ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

September 13, 2013

Arranging trips for “senior citizens” living in the jurisdiction


Arranging trips for “senior citizens” living in the jurisdiction
Informal Opinions of the Attorney General 87-18

A number of New York State towns and villages have a senior citizen division that organize or provide various recreational opportunities for their senior residents. Such activities may include offering day trips to nearby locations and multi-day trips to more distant places.

In response to an inquiry from a municipality that wished to use the services of a travel agency in making arrangements for such trips, the Attorney General concluded that “a prohibited conflict of interest exists” should a municipal employee “charged with arranging tourist travel" on behalf of the jurisdiction senior citizen "accepts a free trip from the travel agency that sponsor the trip.”

The Attorney General explained that “When one of the travel agencies sponsoring these trips offers a free trip to the leader, we believe that an appearance of impropriety results.”

In addition to the possibility of a “common law conflict of interest” that may be operative in this instance, the Attorney General noted that “acceptance of the free trip by the leader would probably violate Section 805-a of the General Municipal Law.”
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September 12, 2013

Resolution of an impasse in collective bargaining may be referred to a financial restructuring board in lieu of referral to existing interest arbitration panel


Resolution of an impasse in collective bargaining may be referred to a financial restructuring board in lieu of referral to existing interest arbitration panel
Chapter 67 of the Laws of 2013

Chapter 67 of the Laws of 2013 amended the State Finance Law, the Local Finance Law and the Civil Service Law with respect to financial restructuring boards for local governments. In particular, the Chapter amends §209 of the Civil Service Law in relation to public arbitration panels determinations by adding a new subdivision 4-a and a new subdivision 6-a.

Karlee S. Bolaños, Esq., has addressed the impact of this legislation in the event a distressed municipality and union at impasse “jointly request” a financial restructuring board to resolve an impasse in collective bargaining in lieu referring the impasse to existing interest arbitration panels. 

The following are among the several issues considered by Ms. Bolaños in her article:

1. What are Financial Restructuring Boards and who will be members?

2. What is the role of the Financial Restructuring Board?

3. What is a fiscally eligible municipality?

4. How does interest arbitration come into play? and

5. To which agreements will the law apply?

Ms. Bolaños’ analysis and comments are posted on NYMuniBlog, a LawBlog maintained by the law firm of Harris Beach, PLLC as a public service at: http://nymuniblog.com/?p=3488

The Financial Restructuring Board for Local Government's web site is at:
http://www.frb.ny.gov/
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Falsification of time records results in suspension without pay


Falsification of time records results in suspension without pay
Decisions of the Commissioner of Education, Decision 11682
Decisions of the Commissioner of Education, Decision 11111

Decision 11682

A teacher charged 11 days of absence over a 3 1/2 month period to her sick leave accruals. The District subsequently learned that the teacher had reported for work at her second job or had attended scheduled classes in an evening course in which she was enrolled on the same days that she had been absent on sick leave.

The District filed disciplinary charges against the teacher pursuant to Education Law §3020-a. The disciplinary hearing panel found the teacher guilty of all but one of the specifications, ruling that her actions constituted conduct unbecoming a teacher and neglect of duty. It imposed a penalty of suspension without pay for three months .

The District appealed, seeking approval to dismiss the teacher. The teacher, on the other hand, asked the Commissioner to vacate the panel's decision and dismiss the charges filed against her.

The Commissioner, sustaining the panel's decision, ruled that the penalty imposed by the panel for the teacher’s abuse of sick leave was, in this case, appropriate and affirmed the penalty imposed by the §3020-a disciplinary panel. 


Decision 11111

 In another Education Law §3020-a disciplinary action involving an alleged falsification of time records, the Commissioner upheld the disciplinary hearing panel's finding the teacher guilty of the charges filed against her alleging that she had misuse of family sick leave benefits. The Commissioner also upheld the disciplinary penalty imposed by the panel: -- a suspension without pay for 9 1/2 months for "abuse of sick leave benefits."

The disciplinary hearing panel had found that the teacher had absented herself from work, charging her absence to her sick leave credits for an alleged “family illness” for three days immediately preceding the School District’s spring recess. The teacher, however, chanced to meet her principal at a vacation site that they both were visiting on one of the days she had charged to her “family sick leave” leave credits. 
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September 11, 2013

Extending the statute of limitations for bring a disciplinary action pursuant to Civil Service Law §75


Extending the statute of limitations for bring a disciplinary action pursuant to Civil Service Law §75
OATH Index No 1889/13

§75 of the Civil Service Law provides that disciplinary charges must be served on the accused individual no later than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential within the meaning of Article 14 [The Taylor Law] of the Civil Service Law, more than one year after the occurrence of the alleged incompetency or misconduct. However, such limitations do not apply where the alleged acts of incompetency or misconduct would, if proved in a court of appropriate jurisdiction, constitute a crime.*

An employee charged with a number of alleged acts or omissions claimed to constitute misconduct pursuant to Civil Service Law §75 asked Administrative Law Judge Tynia D. Richards to “dismiss these ‘5-year-old charges’ as untimely”

The appointing authority thereupon amended the charges to include an allegation of the crime of “official misconduct” and contended that the alleged underlying charges were entitled to the “crimes” exception to the limitations period. 

Penal Law §195.00 defines the crime of official misconduct as follows: A public servant is guilty of official misconduct when, with intent to obtain a benefit or to deprive another person of a benefit:

1. He or she commits an act relating to [his or her] office but constituting an unauthorized exercise of [his or her] official functions, knowing that such act is unauthorized; or

2. He or she knowingly refrains from performing a duty that is imposed upon [him or her] by law or is clearly inherent in the nature of [his or her] office.

Citing People v. Esposito, 160 A.D.2d 378, Judge Richard said that to prove official misconduct, it must be demonstrated that the public servant so charged has acted with the intent to obtain a benefit for himself or another.”

The ALJ granted the employee’s motion to dismiss the disciplinary charges in their entirety, ruling that the charges alleged were inadequate to establish all elements of the crime, in particular, the employee’s intent to gain a benefit.

* N. B. An alternative “disciplinary procedure” negotiated in accordance with §76 of the Civil Service Law may set a different statute of limitations for initiating disciplinary action against an employee.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-1889.pdf
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September 09, 2013

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
Click on text highlighted in bold to access the full report. 

Audits of school districts release by the State Comptroller during the week ending September 7, 2013:



The Comptroller also released completed audits of the following State departments and agencies:





September 07, 2013

Comptroller Dinapoli releases municipal audits

Comptroller Dinapoli releases municipal audits

New York State Comptroller Thomas P. DiNapoli office's periodically audits of local governments. The Comptroller said that the audits are designed to assist local officials make certain that “proper policies and procedures are in place to protect taxpayer dollars and provide the best possible service these taxpayer dollars can deliver."

The following audits were released on September 5, 2013 [click on heading to read the text of the audit]:

Claryville Fire District – Internal Controls Over Financial Operations (Sullivan County)
The fire district board has adopted a code of ethics, but it has not adopted an investment policy or a procurement policy. The board also has not ensured that procedures are in place for financial recording and reporting. As a result, although the district treasurer submitted monthly financial reports to the board, they were not complete because the treasurer had not reconciled cash and bank balances.

County of Cortland – Departmental Operations (2013M-157)
County officials are not ensuring that various departmental operations and functions are operating at the lowest possible cost to taxpayers. The sheriff’s office is understaffed and incurring an average of more than $500,000 in overtime annually. The county could save upwards of $177,000 a year depending on the number of additional officers hired in the jail and road patrol.

Town of Dover – Financial Activities (Dutchess County)
The town board did not have written procedures or guidelines to ensure proper review of claims and did not perform a deliberate audit of claims or require that claims include relevant documents. In addition, the board did not properly audit claims and failed to use competition when procuring professional services.

Town of Grafton – Internal Controls Over Claims Auditing (Rensselaer County)
The town board did not ensure that detailed claims audit procedures were in place to enable it to perform a proper and thorough audit in a timely manner. Although the town established informal procedures over the claims auditing process, officials should adopt a policy to ensure timely audits are conducted and that each claim approved is a legitimate town expenditure.
 
South Byron Volunteer Fire Company, Inc. – Internal Controls Over Financial Operations (Genesee County)
The fire company has established a system of internal controls with appropriate procedures to ensure that financial activity is properly recorded and that company moneys are safeguarded. The company, however, does not have a formal policy governing the use of credit cards.

Village of Spencer – Financial Condition (Tioga County)
The village board did not ensure that the clerk-treasurer properly reported the village’s financial condition. Auditors found the clerk-treasurer submitted an annual financial report with less cash reported than the actual balance available; several expenditure lines were reported inaccurately; and the interim reports provided to the board were incomplete and did not include sufficient information to adequately monitor the village’s financial activities against the adopted budgets.

Sullivan County Industrial Development Agency – PILOT Program (2013M-161)
The Sullivan County IDA has established a Uniform Tax Exempt Policy for both general and specific-purpose projects. The policies are specific and clearly articulate project goals and abatement schedules.  The project approval process includes in-depth cost-benefit analyses based on reasonable assumptions.

Village of Unadilla – Budgeting (Otsego County)
The village board consistently adopted budgets that included overestimated expenditures, underestimated revenues, and the appropriation of fund balance that was not available to finance operations. As of May 31, 2012, the village’s general fund balance was at a deficit of $56,633, after the planned use of $94,653 to finance operations. These budgeting practices caused major fluctuations in the unexpended surplus fund balance and demonstrate a lack of financial oversight by the board.

Village of Upper Brookville – Justice Court (Nassau County)
The court clerk maintained complete, accurate and timely monthly bank reconciliations and cash accountability reports. The village justices, however, did not establish adequate procedures to monitor the court clerk’s duties or review her work. The court clerk performed several key aspects of the court’s cash accounting functions with limited oversight.

Village of Westhampton Beach – Internal Controls Over Information Technology (Suffolk County)
Village officials have not developed formal information technology policies for user access. Auditors found generic user accounts on the village’s computer system and some users unnecessarily had administrative rights. As a result of these weaknesses, the village’s IT system and its data are subject to an increased risk of corruption, loss, or misuse.

White Lake Fire District – Budgeting Practices (Sullivan County)
The fire district board has not properly developed annual operating budgets. In three of the last five fiscal years, the district spent more money than it received. In addition, the board did not monitor budget performance or adjust the budgets to reflect actual expenditures as they occurred during the fiscal year.
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September 05, 2013

Accused employee’s threat to kill the presiding disciplinary arbitrator does not constitute “free speech” within the ambit of the First Amendment

Employee’s threat to kill the presiding disciplinary arbitrator does not constitute “free speech” within the ambit of the First Amendment
2013 NY Slip Op 05765, Appellate Division, First Department

In the course of a disciplinary hearing, the accused employee [Petitioner] had made death threats against the arbitrator during a telephone conversation with the attorney who was then representing him in the proceeding.

When the arbitrator learned of the death threats, he recused himself and was replaced by a second arbitrator, who found Petitioner guilty of failing to properly supervise students and excessive absences. As a result, Petitioner was suspended without pay for one year.

After investigating the alleged death threats made against the first arbitrator, the appointing authority filed disciplinary charges based on that event. In the second disciplinary action the arbitrator found that the evidence supported the alleged death threats and recommended that Petitioner be terminated from his position.

The Appellate Division sustained the arbitration award, finding that it was made in accord with due process, was supported by adequate creditable evidence, was rational and was not arbitrary and capricious. Further, said the court, “hearsay evidence can be the basis of an administrative determination … and each of the specifications upheld by the arbitrator was supported by testimony of witnesses having personal knowledge of the material facts or hearsay evidence that substantiated the basis for the charges.”

As to Petitioner’s claim that the second disciplinary proceeding and the ultimate disciplinary penalty imposed against him – termination -- violated his right to free speech under the First Amendment to the United States Constitution, the Appellate Division said that “Supreme Court properly deferred to the arbitrator's finding that [Petitioner’s statements are exempt from First Amendment protection because they constitute ‘true threats.’"

The Appellate Division said that Petitioner’s former attorney “only disclosed the [death] threats because he believed that Petitioner's increasingly erratic behavior rendered him genuinely dangerous.” Under the circumstances, said the court, "it cannot be argued that Petitioner’s speech implicates matters of public concern … [n]or can it be disputed that Petitioner’s death threats disrupted the initial arbitration proceeding."

The decision is posted on the Internet at:

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September 04, 2013

Provisional appointment to a vacancy


Provisional appointment to a vacancy
CSEA v Bobenhausen, 69 AD2d 983

An individual not eligible for the promotion examination or open-competitive examination for a vacant position is selected to be provisionally appointed to the vacancy. Is such an appointment lawful?

In Turel v Delancy, 287 NY 15. the Court of Appeals said that the appointing authority is not required to select a person who is, or had previously been, on an eligible list for promotion to the position.

The Appellate Division in CSEA v Bobenhause, 69 AD2d 983, extended that option to include selecting someone for appointment to the vacancy “who is not qualified to take the promotion examination or open competitive examination for the position.”

Citing Koso v Greene, 260 N.Y. 491 and other decisions, the court explained that “nothing in subdivision 1 of §65 of the Civil Service Law that requires that a provisional appointee be fully qualified for permanent appointment or that he [or she] must be eligible to take the civil service test for the position before being provisionally appointed to it."

The court noted that the respondent, Frederick A Bobenhausen, had been  approved for the appointment by the State Department of Civil Service after a noncompetitive examination, i.e., after a review of his qualifications, and its determination that he was qualified to serve provisionally complied with the statute, his failure to meet existing eligibility requirements for permanent appointment notwithstanding. A provisional appointment, said the Appellate Division, is a stopgap occasioned by necessity "and the appointee is exempt from civil service requirements and protection.”

Civil Service Law §65, Provisional Appointments, provides: “1. Provisional appointments authorized. Whenever there is no appropriate eligible list available for filling a vacancy in the competitive class, the appointing officer may nominate a person to the state civil service department or municipal commission for non-competitive examination, and if such nominee shall be certified by such department or municipal commission as qualified after such non-competitive examination, he may be appointed provisionally to fill such vacancy until a selection and appointment can be made after competitive examination. Such non-competitive examination may consist of a review and evaluation of the training, experience and other qualifications of the nominee, without written, oral or other performance tests.
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September 03, 2013

Same-sex couples covered by FMLA

Same-sex couples covered by FMLA
Source: NYMUNIBLOG

The NYMUNIBLOG Editorial Team reports that the U.S. Department of Labor has expanded FMLA leave to cover same-sex couples.

The team reports that “When the United States v. Windsor decision—finding a key provision of the Defense of Marriage Act (DOMA) unconstitutional—was handed down by the Supreme Court of the United States earlier this summer, a Harris Beach Legal Alert noted that the ruling would extend various federal benefits to same-sex married couples in states that allow gay marriage. Specifically with regard to the Family and Medical Leave Act (FMLA), we surmised that a person with a same-sex spouse will be entitled to FMLA leave if all other conditions are met.” 

The full text of the posting is at http://www.harrisbeach.com/media-news/9742

The Supreme Court decision in United States v Windsor is posted on the Internet at:
http://www.supremecourt.gov/opinions/12pdf/12-307_6j37.pdf

As NYPPL noted on August 29, 2013, the Washington Post reported that the Internal Revenue Service announced that it will treat same-sex marriages the same as it does heterosexual ones. The text of the Post's report is on the Internet at:
http://www.washingtonpost.com/blogs/federal-eye/wp/2013/08/29/irs-to-treat-same-sex-marriages-equally-for-tax-purposes/
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli
Issued during the week ending August 31, 2013

The State Comptroller audits local governments to assist them in improving their financial management practices. [Click on text highlighted in bold to access the full report.] 

DiNapoli: Colonie Addressing Financial Challenges

The Town of Colonie has improved its finances significantly in recent years due to stronger budget planning as it deals with fiscal stress, according to a report issued Tuesday by State Comptroller Thomas P. DiNapoli. The report is part of a series of fiscal profiles on municipalities across the state.


DiNapoli Presents Unclaimed Funds Checks At The New York State Fair

State Comptroller Thomas P. DiNapoli presented checks to nine Central New Yorkers Monday at the New York State Fair at his Office of Unclaimed Funds booth. The largest check, for $13,864.54 for an old bank account, was given to the Fryer Memorial Library in Munnsville.

For additional information concerning “unclaimed” monies that may be claimed by public entities, click on http://publicpersonnellaw.blogspot.com/2013/08/state-comptroller-holds-125-billion-in.html


Employer Pension Contribution Rates Announced For Fiscal Year 2014–15

Employer contribution rates for the New York State and Local Retirement System will decline slightly in Fiscal Year 2014–15, New York State Comptroller Thomas P. DiNapoli announced Tuesday.


Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli announced Wednesday his office completed audits of:







Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Wednesday his office completed audits of:




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