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

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

Issued during the week ending March 10, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli: Dunkin’ Donuts Agrees to Run on Sustainable Palm Oil

New York State Comptroller Thomas P. DiNapoli announced Thursday that Dunkin’ Brands Group, owner of Dunkin’ Donuts, has agreed to set a date for sourcing 100 percent of the palm oil used to make its products from sustainable sources.

DiNapoli: State and Local Public Authority Debt Nears $250 Billion

Public authority debt increased to nearly a quarter of a trillion dollars in the latest reported fiscal year, according to a reportreleased Tuesday by State Comptroller Thomas P. DiNapoli. New York relies on authorities to undertake most borrowing on its behalf, and routinely uses authority resources to plug state budget gaps.

MTA’s East Side Access Project 10 Years Late and $4.4 Billion Over Budget

The Metropolitan Transportation Authority’s (MTA’s) East Side Access project, which will bring Long Island Rail Road service to Grand Central Terminal for the first time, is expected to cost nearly $9 billion when finished in 2019, more than twice the MTA’s initial cost estimate and a decade later than expected, according to a reportreleased Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Announces Results of General Obligation Bond Sale: $566,560,000 Awarded

State Comptroller Thomas P. DiNapoli Thursday awarded three series of New York State General Obligation Bonds, totaling $566,560,000, through a competitive sale. Specifically, the sales were $348,065,000 of Series 2013A Tax–Exempt Bonds, $47,810,000 of Series 2013B Taxable Bonds and $170,685,000 of Series 2013C Tax–Exempt Refunding Bonds. The bonds are scheduled to be delivered on March 19, 2013.

DiNapoli Urges Caution as Budget Progresses

The amendments to the Executive Budget for state fiscal year 2013–14 curtailed some risks contained in the originally proposed budget, but the impact from federal sequester cuts represent a risk to the Financial Plan according to a reportreleased by Comptroller Thomas P. DiNapoli.

DiNapoli: Rochester Faces Serious Fiscal and Demographic Challenges

The city of Rochester, hampered by increasing budget gaps and the highest percentage of families living in poverty of any city in New York, is expected to face heightened fiscal stress in coming years, according to a reportreleased Monday by State Comptroller Thomas P. DiNapoli. The city’s revenues have grown at a higher rate than other cities, giving it some flexibility that other cities do not have. The report is the latest in a series of fiscal profiles DiNapoli will issue on cities across the state.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed the following audits:

the Town of Prattsville;

the Town of Riverhead; and,

the City of Rome.

Accrual of a cause of action commences upon the receipt of the final administrative determination

Accrual of a cause of action commences upon the receipt of the final administrative determination

In this Article 78 action the Appellate Division affirmed Supreme Court’s determination that the employee’s claim  did not accrue until she received the final administration decision, citing Education Law §3813.2-b.

As the individual commenced her action within one year of her receiving the final determination, the Supreme Court ruled that she had satisfied the relevant statute of limitations.

In some case, however, the final administrative determination may not initially be sent to the individual.

Significantly, the delivery of a final administrative decision to an employee's union does not count with respect to the commencement of the running of the statute of limitations. In Weeks v State of New York, 198 AD2d 615, the court held that the statute of limitations begins to run when the decision is served on the employee, not from the date on which the union received its copy.

The basic rules are:

1. If an employee is represented by an attorney, the administrative body may send a copy of the determination to the employee but it must serve the attorney to commence the running of the statute of limitations.

2. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.

It should be remembered, however, that an individual’s request for reconsideration of a “final administrative determination” neither tolls the running of the statute of limitations [see Lavin v Lawrence, 54 AD3d 412] nor extends the statute of limitations [see Raykowski v NYC DOT, 259 AD2d 367] for the purposes of perfecting an appeal.  

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01358.htm