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April 17, 2015

Employees’ requests to switch from the State University’s Optional Retirement Program to the New York State and Local Employees’ Retirement System rejected




Employees’ requests to switch from the State University’s Optional Retirement Program to the New York State and Local Employees’ Retirement System rejected
2015 NY Slip Op 03216, Appellate Division, Third Department

The State Comptroller denied requests submitted by four employees employed by SUNY’s Stony Brook University Medical Center [SBUMC] currently enrolled in the State University’s Optional Retirement Program [ORP] seeking to be enrolled in the New York State and Local Employees' Retirement System [NYSLERS] retroactive to  their respective initial dates  of employment by SBUMC.

Upon learning that they had been eligible for enrollment in NYSLERS when they were initially appointed by SBUMC, the four individuals applied for enrollment in NYSLERS but their applications were denied. Following an administrative hearing the employees’ enrollment applications were again denied by a Hearing Officer. The Comptroller subsequently adopted the Hearing Officer's determinations and the employees appealed in an effort to have the Comptroller’s decision annulled.

The Appellate Division noted that Education Law §393(1)(a), in relevant part, provides that employees eligible to enroll in ORP "shall elect" to join either NYSLERS [sic] or ORP.*The court said in the event an employee fails to make an election, he or she "shall be deemed to have elected membership in NYSLERS [sic]," (See Education Law §393[1][b]).** Upon enrollment in ORP, an employee becomes "ineligible for membership" in NYSLERS (See Education Law §393[2]).

The court ruled that the Comptroller's determinations should be upheld because they were supported by substantial evidence. Further, said the Appellate Division, “Courts will not disturb the Comptroller's application and interpretation of relevant statutes unless it is irrational or contrary to the plain language of the statutes.”

According to the decision, the record before the Comptroller indicated that:

1. Two of the employees each testified that they met with a human resources representative of SBUMC who informed them that they could not enroll in NYSLERS, so they filled out forms electing ORP.

2. A third employee said that she received the same information, but did not check the box for ORP on the retirement program election form. Although she alleges that someone else must have checked the box, the individual acknowledged that she completed and signed a separate application to enroll in ORP.

3. The fourth employee  testified that he never enrolled in a retirement program and the enrollment form produced by SBUMC was forged. Despite this alleged forgery and not having enrolled in a retirement program, this individual was aware that he had a pension plan, which was ORP, and did not object or raise any questions about it for 25 years after his employment began.

The Comptroller determined, “through a reasonable application of these facts and the relevant statutes,” that the four employees were ineligible for enrollment in NYSLERS because they were enrolled in ORP. The employees, in contrast, had contended that they did not "elect" to join ORP "as opposed to NYSLERS — inasmuch as an election implies a voluntary choice, which was impossible here because they were misinformed and told that they had no options — so they should be deemed members of NYSLERS pursuant to Education Law §393(1)(b)."

The Appellate Division held that “As Education Law §393 does not define 'elect,'*** and it is reasonable to interpret that word to include the filing of an enrollment form for one particular retirement program regardless of the applicant's knowledge of other options, we will not disturb the Comptroller's interpretation.”

Finally, the court observed that the Comptroller is not estopped from denying enrollment in NYSLERS, as required by statute, after the employees  enrolled in ORP due to erroneous advice supplied by the individuals’ employer, citing Retirement and Social Security Law §45.

The Appellate Division then confirmed the Comptroller’s determinations and dismissed the petitions filed by the employees.

* §393(1)(g) of the Education Law provides that “No election by an eligible employee of the optional retirement program shall be effective unless it shall be accompanied by an appropriate application, where required, for the issuance of a contract or contracts under the program.” Another element to be considered is set out in §393(5)(d) which provides that “Anything in this subdivision five notwithstanding, service as an eligible employee for which a contribution is made to the optional retirement program shall neither entitle any eligible employee to join or rejoin the New York state teachers' retirement system nor be creditable in such system.”

** Presumably the four employees were ineligible to enroll in the New York State Teachers’ Retirement System at the time they were appointed by SBUMC as §393(1)(b) provides, in pertinent part, “In the event an eligible employee fails to make an election as provided in paragraph (a) of this subdivision, he [or she] shall be deemed to have elected membership in the New York state teachers' retirement system, or such public retirement system in this state in which his [or her] membership may be otherwise required in accordance with law….”

*** See “Retirement Program Election Form,” on Page 16 of the State University of New York’s handbook entitled Retirement Plans for New Faculty and Staff

The handbook is posted on the Internet at:

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

April 16, 2015

Summaries of recent disciplinary decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]



Summaries of recent disciplinary decisions posted on the Internet by the New York CityOffice of Administrative Trials and Hearings [OATH]
Source: NYC Office of Administrative Trials and Hearings
Click on text highlighted in color to access the text of the decision.

Correction officer may not engaged in undue familiarity with an inmate
OATH Administrative Law Judge Kara J. Miller found that a correction officer had engaged in undue familiarity with an inmate by failing to notify the Department that her husband had been arrested and incarcerated on Rikers Island, by taking telephone calls from him on her post phone and cell phone while on duty, and by disclosing Department business to him during the calls. The officer also threatened and assaulted a woman who she believed was having an affair with her husband after he was released from jail. Termination of employment recommended.   Dep't of Correction v. Harris, OATH Index No. 2383/14

Removal of an individual’s name from a published OATH decision
OATH Administrative Law Judge Faye Lewis denied a correction officer's motion to remove his name from a published OATH decision. Reports and recommendations issued by OATH, an independent tribunal, are not "under the control" of the Department of Correction and thus do not fall within the confidentiality provisions of section 50-a of the Civil Rights Law.   Dep't of Correction v. Victor, OATH Index No. 388/15.

 Employee’s being provoked a mitigating factor in imposing disciplinary penalty
OATH Administrative Law Judge Kara J. Miller recommended dismissal of charges that a sewage treatment worker had left his assigned work location, threw a clipboard at a co-worker and neglected his duties. She sustained a charge that he had used threatening language towards the co-worker, but found he was provoked and recommended a reprimand as the penalty. ALJ Miller recommended dismissal of all charges brought against a second sewage treatment alleged to have challenged a co-worker to a fight and to have cursed the co-worker.   Dep't of Environmental Protection v. Butcher, OATH Index Nos. 297/15 & 299/15

Including inappropriate language in official correspondence
OATH Administrative Law Judge Faye Lewis found that a case worker had sent official correspondence to a client that contained insulting language and was insubordinate and discourteous to a supervisor by failing to complete an assignment and instead ripping up a document in protest, in view of co-workers.   Human Resources Admin. v. Lovell, OATH Index No. 2477/14 

April 15, 2015

Seeking indemnification for legal expenses pursuant to Public Officers Law §18



Seeking indemnification for legal expenses pursuant to Public Officers Law §18
Paul W. Mossman as Commissioner of Social Services of Columbia County v County of Columbia (Two Proceeding), 2015 NY Slip Op 03005, Appellate Division, Third Department

In Proceeding No. 1 pursuant to CPLR Article 78 Commissioner Mossman [Mossman], among other things, sought a court order annulling the County’s determination that he was not entitled to a legal defense pursuant to Public Officers Law §18 “in connection with a certain grand jury proceeding.”

In Proceeding No. 2 pursuant to CPLR Article 78 Mossman sought a court order directing the County “to provide such a legal defense in connection with a subsequent grand jury proceeding.”

In March 2013 the Columbia County District Attorney issued a subpoena demanding that Mossman appear before a grand jury with various documents related to the official actions of Columbia County Department of Social Services employees. Mossman thereafter sought to retain outside counsel and requested that the County indemnify him pursuant to Public Officers Law §18 and Columbia County Code §36-1. The County denied Mossman’s request stating that those provisions of law did not apply to "potential criminal matters."

Mossman challenged the County’s decision and a Supreme Court granted his petition in a December 2013 judgment.

In March 2014 the Columbia County District Attorney served a similar subpoena on Mossman and the County again denied Mossman request to be indemnified for his legal expenses. Mossman initiated an second CPLR Article 78 proceeding and Supreme Court, relying upon its rationale in Proceeding No. 1, issued a judgment in April 2014 granting Mossman‘s petition.

The County appealed both the December 2013 and April 2014 Supreme Court judgments. The Appellate Division, however, affirmed both Supreme Court rulings, explaining:

1. The County had adopted Public Officers Law §18, and was thus obliged to "provide for the defense of [an] employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his [or her] public employment or duties," citing Public Officers Law §18[3][a]). 

2.      As “a conflict of interest” prevented the Columbia County Attorney from representing Mossman, Mossman was entitled to representation "by private counsel of his choice."
  
3.      Mossman satisfied the notice requirements of Public Officers Law §18 and is an employee of the County, and the subpoenas clearly stem from actions undertaken in the course of his public duties.

The Appellate Division rejected the County’s argument that the grand jury proceeding did not constitute a "civil action or proceeding" for the purposes of Public Officers Law §18 as the County “failed to demonstrate" what was the objective of the grand jury proceeding and admitted that the District Attorney had not made his "intentions [known] in relation to the potential for criminal charges." The court also noted that although grand juries may indict a person for a criminal offense “they are also empowered to make presentments as to noncriminal misconduct or neglect by public officers and employees."*

The court said that because there was no indication that criminal charges are actually being contemplated, Supreme Court properly "reject[ed] [the County’s] claim that because the [g]rand [j]ury proceeding[s] could have resulted in criminal charges against [Mossman ], the proceeding[s] [were] not civil in nature" and that any other holding “would defeat the clear intent of the statute, which insulates public employees from litigation expenses arising out of their employment."**

* The Appellate Division said that the subpoenas served on Mossman sought information regarding "all of [Mossman] employees and subordinates." Contrary to the County’s contention, the Appellate Division said that the statutory power to report on the noncriminal misconduct of any public servant bears no connection to the separate constitutional right of a grand jury to investigate and indict public officers.

** Public Officers Law §19.2, which applies to employees of the State as the employer, provides, in pertinent part, "it shall be the duty of the   state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his  or  her  defense  of  a  criminal   proceeding in  a  state  or  federal court arising out of any act which   occurred while such employee was acting within the scope of  his  public   employment  or  duties  upon  his acquittal or upon the dismissal of the criminal charges against him or reasonable attorneys' fees  incurred  in   connection  with an appearance before a grand jury which returns no true   bill against the employee where such appearance was required as a result of any act which occurred while such  employee  was  acting within  the   scope  of  his public employment or duties unless such appearance occurs   in the normal course  of  the  public employment  or  duties  of  such   employee.

The decision is posted on the Internet at: 

April 14, 2015

Asking an administrative body to reconsider its earlier decision does not revive an expired statute of limitation without a fresh examination of the matter based on newly presented evidence



Asking an administrative body to reconsider its earlier decision does not revive an expired statute of limitation without a fresh examination of the matter based on newly presented evidence

The Board of Education denied a teacher’s request for family health insurance benefits in May 2008, explaining that she was not eligible for coverage under the terms of the relevant collective bargaining agreement.

In May 2012, the teacher submitted another request for family health insurance benefits. This request was, again, denied by the School District in August 2012. In November 2012 the teacher commenced a CPLR Article 78 proceeding challenging the School District’s decision.

In its answer to the teacher's petition the School District contended that the proceeding was untimely, arguing that the second request for family health insurance benefits did not renew or revive the statute of limitations. Supreme Court disagreed, holding that the teacher’s Article 78 petition was timely and the School District appealed.

The Appellate Division, contrary to the Supreme Court's determination, ruled that the School District was correct.

The court explained that as a general rule, a proceeding pursuant to CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding on the petitioner and that the initial determination controls "unless the agency conducts a fresh and complete examination of the matter based on newly presented evidence.” The Appellate Division concluded that the August 2012 determination did not serve to revive the limitations period, as the School District adhered to its initial determination without a fresh examination based on newly presented evidence.

Accordingly, the Appellate Division ruled that “this proceeding is barred by the four-month statute of limitations set forth in CPLR 217(1).”

The decision is posted on the Internet at:

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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.
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