Proceeding with an administrative hearing in the absence of the individual and his or her attorney

Proceeding with an administrative hearing in the absence of the individual and his or her attorney
2013 NY Slip Op 06900, Appellate Division, Third Department

One of the issues considered by the Appellate Division in this appeal challenging the New York State’s Administrative Review Board for Professional Medical Conduct revocation of the physician's license to practice medicine in New York State was the allegation that the physician was denied administrative due process.

With respect to the physician’s due process claims, the Appellate Division found that:

1. The physician was provided with fair notice of the charges and hearing dates, an opportunity to present a defense and a fair hearing that comported with due process.

2. The Administrative Law Judge (ALJ) did not abuse her discretion in denying the physician's untimely, last minute request for an adjournment of the mutually agreed-upon second day of the hearing.

According to the ruling, the parties had mutually agreed upon a number of additional hearing dates in the course of the first day of the hearing.

The day before that second hearing date, April 12, the physician's attorney belatedly an email to the ALJ and the BPMC’s counsel stating that the physician was "out of the country," she was "[un]able to contact him" and requesting an adjournment until the next hearing date. In response to the BPMC's counsel immediate objection to the request, the physician's attorney sent an email that she would "not attend the hearing."

The following day, neither physician nor his attorney appeared as scheduled for the second day of the hearing. The ALJ denied the requested adjournment, noting that, just that morning, she had received the belated email adjournment request and that physician’s attorney had offered no valid reason for her failure to appear on the physician’s behalf.

The ALJ then proceeded with the second day of hearing, notwithstanding the absence of the physician and his attorney, during which testimony was heard and BPMC rested.

The Appellate Division said that it found no error or abuse of discretion, particularly given that no good cause was offered by the physician’s attorney for their absence, noting that the request for a postponement was untimely in that “the notice of hearing had clearly advised [the physician and his attorney] that any requests for adjournments, among other requirements, had to be made ‘at least five days prior to the scheduled hearing date,’ and they were informed at the outset of the first hearing that it could continue in their absence.”

The Appellate Division also noted that the physician contended that a week prior to the second hearing date he left the county due to an unspecified death in his family, but offered no explanation why he did not, at that time, contact his attorney, the ALJ or BPMC to timely request an adjournment. In addition, the court said that the physician’s subsequent “unsubstantiated” claim advanced in the course of an administrative appeal that his attorney was ill on the second hearing date was properly rejected as not credible, “particularly given that [the physician’s attorney] made no mention of any illness in her belated emails requesting an adjournment.”

Further, said the court, the physician waived his limited right to cross-examine the witness who had testified in his absence “by failing, without good cause, to appear.”

The court said it was not persuaded that the penalty imposed for the sustained charges -- of revocation the physician’s license to practice medicine in New York State -- was so disproportionate to the physician's pattern of misconduct, as reflected in the Board's findings, "as to shock one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06900.htm
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Final report addressing alleged unlawful discrimination, harassment and intimidation of certain Schoharie County employees posted on the Internet

Final report addressing alleged unlawful discrimination, harassment and intimidation of certain Schoharie County employees posted on the Internet

The “Confidential Final Report Concerning Discrimination, Harassment and Intimidation in the County Workplace for the Schoharie County Board of Supervisors” submitted by Mark J. Fitzmaurice, Esq., of the law firm of Fitzmaurice and Welsh, White Plains, New York, to Schoharie County Board of Supervisors has been posted on the Internet at

http://www.schohariecounty-ny.gov/CountyWebSite/countyreport.html.

The 117-page report sets out the procedures and methodology used in the evaluation process, together with Mr. Fizmaurice's findings and recommendations. Also posted are the more than 50 exhibits related to the report.

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The statutory text provides the clearest indication of “legislative intent” and should be construed by the courts to give effect to its plain meaning

The statutory text provides the clearest indication of “legislative intent” and should be construed by the courts to give effect to its plain meaning

Sheriff Officers Assn., Inc. v County of Nassau, 2013 NY Slip Op 06870, Appellate Division, Second Department

In June 2011, the Nassau County Legislature approved a bill authorizing the amendment of the County's 2011 budget in order "to abolish certain positions of employment . . . as a means of addressing the current economic shortfall." The County Legislature subsequently adopted a bill amending the budget [Local Law 198-2011] permitting the abolition of, among other things, up to 48 correction corporal positions.

Section 1 of Local Law 198-2011 stated, in relevant part, that the positions listed in "Appendix A to this Ordinance" "shall be deemed abolished effective no later than December 29, 2011." Section 3 of Local Law 198-2011 provides that, "Appendix A to this Ordinance may have individual line items in it stayed by Executive Order. Nothing contained herein shall limit the stay to an individual line and this shall be interpreted as permitting a stay applicable to individual job titles."

Consistent with the Local Law 198-2011, the County Executive ultimately stayed the abolition of 18 of the 48 correction corporal positions. The incumbents of the remaining 30 correction corporals were demoted to correction officer positions as their correction corporal upon the abolishment of the positions they encumbered.

The Sheriffs Association filed an CPLR Article 78 petition with Supreme Court alleging that the County Executive acted in violation of Local Law 198-2011 when he abolished the 30 correction corporal titles, contending that Local Law 198-2011 was not self-executing and required the County to take some affirmative action to abolish the listed positions before December 29, 2011.Thus, argued the Association, the County Executive untimely demoted 30 of the 48 correction corporals on January 12, 2012.

The Appellate Division ruled that the Association failed to meet its burden of proof in that it did not prove that the County Executive acted in violation of lawful procedure or that his act was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion. The court explained that “When considering questions of statutory interpretation, a court's ‘primary consideration is to ascertain and give effect to the intention of the Legislature.’ The statutory text provides the clearest indication of legislative intent, and should be construed to give effect to its plain meaning."

Here, said the court, “Supreme Court correctly found that the statutory language at issue was unambiguous, and that the provision of section 1 of [Local Law 198-2011] providing for the abolition of listed titles was self-executing.” Further, noted the Appellate Division, there is  “nothing in [Local Law 198-2011] which requires any enabling act by the County in order to abolish the positions.”

As to the County Executive’s stay of the abolition of several of the positions on or about December 28, 2011, and his amending that stay on January 12, 2012, the Appellate Division ruled that Local Law 198-2011 was self-executing, and that, as of December 29, 2011, all 48 of the correction corporal positions would have been deemed substantively abolished, but for the executive stay that was issued.

Rejecting the Association’s argument to the contrary, the court concluded that the County Executive's determination on January 12, 2012 did not constitute an illegal or untimely attempt to abolish the relevant correction corporal positions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06870.htm
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Liquidating unused leave accruals upon retirement, resignation or death

Purcell v City of New York, 2013 NY Slip Op 06799, Appellate Division, First Department

Thomas R. Purcell, a former New York County Deputy Public Administrator employed by the Office of the Public Administrator [Office], requested payment for his unused annual and sick leave accruals following his retirement from his position. However, the appointing authority advised him that he was not due any compensation for unused leave credits and that, in fact, his “final leave balance was negative.” 

 The payment or "liquidation" of such leave credits could be a significant consideration upon retirement.

Typically an employee’s unused annual leave accruals and unpaid “overtime” or compensatory time credits are paid to the individual upon his or her resignation or retirement or to his or her estate in the event of his or her death while in service.

If, on the other hand, an employee has unused annual leave credits at the time he or she retires and elects to liquidate such credits by means of a lump sum payment rather than "run them out," the lump sum payment could be a factor to be included in computing the employee's final average salary for retirement purposes, resulting in a higher retirement allowance. 

As to sick leave, although unused sick leave is not liquidated unless authorized by law, rule or regulation or, in some instances, a collective bargaining agreement, accumulated unused sick leave may be used for “additional service credit” for the purpose of determining the individual’s retirement allowance and other benefits upon the individual's retirement.

Employees of the State as the employer, certain public authorities and certain other public entities who are members of the New York Employees' Retirement System can take advantage of their accrued and unused sick leave credits when they retire from service. Upon retirement such unused leave accruals can be used for additional member service credit in the retirement system. Up to 200 days of additional member service may be credited using such unused sick leave accruals [see Retirement and Social Security Law §41.j.1].

In addition, employee of the State as the employer and some municipal employees participating in the State's Employees' Health Insurance Plan [NYSHIP], can have the actuarial value of their unused sick leave credits applied towards the payment of any employee health insurance premium required following their retirement if they remain in NYSHIP [see Civil Service Law §167, subdivisions 4 and 5].

Purcell challenged the Office's determination in an Article 78 proceeding and Supreme Court issued and order remanding the matter to the appointing authority for issuance of “a revised determination based upon correct information.”

The Office subsequently issued a revised determination, asserting that its earlier calculation of Purcell's annual leave balance was correct. About six months after receiving the Office’s “revised” decision Purcell initiated a lawsuit alleging “breach of contract” based on the Office’s failure to compensate him for the value of his unused annual and sick leave time.

The Appellate Division agreed that Purcell was correct regarding his argument that a party seeking damages arising from an alleged breach of contract against a public official or governmental body may pursue an action at law. However, said the court, Purcell had failed to establish the existence of such a contract and thus could not maintain an action at law based on an alleged “breach of contract.”

“Although framed as one for breach of contract,” Purcell, said the court, was actually challenging to the Office of the Public Administrator's administrative determination that, based upon its calculations, he was not entitled to compensation for unused sick and annual leave. The appropriate procedure to test the Office’s decision was for Purcell to have initiated an Article 78 action.

Purcell, however, had failed to file an Article 78 petition in a timely fashion as he had initiated this lawsuit some six months after the Office issued its “final determination.” An Article 78 action cannot be maintained unless it is filed within the statutory four-month statute of limitations for initiating such actions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06799.htm
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The doctrine of judicial estoppel bars a party securing a ruling in his or her favor based on taking a certain position from advancing a contrary position in another action

The doctrine of judicial estoppel bars a party securing a ruling in his or her favor based on taking a certain position from advancing a contrary position in another action

2013 NY Slip Op 06783, Appellate Division, First Department

The assistant director [AD] of a day care center applied facility applied for a position with New York City Department of Health (DOH) as an Early Childhood Education Consultant (ECEC). In August 2007, DOH notified plaintiff that she was hired and was to start her new job on September 5, 2007.

As the result of a number of mishaps related to her pregnancy, AD was ultimately told that DOH could "no longer grant [her] employment" on September 6, 2007.

AD then contacted the day care center seeking reemployment and the center “agreed to take her back.”

After reporting for work at the day care center on September 12, 2007 AD went to she her doctor during her lunch break on the same day. She returned to the office with a note from her doctor indicating that she had "preterm labor" and "restrictions" on walking. According to AD, “On either September 13, 2007, or September 17, 2007” the center terminated her.

AD sued DOH alleging “gender- and pregnancy/disability-based discrimination under the New York City Human Rights Law.” Subsequently AD commenced an action against the day care center “asserting claims of gender- and pregnancy-based discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978, and the New York State and City Human Rights Laws.”

The day care center defaulted and the District Court granted AD’s motion for a default judgment and held that she was entitled to damages. Significantly, the federal district court, based on the representation set out in AD’s deposition,* ruled that she had been employed at the day care center "from April 2005 until September 17, 2007."

When Supreme Court granted DOH’s motion for summary judgment dismissing AD’s complaint against DOH that had been filed in state court, AD appealed.

The Appellate Division sustained the Supreme Court’s ruling, explaining that “The doctrine of judicial estoppel prevents a party who assumed a certain position in a prior proceeding and secured a ruling in his or her favor from advancing a contrary position in another action, simply because his or her interests have changed.” Also referred to as the "doctrine of estoppel against inconsistent positions," said the court, the doctrine "rests upon the principle that a litigant should not be permitted to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise."

The Appellate Division found that AD failed to show that she was "qualified" for the DOH position in her state court action, as required to make out a prima facie case of discrimination, as she was “judicially estopped from denying that, at the time she was allegedly discriminated against by [DOH], she was actually employed with [the day care center] which would make it impossible for her to carry out her duties for [DOH].”

Although AD argued that “there is no inconsistency between the positions she took in the federal action and those she has taken in this action,” the Appellate Division disagreed, noting that AD had “neglected to inform the District Court that, while employed at [the day care center], she pursued and accepted another job with DOH which she was slated to start on September 4, 2007, left [the day care center], was allegedly discriminated against by the City, and returned to [the day care center] prior to being discriminated against there and terminated after a single day.

The Appellate Division said that “These facts would have been highly material to her claim against [the day care center], and it was highly misleading, at best, for [AD] to omit her City employment from her submissions to the District Court.”

Noting that “based on [AD's] submissions, the District Court expressly found that she was employed by [the day care center] from April 2005 until September 17, 2007,” the Appellate Division said that it the District Court’s finding was incorrect, “then it was incumbent upon [AD] to move to correct the finding, or else be bound by it in subsequent legal proceedings.”

* Although AD testified at her 2010 deposition that she was terminated on September 13, 2007, she conceded that she was uncertain of the actual date of her termination. Based on AD's allegations in the federal lawsuit, she was awarded a default judgment based on a termination date of September 17, 2007.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06783.htm
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Moreland Commission to hold third public hearing in New York City

Moreland Commission to hold third public hearing in New York City

Source: Moreland Commission Press Office

The Moreland Commission to Investigate Public Corruption will hold its third public hearing on Monday, October 28, 2013 at the Jacob K. Javits Convention Center of New York. Hearings are scheduled to begin at 5:00 p.m. [Convention Center doors will open at 4:00.p.m]

Each hearing will cover specific subject areas. The October 28 hearing will focus on Campaign Finance Reform.

The Commission has invited the following individuals to testify:* 
  
New York State Board of Elections Co-Executive Directors, Robert Brehm & Todd Valentine and Deputy Enforcement Counsel, William McCann

New York City Campaign Finance Board Executive Director, Amy Loprest
 
New York Public Interest Research Group Research Coordinator, Bill Mahoney

Campaign Finance Institute Executive Director, Michael Malbin

Connecticut Deputy Secretary of State, James Spallone & Demos President, Miles Rapoport

NYC Council Members, Brad Lander and Carlos Menchaca

 New York State League of Women Voters President, Sally Robinson

Citizens Union Director of Public Policy and Advocacy, Alex Camarda

The Commission’s Internet site address is: http://publiccorruption.moreland.ny.gov/

* Members of the public are invited to attend only. Those invited to provide testimony to the Commission will be the only individuals to speak at the hearing.



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