Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 1, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 1, 2014

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Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli Tuesday, February 25, 2014  announced his office completed audits of:

the Town of Clarence;

the Town of Clarkson;

the Village of Monticello;

the Orleans County;

the Village of Oxford;

the Town of Reading;

the Richmond Fire District;

the Rotterdam Princetown No. 5 Fire District;

the Town of Scio;

the Town of Sheridan; and

the Snyder Fire District.

DiNapoli: Governor Cuomo’s Proposed Budget Continues Fiscal Progress

The Executive Budget continues efforts to control costs while tackling tough issues, according to a reportreleased Monday, February 24, 2014, by State Comptroller Thomas P. DiNapoli. The report also points out that details are lacking on spending changes required for balance in the coming years.

DiNapoli and Schneiderman Announce Arrest in $87K Contractor Theft

State Comptroller Thomas P. DiNapoli and Attorney General Eric Schneiderman Friday, February 28, 2014 announced the arrestof Department of Health contractor George Dunkel for stealing more than $87,000 by padding bills to pay for hotels, education credits and other expenses.

DiNapoli Audit Finds Problems with Arts Education in NYC Schools

New York City public high school students are not getting the arts education required by state regulations, according to an auditreleased Friday, February 28, 2014 by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Local Sales Tax Collections up $739 Million in 2013

Local sales tax collections of $14.9 billion grew by $739 million in 2013, an increase of 5.2 percent from 2012, according to a reportissued Thursday, February 27, 2014 by State Comptroller Thomas P. DiNapoli. The increase outpaced annual growth rates of 3.3 percent in 2012 and 5 percent in 2011, as well as the 15–year annual average growth of 4.5 percent.

DiNapoli: After–School Provider Misused $194,320 in Public Funds

The SCO Family of Services, a provider of extended school day programs for the State Education Department, submitted $194,320 in reimbursement claims for expenses that were unnecessary, not allowable or unrelated to its programs, according to an auditreleased Wednesday, February 26, 2014 by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Announces State Contract & Payment Actions for January 2014

State Comptroller Thomas P. DiNapoli announced Tuesday, February 25, 2014 his office reviewed 2,126 contracts valued at $13.9 billion and approved more than 1.5 million payments worth more than $10 billion in January 2014. His office also rejected 191 contract transactions valued at $348.7 million and 1,735 payments valued at nearly $1.1 million due to fraud, waste or other improprieties.
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2014 editions of electronic books [e-books] focusing on New York State and Municipal Public Personnel Law published

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 600+ page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1100+ page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

Delay in terminating an employee

Delay in terminating an employee
2014 NY Slip Op 00265, Appellate Division, Third Department

In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez, a probationary employee, on the payroll after the maximum period of his probation until the end of payroll period for administrative convenience did not result in his attaining tenure in the position.

The Court decided that, under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that it was of a short duration; was for "administrative convenience;" and Mendez had been provided with timely prior notice of that he would be terminated at the end of his probationary period.

In Cappello the Appellate Division applied a similar rationale in overturning a decision by the Unemployment Insurance Appeals Board granting an individual [Claimant] unemployment insurance benefits.

According to the decision, the employer dismissed Claimant after determining that she had violated the employer's policy and committed theft. Claimant was initially disqualified from receiving unemployment insurance benefits on the ground that she lost her employment through misconduct, and this decision was upheld by an Administrative Law Judge following a hearing.

The Unemployment Insurance Appeal Board, however, reversed this decision and found that claimant was entitled to receive benefits. The Board ruled that Claimant did not lose her employment due to misconduct because the employer delayed in terminating her after learning of her actions and did not provide a reasonable excuse for the delay.

The employer appealed and the Appellate Division vacated the Board’s ruling.

The Court explained that the Board’s conclusion was not supported by the record as upon the employer becoming aware of Claimant's inappropriate conduct it immediately proceeded to conduct an investigation, obtaining a statement from one employee and subsequently obtained a statement from Claimant about a month later  “as part of its continuing investigation.” Less than two weeks after obtaining Claimant’s statement the employer terminated for violating the employer’s policy.

The Appellate Division said that “[u]nder the circumstances presented” it did not find that the employer had engaged in an inordinate delay in terminating Claimant such that it could not rely upon her misconduct as the reason for her discharge.

Noting that it is well settled that an employee's dishonesty or failure to comply with an employer's policy and procedures constitutes disqualifying misconduct, here, said the Appellate Division, the evidence is undisputed that Claimant violated the employer's relevant policy. Accordingly, explained the court, “[g]iven [Claimant’s] misconduct, substantial evidence does not support the Board's decision that she was entitled to receive benefits” and reversed the Board’s decision.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2014/2014_00265.htm

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The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation

The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation

2013 NY Slip Op 52290(U), Court of Claims [Not selected for publication in the Official Reports]

An individual [Petitioner] who worked at a state correctional facility filed a claim “sounding in defamation per se” alleging that an article appeared in the print and the on-line versions of a newspaper included statements attributed to a State official that disparaged Petitioner.

Eventually it was determined that alleged defamatory statements were made by a state employee and had been “acquired by a non-State actor,” which person gave it to one of the newspaper’s reporters.

According to the decision, an Assistant Attorney General involved in the instant matter provided a copy of the employee’s memorandum to an attorney, apparently the alleged “non-State actor,” involved in a related matter then pending in federal court.

The Court of Claims “assumed without deciding” that Petitioner’s proposed amended claim satisfied the threshold jurisdictional requirements of being timely filing and served within the relevant statute of limitations and that it satisfies the substantive pleading requirements of Court of Claims Act §11(b).

The court then denied Petitioner’s motion to amend his claim explaining that the alleged tortious conduct — the Assistant Attorney General’s “publication (or republication) of the [State employee’s] memorandum to [the attorney in the federal action] is not actionable because it was absolutely privileged,”* as “Statements made in the course of judicial proceedings are absolutely privileged … and absolute privilege will attach if the allegedly defamatory statements were ‘pertinent’ to the questions involved in the judicial proceeding.”

Further, explained the court, "Whether a statement is at all pertinent . . . is determined by an extremely liberal test" and  "To be actionable, a statement . . . must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame."

As the Court of Appeals held in Youmans v Smith, 153 NY 214, “The purpose of the absolute privilege afforded to communications made in the course of judicial proceedings is well established and clearly stated: the due process of ‘clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander.’"

Accordingly, said the court, the Assistant Attorney General’s actions in turning over the allegedly defamatory memorandum in the context of ongoing litigation are entitled to the absolute privileged, provided that the alleged defamatory statements were pertinent to the litigation, which, in this instance, the court found were so pertinent.

* The Court of Claims noted that "Absolute privilege has been recognized in a very few situations where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives.” However, in Amato v. Welsh, 2013 ONCA 258, a decision handed down by Canada’s Court of Appeals for Ontario, suggests an exception to the doctrine. The Amato decision suggests that it may be possible for a court to find that the doctrine of absolute immunity yields to the attorney’s duty of loyalty to a client [see paragraphs 61 et seq. set out in the decision].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_52290.htm

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