November 09, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 9, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 9, 2013
Click on text highlighted in color  to access the full report

Comptroller DiNapoli noted that onMonday, November 11, we will celebrate Veterans Day across the country, remembering and honoring the individuals of all ages and backgrounds who have served in the United States armed forces since our nation was born. November 11th marks the end of World War I, then known as the Great War, in 1918, a conflict intended to make the world safe for democracy in which some 4 million Americans served, 200,000 were wounded and 100,000 gave their lives. After World War II, Armistice Day was renamed Veterans Day and reconceived as a day to celebrate the dedication, patriotism and fighting spirit of all U.S. military veterans.

At local parades and other gatherings, and in our homes, Veterans Day is an opportunity for us to come together to thank the men and women who have served for their sacrifice and bravery, and to reflect upon the principles they upheld in defending the United States of America.

Comptroller DiNapoli & A.G. Schneiderman Announce Arrests of Former Monroe County Public Officials and Business Executives in Elaborate Bid–Rigging Scheme

On November 6, 2013 Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the indictment of four individuals for an elaborate scheme to rig the bidding process for several multimillion–dollar contracts. Nelson Rivera and Robert Wiesner, both former Monroe County public officials, along with John Maggio and Daniel Lynch, two local business executives, have been charged with a total of 43 felony counts, including Money Laundering, Conspiracy, Falsifying Business Records, Offering a False Instrument for Filing, and Combination in Restraint of Trade and Competition.

DiNapoli: Immigrants Continue to Play Key Role in New York City Economy

Immigrants in New York City accounted for $210 billion in economic activity in 2011, or about 31 percent of New York City’s gross city product, according to a reportreleased Thursday by New York State Comptroller Thomas P. DiNapoli. While immigrants were hit hard by the recession, their wages rebounded strongly and exceeded pre–recession levels two years later.

DiNapoli: Former Clerk Admits to Stealing Village Funds

The former clerk–treasurer in the Steuben County village of Riverside was arrested Friday and charged with stealing more than $40,000 in village funds, State Comptroller Thomas P. DiNapoli announced.

DiNapoli: $4 Million Availabile for Veterans to Expand Their Businesses

With Veterans Day coming, New York State Comptroller Thomas P. DiNapoli Wednesday spotlighted the availability of $4 million in competitive fixed–rate small business loans for military veterans through the New York Business Development Corp.

DiNapoli Announces $500 Million Investment in Opportunistic Portfolio Asset Class

New York State Comptroller Thomas P. DiNapoli announced on November  8, 2013 that the $160.7 billion New York State Common Retirement Fund has made the first investment in its opportunistic asset class with a $500 million separate account commitment to Blackstone Tactical Opportunities Fund.

DiNapoli Releases Quick Start State Budget Analysis for 2014–15

State Comptroller Thomas P. DiNapoli projects the state’s tax revenues will grow by 2.5 percent to $90.1 billion in state fiscal year 2014–15, according to the Comptroller's annual Quick Start reportreleased Tuesday in accordance with the Budget Reform Act of 2007.

DiNapoli’s Office to Audit SUNY Upstate Medical University’s Contracts with MedBest

New York State Comptroller Thomas P. DiNapoli announced Friday that his office has scheduled an audit of the State University of New York Upstate Medical University’s contracts with MedBest Medical Management Inc.

Comptroller DiNapoli Releases Municipal Audits

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

the Ethelbert B. Crawford Public Library.

November 08, 2013

What's in a name? that which we call a rose

What's in a name? that which we call a rose*
Source: Professor Michael Froomkin, Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law, University of Miami School of Law

Professor Michael Froomkin, Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law, University of Miami School of Law, referring to a response to a motion submitted to the court by an assistant attorney general for the State of Tennessee, states “I’ve seen half-a-dozen links to this unique and amazing pleading but the world will be a better place with one more.”

Here is yet another link to the pleading. 

Professor Froomkin summaries the situation as follows:

“The setup is that the prosecutor wanted the Judge to order the defense ‘not to refer to the Assistant District Attorney General as “the Government” during trial.'" Seems they thought being called “the government” was prejudicial or derogatory or hurt their feelings or something. Defense hits it out of the park. The really good stuff starts at the bottom of page two.” 

* William Shakespeare, Romeo and Juliet

The defendant’s attorney’s Response To Government's Motion In Limine II is posted on the Internet at:

State sued for alleged defamation after publishing information depicting the plaintiff as a “sexual offender/predator”

State sued for defamation after publication of information depicting the plaintiff as a “sexual offender/predator”
2013 NY Slip Op 51814(U), Court of Claims, Judge Judith A. Hard [Not selected for publication in the Official Reports.]

In this action filed in the Court of Claims, the plaintiff [Anonymous] sought damages for alleged defamation arising out of “the State’s implementation, organization, publication, portrayal and dissemination of photographs and materials” which depicted Anonymous to third persons as a sexual offender/predator even though Anonymous was never charged with a sexual offense or convicted as a sexual offender/predator.

In her decision Judge Hard found that Anonymous proved liability by a preponderance of the credible evidence and explained the relevant law with respect to the issue before her, i.e.,  Did the publication of those statements constituted defamation? 

Defamation, said the court, "is defined as the making of a false statement which tends to ‘expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.' [while] [d]efamation is the injury to one's reputation, either by written expression (libel) or oral expression (slander)."

In the words of Judge Hard “The elements of defamation are: (1) a false statement; (2) the publication of said statement without privilege or authorization to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) the statement causes special harm or constitutes defamation per se. Publication of a photograph constitutes dissemination of information.”

In this case, the Court concluded that a State law enforcement agency's employee’s speech to the press, a press release, a media advisory and “the display of the [Anonymous’] mug shot on the wall of shame,” all of which wrongly imply that Anonymous was a sexual predator, constitute false statements. In addition, the court concluded that “the publication of said statements was not authorized.”

The issue for the court to determine: “Whether the statements were privileged, whether the fault amounts at least to negligence on the part of defendant, and whether the statements caused special harm or constitute defamation per se.”

As to “privilege,” a public official being sued for alleged slander or liable may claim an “absolute privilege” or a “qualified privilege.”

Absolute privilege protects "communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings" but only extends to comments "made in the context of official communications by a principal executive of State or local government [or] those entrusted by law with considerable administrative or executive policy making responsibilities.” 

Further, Judge Hard said that “Absolute privilege attaches to actions performed by delegation on behalf of a department head of an agency, but not to those actions undertaken by an employee on their own behalf in the discharge of their own official duties.”

As to “qualified privilege,” Judge Hard said that “Press statements made by governmental representatives concerning governmental affairs are covered by such a qualified privilege. To establish such a [qualified] privilege, defendant needs to submit proof establishing that it was objectively reasonable for the defendant to believe that its conduct was appropriate under the circumstances. A [qualified] privilege will attach to statements in which the communicating party possesses a legal duty to communicate information about another, if the communicator has a good-faith belief that the information is true.”

In this action, the State did not claim an absolute privilege.

As to any “qualified privilege,” Judge Hard indicated that although a qualified privilege may apply to press statements made by governmental representatives concerning governmental affairs, the State defendant cannot avail itself of the qualified privilege defense here  because the State defendant did not submit any proof that its behavior was even remotely reasonable under the circumstances or that it had a good-faith belief that Anonymous was an online sexual predator. To the contrary, Judge Hard said that it was clear that State, through the actions of it employees, was aware that Anonymous was charged with a crime - criminal possession of a controlled substance. However, noted the court, Anonymous had not been charged with any of the internet crimes that was the subject of the press conference or press release.

Judge Hard found that “no privilege attaches to any of the alleged defamatory statements,” and then commented “… even if a qualified privilege did exist, it would be overcome by malice as [the State] recklessly disregarded the truth (i.e. that [Anonymous] was charged with criminal possession of a controlled substance) when affixing [Anonymous’] photo to the wall of shame designed to highlight online predators.”

The Court’s conclusion:

1. The State’s “fault rises at least to negligence, and further that the defamatory statements constitute defamation per sebecause they would naturally import a criminal or disgraceful charge to the mind of an intelligent person.”

2. Anonymous has proved [the] case by a preponderance of the credible evidence.

Holding that the State “is 100% liable for the defamation,” Judge Hard said that a trial on damages “shall be scheduled as soon as practicable.”

The decision is posted on the Internet at:

November 07, 2013

An employee’s Constitutional right against self-incrimination does not give the individual the right to answer questions untruthfully

An employee’s Constitutional right against self-incrimination does not give the individual the right to answer questions untruthfully
2013 NY Slip Op 07104, Appellate Division, Third Department

An individual [Claimant]employed by Ulster County was arrested and charged with felony and misdemeanor counts of criminal possession of a controlled substance after heroin was found in the car she was driving. The County suspended Claimant without pay from her employment pending the resolution of the criminal charges.

Claimant then applied for unemployment insurance benefits and told the Department of Labor investigator that she was on disciplinary suspension because of her arrest and that she was "not guilty of any wrongdoing in connection with the arrest." Claimant was approved to receive unemployment insurance benefits based on this information.

Subsequently Claimant was convicted of two misdemeanor counts of criminal possession of a controlled substance in the seventh degree arising out of the arrest and Ulster County terminated her employment.

Following Claimant's termination by the County, a Labor Department Administrative Law Judge (ALJ) disqualified her from receiving unemployment insurance benefits on the ground that she had been separated from employment due to her misconduct. The Unemployment Insurance Appeal Board affirmed the ALJ’s decision and ultimately Claimant was held subject to a recoverable overpayment of unemployment insurance benefits in the amount of $31,935 and a reduced right to receive future benefits by 16 effective days on the Board’s finding that she had made willful misrepresentations to obtain benefits.

Complainant appealed contending that her statement to the investigator constituted “an exercise of her constitutional right against self-incrimination for which she could not be penalized by the Board.” The Appellate Division rejected this argument, explaining that although Claimant had the right to refuse to respond to any inquiries related to her possible guilt in connection with her arrest and the criminal charges then pending against her, "neither the text nor the spirit of the Fifth Amendment confers a privilege to lie."*

In the words of the Appellate Division, “By her response to the investigator's inquiry as to whether she was, in fact, guilty of the crimes she was charged with, [Claimant] “took a course that the Fifth Amendment gave [her] no privilege to take’ and the jury's verdict convicting her of knowingly possessing heroin at the time of her arrest conclusively established the falsity of her statement denying any wrongdoing.”

The Appellate Division sustained the Board’s determination, ruling that substantial evidence supported its finding that Claimant's affirmative statement to the Labor Department's investigator that she was "not guilty of any wrongdoing in connection with [her] arrest" was a willful misrepresentation made in order to obtain benefits.

* In Bryson v. United States, 396 US 64, the Court said “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.”

The decision is posted on the Internet at:

November 06, 2013

Town adopts a local law replacing a contract disciplinary procedure applicable to town police officers pursuant to Town Law §155

Town adopting a local law replacing a contract disciplinary procedure applicable to town police officers pursuant to Town Law §155
Town of Goshen v Town of Goshen Police Benevolent Assn., 2013 NY Slip Op 23365, Supreme Court, Orange County

In Matter of Town of Wallkill v Civil Serv. Employees Assn., Inc., 19 NY3d 1066 [2012] and Matter of Patrolmen's Benevolent Assn. of City of NY, Inc. v. New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006]. the Court of Appeals considered two companion appeals involving the effect of the Rockland County Police Act in one action and the New York City Charter and Administrative Code in the other case on the relevant municipality's authority over police discipline.

The Court of Appeals held that discipline of police officers "may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials." The Court of Appeals applied that holding in Town of Wallkill, and upheld the Town of Wallkill's local law making police discipline the subject of local authority rather than collective bargaining.

In response to disciplinary charges filed against a police officer pursuant the Town’s Local Law No. 1 of 2013, the Police Benevolent Association [PBA] demanded that the matter be submitted to arbitration.

The Town, cited the Town of Wallkill ruling in support of its initiating disciplinary action against a town police officer pursuant to the Town’s local law, asked Supreme Court to grant its petition to stay submitting the matter to arbitration based on the Town’s representation that it had, pursuant to the authority provided under Town Law §155, supplanted ”the disciplinary procedure laid out in Article 13 of the CBA [Collective Bargaining Agreement] with the disciplinary procedure set forth in Local Law No. 1 of 2013.”*

The court agreed, holding that Article 13 of the CBA is null and void and the procedures set forth in the Town's Local Law, not those of the CBA, govern police discipline in the Town and the Town's Local Law controls with respect to the disciplinary charges brought against police officers following enactment of the Local Law, provided those charges were timely brought.

The PBA then move to have the disciplinary charges filed against the police officer dismiss, contending that they were untimely, pointing out that Town Law §155 provides that disciplinary charges "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

The PBA contend that the Town had knowledge of the facts underlying the charges more than 60 days prior to the charges being served on the police officer.**
In rebuttal the Town argued that the issue of timeliness of the disciplinary charges was not properly before the court. The Town also contended that, in any event, Local Law No.1 of 2013 "did not supplant the eighteen-month limitation period in the CBA agreement; it merely altered the process of noticing and hearing discipline, i.e., substituted a hearing officer for arbitrators and provided that the Town Board make the final determination."

The court agreed with the PBA, noting the statute of limitations set out in the Town Law §155 whereby disciplinary charges "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

Here, said the court, “having successfully eliminated the arbitration provisions from the CBA, the Town cannot extend the principles that derive from arbitration agreements to its local law and decree that the question of timeliness is to be determined by the Town Board or a hearing officer selected by the Town Board. Thus, in the absence of an arbitration agreement on the issue, the timeliness of the Town's disciplinary charges is an issue for the Court to determine.

Accordingly, Supreme Court ruled that the Town’s action in bringing disciplinary action against the police officer was untimely.

* Supreme Court noted that “The Town used the Town of Wallkill's local law as a model for [its] Local Law No. 1 of 2013 and the two [local] laws are virtually identical.”

** According to the decision, the police officer had been served with the Notice of Discipline more than 120 days after the Town Board had knowledge of the facts underlying its bringing the disciplinary action.

The decision is posted on the Internet at:


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2023 - Public Employment Law Press. Email: