Republican Senate Campaign Committee agrees to cooperate and comply with the Moreland Commission’s investigation

Republican Senate Campaign Committee agrees to cooperate and comply with the Moreland Commission’s investigation

Source: Office of the Governor

On November 27, 2013, Jeremy Creelan, Special Counsel To The Governor and Senior Advisor on Ethics issued the following statement:

“The Republican Senate Campaign Committee has agreed to cooperate and comply with the Moreland Commission’s investigation. They join the Democratic Assembly Campaign Committee, which had previously agreed to comply. The Governor believes cooperation is by far the preferred course of action, vital to restoring the trust of the people of New York State, whose confidence was rightfully shaken after a slew of indictments in the Legislature last year.

”This cooperation belies the remaining holdouts’ theory justifying their non-compliance; namely separation of powers. If the Moreland Commission, empowered as Deputy Attorneys General, can investigate the Assembly and Senate as a whole for Election Law compliance, they can investigate individual members for the same compliance. Without a credible theory of non-compliance, the public will assume there is something to hide and that hurts everyone.”

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The label assigned by the parties to the relationship between them does not determine if it is that of an employer-employee or as an independent contractor

The label assigned by the parties to the relationship between them does not determine if it is that of an employer-employee or as an independent contractor
Mowry v DiNapoli, 2013 NY Slip Op 07794, Appellate Division, Third Department

John M. Mowry, Esq. served as the attorney for the Mexico Central School District [Mexico CSD] from 1974 until his retirement in 2002. In addition, Mr. Mowry served as the attorney for the Village of Mexico during roughly that same time frame, served as an attorney for other public entities and maintained a private law practice.

In 2010, eight years after his retirement, Mr. Mowry received a letter from the New York State and Local Employees’ Retirement System [ERS] informing him that, based upon a review of his relationship with both the school district and the Village, he had incorrectly been reported as an employee rather than as an independent contractor. Accordingly, said ERS, Mr. Mowry’s salary and credited service were being removed from his records and, as a result, his annual benefit amount had been reduced and he was responsible for certain overpayments and arrears. 

Following an administrative hearing, the Hearing Officer determined that Mr. Mowry failed to sustain his burden of proof that he was an employee of the school district or the Village and denied his application for salary and service credits. The Comptroller accepted the Hearing Officer's findings and conclusions and Mr. Mowry filed an Article 78 petition challenging the Comptroller's decision.

The Appellate Division decided that the Comptroller's determination that Mr. Mowry was not an employee of the Mexico CSD was not supported by substantial evidence, noting that, among other things:

1. The school board routinely engaged in discussions about whether to retain Mr. Mowry's services as an employee or an independent contractor and the board continually chose the former because it was more cost effective for the school district.

2. There was no written contract with Mr. Mowry and the Mexico CSD and the assistant superintendent directed him as to what work needed to be completed and when services were to be performed.

3. The assistant superintendent and school board reviewed Mr. Mowry's work for its sufficiency and the president monitored Mowry's performance and conducted annual performance evaluations.

4. Mr. Mowry was paid every two weeks by paycheck, from which income taxes, Social Security, Medicare and health insurance premiums were deducted, and he received a W-2 form annually.

5. Mr. Mowry’s appointment as an employee of the school district was recognized by the County Department of Civil Service as a "School Attorney" — an exempt position in the Classified Service.

6. Mr. Mowry took an oath of office annually and the school district maintained a personnel file on him.

7. Although Mr. Mowry “did not have set hours,” the assistant superintendent testified that he was available on an as-needed basis and, even if he did not perform work for the school district during a pay period, he would receive a paycheck for that pay period nonetheless.

In contrast, said the court, ERS relied on the testimony of the school district treasurer, who testified that she had no knowledge about how Mr. Mowry received work assignments, the nature of his work duties or his relationship with either the school board or the superintendent, or whether he was ever evaluated. Thus, said the Appellate Division, it could not conclude that the Comptroller's determination with respect to the school district was supported by substantial evidence.

The Appellate Division, however, reach a different result with respect to Mr. Mowry’s employment by the Village of Mexico. The court noted that Mr. Mowry admitted that he served in the capacity of Village Attorney as an independent contractor prior to 1994 and that he was thereafter placed on the payroll pursuant to his request for the sole purpose of accruing retirement benefits. Further, the Village clerk treasurer testified that there was no reason for the change in status other than Mr. Mowry's request and that, other than the fact that his pay was reported to the Retirement System, there was no substantive change in his relationship to the Village.

The court explained that the label assigned by the parties to the employment relationship between them is not determinative of whether an employer-employee relationship or independent contractor status exists. In this instance the Appellate Division said that there was substantial evidence to support the Comptroller's determination that Mr. Mowry was an independent contractor and not an employee of the Village.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07794.htm
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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 24, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 24, 2013 Click on text highlighted in color  to access the full report Comptroller DiNapoli Releases Municipal Audits New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed audits of   the Town of Almond; the Town of Big Flats; the Town of Conesus; the Town of Ellenburg; the Town of Ellicott; the Essex County; the Town of Laurens; the Town of Lincoln; the Town of Minetto; the Town of Mount Pleasant; the Town of New Baltimore; the Rush Fire District; the Town of Stanford; the Town of Wawarsing; and  the Village of Woodridge. DiNapoli: State Agency Overtime Tops $462M; Could Hit Record $600M by Year End State agencies spent more than $462 million on overtime in the first nine months of 2013, a jump of $65 million over the same period in 2012, State Comptroller Thomas P. DiNapoli announced Tuesday. DiNapoli Shareholder Resolution Calls on AT&T to Disclose Surveillance Requests The $160.7 billion New York State Common Retirement Fund has filed a shareholder resolution at AT&T Inc. asking the company to disclose how often and what consumer information it has shared with U.S. or foreign governments, New York State Comptroller Thomas P. DiNapoli announced Wednesday. The resolution will be voted on at the company’s 2014 annual meeting scheduled for late April. New York State Common Retirement Fund’s Marjorie Tsang Named Woman of the Year Marjorie Tsang, director of strategic research and solutions for the New York State Common Retirement Fund, received the Woman of the Year Award from New York Women Executives in Real Estate (WX). The award was presented at WX’s annual gala on Thursday night following an introduction by New York State Comptroller Thomas P. DiNapoli. DiNapoli: Audit Reveals Fiscal Stress in City of Fulton The city of Fulton has spent down its rainy day funds to dangerously low levels, leaving city officials little cushion to manage unforeseen expenses, according to an audit released Friday by State Comptroller Thomas P DiNapoli. Earlier this year, DiNapoli’s fiscal stress monitoring system identified the city as one of nine communities in “moderate stress.” NYS Common Retirement Fund Announces Second Quarter Results The New York State Common Retirement Fund’s estimated rate of return for the second quarter ending September 30, 2013 was 4.61 percent, increasing the Fund’s value to an estimated $160.4 billion, according to New York State Comptroller Thomas P. DiNapoli. DiNapoli: Tax Collections Slightly Above Projections Tax collections increased $2.7 billion, or 7.6 percent, to $38.6 billion through Oct. 31 compared to the same period last year, but total receipts were $133.6 million below the Division of the Budget’s most recent projections, according to the October cash reportreleased Friday by New York State Comptroller Thomas P. DiNapoli.

New York State Department of Labor regulations concerning unemployment insurance applications amended

New York State Department of Labor regulations concerning unemployment insurance applications amended

Source: Sharon Berlin, Esq., Chair, Employment Relations Committee, NYSBA Municipal Law Section

Ms. Berlin advises that the New York State Department of Labor has amended its regulations addressing processing unemployment applications, 12 NYCRR 472.12.

Section 472.12, among other things, sets out:

1. The deadline for an employer to respond to a DOL request for employee information (which now may be shorter than 10 calendar days);

2. The methods by which the DOL can communicate requests for information (which include letter, electronic communication, fax, the State Information Data Exchange System (SIDES), mail, private delivery service, phone or any other DOL approved method);

3. New criteria regarding the adequacy of the contents of an employer’s response; and

4. Sets out potential consequences of an untimely or inadequate response, which include that the employer’s account may be charged for an overpayment even for the first untimely response unless the employer provides good cause for the failure. The DOL is given the authority to relieve an employer of charges that are the result of a DOL error or a disaster emergency as declared by the Governor.

Ms. Berlin notes that the employer’s response will be deemed received by the DOL on the date indicated by the date stamp on an incoming document.

Ms. Berlin, a partner at Lamb and Barnosky, LLP, may be reached via e-mail at: snb@lambbarnosky.com
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Educator disciplined after making statements such as "hey, baby," "how you doing baby?," and "you good baby" to underage female student

Educator disciplined after making statements such as "hey, baby," "how you doing baby?," and "you good baby" to underage female student

2013 NY Slip Op 07811, Appellate Division, First Department

A disciplinary arbitrator found a male teacher [Teacher] guilty of violating the Chancellor of the New York Department of Education’s Regulation A-421 by making statements such as "hey, baby," "how you doing baby?," and "you good baby" on multiple occasions to his underage female student. The penalty imposed by the arbitrator: a fine in the amount of $1,500 to be withdrawn in equal installments from Teacher's paychecks over a twelve month period.

Although the New York City Department of Education has sought to have Teacher terminated from his position, the arbitrator declined terminating the employee and imposed the $1,500 fine instead.

Teacher file an Article 75 petition in Supreme Court seeking a court order vacating and annulling the arbitration award. Supreme Court dismissed Teacher’s petition.

The Appellate Division, affirming the dismissal of Teacher’s petition by the Supreme Court, ruled that the penalty imposed was “not so excessive and disproportionate to the offense as to be shocking to one's sense of fairness.”

The court also noted that the arbitrator had explicitly found [1] the student’ testimony credible and [2] the Teacher’s testimony to be not credible and [3] that determinations of a hearing officer involving the credibility of a witness are "largely unreviewable.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07811.htm
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Transcript of employer’s interview with police officers introduced as evidence at an administrative disciplinary hearing.

Transcript of employer’s interview with police officers introduced as evidence at an administrative disciplinary hearing.

OATH Index No. 2316/13

The New York City Fire Department filed disciplinary charges against a firefighter after he was arrested for criminal possession of cocaine, contending that the firefighter had engaged in conduct that brought reproach or reflected discredit on the Department.

In the course of the hearing the Department introduced into evidence transcripts of the Fire Department’s interviews of the arresting officers. The firefighter objected, contending that this action constituted “an end-run around the sealing of criminal records” as they were derived from police reports and records that were sealed at the conclusion of the criminal proceeding against him, which criminal action was dismissed.

Noting that “the interviews were conducted a day before the records were sealed in the criminal proceedings,” OATH Administrative Law Judge Astrid B. Gloade denied the firefighter’s objection, explaining that OATH “has declined to preclude evidence prepared by agency investigators that contained references to or summaries of information culled from subsequently sealed police records where the investigators obtained that information prior to entry of a sealing order.”

Judge Gloade said that the interviews fell within the purview of material gathered by the Department in the course of preparing a disciplinary case and were not prepared by or for a criminal investigation or prosecution.” Accordingly, said Judge Gloade, the interview transcripts were not official records subject to seal under the Criminal Procedure Law.

Finding that the firefighter guilty of having possessed cocaine, Judge Gloade recommended termination as the penalty.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2316.pdf

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Administrative Law Judge applies the Doctrine of Collateral Estoppel to establish employee’s guilt of charges of misconduct

Administrative Law Judge applies the Doctrine of Collateral Estoppel to establish employee’s guilt of charges of misconduct

OATH Index #2272/13

A Human Resources Administration public benefits fraud investigator pled guilty to federal charges for fraudulently obtaining Section 8 housing benefits.

The employee had earlier pled guilty in federal court to a felony, admitting that she failed to disclose her HRA employment to HUD and received $62,376 in Section 8 public assistance to which she was not entitled. 

OATH Administrative Law Judge Alessandra F. Zorgniotti ruled that pursuant to the doctrine of collateral estoppel, the employee’s guilty plea conclusively establishes the underlying facts of the criminal charge of federally funded program fraud.

The decision notes that the disciplinary charges of misconduct were amended to include the employee’s guilty plea.

Noting that Mayoral Executive Order No. 105 Section 5(b) mandates dismissal of an employee who commits a crime that either involves moral turpitude or bears on the employee’s fitness to perform his job, unless compelling mitigating circumstances exist, the Judge Zorgniotti said that “[I]ntentional fraud and theft of government benefits are crimes of moral turpitude that invariably lead to termination of employment,” and that defrauding HUD is an act of moral turpitude.”

Further, the ALJ said that “Not only is respondent’s crime one of moral turpitude, it bears directly on her fitness to perform the job of a fraud investigator. Respondent engaged in conduct that she is responsible for preventing, namely public assistance fraud.”

Finding that the employee failed to present any mitigating circumstances for her actions. Judge Zorgniotti sustained the disciplinary charges filed against the employee and as the penalty to be imposed, recommended her termination from employment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-2272.pdf

Pension Board's ignoring a long-standing interpretation of law addressing eligibility for certain retirement benefits ruled arbitrary and capricious

Pension Board's ignoring a long-standing interpretation of law addressing eligibility for certain retirement benefits ruled arbitrary and capricious

Richter v Kelly, 2013 NY Slip Op 07803, Appellate Division, First Department

The New York City Police Pension Fund's Medical Board examined an applicant for Accidental Disability Retirement [ADR], a police surgeon, and certified that this disability was the result of an accidental injury received in the performance of police duty, pursuant to General Municipal Law §207-k, the so-called Heart Bill. 

§207-k provides that in the event of an impairment of health is caused by a diseases of the heart that results “in total or partial disability or death to a paid member of the uniformed force of a paid police department or fire department who successfully passed a physical examination on entry into the service of such respective department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

The Board of Trustees of the Police Pension Fund, however, reversing a policy established by years of practice and internal memoranda, denied the police surgeon’s application on the ground that the Heart Bill did not apply to a police surgeon.

The Appellate Division, however, annulled the Board's decision and affirmed  a Supreme Court decision granting the police surgeon’s application for ADR benefits pursuant to.§207-k.

The court noted that in 1993 the City’s Assistant Corporation Counsel had written to the Pensions Section that the Corporation Counsel’s office “has interpreted the Heart Bill to apply to police surgeons.”

Rejecting Board's arguments is support of its claim that the Heart Bill did not apply to police surgeons, the Appellate Division said that “neither the title of General Municipal Law §207-k ("Disabilities of policemen and firemen in certain cities") nor the reference in the statute to ‘police officers’ creates ambiguity as to whether the statute applies to police surgeons.” Further, said the court, the Board did not show that a literal reading of the statute would frustrate its purpose.

Accordingly, the Appellate Division ruled that the Board was bound by the Medical Board's determination of regarding the police surgeon’s disability and cannot now seek "clarification" of the Medical Board's determination, explaining that in the absence of credible medical evidence that police surgeons disabling heart condition was not related to her service as a police surgeon, the Board’s determination to deny her ADR benefits under the Heart Bill lacks a rational basis and is arbitrary and capricious.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07803.htm
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Court annuls an educator’s unsatisfactory annual performance rating after finding the rating arbitrary and capricious and lacking a rational basis.

Court annuls an educator’s unsatisfactory annual performance rating after finding the rating arbitrary and capricious and lacking a rational basis.

2013 NY Slip Op 51868(U), Supreme Court, New York County, Judge Michael D. Stallman [Not selected for publication in the Official Reports] 

A tenured teacher [Educator] at a New York City public school received an overall unsatisfactory rating (U-rating) for the school year. Educator appealed his U-rating to the Chancellor's Committee. Following hearings, the Chancellor's Committee recommended that Educator’s U-rating be sustained.

The Chief Academic Officer, as the Designee for Chancellor Dennis M. Walcott, denied Educator's appeal, stating that “the appeal of [the Educator’s] rating of Unsatisfactory' for the period … has been denied and the said rating is sustained as a consequence of [Educator's] failure to demonstrate professional growth

Educator responded by filing an Article 78 petition seeking a court order annulling the U-rating.

In the words of State Supreme Court Judge Michael D. Stallman, “The issue presented is whether [the New York City Department of Education] acted arbitrarily and capriciously in determining that [Educator] should receive an overall U-rating based on three incidents (and related unsatisfactory comments), even though [Educator] received otherwise satisfactory comments in his annual professional performance review and satisfactory ratings in all his formal classroom observations.”

The Judge Stallman said that the Chancellor's Committee found that Educator failed to follow protocol, but not for the specific reason set forth in "the disciplinary letter," i.e., that petitioner did not request a personal day two days in advance. Rather, said the court, the Committee found that Educator did not follow protocol by not reporting to the Assistant Principal of Organization that he might need a Personal Business Day the next day, even though he had informed his immediate supervisor that he might not be able to work on that day.

Further, the court found there was uncontroverted testimony that Educator's daughter suffered an illness the night before Educator's absence. Thus, said the court, Educator could not have given two days' advance notice and, therefore, the determination that Educator failed to follow school protocol was taken without regard to the facts, and thus was arbitrary and capricious.

Accordingly, said the court, Educator’s overall U-rating for the school year must be evaluated based on only two incidents and the issue presented is whether these incidents constitute a rational basis for an overall U-rating for the entire school year.

The Department of Education did not claim that criteria exists for determining whether one or two unsatisfactory comments on a teacher's annual professional performance review may justify an overall U-rating nor did the Human Resources Handbook, "Rating Pedagogical Staff Members" contain any criteria on that issue. Further, the court explained, the Department “offer no explanation as to why [Educator], who received otherwise satisfactory comments in his annual performance review and satisfactory ratings in all his formal classroom observations, warranted a U-rating for the entire school year.

Although substantiated misconduct in the workplace, such as a lack of civility in dealings with school personnel and supervisors, or insubordination, may support an overall U-rating, the Department did not contend that the incidents giving rise to the U-rating themselves were so egregious as to warrant an overall U-rating.

Judge Stallman also noted that the Chancellor's letter denying Educator’s appeal was “at odds” with the circumstances here in that Chancellor appears to fault the Educator for not having demonstrated "professional growth" while Educator’s ”U-rating for the entire year is based on three separate incidents, with no documented recurrences.” The absence of further similar, documented incidents, said the court, would suggest improvement in Educator's conduct, i.e., "growth."

While “disciplinary letters” placed in Educator's file warned Educator that "this may lead to further disciplinary action, including an unsatisfactory rating which may result in your termination," Judge Stallman ruled that “to the extent that the overall U-rating was imposed as a penalty, based on the documented incidents, the overall U-rating is so disproportionate to [Educator’s] behavior on three isolated incidents as to shock the judicial conscience,” explaining that the overall U-rating for the entire school year was given “because of one absence, one lateness, and two words.”

Judge Stallman held that the determination of the Chancellor sustaining Educator's U-rating "based on three incidents … was arbitrary and capricious” and granted Educator’s petition and annulling the U-rating.

The court said it was not remanding the matter to the Department as “Remand is not warranted because this is not a situation where the U-rating was annulled due to procedural deficiencies in the review process that are capable of being corrected upon remand.”

In his “Conclusion,” Judge Stallman said that the Department “offered no explanation as to why two incidents in the face of otherwise satisfactory ratings and satisfactory comments are sufficient to warrant an overall U-rating. The lack of an explanation under these circumstances renders the determination arbitrary and capricious and lacking a rational basis. To the extent that [Educator’s] overall U-rating was imposed as a disciplinary measure, the overall U-rating was a penalty so disproportionate to the subject incidents that it shocks the judicial conscience.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_51868.htm

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Reassignment of unit work to nonunit employees an improper practice under the Taylor Law

Reassignment of unit work to nonunit employees an improper practice under the Taylor Law

Monroe County v New York State Pub. Empl. Relations Bd., 2013 NY Slip Op 07362, Appellate Division, Fourth Department

The Monroe County Deputy Sheriff's Association, Inc. [MCDS] filed an improper practice charge with the Public Employment Relations Board [PERB] alleging the Monroe County Sheriff's Office [Sheriff's Office] assigned non-MCDSA members to perform certain security screening work at the Monroe County Jail and the Monroe County Correctional Facility that had previously been performed exclusively by MCDSA members.

Following a hearing, the Administrative Law Judge [ALJ] determined that the Sheriff’s Department had violated Civil Service Law §209-a (1)(d) by assigning the duties of security screening at the jail and at the correctional facility to non-MCDSA employees. The Sheriff’s Department appealed but PERB denied the exceptions it filed and affirmed the ALJ's decision.

According to PERB’s ruling, the Sheriff’s Office had violated Civil Service Law §209-a (1)(d), in that [1] the work in question had been reassigned to non-MCDSA members, [2] that the reassigned tasks were substantially similar to those previously performed by MCDSA members, and [3] that the qualifications for the job at issue had not changed significantly

The Sheriff’s Office filled a CPLR Article 78 petition challenging PERB’s decision.

The Appellate Division sustained PERB’s determination, indicating that it was supported by substantial evidence, rejecting the Sheriff’s Office’s “public policy” argument. The court then provided for the enforcement of PERB’s order.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07362.htm
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