The 2015 edition of the Discipline Book

The 2015 edition of this concise guide to disciplinary actions involving public officers and employees in New York State is now available in an electronic [e-book] edition. For more information click on http://thedisciplinebook.blogspot.com/

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 19, 2015

Click on text highlighted in color  to access the full report

Georgia resident charged with sealing over $200,000 in pension benefits

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one-count indictment charging Richard L. Cook III, 57, a resident of Atlanta, Ga., with the crime of Grand Larceny in the Second Degree, a class C felony, in Albany County Court. Cook is charged with stealing over $200,000 in pension payments from the New York State and Local Employees Retirement System paid to his deceased mother, Yvonne Powell, a New York State pensioner who died in 2009.

http://www.osc.state.ny.us/press/releases/june15/062215.htm?utm_source=weeklynews20150628&utm_medium=email&utm_campaign=062215release

Former clerk-treasurer convicted of stealing $50,000 of the village’s funds

Former Village of Riverside clerk-treasurer Kristina Johnson was sentenced to jail time for repeatedly stealing village funds to cover her household expenses. State Comptroller Thomas P. DiNapoli announced Johnson was sentenced to 60 days in jail, five years probation and ordered to pay full restitution of $50,000 to the village.

http://www.osc.state.ny.us/press/releases/june15/062415.htm?utm_source=weeklynews20150628&utm_medium=email&utm_campaign=062415release

ERISA provisions do not apply to government retirement plans insofar as its prohibition against “assignment and alienation” of benefits is concerned

ERISA provisions do not apply to government retirement plans insofar as its prohibition against “assignment and alienation” of benefits is concerned

2015 NY Slip Op 04949, Appellate Division, First Department

The husband [Son] and his former spouse [Daughter-in-Law] stipulated in a settlement, incorporated by reference, but not merged, into the judgment of divorce, whereby Daughter-in-Law waived her rights to receive payments as the designated beneficiary of her former mother-in-law's New York City Employees' Retirement System [NYCERS] pension plan.

Supreme Court granted Son’s motion to, among other things, direct Daughter-in-Law“to disgorge payments she received as the beneficiary of Son’s mother’s NYCERS pension plan. Daughter-in-Law appealed but the Appellate Division unanimously affirmed the lower court’s ruling.

The Appellate Division explained that Daughter-in-Law’s reliance on her argument that the waiver violated the Federal Employee Retirement Income Security Act's (ERISA) anti-alienation provision* was misplaced as 29 USC § 1003[b][1] provides that “The provisions of this subchapter shall not apply to any employee benefit plan if ,,, (1) such plan is a governmental plan” as defined in 42 USC §1002(32).** 

As NYCERS is a government plan of a political subdivision of a State, the provisions of ERISA cited by Daughter-in-Law in support of her claim did not apply. Thus, said the Appellate Division, Supreme Court “correctly applied standard principles of contract interpretation to the stipulation, as it [was] a settlement agreement in a divorce action.”

The provision in question, titled "Retirement Funds," said the court, evinced an intent to waive the parties' rights to each other's retirement funds. Further, noted the Appellate Division, the clause in which Daughter-in-Lawwaived her right to such benefits included her waiver of "any and all pension funds set up during the marriage in [Daughter-in-Law’s] name by . . . a member of [Son’s] family." This language, said the court, evinced a related intent by Daughter-in-Law to waive her rights to Son's relatives' retirement funds, including her rights to her former mother-in-law's NYCERS pension benefits.

* 29 USC § 1056[d][1] provides that “Each pension plan shall provide that benefits provided under the plan may not be assigned or alienated.”

** 42 USC §1002, Subdivision 32, provides that the term “governmental plan” means a plan established or maintained for its employees “by the Government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04949.htm

Employee must exhaust available administrative remedies unless he or she can demonstrate that such action would be futile

Employee must exhaust available administrative remedies unless he or she can demonstrate that such action would be futile

2015 NY Slip Op 05402, Appellate Division, First Department

A member of the College’s faculty [Petitioner] was not reappointed as an assistant professor by the College. Petitioner filed an Article 78 petition seeking a court order annulling the College’s decision not to continue her employment. Supreme Court dismissed Petitioner’s action.

Petitioner appealed but the Appellate Division sustained the lower court’s ruling, explaining that the relevant collective bargaining agreement governing an employee’s employment with the College provided for a three-step grievance and arbitration procedure. As Petitioner did not to avail herself of this procedure, the Appellate Division explained that she was precluded from seeking relief under Article 78 of the CPLR as she had not exhausted her administrative remedies.

In addition, the Appellate Division noted that Petitioner failed to establish that arbitration, which could result in referral to a three-member committee of faculty members drawn from a panel jointly chosen by the Chancellor and the union pursuant to terms and conditions set out in the collective bargaining agreement, would be futile.

Finally, the Appellate Division rejected Petitioner’s contention that the Chancellor's academic judgment as to her scholarly record and the College’s failure to secure meaningful funding does not constitute an "agency policy" that would render her resorting to her administrative remedies futile.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05402.htm