Employee demoted after being found guilty of misconduct

Employee demoted after being found guilty of misconduct

2013 NY Slip Op 07363, Appellate Division, Fourth Department

In this action an employee asked the Appellate Division to annul a determination by the appointing authority finding the employee guilty of specified acts of misconduct and demoting the employee to a lower grade position.

The court rejected the employee's claim that the appointing authority’s determination was not supported by substantial evidence, explaining that substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," citing 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176.

Further, said the Appellate Division, the penalty imposed by the appointing authority, demotion, “is not so disproportionate to the offense[s] as to be shocking to one's sense of fairness, and thus does not constitute an abuse of discretion as a matter of law."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07363.htm
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Applying the Doctrine of Primary Jurisdiction

Applying the Doctrine of Primary Jurisdiction

Marsico v Armstrong, 2013 NY Slip Op 07487, Appellate Division, Second Department

Education Law §2510(2) provides that “Whenever a board of education abolishes a position under this chapter, the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued [emphasis supplied].*

The Board of Education abolished Business Education teacher positions in accordance with Education Law §2510(2) and then established a preferred eligible list pursuant to Education Law §2510(3) for use in the event a vacancy became available and the Board elected to fill the position.

Donna Marsico was granted tenure as a Business Education teacher by the Board effective September 1, 1994. Upon the abolishment of her positions, the Board placed Marsico’s name on the appropriate preferred list as “the most senior teacher for rehiring purposes.” The Board, however, later concluded that Marsico’s service with the school district as an Adult Education teacher from 1993 to 2007 should not have been considered in determining her seniority for placement on the preferred list.

The Board then adopted a resolution establishing a new preferred eligible list listing the names of two other teachers as having greater seniority in the tenure area than Marsico. One of those teachers was later appointed from the preferred list.

Marsico filed a petition pursuant to CPLR Article 78 [1] seeking a review of the resolution establishing the new preferred eligible list, [2] seeking an order to compel the Board to restore “her reinstatement rights pursuant to the initial preferred eligible list” and [3] directing the Board to appoint her to the position to which the other teacher had been appointed.

The Board moved to dismiss Marsico’s petition based upon the doctrine of primary jurisdiction.** Supreme Court granted the Board’s motion to the extent that it  “stayed the proceeding and referred the matter to the Commissioner of Education”

The Commissioner subsequently decided Marisco’s administrative appeal challenging the Board's several determinations and agreed with the Board, dismissing her administrative appeal on the merits. [Decisions of the Commissioner of Education, Decision 16,158].***

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The Supreme Court then denied Marisco’s petition and dismissed the proceeding.

The Appellate Division reversed the Supreme Court’s ruling explaining that “Under the particular circumstances of this case, the Supreme Court either should have dismissed the petition upon the [Board’s] motion, pursuant to the doctrine of primary jurisdiction or, upon the Commissioner's determination of the administrative appeal, should have permitted Marsico to amend her petition so as to seek review of the Commissioner's determination and to join the Commissioner as a party.”

As Supreme Court elected to await the Commissioner's determination rather than dismiss the petition, the Appellate Division remitted the matter Supreme Court “to permit Marsico to amend her petition and join the Commissioner as a party and, thereafter, for a determination of the amended petition.”

* In contrast, in the event positions in the competitive class in the classified service are abolished [educators are in the unclassified service], §80.1 of the Civil Service Law provides that the incumbents of such positions shall be laid off “in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition positions occurs [emphasis supplied]. §80-a(1) of the Civil Service Law so provides for employees in the noncompetitive class employed by the State as the employer[emphasis supplied].

** The doctrine of primary jurisdiction may be applied by a court in order to permit an administrative agency an initial opportunity to decide an issue in a case in which the court and the agency have concurrent jurisdiction.

*** The Commissioner's decision is posed on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16158.htm

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07487.htm

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Employee has a duty of loyalty to the appointing authority

Employee has a duty of loyalty to the appointing authority

56 N.Y.2d 656

An employer is sometimes confronted with a situation in which an employee’s duty of loyalty to the employer is called into question or there appears to be a conflict of interest with respect to the employee’s performance.

In this action, the employee sued the agency after it had discharged him for “disloyalty and conflict of interest.”

At the time of his dismissal, the employee served as an associate counsel to the agency. The agency alleged that while its employee, the individual was also actively assisting one of the organizations that the agency was established to regulate.

In the words of the Court of Appeals, “Given the nature of the attorney-client relationship and petitioner's position as associate counsel to [agency] ... it cannot be said that reports of [the employee's] active assistance to two public interest lobbying groups regulated by the [agency] were an improper basis for the [agency's] decision to terminate petitioner's employment (cf. Arnett v Kennedy, 416 U.S. 134; Cooper v Johnson, 590 F.2d 559). Nor was petitioner entitled to a due process hearing* inasmuch as he never alleged that there was public dissemination of the reasons for his dismissal. Finally, petitioner, a nontenured employee, has demonstrated no procedural violation in the manner in which his employment was terminated.”

* Presumably the court was referring to a "name clearing hearing."
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Retirement System not required to explain the tax implications of its response to an employee’s question

Retirement System not required to explain the tax implications of its response to an employee’s question

Hauser v. Comptroller, 83 A.D.2d 649

From time to time Personnel Officers receive questions from employees that may require extensive analysis or speculation because of the fact that there may be different results depending on the course of action followed by the employee. It seems that as long as the answer is correct, the Court will not impose an unreasonable burden on the administrator to explain the implications of the answer.

The case arose when a retiree sought to change the basis for his retirement from “service retirement” to “ordinary disability” retirement.

Max Hauser contended that the Employees’ Retirement System should have advised him of the possible federal tax benefits were he to elect “ordinary disability” retirement rather than the service retirement option.

In rejecting the argument, the Court indicated that the information given Hauser regarding the amount of benefits was correct and “to require the Retirement System to advise every applicant of the tax implications of their retirement would impose an unreasonable burden on the system”.
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 16, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 16, 2013

Click on text highlighted in color  to access the full report

DiNapoli Announces New In–State Private Equity Investment Through Softbank Capital

On Friday, November 15, 2013 State Comptroller Thomas P. DiNapoli Friday announced the New York State Common Retirement Fund’s In–State Private Equity Program investment in The Dodo Inc., a start–up website focusing on animal issues, through investment manager SoftBank Capital.

DiNapoli: Former Fire District Treasurer Accused of Stealing More Than $50,000

The former Crystal Beach Fire District treasurer was arrested Thursday, November 14, 2013 for allegedly stealing and spending more than $50,000 of public funds on tanning, TV and shopping sprees, according to State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

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

Northern Onondaga Public Library District and the

Town of Sidney.

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli announced Wednesday, November 13, 2013 the following audits have been issued:

Plaza College;

Dowling College;

Mercy College;

Department of Health;

New York State Energy Research and Development Authority;

State University of New York Farmingdale State College; and the

State Education Department.
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Employee terminated after being found guilty of “excessive absence”

Employee terminated after being found guilty of “excessive absence”
2013 NY Slip Op 07430, Appellate Division, First Department

The Appellate Division sustained the termination of a Senior Court Officer [Appellant] employed by the Unified Court System following a disciplinary hearing. The hearing office determined that that Appellanthad engaged in misconduct by missing 197 days of scheduled work assignments in the course of a 14-month period and recommended that he be dismissed from his position.

The appointing authority adopted the findings and recommendation of the hearing officer and terminated Appellant. .

The Appellate Division sustained the appointing authority’s decision, noting that substantial evidence supported the hearing officer’s determination.

Noting that Appellant’s absences “were not caused by his psychological disorders,” court said that the penalty imposed by the appointing authority, termination, did not shock its sense of fairness, citing Dickinson v NYS Unified Court System, 99 AD3d 569.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07430.htm
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Replacement of a 55-year-old Webmaster by a younger “web guru” in course of a business reorganization did not constitute a violation of the ADEA

Replacement of a 55-year-old Webmaster by a younger “web guru” in course of a business reorganization did not constitute a violation of the ADEA

Source: Employment Law Daily - a Wolters Kluwer publication

Decision summarized by Majorie Johnson, J.D.

A 55-year-old website coordinator who was laid off during a restructuring in which his employer adopted a web-based multimedia marketing model, and hired a younger “web guru” to rebuild the website with the latest technology, could not advance his ADEA and state law claims of age bias, a federal district court in New York ruled. Dismissing the employee’s pro se claims on summary judgment, the court held that the disparity in age between him and his “replacement,” standing alone, was insufficient to prove age discrimination.

The full text of Ms. Johnson’s article is posted on the Internet at:

http://www.employmentlawdaily.com/index.php/news/no-age-bias-when-55-year-old-webmaster-replaced-by-younger-web-guru-in-restructuring-failed-to-advance-age-bias-claims/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+CCH-Workday+%28WKL%26B+WorkDay%29
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Audits issued by New York State Comptroller Thomas P. DiNapoli posted on the Internet

Audits issued by New York State Comptroller Thomas P. DiNapoli posted on the Internet

Source: Office of the State Comptroller

On November 13, 2013 the State Comptroller issued the following audit reports.

Click on text highlighted in color  to access the full report

Statewide Travel Audits:
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities: 

State University of New York Farmingdale State College, Selected Employee Travel Expenses (2012-S-137)
Auditors selected one State University of New York Farmingdale State College employee with travel expenditures totaling $212,573 for audit. Most of the travel expenses were appropriate. However, college officials could not provide documentation to support 21 travel charges totaling $8,386.

State Education Department, Selected Employee Travel Expenses (2012-S-97)
Auditors examined the travel expenses of three State Education Department employees with outliers in the areas of train fare and fuel expense. They also reviewed and considered the possible tax implications of travel and work locations for one of the three employees. In total, auditors examined $100,908 in travel costs associated with these three individuals. Auditors found the travel expenses for two of the three SED employees selected for audit adhered to state travel rules and regulations. 

However, the travel expenses for one employee implicated the Internal Revenue Service "tax home" rules for 2009 and are taxable as income. As a result, the travel reimbursements made to the employee were reported to the taxing authorities and an amended W-2 was issued.

Tuition Assistance Program, Plaza College (2011-T-2)
Auditors determined that Plaza College was overpaid $549,316 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include 18 students who received awards but did not meet the requirements for full-time status, nine students who did not maintain good academic standing, and four students who did not meet the requirements for accelerated TAP. Many of these disallowances result from Plaza students enrolling in courses not required for their programs of study.

Tuition Assistance Program, Dowling College (2012-T-2)
Auditors determined that Dowling College was overpaid $191,020 because school officials incorrectly certified students as eligible for TAP awards. Incorrect certifications include five students who received awards but did not meet the requirements for full-time status, four students who did not maintain good academic standing, two students who were not credited with their awards, and one student who had not declared a major by the beginning of her junior year.

Tuition Assistance Program, Mercy College (2012-T-3)
Based on a preliminary sample of certification transactions, auditors determined that Mercy College’s certification procedures were appropriately designed and were substantially complied with during the audit period. Auditors therefore concluded that there is a low risk that a significant number of students certified by Mercy College for TAP were not eligible for awards. Nonetheless, tests did disclose 14 awards totaling $25,011 that school officials certified in error.

Department of Health, Unnecessary Managed Care Payments for Medicaid Recipients with Medicare (Follow-Up ) (2013-F-15)
An initial audit report, issued in April 2012, examined whether inappropriate Medicaid payments were made for selected providers who also received payments from Medicare. For the two year audit period ended Dec. 31, 2011, auditors determined that, although DOH implemented the new automated crossover system to reduce Medicaid overpayments, it was flawed. As a result, auditors identified potential and actual overpayments of $100,387 for 12,715 duplicate claims. In a follow-up, auditors found the DOH and Office of the Medicaid Inspector General officials have made progress in correcting the problems identified in the initial report. However, improvements are still needed.

New York State Energy Research and Development Authority, Compliance With Executive Order 111: Agency Energy Efficiency Goals and Practices (2012-S-159)
E.O. 111 required that, by 2010, all affected state agencies (ASEs) seek to achieve a reduction of their energy consumption by 35 percent as compared to 1990 levels. NYSERDA was designated the lead entity responsible for coordinating implementation and assisting other ASEs to fulfill their responsibilities under the order.

Auditors found NYSERDA made significant efforts to provide guidance, and to directly and indirectly assist ASEs in meeting their energy reduction goals, but was deficient in its oversight and monitoring of the statewide progress toward the goal, and these deficiencies likely hampered the effort's outcomes. As a result no one can be certain what was accomplished on a statewide basis and whether program goals were achieved by anyone except a few select agencies that chose to comply.

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Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related

Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related
2013 NY Slip Op 07254, Appellate Division, First Department

A number of statutes providing disability retirement include a rebuttable presumption that the claimed disability was incurred in the performance of the applicant’s official duties. For example, General Municipal Law §207-kk provides that with respect to a disability “caused by cancer” by certain firefighters constitutes “presumptive evidence that [the cancer] was   incurred in the performance and discharge of duty unless the contrary be   proved by competent evidence.”

In this appeal a New York City police officer, [Applicant] challenged the denial of her application for World Trade Center [WTC] accidental disability retirement benefits based on her claim to have suffered the disability as defined by Retirement and Social Security Law §2(36) as a result of a qualifying condition is presumed to be caused by his or her exposure at the WTC site.

One of arguments advanced by Applicant was that Supreme Court “improperly” shifted the burden of proof to her.

The Appellate Division ruled that the lower court had not shifted the burden of proof to her, explaining that Applicant “was not entitled to the statutory WTC presumption that her condition or impairment of health was incurred in the performance and discharge of duty” because, she failed to demonstrate that she was present at the WTC site and she failed to demonstrate a qualifying WTC condition as defined by Retirement and Social Security Law.*

The Appellate Division said that there was credible evidence that Applicant “was not present at the World Trade Center (WTC) site during the requisite time period” in that the appointing authority had shown that ”there were no contemporaneous records, roll call or command logs, records of the Medical Division, or exposure logs, indicating that [Applicant] was present at the WTC site.”

* Further, §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."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07254.htm
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Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related

Statutory presumption that the employee suffered a disability in the course of his or her employment may be rebutted by credible evidence that the claimed disability was not work-related
2013 NY Slip Op 07254, Appellate Division, First Department

A number of statutes providing disability retirement include a rebuttable presumption that the claimed disability was incurred in the performance of the applicant’s official duties. For example, General Municipal Law §207-kk provides that with respect to a disability “caused by cancer” by certain firefighters constitutes “presumptive evidence that [the cancer] was   incurred in the performance and discharge of duty unless the contrary be   proved by competent evidence.”

In this appeal a New York City police officer, [Applicant] challenged the denial of her application for World Trade Center [WTC] accidental disability retirement benefits based on her claim to have suffered the disability as defined by Retirement and Social Security Law §2(36) as a result of a qualifying condition is presumed to be caused by his or her exposure at the WTC site.

One of arguments advanced by Applicant was that Supreme Court “improperly” shifted the burden of proof to her.

The Appellate Division ruled that the lower court had not shifted the burden of proof to her, explaining that Applicant “was not entitled to the statutory WTC presumption that her condition or impairment of health was incurred in the performance and discharge of duty” because, she failed to demonstrate that she was present at the WTC site and she failed to demonstrate a qualifying WTC condition as defined by Retirement and Social Security Law.*

The Appellate Division said that there was credible evidence that Applicant “was not present at the World Trade Center (WTC) site during the requisite time period” in that the appointing authority had shown that ”there were no contemporaneous records, roll call or command logs, records of the Medical Division, or exposure logs, indicating that [Applicant] was present at the WTC site.”

* Further, §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."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07254.htm
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