A board may not appoint one of its own members to a vacant position under it jurisdiction

A board may not appoint one of its own members to a vacant position under it jurisdiction
Fishman v Board of Educ. of S. Country Cent. Sch. Dist, 2013 NY Slip Op 02394, Appellate Division, Second Department

Roberta Fishman filed a CPLR Article 78 petition challenged a resolution of the Board of Education of the South Country Central School District appointing Gregory C. Miglino, Jr. to the position of Building Services Administrator Miglino was a then member of the Board.

Supreme Court’s ruling annulling the Board’s resolution appointing Miglino to the position. In the words of Supreme Court Justice Paul J. Baisley, "… the Court determines and declares that the Board Action in creating the position … and appointing its member and president Gregory C. Miglino, Jr. to the position was arbitrary and capricious … and accordingly is null and void.”

Miglino appealed the decision but the Appellate Division affirmed Justice Baisley's decision. The Appellate Division held that Supreme Court had correctly determined that the action of the Board in appointing one of its present members to the position of Building Services Administrator was “illegal and improper,” citing Wood v Town of Whitehall, 120 Misc 124, affd206 App Div 786.*

In Whitehall the court ruled that a board may not appoint one of its members to a position under its jurisdiction as such an action is contrary to public policy and the general welfare. Further, the Attorney General has indicated that the recusal of the member of the board to be appointed does not remedy the conflict of interests (1995 Informal Opinions of the Attorney General1074).

The Association of Towns has observed that “in the absence of a state law, local law or session law to the contrary,” a board is bound by the Whitehall doctrine.

The Whitehall decision is posted on the Internet at:

* http://decisions.courts.state.ny.us/fcas/fcas_docs/2012FEB/51002913120103SCIV.pdf

The Fishman decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02394.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 April 12, 2013 [Click on text highlighted in bold to access the full report] 

Town of Amsterdam – Supervisor’s Records and Reports (Montgomery County)
The town supervisor does not maintain timely or accurate accounting records for the town. Therefore, the accounting records do not support the AUDs filed in 2010 and 2011. The town board does not receive all the financial information it needs to monitor the town’s financial operations. Additionally, auditors found discrepancies between bank reconciliations and account balances documented in the town’s accounting records.

Village of Cuba – Sewer Fund Financial Condition and Records and Reports (Allegany County)
The village board did not adopt budgets for the sewer fund that provided sufficient revenues to finance expenditures, because revenues were consistently overestimated. Auditors also found that the clerk-treasurer did not maintain the village’s accounting records in a complete and accurate manner. Specifically, cash, accounts receivable and accounts payable were misstated, which resulted in the operating funds’ fiscal health appearing to be more favorable.

Village of Dannemora – Internal Controls Over Cash Receipts (Clinton County)
The village has informal procedures over the collection of cash receipts for water and sewer rents and property taxes.  The clerk-treasurer prepares billings, enters receipts into the accounting system, reconciles customer accounts, prepares bank deposits and reconciles bank statements without any additional verification or assistance.

Village of Delanson – Internal Controls Over Selected Financial Operations (Schenectady County)
The village clerk and treasurer both perform incompatible cash disbursement duties and compensating controls have not been established. The village board does not require claims to be adequately documented or appropriately audit and approve all claims. Also, the clerk did not collect all interest and penalties due on overdue real property tax and water rent payments or properly record and report to the county unpaid water rents for re-levy.

Downtown Ithaca Business Improvement District – Disbursements (Tompkins County)
The Executive Director did not ensure that disbursements were for proper DIBID purposes. Although the claims reviewed by auditors appeared to be for reasonable DIBID expenditures, without proper supporting documentation such as receipts, invoices, or bills attached to the claims, taxpayers do not have any assurance that these monies were used for valid DIBID purposes.

Village of Hoosick Falls – Internal Controls Over Selected Operations (Rensselaer County)
The village board has not adopted policies establishing responsibilities and duties for handling cash and maintaining accounting records. As a result, the treasurer has filed the village’s annual financial report an average of 221 days past the due date from 2008 through 2011. Further, the board has not implemented compensating controls to address the lack of segregation of duties performed by the treasurer.

Village of Nelsonville – Financial Operations (Putnam County)
The village board did not develop policies and procedures for the clerk-treasurer to follow when performing cash receipts and disbursement duties and did not audit the clerk-treasurer’s financial records. Further, the board did not ensure bank reconciliations were performed or that the village payroll was properly certified.

Town of Schroon – Internal Controls Over Transfer Station Operations (Essex County)
The town does not reconcile the amount of money collected with the amount of trash disposed at the transfer station. Auditors found that over a three-month period in 2012, the weight of the solid waste the town paid to dispose of at the county landfill exceeded the amount of trash accounted for as being received at the transfer station, resulting in approximately $10,000 in missing revenues. Auditors also found weak internal controls over cash receipts and poor monitoring of solid waste received at the transfer station.

Village of Victory – Audit Follow Up (Saratoga County)
Auditors found that the village has made limited progress in implementing our recommendations. Of the eight audit recommendations, two recommendations were implemented, four recommendations were partially implemented and two recommendations were not implemented.

Helping Students Get Course Credit: Credit Recovery Programs in School Districts (2012MS-8)
Auditors found that all eight school districts reviewed provided evidence to show, to the State Education Department’s (SED) satisfaction, that Credit Recovery Programs (CRPs) aligned with state learning standards. SED’s current measure of satisfactory alignment, however, is very easy to meet. More explicit expectations for demonstrating alignment with current standards would provide better assurance that online CRPs provide intensive instruction in a subject that is equivalent to teacher-provided classroom instruction.

Fabius-Pompey Central School District – Budget Review (Onondaga County)
Auditors found that the significant revenue and expenditure projections in the proposed budget are reasonable. The school district’s proposed budget currently includes a tax levy that is over the statutory limit by $58,246.

North Colonie Central School District – Claims Processing (Albany County)
The school board adopted claims processing policies which require all claims to be audited prior to payment except for certain allowed exceptions. District policy requires the claims auditor to ensure that all claims are properly authorized, itemized, supported and that goods and services have been received in the amount and price as ordered prior to payment.

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

Government Information Networks and Technology lecture to be held on April 5, 2013

Government Information  Networks and Technology lecture to be held on April 5, 2013 

The Government Law Center and the Albany Law Journal of Science & Technology announced that a Symposium focusing on "Government/Information/Networks/Security" will be held at the Albany Law School in the DAMC Room at 1:00 p.m. on April 5, 2013.   

Experts from around the country will convene at Albany Law School to discuss issues of cybersecurity, freedom of information law, and other topics related to computer networks and information security.

The symposium is free and open to the public. Registration is encouraged. 

For more information, contact 518-472-5855 or mkernan@albanylaw.edu or go to http://www.albanylaw.edu/cybersecurity.   

A reception with the panelists will immediately follow the program.

The Triborough Doctrine yields to an amendment to a law applicable to a provision in an expired collective bargaining agreement if the Legislature did not specifically direct otherwise

The Triborough Doctrine yields to an amendment to a law applicable to a provision in an expired collective bargaining agreement if the Legislature did not specifically direct otherwise
City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2013 NY Slip Op 02162, Court of Appeals*

Was the phrase "in effect" as used in Article 22, §8 of the Retirement and Social Security Law sufficient to trigger the Triborough Doctrine preserve a provision set out a collective bargaining agreement [CBA] that had expired and not been replaced by a successor agreement.

The City of Yonkers and the Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, had periodically extended a CBA dated July 1, 2002 by “stipulation.”. The last such stipulation extended the agreement through June 30, 2009. The genesis of this litigation was a provision in the CBA whereby the City agreed to offer its firefighters the option of enrolling in one of two retirement plans, and agreed that it would bear "the complete cost" of contributions, "pursuant to State law."

In 2009, however, Legislature amended the Retirement and Social Security Law, effective in January 2010, requiring new members of the New York State and Local Police and Fire Retirement System to enroll in a new Retirement Tier, Tier VI. Tier VI required its members to contribute 3% of their salaries toward their retirement allowance.

The amendment set out a “narrow exception” to this 3% contribution requirement.

"Notwithstanding any provision of law to the contrary, nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan open to him or her pursuant to a collectively negotiated agreement with any state or local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however, that any such eligibility shall not apply upon termination of such agreement for employees otherwise subject to the provisions of article twenty-two of the retirement and social security law" [emphasis in the opinion]..

The City, citing the June 30, 2009 termination date of the CBA, required firefighters who were hired after that date to enroll in Tier VI and to contribute 3% of their wages towards their retirement benefits. In response, the Union filed an improper practice charge with the New York State Public Employment Relations Board (PERB), alleging that the City had erred in failing to apply the CBA to firefighters hired by the City after the CBA's termination date.

The Union, relying on the exception contained in Article 22, §8 of the Retirement and Social Security Law, as well as New York Civil Service Law §209-a (1) (e), which codified the Public Employment Relations Board’s (PERB) so-called Triborough Doctrine,** filed an improper practice charge with PERB contending that the City had failed to apply the retirement provision in the now expired CAB as required by §209-a (1) (e) of the Civil Service Law.

When PERB referred the matter to arbitration, the City commenced a CPLR Article 75 proceeding seeking a permanent stay of arbitration on the ground that arbitration is barred by Civil Service Law §201(4) and Retirement and Social Security Law §470.

Although Supreme Court rejected this argument and dismissed the City’s petition, the Appellate Division reversed the lower courts ruling, holding that the statutes cited by the City “are a bar to arbitration.” The Court explained that "the CBA, which terminated by its own terms in June 2009, was no longer 'in effect' at the time of the effective date of Article 22 of the Retirement and Social Security Law," with the result that "the exception set forth in §8 of that Article is inapplicable."

The Court of Appeals affirmed the Appellate Division’s ruling.

The court said that the Triborough Doctrine, upon which the Union relies, had as its purpose "to preserve the status quo in situations where a CBA between a public employer and its employees has expired and a new one has yet to be agreed upon."

As no successor CBA was negotiated between the parties in the present case, the Triborough Law would apply and the CBA's terms would be continued, unless contradicted by statute. Significantly that part of the CBA that required non-contributory plans is rendered unlawful by Article 22 of the Retirement and Social Security Law, which prohibits such plans, unless the §8 exception is applicable in this instance.

The Court of Appeals rejected the Union’s argument that the §8 exception applies because the Triborough Law extends the terms and conditions set out in CBAs that have expired, holding that “This was not the Legislature's intent. If the Legislature had intended to invoke the Triborough doctrine, it would certainly have made that explicit.”

Rather, said the court, “the Legislature, having set forth the §8 exception for CBAs that are "in effect," expressly states that eligibility to join a CBA's retirement plan "shall not apply upon termination of such agreement." This language, the Court of Appeals concluded, “makes clear that the Legislature did not intend to apply the exception to agreements that had expired and could only be deemed to continue through the Triborough Law.”

* See, also, City of Oswego v Oswego City Firefighters Assn., Local 2707; 2013 NY Slip Op 02163; Court of Appeals, posted on the Internet at:  http://www.nycourts.gov/reporter/3dseries/2013/2013_02163.htm

** See 5 PERB 3037; 5 PERB  4505.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02162.htm

Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request

Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request

Thomas v New York City Dept. of Educ., 2013 NY Slip Op 01026, Appellate Division, First Department

Noting that the Legislature declared in enacting Public Officers Law §84, "[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society and that access to such information 'should not be thwarted by shrouding it with the cloak of secrecy or confidentiality,'" the Appellate Division rejected the New York City Department of Education General Counsel’s denial of Michael P. Thomas’ administrative appeal challenging the refusal of the Central Record Access Officer [CRAO] to provide him with records demanded in his FOIL request.

The General Counsel had concluded that CRAO's determination denying Thomas’ request fell "well within the bounds" of the “Committee on Open Government's published advisory opinions denying FOIL requests in the context of unsubstantiated complaints, and that redaction of identifying details would not protect the personal privacy of the subject individuals” because Thomas had filed the underlying complaint and therefore knew the identity of the persons even were their names redacted.

The Appellate Division disagreed, holding that under FOIL government records are presumptively available to the public unless they are statutorily exempted by Public Officers Law §87(2) and "Those exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption" citing Hanig v State of N.Y. Dept. of Motor Vehicles. 79 NY2d 106.

Finding that Thomas’ complaint pertained to certain administrators' performance of their official duties when applying for and using federal funds, the Appellate Division remanded the matter to the lower court “for an in camera inspection of the documents to determine if redaction could strike an appropriate balance between personal privacy and public interests and which material could be properly disclosed.”

In addition, the Appellate Division directed the lower court to determine whether portions of the documents may be exempt from disclosure as intra- or inter-agency records that are not statistical or factual data under Public Officers Law §87[2][g].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01026.htm