The State Senate Republican Campaign Committee seeks to quash a Moreland Commission subpoena asking for its “housekeeping account” records

The State Senate Republican Campaign Committee seeks to quash a Moreland Commission subpoena asking for its “housekeeping account” records

The State Senate Republican Campaign Committee has filed a motion in New York State Supreme, New York County,*asking the court to quash the Moreland Commission’s September 20, 2013 subpoena duces tecum for records pertaining to its "housekeeping account." In addition, the Committee is seeking a “protective order directing that the Committee need not respond to the subpoena’s remaining demands.”**

According to the Committee’s Memorandum of Law in Support of Petition to Quash and for a Protective Order filed October 29, 2013, “Its 'housekeeping account' is a segregated account comprising 'monies received and expenditures made … to maintain a permanent headquarters and staff and carry on ordinary activities which are not for the express purpose of promoting the candidacy of specific candidates.'”

In response, on October 30, 2013 the Moreland Commission Co-Chairs Kathleen Rice, Esq., Milton Williams, Jr., Esq. and William Fitzpatrick, Esq. issued the following statement:

"In addition to Executive Law 6 and the Executive order, the Moreland Commission has full legal authority, as Deputy Attorneys General, granted by the Attorney General, under Executive Law 63(8) to proceed with this investigation. We had hoped the Senate Republicans would willingly cooperate and they did not. We will prevail in court."

*  New York State Senate Republican Campaign Committee, Petitioner v Commission To Investigate Public Corruption, Respondent, Supreme Court, New York County, Index Number 159965/2013. The Senate Republican Campaign Committee’s October 29, 2013 response, together with a copy of its Memorandum of Law, is posted on the Internet at:

 http://polhudson.lohudblogs.com/2013/10/30/senate-gop-seeks-to-quash-moreland-commission-subpoena-for-records/

** The Committee's Memorandum of Law alleges: "the Committee made a targeted production of documents that responded to the Subpoena’s demands 1 and 3."

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Attempt to defeat the accuracy of a polygraph test results in removal of the candidate’s name from the eligible list

Attempt to defeat the accuracy of a polygraph test results in removal of the candidate’s name from the eligible list
2013 NY Slip Op 06682, Appellate Division, Second Department

The name of an individual [Candidate] seeking appointment as a Suffolk County Police Officer was removed from the eligible list certified for such employment.

Candidate filed a petition pursuant to CPLR Article 78 seeking a court order restoring his name to the eligible list. Supreme Court dismissed Candidate’s petition and the Appellate Division affirmed its ruling.

According to the Appellate Division’s decision, Candidate’s name was removed from the eligible list based on the opinions of several experts who reviewed the results of Candidate’s pre-employment polygraph [lie detector] examination. These experts concluded that Candidate had “deliberately engaged in the use of countermeasures in an attempt to improperly influence the results of the examination.”

The Appellate Division held that the employer reliance on the opinions of these experts was neither irrational nor arbitrary.

Further, said the court, Candidate failed to present any evidence demonstrating that the determination to remove his name from the eligible list lacked a rational basis or was arbitrary and capricious. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06682.htm
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Seeking reimbursement for attorney fees incurred by an employee in the course of judicial and quasi-judicial actions taken against the individua

Seeking reimbursement for attorney fees incurred by an employee in the course of judicial and quasi-judicial actions taken against the individual
2013 NY Slip Op 06910, Appellate Division, Third Department

This decision by the Appellate Division addresses a number of issues that arose in connection with the employee and his attorney seeking reimbursement for attorney fees incurred in the course of defending administrative disciplinary charges and federal and state civil and criminal action in which the employee was a party.

The elements considered by the court included claims and defenses based on an alleged unilateral contract; promissory estoppel; unjust enrichment; quantum meruit and fraud and the impact, if any, of the terms and conditions set out in the collective bargaining agreement between the employee’s union and his employer providing for the employer's reimbursing an employee for legal fees incurred by an employee in defending himself or herself in such judicial and quasi-judicial actions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06910.htm

Suspension without pay while disciplinary action is pending

Suspension without pay while disciplinary action is pending
2013 NY Slip Op 06769, Appellate Division, Third Department

One of the issues addressed by the Appellate Division was a question involving the suspension without pay of an individual served with disciplinary charges pursuant to Civil Service Law §75.

Noting that in order to avoid unreasonable delay in moving forward with pending charges, Civil Service Law §75(3) authorizes suspension of pay during a disciplinary proceeding for only 30 days. Where the disciplinary action has not been resolved within this 30-day period, the accused is entitled to be reinstated to the payroll and receive his or her regular compensation until an administrative determination regarding the disciplinary charges by the appointing authority has been made.

The Appellate Division, citing Gerber v New York City Hous. Auth., 42 NY2d 162, said this 30-day limitation does not apply in the event of delays attributable solely to the charged employee or where such payment has been clearly waived by such employee.

Courts have approved the placement of an individual on leaves without pay for periods equal in length to any adjournment in the hearing process requested by the employee. See, for example, DeMarco v City of Albany 75 AD2d 674 and Amkraut v Hults, 21 AD2d 260.

For other exceptions due to collective bargaining agreements or for other reasons, see Winkler v Kingston Housing Authority, 259 A.D. 2d 819 and Robinson v New York City Transit Authority, 226 AD2d 467.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06769.htm
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