Filing an application with the court to have a local public official removed from his or her public office

Filing an application with the Appellate Division to have a local public official removed from his or her public office
2013 NY Slip Op 06141, Appellate Division, Fourth Department

Public Officers Law §36 permits a “citizen resident” of a town, village, improvement district or fire district to file an application seeking the removal of an officer of the jurisdiction, other than a justice of the peace, for alleged “… misconduct, maladministration, malfeasance or malversation in office” with the Appellate Division of Supreme Court.* The term maladministration is used to describe one's performing official duties corruptly or inefficiently, the term malfeasance refers to performing one's official duties inadequately or poorly, and the term malversation refers to the misuse of public or other funds while holding public office.

A member of the Town Council [Member A] initiated a proceeding in the Appellate Division pursuant to Public Officers Law §36 seeking the removal of another member of the Town Council [Member B] from office for alleged “wrongdoing.” Member A’s petition alleged instances of conflicts of interest and self-dealing on the part of Member B, an attorney with a legal practice in the Town.** 

1. Member A alleged that Member B filed a Notice of Claim against the town on behalf of a legal client after taking office, that Member B was the subject of a complaint of harassment filed by a town employee and that Member B “repeatedly [filing] frivolous actions" against the Town.

The Appellate Division held the Member B “conclusively refuted” all of Member A’s allegations, and that Member A failed to present evidence to the contrary sufficient to raise a triable issue of fact.

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2. Member A alleged that Member B had "repeatedly appeared" in the Town's Justice Court on behalf of his clients..

Member B, said the court, “conclusively refuted that allegation” by submitting an affidavit by a Town Justice who affirmed that Member B had not appeared in the Town's Justice Court "after taking his elected position." Member A, said the court, “failed to present any evidence to the contrary.”

3. Member A alleged that Member B circulated an email to a Town employee facing disciplinary charges.

The Appellate Division held that here was no indication that the e-mail constituted "confidential correspondence" that Member B should not have sent to that Town employee.

Accordingly, the Appellate Division dismissed Member A’s petition.

* §36 requires that the officer be notified of the fact that an application seeking his or her removal, together with a copy of the allegations, to be served on the official at least eight days prior to the filing of the application with the court.

** In Jones v Filkins, 238 AD2d 954, the Appellate Division indicated that removal of an individual from public office is appropriate in situations involving “self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06141.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending September 28, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending September 28, 2013

Click on text highlighted in color to access the full report

Statement of New York State Comptroller Thomas P. Dinapoli on EXXONMOBIL decision to offer benefits to same-sex married couples in the United States

This is a very positive step for the LGBT community and a vindication of years of efforts by shareholders and activists across the country. This policy would not have been possible without President Obama’s leadership in directing federal agencies to establish the “Place of Celebration” standard for recognition of same-sex marriages. He took a stand for human rights and the belief that everyone deserves equal treatment.

Corporate discrimination in any form is simply not good business. On behalf of those who have supported the New York State Common Retirement Fund’s shareholder resolutions on this issue over these past four years, I am gratified that ExxonMobil, one of the largest corporations in the world and one of the [NYS Employees’ Retirement] Fund’s largest holdings, will treat its employees with the dignity, equality and respect that they deserve.

  

DiNapoli: MTA Budget Outlook Improves

The Metropolitan Transportation Authority (MTA) is on stronger financial footing than seven months ago with $1.9 billion in unanticipated resources now expected to be available over the course of the financial plan period, yet it still plans to raise fares and tolls by 15 percent over a three–year period, according to an analysisof the MTA’s financial plan released Friday by New York State Comptroller Thomas P. DiNapoli. The MTA plans to use the bulk of the unanticipated resources to improve service and maintenance, reduce the size of projected budget gaps and help fund the next capital program.

A.G. Schneiderman Announces Arrest of Former Nonprofit Director For Involvement in Scheme to Steal More Than $5 Million

New York State Attorney General Eric T. Schneiderman announced Tuesday the arrest of William Rapfogel, former Executive Director and Chief Executive Officer of the Metropolitan Council on Jewish Poverty (“Met Council”), on felony charges of grand larceny, money laundering, criminal tax fraud, and conspiracy, among others. The Attorney General’s complaint charges Rapfogel with conspiring with others to inflate the rate of insurance policies paid by Met Council while pocketing the difference in cost, amounting to more than $5 million stolen from the organization over roughly 20 years. Rapfogel received payments on a regular basis in envelopes of cash and in the form of checks for personal expenses, such as payment for a home contractor.

DiNapoli: More Counties, Towns, Cities Identified in Fiscal Stress

Fourteen local governments, including Rockland, Suffolk, Nassau and Erie counties, have been designated as fiscally stressed in the latest update of State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System. The update was issued in conjunction with a reporthighlighting the similarities among localities listed in fiscal stress.

DiNapoli: Audit Uncovers $55,000 in Suspicious Spending at West Seneca Fire District

Officials with the West Seneca Fire District #6 spent nearly $55,000 in public funds for personal meals, travel expenses, expensive jewelry and internet and cable service, according to an audit and investigation by State Comptroller Thomas P. DiNapoli. The case was referred to Erie County District Attorney Frank A. Sedita. Based on the Comptroller’s audit, Sedita’s office charged district treasurer Diane Nowicki with petit larceny. She appeared in Orchard Park town court on Sept. 26 where she pleaded guilty.

Statement of State Comptroller Thomas P. DiNapoli on Qualcomm leading CPA–Zicklin Index of Corporate Political Spending Disclosure

New York State Comptroller Thomas P. DiNapoli Wednesday applauded Qualcomm Inc. for achieving a top ranking in the 2013 CPA–Zicklin Index of Corporate Political Accountability and Disclosure. This new recognition comes after the New York State Common Retirement Fund and Qualcomm reached an agreement for the company to disclose how shareholder funds are used for political purposes.

Comptroller DiNapoli Releases School Audits

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

the Andover Central School District,

the Gloversville Enlarged School District,

the Hancock Central School District, and

the Laurens Central School District.

Comptroller DiNapoli Releases Municipal Audits

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

the Village of Keeseville,

the Wantagh Fire District, and

 the Town of Wheatfield.
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Moreland Commission to Investigate Public Corruption update

Moreland Commission to Investigate Public Corruption update

The first Moreland Commission to Investigate Public Corruption hearing, held on September 17th, 2013 in New York City, heard testimony focusing on federal and state criminal laws and the adequacy of existing state laws, rules and regulations involving misconduct by public officials.

A 3 ½  hour video of the hearing is posted on U-tube at:

http://www.youtube.com/watch?v=LP1GeOYKRas

The second Moreland Commission to Investigate Public Corruption hearing, held on September 24, 2013, in Albany, New York, heard testimony focusing on campaign finance, outside income of state elected officials and political party housekeeping accounts.

A 2 ½ hour video of the hearing, is posted on U-tube at: 
http://www.youtube.com/watch?v=iLEhNUVdQaU
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Excessed employees in Japan are assigned to “the chasing-out room”

Excessed employees in Japan are assigned to “the chasing-out room”

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/Reproduced with permission. Copyright © 2013, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, New York Law School, All rights reserved.

“Sony, [the] employer of [the] individual for 32 years, consigned him to a room because [it] can’t get rid of him. Sony had eliminated his position at the Sony Sendai Technology Center, which in better times produced magnetic tapes for videos and cassettes. But the individual, now age 51, refused to take an early retirement offer from Sony in late 2010 — his prerogative under Japanese labor law.

“So there he sits in what is called the “chasing-out room.” He spends his days there, with about 40 other holdouts.”

The full text of the article is posted on the Internet at: http://nyti.ms/14UNtAQ 

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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The employer is required rebut the statutory presumption that the applicant for accidental disability retirement benefits suffered a World Trade Center-related post-traumatic stress disorder with competent medical evidence

The employer is required rebut the statutory presumption that the applicant for accidental disability retirement benefits suffered a World Trade Center-related  post-traumatic stress disorder with competent medical evidence

Ginther v Kelly, 2013 NY Slip Op 05967, Appellate Division, First Department

§13-252.1 of New York City’s Administrative Code, was amended by adding a new provision, §13-252.1[1], the so-called “World Trade Center Law.” This amendment established a rebuttable presumption that "any condition or impairment of health . . . caused by a qualifying World Trade Center condition" as defined in the Retirement and Social Security Law, "shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident . . . unless the contrary be proved by competent evidence."

Mary Gintherfiled a petition pursuant to CPLR Article 78 challenging the New York City Police Commissioner’s denying her application for World Trade Center accidental disability retirement benefits. Supreme Court dismissed Ginther’s petition and she appealed.

The Appellate Division unanimously reversed the lower court’s ruling “on the law” and annulled the Commissioner’s decision, remitting the matter to the Police Board of Trustees for recomputation of the appropriate level of benefits to be awarded to Ginther.

The Appellate Division said that the Kelly respondents “failed to meet their burden of providing competent evidence rebutting [Ginther’s] medical evidence that she suffered from post-traumatic stress disorder and depression following her service as a police officer at the World Trade Center site from September 12, 2001 until November 28, 2001.

Citing Samadjopoulos v New York City Employee’s Retirement System, 104 AD3d 268,* the Appellate Division explained that while “the Medical Board is empowered to resolve conflicting evidence, it may not ignore medical evidence and speculate as to other causes of disabling medical conditions in order to rebut the statutory presumption.”

According to the decision, the Medical Board had rejected the conclusion of Ginther’s doctors based on her delay in seeking diagnosis and treatment for her medical condition, and concluded, instead, that Ginther had suffered from a personality disorder. However, said the Appellate Division, the Medical Board did not cite any credible or competent medical evidence support of its diagnosis.

Further, said the court, the Medical Board failed to provide credible evidence or research concerning the onset of a personality disorder in middle age, a conclusion disputed by Ginther's doctor.

* The Samadjopoulos decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2013/2013_01901.htm

The Ginther decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05967.htm

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The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct

The Unemployment Insurance Appeals Board is bound by the disciplinary hearing officer's "factual findings” and his conclusion that the employee had been insubordinate in determining if the individual’s behavior constituted disqualifying misconduct
2013 NY Slip Op 05942, Appellate Division, Third Department

A school custodian [Employee] was served with disciplinary charges pursuant to Civil Service Law §75 alleging that he was guilty of misconduct, incompetence and insubordination. The disciplinary hearing officer found Employee guilty of charges of misconduct and insubordination involving numerous incidents, including Employee’s sleeping while on duty and Employee’s “using vacation days” without giving proper notice or obtaining authorization to do so.

The hearing officer also determined that Employee was guilty of misconduct and insubordination with respect to his behavior after being served with the initial disciplinary charges and specifications brought against him by “verbally abusing his supervisor and failing to immediately leave the premises after being directed to do so.”*

Noting that Employee had violated an earlier "last chance" agreement specifying that dismissal was appropriate if he engaged in any future misconduct, the hearing officer recommended that Employee be terminated from his position.

The appointing authority adopted the hearing officer’s findings and recommendation and dismissed Employee from his position.

Employee applied for unemployment insurance benefits. The Unemployment Insurance Appeal Board determined that Employee's behavior “did not rise to the level of disqualifying misconduct" and awarded him unemployment insurance benefits.The employer appealed the Board’s decision.

The Appellate Division reversed the Board’s ruling, explaining that although the Board was free to make "independent additional factual findings" and draw its own independent conclusion as to whether Employee's behavior rose to the level of disqualifying misconduct for purposes of entitlement to unemployment insurance benefits, it was also bound by the disciplinary hearing officer's "factual findings” with respect to Employee’s conduct and the hearing officer's conclusion that Employee was guilty of insubordination.

As the Board failed to consider whether some of the established instances of misbehavior constituted disqualifying misconduct, and improperly contradicted other factual findings of the disciplinary hearing officer, the Appellate Division remanded the matter to the Board “so that it may reconsider” its ruling consistent with the court’s decision.

* Presumably the initial disciplinary charges served on Employee were amended or supplemented to reflect these additional allegations of misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05942.htm
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The appointing authority may disregard a resignation submitted by the employee when disciplinary charges have been, or are about to be, filed against the individual

The appointing authority may disregard a resignation submitted by the employee when disciplinary charges have been, or are about to be, filed against the individual

OATH Index No. 2041/13

The New York City Human Resources Administration initiated disciplinary action against an employee alleging the employee was AWOL based on the individual's long-term absence from work. The employee’s absence from work resulted from the individual’s incarceration and conviction of a crime.

The employee resigned soon after the disciplinary hearing was held and asked that the OATH Administrative Law Judge to refrain from issuing a decision.*

ALJ Joan R. Salzman ruled that the employer has the right to request a determination on the merits of the charges “for the legitimate purpose of assessing future public employment under Civil Service Law.”

Judge Salzman found the employee guilty of misconduct but made no penalty recommendation in consideration of the individual’s resignation. 

* 4 NYCRR 5.3(b), 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, in pertinent part, “when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.. A number of local civil service commissions have adopted a similar rule applicable to employees appointed by public entities subject to its jurisdiction.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2041.pdf
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