The failure of a witness to respond to a subpoena issued by the hearing officer not necessarily fatal to the administrative decision if good cause for such failure is shown

The failure of a witness to respond to a subpoena issued by the hearing officer not necessarily fatal to the administrative decision if good cause for such failure is shown

The Appellate Division affirmed a Supreme Court’s denial of an Article 78 petition seeking to annul the determination of Waterfront Commission of New York.

Among the addressed by the Appellate Division concerning the admission of hearsay statements in the course of the proceeding and petitioner’s inability to cross-examine a witness alleged to have made statements to the detriment of the petitioner.

As to the issue concerning hearsay evidence, the Appellate Division ruled that “The admission of hearsay statements at the administrative hearing did not violate petitioner's due process rights to a fair hearing or cross-examination.” The court explained that “It is well established that ‘[h]earsay evidence can be the basis of an administrative determination,’" citing Gray v Adduci, 73 NY2d 741.

The court also noted that in addition to the challenged hearsay testimony, the Commission presented testimony that corroborated the hearsay testimony.

With respect to the issue concerning the petitioner’s inability to cross-examine an individual who made statements implicating him because the individual ignored a subpoena issued by the Administrative Law Judge, the Appellate Division said that this did not require a different result. In the words of the court: “The fact that the subpoena may have been ignored was not the fault of [Commission] or the [Administrative Law Judge…” as the target of the subpoena was incarcerated at the time.

The court noted that the petitioner was able to cross-examine the live witnesses, and good cause was established for the failure to produce the subpoenaed witness at the hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01496.htm

A town council member may not simultaneously serve as the town's financial operations manager

A town council member may not simultaneously serve as the town's financial operations manager

Informal Opinions of the Attorney General 2013-01

A town asked for the Attorney General’s opinion as to whether the positions of town council member and town financial operations manager or, alternatively, director of finance, can be held by the same person.

The Attorney General concluded that such positions may not be held by the same individual, explaining that  because of the town board's responsibility to oversee the Town's fiscal operations, a council member should not simultaneously hold the position of financial operations manager or director of finance.

The opinion notes that the Attorney General has repeatedly expressed the view that one person cannot serve as both a member of a local government's governing body and in a subordinate second position for the same local government.

The fundamental concept regarding such incompatibility: one person cannot be both the supervisor and the supervised [see People ex rel. Ryan v. Green, 58 N.Y. 295, 304 (1874)]

The Informal Opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-1_pw.pdf

Former town clerk alleged to have used town’s credit card to pay personal debts

Former town clerk alleged to have used town’s credit card to pay personal debts

State Comptroller Thomas P. DiNapoli reported that a former clerk of the Town of Argyle, Washington County, used a town credit card to pay for more than $8,000 of personal expenses.

DiNapoli’s auditors found that from January 2009 through December 2012, the former clerk made four separate purchases totaling $8,347 that were not for town business. In addition, late fees and finance charges totaling $2,013 were accumulated. The town supervisor alerted auditors to the misuse.

The former clerk paid off the debt and admitted to improperly using the town’s credit card. The town did not pay for any of the unauthorized purchases, late fees or finance charges incurred. Charges were not filed because the clerk repaid the town.

DiNapoli’s recommendations for the town to avoid such situations in the future included:

1. The board should ensure that all town-issued credit cards are used for business purposes only and the monthly credit card statements are included with the monthly claims to be audited prior to payment;

2. The board and town clerk should assess the credit limit on the Clerk’s credit card account and reduce it to an appropriate level for the needs of the office;

3. The clerk should deposit all moneys intact and in a timely manner; and

4. The clerk should remit moneys collected to the town supervisor and other agencies in a timely manner.

Town officials agreed with several findings in the audit. Their comments are included in the audit report.

For a copy of the report, it is available on the Internet at: http://www.osc.state.ny.us/localgov/audits/towns/2013/argyle.pdf

Disqualification of applicant unable to meet Civil Service Commission’s hearing requirements not unlawful discrimination under the State’s Human Rights Law

Disqualification of applicant unable to meet Civil Service Commission’s hearing requirements not unlawful discrimination under the State’s Human Rights Law

A candidate for the position of a Nassau County police officer filed an Article 78 petition challenging the Nassau County Civil Service Commission’s decision disqualifying him for the position.

Although Supreme Court granted the candidates petition and annulled the Commission’s determination, the Appellate Division reversed the lower court’s ruling and dismissed the candidate’s petition “on the merits.”

The Commission had appealed two rulings by Supreme Court:

The first was procedural: was the candidates Article 78 petition timely. The Commission contended that it was untimely, arguing that the Article 78 action was commenced more that four months after its determination disqualifying the candidate.

The Appellate Division disagreed with the Commission, holding that the candidate’s petition was timely. Noting that CPLR 217(1) specifies that the limitations period begins to run when "the determination to be reviewed becomes final and binding upon the petitioner," the court explained that "An administrative determination becomes final and binding when the petitioner seeking review has been aggrieved by it."

Here, said the Appellate Division, the candidate “was not aggrieved until he was notified that he was disqualified from further consideration” for failing to meet its hearing requirements.

The second issue concerned the Commission’s exercise of its discretion when it adopted a more stringent audio logy standard than that established by the State’s Municipal Police Training Commission.

The Appellate Division ruled that the Commission had acted within the scope of its discretionary power when it adopted a resolution which modified the Municipal Police Training Commission standards and did not contravene the procedure for the adoption of "rules" in doing so.

As the appointing authority has wide discretion in determining the fitness of candidates, the disqualification of the petitioner for failing to meet those modified audiological, the court concluded that the modified standard was not arbitrary and capricious.

In addition court noted that the Commission’s determination that the candidate failed to meet the modified Municipal Police Training Commission hearing standards constituted an individualized finding that his disability prevents him from performing the functions of a police officer in a reasonable manner “such that his disqualification did not constitute unlawful discrimination under the State’s Human Rights Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_01404.htm