “we find that SDHR erred in making the determination that the individual was entitled to a back pay award.”

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/deeming-individuals-absence-without.html

Payments in contemplation of retirement excluded in determining an individual’s final average salary for purposes of retirement

Payments in contemplation of retirement excluded in determining an individual’s final average salary for purposes of retirement
Franks v DiNapoli, 53 AD3d 897

The Employees’ Retirement System member commenced service with the Town and served as its police chief from 1996 until his retirement in 2002. His first contracts as police chief provided for “executive longevity increments” that ranged from one-half day of pay per two-week pay period in 1996 to two days of pay per pay period in 2000.

A second contract as chief included executive longevity payments of executive longevity payments of 5½ days of pay per pay period for the first year and eight days of pay per pay period during the second year. The contract also specified that in the event the Chief continue his employment as chief beyond July 2002, his executive longevity increments would revert back to two days of pay per pay period effective August 1, 2002. The Chief served out the full term of his contract, retiring effective August 1, 2002.

When the Chief filed his application for retirement with State and Local Police and Fire Retirement System notified him that it had calculated his retirement benefits based on a final average annual salary of $166,463.40 which included only executive longevity payments equal to two days of pay per payroll period. If the amounts for the remaining six days were included, it would have increase the Chief’s annual salary to $237,114.18, significantly increasing his “final average salary” for retirement purposes.

The Retirement System said that including more than “two days per pay period of executive longevity payments” would constitute the inclusion of “compensation in anticipation of retirement,” the inclusion of which was barred by Section 302.9(d) of the Retirement and Social Security Law.

The Appellate Division rejected the Chief’s challenge of the Systems’ decision to include only “two executive longevity days per pay period” in determining his final average salary for the purposes of calculating his retirement allowance.

Retirement and Social Security Law Section 302.9(d) provides that the salary base used to compute retirement benefits "shall not include any form of termination pay or compensation paid in anticipation of retirement.” The courts said that “Regardless of the labels attached to compensation by the parties, the substance of the transaction and payments controls,” and the System’s determination in this instance is supported by substantial evidence.

In the words of the Appellate Division, “The contract dramatically increased the longevity payments compared to [the Chief’s] prior years as chief….” Although the Chief testified that the large increase in his “executive longevity payments” was negotiated in exchange for a waiver of overtime rights, the court said that the contract “does not mention such an exchange” and the Chief’s testimony in this regard “created a credibility issue which [the Retirement System] was free to resolve.”

Under the circumstances, said the court, substantial evidence supports Retirement System’s determination that the executive longevity increments in excess of two days of pay per payroll period constituted compensation in anticipation of retirement, which is properly excluded when calculating an employee's salary for the purpose of determining an individual’s retirement allowance.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/payments-in-contemplation-of-retirement.html

Disciplinary action follows employee’s refusal to report to a new workstation

Disciplinary action follows employee’s refusal to report to a new workstation

New York City Human Resources Administration v Griffin, OATH Index # 941/12

An employee of the City of New York was reassigned* to a new location. She, however, continued to report to her old work location and then stopped reporting to work altogether.

This resulted in the individual's being served with disciplinary charges alleging that she had refused to report to her assigned workplace, insubordination and AWOL.

Rejecting the employee’s arguments in defense of her actions, including her claim that she wanted a reassignment to another location closer to her home, OATH Administrative Law Judge Kevin F. Casey found the employee guilty of the charges filed against her.

Judge Casey recommended that the individual’s employment be terminated.  

*N.B. Although the decision characterizes the movement of the individual from one workstation to a different workstation within the same agency as a “transfer,” it technically constituted a “reassignment.” The term "transfer" is used to describe a change of employment where the employee leaves the jurisdiction of one appointing authority and enters the jurisdiction of another, different, appointing authority. In contrast, the term "reassignment" is used to describe personnel change by the appointing authority within the same department or agency.

Except where there is a "transfer of function," transfers typically required the approval of both appointing authorities and the consent of the individual to be transferred [see Civil Service Law §70.1]. In contrast, a "reassignment" may be made without the agreement or consent of the employee concerned unless otherwise required by a collective bargaining agreement.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-941.pdf

Some decisions concerning using civil service eligible lists

Some decisions concerning using civil service eligible lists

NYPPL readers have asked about "using civil service eligible lists" involving the following situations. As these questions may be of general interest, the responses are summarized below:


Expediting holding an examination

An individual on an eligible list was not entitled to an expedited medical and psychological examination before the existing eligibility list expires. Puntillo v. Abate, 205 A.D.2d 304.

Selection of the highest person on an eligible list

Rule of three upheld with respect to passing over a "higher scoring applicants." Cassidy v. Munic. Civil Serv. Cmsn. of City of New Rochelle, 37 N.Y.2d 526. 

However, appointing authorities may make appointments by selecting individuals for appointment "in rank order," referred to as "the rule of the list," or “the rule of one,” a process typically agreed to in the course of collective bargaining.

N.B. The “rule of one” is followed when making an appointment from a preferred list [Civil Service Law §82]. In contrast, with respect to appointments from reemployment rosters [CSL 82-a] and placement rosters [CSL 82-b] the names of those eligible for appointment from such rosters “shall be certified therefrom with equal ranking for appointment” thereby permitting the appointing authority to select any individual on such a roster without regard to his or her “seniority.”

Breaking ties in an examination: It is lawful to use social security numbers to rank applicants with the same numerical scores but it would be wrong to rank candidates based on their raw scores on the pass/fail portions of a qualifying examination. Napoli v. Levitt, 176 A.D.2d 668.

Appointing authority may not summarily terminate an individual’s General Municipal Law §207-c disability benefits

Appointing authority may not summarily terminate an individual’s General Municipal Law §207-c disability benefits
Kempkes v Downey, 53 AD3d 547

The Chief of Police of the Village of Bronxville suspended the full-salary payments being made to a Bronxville police officer while he was on disability leave pursuant to General Municipal Law §207-c, advising the officer that he would be suspended without pay pending a disciplinary hearing.

The officer sued, contending that the Village was obligated to pay his disability benefits pursuant to General Municipal Law §207-c pending an evidentiary hearing, because the benefits conferred under General Municipal Law §207-c constitute a vested property interest. Supreme Court granted the officer’s petition.

The Appellate Division affirmed the Supreme Court's decision, commenting that “The payment of benefits that have been conferred pursuant to General Municipal Law §207-c constitutes a protected property interest.” 

Significantly, the Appellate Division rejected the Village’s argument that the Westchester County Police Act (Chapter 891, Laws of 1972), "takes precedence" over General Municipal Law §207-c. In this instance the court said that the pertinent issue was whether General Municipal Law §207-c creates a protected property interest in disability benefits such that a predeprivation hearing must be held, even if the Act generally allows for the suspension of a police officer's salary prior to a disciplinary hearing.

The constitutional guarantee of due process provided a recipient of benefits under General Municipal Law §207-c requires that an evidentiary hearing prior to the deprivation of such benefits. Accordingly, said the court, the Village may not discontinue the payment of General Municipal Law § 207-c benefits as a disciplinary sanction without a prior evidentiary hearing.

As the officer had not been given such a hearing, the court prohibited Bronxville from reducing, terminating, or suspending his §207-c benefits “until a final determination of the disciplinary charges has been made after an evidentiary hearing held upon notice.”

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/employer-may-not-summarily-terminate.html

Standards used in higher education for granting or denying faculty members tenure not applicable to faculty in a primary or secondary school

Standards used in higher education for granting or denying faculty members tenure not applicable to faculty members seeking tenure in a primary or secondary school

Donnelly v Greenburgh CSD #7, USCA, Second Circuit, Docket No. 11-2448-CV

Edward Donnelly, a probationary teacher employed by Greenburgh, challenged the school district’s decision denying him tenure.

One of the issues addressed by Second Circuit in adjudicating Donnelly’s appeal of the District Court’s granting the school district’s motion for summary judgment dismissing his petition concerned the magistrate judge’s conclusion that Donnelly he had not shown that he was qualified for tenure "under the standard ... applied to plaintiffs complaining of a discriminatory denial of tenure in the context of colleges and universities," as set out in Zahorik v. Cornell University, 729 F.2d 85.

The district court held that Donnelly had failed to demonstrate his qualification for tenure under Zahorik.  Considering that issue “dispositive,” the district court did not address Donnelly’s other arguable claims [see Donnelly, 2011 WL 1899713, at 1]. 

The Circuit Court noted that typically "a plaintiff-employee challenging an adverse employment action as discriminatory or retaliatory need not do much to establish his qualification for the position he holds or seeks." It then commented that it had previously ruled that "in the related context of employment discrimination, 'the qualification necessary to shift the burden to defendant for an explanation of the adverse job action is minimal; plaintiff must show only that he possesses the basic skills necessary for performance of the job.'" The district court, however, had held Donnelly, to a much higher standard.  

The district court, said the Circuit Court, concluded that, in order to show that “he was qualified for his position,” Donnelly must meet “the exacting standard [the Second Circuit has] applied in the context of allegations of discriminatory denial of tenure to university professors.”

Whatever the merits of that analysis in the university context, however, said the court, "neither we nor any other appellate court we have identified has ever applied the standards Zahorik pronounced to teachers denied tenure in elementary or secondary schools.  We decline to do so now." 

The Circuit Court ruled that while both university and high-school teachers may be awarded “tenured” positions that provide long-term employment and protections against arbitrary dismissal, “the two contexts have very little in common.” 

Although both high school teachers and scholars at universities and colleges are subject to individual performance evaluations at a predetermined stage of their careers that can lead either to the tenure or “to adverse employment events,” the Second Circuit said that “subjecting those two processes to the same analysis in the face of allegedly unlawful denial of promotion does not logically follow.” 

Concluding that Donnelly had presented “a genuine issue of material fact as to whether he worked enough hours to be eligible for FMLA leave; (2) the standard governing our review of allegedly unlawful university tenure denials is inapplicable to such denials in public high schools; and (3) [Donnelly] has adduced sufficient evidence of FMLA retaliation to survive a motion for summary judgment” the Circuit Court reversed the district court’s decision and remanded the matter for further consideration.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/95201dab-a25f-41ab-940d-66738c3d9032/1/doc/11-2448_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/95201dab-a25f-41ab-940d-66738c3d9032/1/hilite/

Prior litigation does not bar revaluation of disabled employee’s ability to perform the duties of the position

Prior litigation does not bar revaluation of disabled employee’s ability to perform the duties of the position
Bett v City of Lackawanna, 53 AD3d 1097

A firefighter was disabled, preventing him from performing his duties as a firefighter and he was paid him his full salary until he was terminated after he failed to report to work for light duty.

The firefighter sued and the court found that he was entitled to continue receiving his salary because Lackawanna had never made a determination pursuant to General Municipal Law §207-a (3) that he was medically able to perform light duties [see Bett v City of Lackawanna, 132 Misc 2d 630, affirmed 132 AD2d 951, 76 NY2d 900).

In this subsequent action the firefighter contended that Lackawanna is barred by principles of res judicata or collateral estoppel from now determining whether he is medically able to perform light duty work pursuant to General Municipal Law §207-a(3).

The Appellate Division rejected his argument. While Lackawanna could not discharge the firefighter because he failed to report for light duty work as it had not establish at that time that he was medically able to perform such work, Lackawanna is not precluded by that prior litigation from now evaluating the firefighter's medical condition. Indeed, said the court, it is because the firefighter is receiving the full amount of his "regular salary" pursuant to §207-a (1), he is required to undergo periodic medical evaluations.

The court also dismissed the firefighter’s claim that “the principles of equity and fairness” bar Lackawanna from ordering him to perform light duty work.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/prior-litigation-does-not-bar.html

Neither confusion concerning the administrative procedure nor an agency employee's incorrect information toll the running of the Statute of Limitations for filing an appeal

Neither confusion concerning the administrative procedure nor an agency employee's incorrect information toll the running of the Statute of Limitations for filing an appeal

Smith v Commissioner of Labor, 2012 NY Slip Op 05887, Appellate Division, Third Department

An applicant for unemployment insurance benefits received two notices of rejecting his claim for benefits.  

In response to his filing a request for an administrative hearing challenging the denial of his claim, an Administrative Law Judge ruled that the request for the hearing was untimely filed. The Unemployment Insurance Appeals Board affirmed the ALJ’s decision and the applicant challenged the Board's ruling.

The Appellate Division sustained the Board’s ruling, noting that §620(1)(a) of the Labor Law provides that in the event an applicant for unemployment insurance benefits is dissatisfied with an initial determination, he or she must request a hearing within 30 days unless physical or mental incapacity prevents him or her from doing so.

In this instance the applicant admitted that he had received the notice of determination shortly after it was mailed and was aware of the 30-day time limit for requesting a hearing.

Noting that the applicant had testified that he failed to request a hearing within 30 days “because he thought he needed to wait until his summer employment ended to do so, and he stated that he received advice to that effect from Department of Labor employees following the initial denial of his application for benefits,” the Appellate Division held that “neither claimant's confusion regarding the two notices … nor the erroneous advice from the Department … provides a basis for us to disturb the Board's decision.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05887.htm

Employee’s claim that she did not receive notice of disciplinary charges mailed to her rebutted by employer’s evidence of proper mailings

Employee’s claim that she did not receive notice of disciplinary charges mailed to her rebutted by employer’s evidence of proper mailings
Katz v Board of Educ. of City School Dist. of City of N.Y., 2008 NY Slip Op 31935(U),  Supreme Court, New York County, Judge: Shirley Werner Kornreich [Not selected for publication in the Official Reports]

The New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher. The “notice” was sent by certified mail, return receipt requested and by regular mail. The certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. BOE subsequently sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail. Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned. A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentiaand the teacher was found guilty of the charges and terminated. A letter advising the teacher of her dismissal was mailed to the same address used to send all of the previous letters to the teacher who subsequently acknowledges receiving it and filed a claim with BOE seeking reinstatement retroactive to the date of her termination, along with restoration of benefits.

When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.” Additionally, said the court, the teacher “denies deliberately ignoring the certified mail and maintains that she did not receive notice to pick it up [and] if she had received the Notice of Charges or the actual Charges, she would have requested a hearing in a timely fashion.”

Judge Kornreich said that “The standard in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.”

The court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges. Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent. Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges.

In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Judge Kornreich decided that it was not arbitrary or capricious for BOE to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation and dismissed her petition.

Authority to issue Uniform Traffic Tickets

Authority to issue Uniform Traffic Tickets

Informal Opinions of the Attorney General: Informal Opinion 2012-07

The Attorney General advised the Village of Old Field that the Village's park rangers may issue uniform traffic tickets for violations of the Vehicle and Traffic Law within village parks. The park rangers, however, may not issue tickets for violations they observe on public streets while traveling between parks.

The decision is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2012-7%20pw.pdf

Collective Bargaining Agreement may provide for an election of remedies with respect to Title VII complaints

Collective Bargaining Agreement may provide for an election of remedies with respect to Title VII complaints
Leonyer M. Richardson, v Commission on Human Rights, 532 F.3d 114

Does Title VII of the Civil Rights Act of 1964 bar the inclusion of an election-of-remedies provision in a collective bargaining agreement?

EEOC contended that it does; the Connecticut Commission on Human Rights and Opportunities [CCHRO] – a defendant in this action, argued that Title VII does not prohibit such a provision to be negotiated and included in a collective bargaining agreement.

The Circuit Court decided that the law governing contracts that provide for the release or waive Title VII rights is independent of the law governing employer actions taken in retaliation for, and intended to deter, employee opposition to unlawful employment practices, including the filing of charges with the EEOC or its state counterpart.

Although there are limits regarding what a union may agree to in the course of collective bargaining, in this instance the court decided that Richardson’s union “has not transgressed them by contracting to limit an employee’s legal recourse under certain circumstances.*

The collective bargaining agreement in question merely provided that an aggrieved employee could either arbitrates her grievance or file a charge with the CCHRO.

Accordingly, the Circuit Court ruled that the Union had not discriminated against Richardson by its adhering to the election-of-remedies provision after she chose to file a charge with the CCHRO as the collective bargaining agreement “does not constitute a waiver of any statutory rights” and dismissed her appeal.

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

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTA0NzQtY3Zfb3BuLnBkZg==/06-0474-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irld5a2/10/hilite

* New York courts have held that an employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual [Matter of Hickey v New York City Dept. of Education, 17 NY3d 729. See, also, Antinore v State, 40 NY2d 6].

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Office of the State Comptroller - Issued during the week of August 6 - 12, 2012

DiNapoli and HUD Uncover Financial Abuses by Former Troy Housing Authority Officials

The retired comptroller of the Troy Housing Authority took home $207,000 in inappropriate payments while collecting a public pension in apparent violation of state law, among other financial problems, according to a reportreleased Tuesday by State Comptroller Thomas P. DiNapoli and the U.S. Department of Housing and Urban Development’s Office of Inspector General. Video is also available here.

DiNapoli and Project Heart Announce Joint Effort to Reunite Holocaust Survivors and Heirs with Unclaimed Funds

New York State Comptroller Thomas P. DiNapoli and Project HEART (Holocaust Era Asset Restitution Taskforce) today announced a partnership to reunite Holocaust survivors and their heirs with unclaimed funds that are rightfully theirs.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed an audit of the New Roots Charter School.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits: the Village of Bergen; the Big Flats Fire District No. 1; the Caneadea Fire District; the Village of Canton; the Town of Champlain; the City of Rochester; and, the Spencerport Volunteer Fireman’s Association, Inc.

Administrative disciplinary action involving charges based on employee’s being convicted of crime

Administrative disciplinary action involving charges based on employee’s being convicted of crime

NYC Department of Sanitation v Anonymous, OATH Index No. 1159//12

A New York City sanitation police officer was served with disciplinary charges after he was convicted of possession of cocaine in federal court.

New York City’s Executive Order 16 of 1978 provides for the dismissal of any City employee who is convicted of a crime relating to their employment, “involving moral turpitude or which bears upon their fitness to perform their duties … absent compelling mitigating circumstances.” 

In defending himself in the administrative disciplinary proceeding the employee argued that his experience as a first responder on September 11 had left him with PTSD, causing depression and substance abuse. 

OATH Administrative Law Judge Ingrid M. Addison found that the individual’s conviction related to his employment as a law enforcement officer and bore upon his fitness to perform the duties of that job.  As to “mitigating circumstances” that might be a factor with respect to his misconduct, Judge Addison found his claims “insufficiently compelling” and recommended that respondent be terminated from his employment.

N.B. Public Officers Law §30.1.e provides, in pertinent part, that a public office shall become vacant “by operation of law” upon the incumbent’s “conviction of a felony, or a crime involving a violation of his oath of office…. “ A police officer is a “public officer” within the meaning of POL §30.1.e.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1159.pdf

A “Class of One” is not available to an individual in litigation involving a public employer

A “Class of One” is not available to an individual in litigation involving a public employer
Appel v Spiridon et al, 531 F.3d 138*

A faculty member employed by Western Connecticut State University [WCSU] was told that she would be required to submit to a medical examination involuntarily as a condition of her being continued in her employment with the University.

She sued, bringing a “class action of one,” contending that this requirement violated her constitutional rights under the Free Speech Clause of the First Amendment and under the Equal Protection Clause of the Fourteenth Amendment. A federal district court judge granted her petition based on her “class of one” claim of a violation of the Equal Protection Clause of the Fourteenth Amendment.

The Second Circuit vacated the injunction issued by the district court and remanded the matter to the district court for further proceedings, citing Engquist v. Oregon Department of Agriculture, 128 S. Ct. 2146. 

In Engquist, the Circuit Court explained, the Supreme Court held that such a theory did not apply, as here, in the public employment context. 

According to the decision, “It appears …that [the faculty member] is the only WCSU faculty member ordered to undergo an involuntary psychological examination in order to continue teaching and receiving pay and benefits at WCSU.”

The Circuit Court commented that the only basis for the lower court’s granting a preliminary injunction in favor of [the faculty member], and while it, itself, heretofore recognized such “class of one” liability in the public employment context, the Supreme Court’s holding that the Equal Protection Clause does not apply to a public employee asserting a violation of the Clause under a “class of one” theory in Engquist, it must “overrule any precedent of this Circuit to the extent that it conflicts with the holding in that decision.”

The case was remanded to the district court for further action.*

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA2LTU3MjMtY3Zfb3BuLnBkZg==/06-5723-cv_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irld5a2/14/hilite

* See Appel v. Spiridon, 463 F. Supp. 2d 255, posted on the Internet at: http://ct.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20110818_0000471.DCT.htm/qx