The State Energy Highway: What’s Ahead For The State, Consumers and Industry

On April 23rd, 2013,  as a part of the Warren M. Anderson Legislative Breakfast Seminar Series, the Albany Law School’s Government Law Center will host a program entitled, “The State Energy Highway: What’s Ahead For The State, Consumers and Industry?”

The panel discussion will include the major stakeholders of the newly designed State Energy Highway.  Representatives from the New York Power Authority, Independent Power Producers of New York, Inc., and the Alliance for Clean Energy New York, Inc., will discuss energy grid improvements, impacts on utility companies and consumers, and the Highway’s ability to foster renewable forms of energy in New York.

The program will take place from 8:00am to 9:00am in the Assembly Parlor Room in the New York State Capitol Building. It is free, open to the public.

The seminar is accredited for one hour of transitional and non-transitional CLE credit in the area of “Professional Practice.”  


Space is limited, Please contact the GLC at 518-445-2329 or jmont@albanylaw.edu to register or for more information.

Filing disciplinary charges and holding a disciplinary hearing obviates the individuals right to a name-clearing hearing

Filing disciplinary charges and holding a disciplinary hearing obviates the individuals right to a name-clearing hearing
Lally v Johnson City Cent. Sch. Dist., Decided on April 4, 2013, Appellate Division, Third Department

Among the issues considered by the Appellate Division was the Petitioner’s claim that he was denied a name-clearing hearing* and that he was terminated in bad faith as the result of his position being abolished by the School District.

Supreme Court denied the School District’s motion to dismiss the causes of action demanding a name-clearing hearing and the alleged bad faith abolition of Petitioner's position, ruling that discovery was needed with respect to Petitioner’s claim that the School District had abolished his position in bad faith.

The Appellate Division agreed in part with the Supreme Court’s ruling.

As to the Petitioner’s demand for a name-clearing hearing, the court said that Petitioner’s seeking a court order directing the School District to provide such a hearing alleged due process violations based upon School District’s failure to file disciplinary charges or otherwise provide him with an opportunity to challenge the claims against him.

However, said the court, disciplinary charges were subsequently filed against Petitioner pursuant to Education Law §3012(2)(a), “triggering the statutory procedures that afford him the opportunity to confront his accusers and entitle him to a hearing upon request.” Thus, said the Appellate Division, Petitioner has received the relief to which he claimed to be entitled and his demand for a name-clearing hearing is moot

Turning to Petitioner’s contention that his position had been abolished in bad faith, the court said that “A school district may abolish a position, even when this results in the discharge of a tenured employee, so long as it 'has made a good faith determination based on economic considerations,'" citing Gross v Board of Educ. of Elmsford Union Free School Dist., 78 NY2d 13. In order for an aggrieved individual to demonstrate that his or her position was abolished bad faith, he or she must show that the position was not eliminated for bona fide reasons, that savings were not accomplished or that a replacement employee was hired.

In this action Petitioner initially alleged that his position was not abolished for bona fide reasons but rather in retaliation for his commencing the CPLR Article 78 against the school district and as a pretext to gain his termination without filing disciplinary charges. In support of his claims, Petitioner said that his position was abolished only 10 days after he filed his initial petition pursuant to CPLR Article 78 and that the School Superintendent had previously suggested abolishing other employees' positions “for similarly improper reasons.”

In addition, Petitioner claimed that the School District had not considered or discussed abolishing his position as a cost-saving measure before he filed his Article 78 petition, that his position was the only one singled out for abolition among more than 200 employees of the school district, and that no other positions were abolished in the middle of the school year.

Rejecting the School District’s argument to the contrary, the Appellate Division said that it agreed with Supreme Court that “these specific and nonconclusory assertions, when deemed to be true for this purpose, were sufficient to allege that the abolition of [Petitioner’s] position’ was motivated by reasons other than a desire to promote institutional efficiency and economy’ and thus state a cause of action.”

The Appellate Division agreed with Supreme Court's finding that further discovery was required before the question of School District’s' bad faith could be resolved and that Supreme Court did not abused its "considerable discretion" in determining here that further disclosure was appropriate.

As to Petitioner’s claim that the School District’s action constituted a breach of contract, the Appellate Division noted that Supreme Court found that this cause of action hinges upon the resolution of the Petitioner’s bad faith abolition of his position claim, “and there is no disagreement with this aspect of the decision upon this appeal.”

* Name-clearing hearings are ordinarily provided to probationary employees and others who lack the statutory due process protections of tenured employees and serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by the employer.  Prevailing at a name-clearing hearing does not entitle the individual to reinstatement or to reemployment in his or her former position. This means that being provided with a name-clearing hearing and having thereafter cleared his or her name is, at best, all the relief an individual can expect absent the individual demonstrating that hie or her termination was the result of an unlawful action by the appointing authority.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02311.htm

New York State Governor Cuomo proposes new legislation addressing public corruption crimes

New York State Governor Cuomo proposes new legislation addressing public corruption crimes

The new Act, designated the Public Trust Act, would establish a new class of public corruption crimes, tough new penalties on offenders, require public officials to report bribery

Calling the current State laws defining public corruption in New York obsolete and far less effective than federal statutes for prosecuting individuals who commit public corruption crimes, the Governor said that the Public Trust Act would establish a new class of public corruption crimes and expand the current definitions of public corruption offenses to enable prosecutors to hold accountable those who violate public trust. 

The Governor said that the proposed new law would also impose tougher jail sentences on individuals that misuse public funds and permanently bar those convicted of public corruption offenses from holding any elected or civil office, lobbying, contracting, receiving state funding, or doing business with the state, directly or through an organization.

The proposed new class of Public Corruption Crimes would include the following crimes: bribing a public servant, corrupting the government, and failing to report a bribe or a bribe attempt.

I. New Crimes for Violating Public Trust

Bribery of a Public Servant: The proposed legislation would expand the current state bribery statute to give prosecutors additional tools to convict offenders. Under current state law, a prosecutor has to prove that there was a corrupt agreement or understanding between the person paying the bribe and the person receiving the bribe. This is not required under federal law and is an unduly heavy burden. Under the new Public Servant Bribery provision, a prosecutor would only have to prove that the person paying the bribe “intended” to influence the public official or that the person receiving it intended to be so influenced, bringing state law in line with the federal standard. Bribery penalties would be increased, lowering the threshold for a Class C felony from $10,000 to $5,000, the amount of money used to bribe, and to $10,000 and above for a Class B felony.

Corrupting the Government: The proposed legislation would hold accountable anyone – whether or not they are a public official – who is found to have engaged in defrauding the government. The proposed legislation also enhances penalties for all offenders convicted of defrauding the government through the crime of Corrupting the Government. 

Under the proposed new law, anybody, whether acting in concert with a public servant or not, who engages in a course of conduct to defraud a state or local government would be guilty of a crime ranging from the fourth degree (class E felony) to the first degree (class B felony), depending on the amount defrauded.

Failure to Report Public Corruption: The proposed legislation would for the first time make it a misdemeanor for any public official or employee to fail to report bribery.

II. Tough New Penalties for Misuse of Taxpayer Dollars

New Penalties for Public Corruption: The proposed legislation would create new penalties for offenses such as any kind of fraud, theft, or money laundering offense involving state or local government property. This means an offender would face a higher penalty if the act was committed against the government. The sentence would be one level higher than for the underlying offense. For example, if the underlying offense (e.g. larceny) was a class D felony, then the involvement of state or local government property would increase the sentence to the class C felony. The specific existing crimes affected are those defined by the following provisions of the Penal Law:

· petit larceny
· grand larceny
· unauthorized use of a computer
· unauthorized use of a vehicle
· money laundering

Increased Penalties for Official Misconduct: Under current law, Official Misconduct is a misdemeanor. The proposed legislation creates three new degrees of Official Misconduct: a Class E felony (maximum penalty 4 years), Class D felony (maximum penalty 7 years) and Class C felony (maximum penalty 15 years).

III. Lifetime Ban from Government

The new class of felony public corruption crimes would impose additional penalties, apart from jail sentences and criminal fines, including:

· Permanently barring all those convicted of public corruption felonies from holding any elected or civil office, serving as a registered lobbyist, or doing business with the state, including through any organization they run

· Barring individuals from bidding on or obtaining state contracts

· Barring individuals from receiving numerous tax credits

· Prohibiting individuals from serving as a Medicaid, employment insurance or workers’ compensation provider

· Gives Judges the option of requiring payment of up to three times the amount of the profit or gain made from an illegal transaction

· Creating an automatic set off for any fines or other penalties imposed against any State tax refund

IV. Fixing the Statute of Limitations: 

Under the proposed legislation, the same tolling or suspension of the statute of limitations of five years after leaving office will apply to both public servants and those persons acting in concert with a public servant to commit misconduct in public office. Currently, the statute of limitations for public officials is in effect for five years after they have left office, but not those acting in concert who are not themselves public officials.

V. Additional Tools for Prosecutors: 

For the first time, a witness who testifies before a grand jury investigating fraud on the government or official misconduct will receive only “use” immunity, not “transactional” immunity for statements that witness may give under oath. Under the proposed legislation a witness, who may or may not also be part of the criminal transaction under investigation, may still be prosecuted for his or her role if the prosecutor develops evidence other than, and independent of, the evidence given by the witness. This important tool in fighting crime conforms New York practice with federal practice in this area.

Charges relying on the “criminal” exception to the 18-month statute of limitations to file §75 disciplinary charges must describe the acts or omission that constitute a crime

Charges relying on the “criminal” exception to the 18-month statute of limitations to file §75 disciplinary charges must describe the acts or omission that constitute a crime

Petitioner, an employee of the Albany County Sheriff's Office, was served with a notice of intent to discipline and a notice of charges pursuant to Civil Service Law §75. Ultimately he was found guilty of the charges and terminated from his position.

The alleged misconduct: Violation of the Sheriff's Office General Order 29-SD-93 in that Petitioner [1] used “a concealed recording device to make an audio recording of a meeting held by a former Undersheriff which other employees attended and [2] Petitioner transfer and disclosure of the recording to others.

Addressing Petitioner’s CPLR Article 78 petition seeking dismissal of the charges as untimely, Supreme Court found that Charge 2 was, indeed, untimely, having be served more than 18 months after the alleged event occurred.

The court, however, founds that Charge I alleged conduct which, if proven in a criminal proceeding, constituted a crime – Official Misconduct* – which rendered the 18-month statute of limitations set out in Civil Service Law §75(4) inapplicable.

Petitioner appealed from that part of the Supreme Court’s order that held that Charge 1 was timely. The Appellate Division agreed with Petitioner's contention that Charge 1 was barred by the statute of limitations set forth in Civil Service Law §75 (4) as the disciplinary action was initiated more than 18 months after the date on which Petitioner was alleged to have used a concealed recording device at the meeting with the Undersheriff.

The court, noting that Charge 1 alleged that Petitioner had violated Subsection KK of the Sheriff's order relating to recording devices, said that Subsection KK provides that "[n]o employee shall install or activate any microphone or any technical or mechanical device or system capable of recording or overhearing conversations or telephone messages without authorization from the Sheriff or Undersheriff."

Charge 1, in pertinent part, alleged that Petitioner  “intentionally concealed a recording device on [his] person and recorded the contents of this meeting without authorization."  The Appellate Division said that it did not find that such misconduct “would, if proved, constitute the crime of official misconduct” within the meaning of Penal Law §195.00([1), or any other crime. The court explained that in making its threshold determination concerning the timeliness of Charge 1 based on the exception for criminal misconduct set out in §75.4 of the Civil Service Law, only the allegations of misconduct "complained of and described in the charges" may be considered.

The Appellate Division observed that, as relevant here, a public servant is guilty of official misconduct when, with intent to obtain a benefit, the employee "commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions" and such act must be done "knowing that such act is unauthorized."

In this instance the misconduct "complained of and described in the charges" did not, in the court’s view, allege that Petitioner acted with the intent to gain a benefit, an essential element required for an official misconduct conviction. As the conduct described in Charge 1 would not, if proven in court, constitute a crime, the Appellate Division concluded that the 18-month statute of limitations governs and Charge 1 should have been dismissed as untimely.

* Penal Law §195.00 [1]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02309.htm

GML §207-c benefits to be discontinued if individual receiving such benefits is offered and refuses to accept a light duty assignment for which he or she is qualified

GML §207-c benefits to be discontinued if individual receiving such benefits is offered and refuses to accept a light duty assignment for which he or she is qualified 
Howell v County of Albany, 2013 NY Slip Op 02308, Appellate Division, Third Department

A petition submitted to Supreme Court a review of a determination by the Albany County Sheriff to suspend a correction officer’s General Municipal Law §207-c benefits was transferred to the Appellate Division.*

Petitioner was employed as a correction officer by Albany County Sheriff's Office and as a result of a work-connected incident, was receiving General Municipal Law §207-c benefits. Petitioner, however, subsequently rejected the Sheriff Department’s offer of a light duty assignment and refused to return to work.

A hearing was conducted to determine the extent of Petitioner’s disability. The Hearing Officer recommended that Petitioner be found capable of performing light duty and the Department adopted the recommendation and ordered Petitioner to report for a light duty assignment or face suspension of his GML §207-c benefits.**The Petition failed to report for light duty as directed and the Department suspended his GML §207-c benefits.

The Appellate Division affirmed the Department’s determination, rejecting Petitioner’s claim that the Sheriff's determination was made in violation of his due process rights because the Hearing Officer refused to consider proof that he suffered from posttraumatic stress disorder and, in addition, had considered evidence “outside the record.”

The court explained that "The right of a disabled officer to receive section 207-c disability payments constitutes 'a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated.'"

Noting that the GML §207-c does not provide a procedural framework for making such determinations, the Appellate Division said that municipalities are free to establish their own procedures, consistent with or exceeding what is required by due process, through collective bargaining. The court also noted that "due process does not require a hearing . . . until the employee has raised a genuine dispute on [the] operative facts", citing Davis v Westchester County, 42 AD3 79 (appeal dismissed 9 NY3d 953)

.

The Appellate Division found the Petitioner had been provide with administrative due process in that when he objected to the Sheriff’s light duty he was provided with a predetermination hearing in which he was able to present his own witnesses and cross-examine the Department’s witnesses.

The court said that in its view the Hearing Officer did not violate Petitioner's procedural due process rights by refusing to consider evidence that he suffered from posttraumatic stress disorder as “there is no indication in the record before us that petitioner put that diagnosis in issue — i.e., he raised no genuine dispute with respect to that diagnosis, as opposed to his established claims — prior to offering his expert's testimony at the hearing“

The court also rejected Petitioner's claim that the Hearing Officer considered evidence “outside the record” by noting that, in the context of his assessment of the credibility of Petitioner's witnesses, “his observations of Petitioner's demeanor while leaving the hearings.”

* Although the Appellate Division noted that the proceeding had been “improperly transferred” to it because the petition does not raise a question of substantial evidence; it, nonetheless, ruled that it would “retain jurisdiction in the interest of judicial economy.”

** GML §207-c.3, in pertinent part, provides that an otherwise eligible individual “unable to perform his regular duties as a result of such injury or sickness but is able … to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty if the same is available and offered to him .…”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_02308.htm

An adverse disciplinary hearing determination must be supported by substantial evidence

An adverse disciplinary hearing determination must be supported by substantial evidence

The appointing authority adopted in part and rejected in part the recommendation of a Civil Service Law §75 hearing officer that found the employee guilty of misconduct and/or incompetence. The penalty imposed: termination.

Supreme Court rejected the former employee’s Article 78 petition seeking to vacate the appointing authority’s decision.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that a judicial review of administrative determinations in employee disciplinary cases made after a hearing under Civil Service Law §75 is limited to a consideration of whether the determination was supported by substantial evidence.*  Here, said the court, there was substantial evidence in the record to support the determination that the individual was guilty of misconduct

As to the penalty imposed but the appointing authority, dismissal, the Appellate Division, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, said that u under the circumstances presented the termination of the individual's employment “was not so disproportionate to the offense committed as to be shocking to one's sense of fairness.”

* In contrast, in Christopher v Phillips, 160 A.D.2d 1165, motion to appeal denied, 76 N.Y.2d 706, the court ruled that “if a hearing is not required by law, the substantial evidence standard of review does not apply [and] the appropriate standard for the purpose of judicial review [in such a situation] is whether the determination is arbitrary or capricious.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02247.htm

Using hearsay evidence in a disciplinary hearing
273 A.D.2d 103, motion for leave to appeal denied, 95 N.Y.2d 766

A New York City police officer was terminated from his position after being found guilty of having "assaulted and caused physical injuries” to two individuals.

The officer appealed, contending that the Commissioner's determination was not supported by substantial evidence because it was based on hearsay. The Appellate Division disagreed, holding that "[t]he hearsay statements of the complainants were sufficiently probative to constitute substantial evidence."

According to the decision "[h]earsay may constitute substantial evidence where, as here, it is sufficiently reliable and probative on the issues to be determined."

This, in turn, depends on the credibility of the witnesses. The issue of the credibility of the witnesses at the officer's departmental disciplinary hearing, said the court, "was a matter to be assessed by the Deputy Commissioner who presided at the trial.”

Accordingly, said the court, determinations concerning the credibility of witnesses "is largely beyond our power of review.”

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 of ending April 7, 2013 [Click on the caption to access the full report]

DiNapoli: Audit Links Six Downstate Dentists to $2.3 Million Medicaid Fraud

New York State Comptroller Thomas P. DiNapoli released his final auditThursday of a fraudulent Brooklyn dental practice after a joint investigation with Attorney General Eric T. Schneiderman resulted in a one–to–three–year sentence plus nearly $700,000 in restitution from owner Lawrence J. Bruckner.

A.G. Schneiderman And Comptroller Dinapoli Announce Prison Sentence For Brooklyn Dentist Who Defrauded Medicaid

Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli Thursday announced the sentencing of Lawrence J. Bruckner, a Brooklyn dentist on charges he defrauded the Medicaid program by unlawfully paying recruiters to solicit homeless Medicaid patients with cash and billing taxpayers under his son’s name for services the son never provided. Bruckner failed to pay taxes on payments he received from other dentists who worked at his clinics. He has paid nearly $700,000 in restitution and today received a state prison term of 1 to 3 years as a result of this joint investigation by the offices of the state Attorney General and Comptroller.

DiNapoli Releases Bond Calendar for Second Quarter

New York State Comptroller Thomas P. DiNapoli Tuesday announced a tentative schedule for the planned public sale of obligations for the state, New York City, and their major public authorities during the second quarter of 2013.

Arbitration award remanded “for the imposition of an appropriate lesser penalty” based on the court’s finding that employee was not guilty of one of the Specifications of the Charges filed against her

Arbitration award remanded “for the imposition of an appropriate lesser penalty” following the court’s finding that employee was not guilty of one of the Specifications of the Charges filed against her

Specification A-1 of the charges preferred against a tenured New York City school  teacher by the New York Department of Education [DOE] alleged that she had engaged in the scheme to avoid payment of non-resident tuition by enrolling her granddaughter in the school at which she taught. The arbitrator found the school teacher guilty of that Specification, among others, and imposed the penalty of dismissal.

Supreme Court confirmed the arbitration award but on appeal the Appellate Division unanimously vacated the arbitrator’s finding that the teacher was guilt of Specification 1-A-1 of the charges. Accordingly, the Court vacated the penalty of termination and remanded the matter for the imposition of an appropriate penalty.

According to the decision, DOE had conceded at the hearing that teacher's granddaughter was entitled to a tuition-free education in New York City public schools and the hearing officer made no finding that the child was not a City resident. Further, said the Appellate Division, the record did not establish that the child was not a City resident.

Thus, said the court, there was no rational basis upon which to conclude that teacher had engaged in a scheme with the purpose of defrauding DOE out of non-resident tuition.

On the other hand, the court noted that the teacher conceded, and there was substantial evidence in the record to support a finding of guilt with respect to Specification 1-B of the Charges filed against her -- that she acted in concert to file a false instrument.

Specification 1-B alleged that the teacher had engaged in a scheme to use a school aide's address to enroll her granddaughter in the school at which she taught, and that she improperly obtained the school's services (Specification 1-A-2), as the child should not have been enrolled in that school.

The Appellate Division remanded the matter “for the imposition of an appropriate lesser penalty.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02333.htm

Employee’s rude conduct did not rise to the level of constituting a “physical altercation” with another employee

Employee’s rude conduct did not rise to the level of constituting a “physical altercation” with another employee

Decisions of the NYC Office of Administrative Trials and Hearings, Case 12-2095

The Department of Correction charged a correction officer with fighting with another officer, using profane language, leaving her post, and bringing an unauthorized bag near her post.

OATH Administrative Law Judge Kara J. Miller found that the Department proved all of the charges except the claim that officer engaged in a physical altercation with another officer.

The ALJ decided that the testimony at the disciplinary hearing showed that, at most, the accused officer may have pushed past the other officer rudely and brushed against her. Judge Miller did not find this sufficient to constitute misconduct.

Accordingly, she recommended a penalty of a 15-day suspension with credit for time served.   

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-2095.pdf