Performing “out of title” work may be lawful under certain circumstances

Performing “out of title” work may be lawful under certain circumstances

New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. Of Empl. Relations, 2013 NY Slip Op 02445, Appellate Division, Third Department

Kevin Ashby was employed as a correction sergeant, SG 17, by the NYS Department of Corrections and Community Supervision [DOCCS]. Ashby filed two out-of-title work* grievances alleging that on eight occasion in April 2010 and seven occasions in June 2010 he was assigned as shift supervisor, thereby requiring him to perform the work of a correction lieutenant, salary grade 20, and he sought to be compensated accordingly.

The Governor’s Office of Employee Relations [GOER] denied all 15 grievances and Ashby appealed.

The Appellate Division though it noteworthy to comment that during the administrative review processes before GOER the only evidence that was presented concerning the duties that Ashby actually performed on the relevant dates was submitted by DOCCS.

Neither Ashby nor his union submitted any information regarding the facts surrounding the grievances or specific duties that Ashby performed. Although the collective bargaining agreement [CBA] provided the union the right, to submit to DCC a "written brief of the facts surrounding the grievance," during the administrative appeal to the GOER, it never did so.

Ashby, while assigned as shift supervisor, did perform some duties that are listed in the classification standard of a correction lieutenant. However, the Appellate Division noted that “there are many duties that a correction lieutenant performs pursuant to the classification standard that [Ashby] never performed.” In addition, the court said that “While there is some overlap between the duties that [Ashby] performed and the duties of a correction lieutenant, most of the duties that he performed fall within or are a reasonable outgrowth of the duties of his current position.

The Appellate Division sustained GOER’s determination, explaining that “Given the similarities between the duties actually performed by [Ashby] as a shift supervisor and those enumerated in the correction sergeant classification standard, … the infrequent nature of such assignments and the absence of evidence establishing that [Ashby] performed a distinctive aspect of the correction lieutenant job title (namely, supervision of correction sergeants), GOER's determinations are supported by a rational basis in the records.” 

Also noted was that although “Civil Service Law 61(2) seemingly provides an ‘unqualified prohibition against nonemergency out-of-title work, case law has made the standard somewhat more flexible based on practicality’" as demonstrated by the decisions in Sprague v Governor's Off. of Empl. Relations, 13 AD3d at 850; City of Saratoga Springs v Saratoga Springs Civ. Serv. Commn., 90 AD3d at 1400; and Cushing v Governor's Off. of Empl. Relations, 58 AD3d 1095.

May a Taylor Agreement provided that an employee who was offered a temporary or acting higher level position and who was on a Civil Service eligible list for such position shall be required to accept and perform the duties of the higher level position or "the employee shall remove his name from the Civil Service eligible list?"

The employer sought a judgment declaring such a contract provision valid notwithstanding the fact that §61.2 of the Civil Service Law prohibited such out of title work "... except ... during ... a temporary emergency situation.…”

In City of Newburgh v Potter, 168 A.D.2d 779, motion for leave to appeal denied 78 N.Y.2d 857, the Appellate Division concluded that the contract provision was not valid as a waiver of statutory rights and declared the contract provision void and of no force and effect.

Another possible “out-of-title” work situation was the genesis of Yanis v McGuire, 98 A.D.2d 669, affirmed 62 N.Y.2d 723. Yanis, employee with a special skill or talent, his knowledge of both English and Spanish, refused to accept an assignment that required his use of that skill or talent.

Is an employee subject to disciplinary action if he or she refused to accept the assignment? The Appellate Division said he or she could be subjected to disciplinary action based on his or her refusing the assignment.

Yanis, because of his knowledge of both English and Spanish, was instructed to aid detectives in the interrogation of a Spanish speaking witness to a homicide. Yanis failed to report for the assignment and in the disciplinary action that followed the hearing officer found that Yanis' refusal to serve as an interpreter was unjustified and a violation of a reasonable order.

The disciplinary penalty imposed: Yanis could forfeit of six days of vacation credit or he could elect to perform extra tours in lieu thereof.

According to the decision, Yanis had previously served as an interpreter on some 40 occasions in connection with police work and that the "true motive" in refusing to serve as a translator was "his desire to be compensated or to be recognized with a detective designation for what (Yanis) claimed was a special skill."

The dissenting opinion by Justice Asch suggests that the use of such special skill or talent might, under certain circumstances, constitute “out-of-title work.” Accordingly, Justice Asch opined that the assignment could be lawfully refused “unless an emergency situation existed” as the title "interpreter" exists in the New York City Police Department.

.

* An out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time . . ." (see Caruso v Mayor of Vil. of S. Glens Falls, 278 AD2d 608

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02445.htm

A CPLR Article 78 challenge to the validity of an employee’s resignation must be filed within four months of the date of the resignation

A CPLR Article 78 challenge to the validity of an employee’s resignation must be filed within four months of the date of the resignation

Reo v Village of Lawrence, 2013 NY Slip Op 02403, Appellate Division, Second Department

Daniel S. Reo was initially employed by the Village of Lawrence in the title Laborer.

According to the decision, in 2007 Reo resigned from this position to accept a position Sewer Plant Attendant with the Village and served in this title until 2009, when he resigned and sought reemployment in his former position, Laborer, with the Village.

As this would be a new Laborer position the Village was required to secure approval of that position from the Nassau County Civil Service Commission pursuant to Civil Service Law §22.*

As a condition of its approval of this new position the Commission asked the Village for its assurance that Reo “would only be performing duties appropriate for the laborer title.” The Village, however, decided to give those assurances to the Commission and terminated Roe’s employment effective January 7, 2011.**

Roe filed a petition pursuant to Article 78 of the CPLR challenging “the validity of his resignations in 2007 and 2009 and sought a court order directing the Village to reinstate him. Supreme Court denied the petition and dismissed the proceeding.

The Appellate Division said that Roe’s challenges to the validity of his resignations*** were barred by the four-month statute of limitations applicable to proceedings pursuant to CPLR Article 78. Further, said the court, “the termination of [Roe’s] employment in the new position of Laborer was not arbitrary and capricious or affected by an error of law."

* CSL §22, in pertinent part, provides that “[b]efore any new position in the service of a civil division shall be created … the proposal therefor, including a statement of the duties of the position, shall be referred to the municipal commission having jurisdiction and such commission shall furnish a certificate stating the appropriate civil service title for the proposed position …. “

** Although the decision is silent regarding Roe’s employment status between 2009 and January 2011, presumably he was appointed to “temporary position” of Laborer pending the Commission’s classification, approval and certification of the new position pursuant to CSL §22.

*** Typically once the employee has delivered his or her resignation to the appointing authority or its designee, he or she may not withdraw or rescind the resignation without the approval of the appointing authority. For example, 4 NYCRR 5.3(c),which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.” Many local civil service commissions and personnel officers have adopted a similar rule. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2013/2013_02403.htm

Courts will reject an untimely demand to submit a matter to arbitration

Courts will reject an untimely demand to submit a matter to arbitration

Town of Orangetown v Rockland County Policemen's Benevolent Assn., 2013 NY Slip Op 02408, Appellate Division, Second Department

In this CPLR Article 75 the Town of Orangetown petitioned Supreme Court seeking an order to permanently stay an arbitration demanded by the Rockland County Policemen’s Benevolent Association and the Town of Orangetown Policemen's Benevolent Association.

Both Associations, on the other hand, asked the court to issue an order to “compel arbitration.”

Although the Town contended that demand for arbitration was untimely, Supreme Court granted the Associations’ petition. The Appellate Division, however, revered the lower court’s ruling, vacated the order, and granting the Town’s petition to permanently stay the arbitration.

The Appellate Division explained that under New York statutory and case law, a court may address three threshold questions on a motion to compel or to stay arbitration:

1. Whether the parties made a valid agreement to arbitrate;

2. If so, whether the agreement has been complied with; and

3. Whether the claim sought to be arbitrated would be time-barred if it were asserted in State court.

Finding that the grievance the Association sought to be arbitrated was time-barred under the applicable 18-month statute of limitations, the Appellate Division held that Supreme Court erred in denying the Town’s petition to permanently stay arbitration and granting the Association’s cross motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02408.htm

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