A party's participation in the arbitration proceeding deemed a concession by the party that the arbitration panel has jurisdiction to consider and decide the matter

A party's participation in the arbitration proceeding deemed a concession by the party that the arbitration panel has jurisdiction to consider and decide the matter

D'Ropshitz v Schwartz, 2015 NY Slip Op 06814, Appellate Division, Second Department

An arbitration award dated August 20, 2012was issued by the arbitration panel. Schwartz then alerted the arbitration panel that the August 20, 2012, award had left an issue unresolved and met with the panel. This resulted in the arbitration panel issuing an award dated July 2, 2013.

When D’Ropshitz brought a CPLR Article 75 action to confirm the panel’s July 2, 2013 award Schwartz objected, contending that after issuing its arbitration award dated August 20, 2012 the arbitration panel did not have jurisdiction to issue the arbitration award dated July 2, 2013. Supreme Court, Kings Countyconfirmed the July 2, 2013 award, [in part] and Schwartz appealed the Supreme Court’s determination.

The Appellate Division affirmed the Supreme Court’s confirmation of the award [in part], explaining that Schwartz waived any argument that the arbitration panel exceeded its authority or was without jurisdiction with respect to its issuing the July 2, 2013 award by alerting the arbitration panel that the August 20, 2012, award had left an issue unresolved and then meeting with the panel, during which Schwartz suggested "that the panel members visit the subject site so that they might have a better understanding of the issue.”

Also, as the Court of Appeals held in United Federation of Teachers, Local 2 v Board of Education of the City of New York, 1 NY3d 72, "a party that participates in the arbitration may not later seek to vacate the award by claiming it never agreed to arbitrate the dispute in the first place."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06814.htm

Florida resident convicted of stealing NYS pension checks sent to his deceased mother

Florida resident convicted of stealing NYS pension checks sent to his deceased mother

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced that Marc A. Eletz, 70, a resident of Boca Raton, Florida, pleaded guilty* Thursday to the crime of Grand Larceny in the Third Degree, a class D felony, in Albany County Court. The plea stems from charges that Mr. Eletz stole over $275,000 in New York state pension benefits that were issued to his deceased mother.

Eletz admitted to stealing pension benefits from the New York Stateand Local Employees Retirement System payable to his deceased mother, Fay Eletz. According to the Comptroller and the Attorney General, Eletz’s father, Milton Eletz, was a New Yorkstate pensioner who elected to receive reduced monthly benefits so his wife, Fay Eletz, would continue to receive benefits after his death in 1988. From 1992 until July 2014, these benefits were deposited into a joint account held by the Marc Eletz and his mother.

After his mother died in April 2001, Eletz continued to receive these benefits until July 31, 2014, totaling $276,721.24. Eletz accessed these funds from the joint account and liquidated all but $1,801.08 of the pension benefits over that time period.

Eletz pleaded guilty before Judge Peter Lynch in Albany County Court and paid $150,000 in restitution. Eletz is expected to be sentenced to one year in jail and will sign a confession of judgment in favor of New York Statefor an additional $124,987.

This case is the latest joint investigation under the Operation Integrity partnership between the Attorney General and Comptroller, which has resulted in dozens of convictions and more than $6 million in restitution. 

The joint investigation was conducted with the Comptroller’s Division of Investigations. The Attorney General’s investigation was conducted by Investigators Barbara Butler and Mitchell Paurowski and Deputy Chief Antoine Karam.  The Investigations Bureau is led by Chief Dominick Zarrella. 

This case is being prosecuted by Assistant Attorney General Philip V. Apruzzese of the Criminal Enforcement and Financial Crimes Bureau.  The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chiefs Stephanie Swenton and Meryl Lutsky.  The Division of Criminal Justice is led by Executive Deputy Attorney General Kelly Donovan.

Since taking office in 2007, Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse.  New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236. 

* A plea of guilty is deemed a conviction of the crime charged. 

Proposals for trustee services and/or funding of a deferred compensation plan for employees of the City of Batavia requested

Proposals for trustee services and/or funding of a deferred compensation plan for employees of the City of Batavia requested

Source: The New York State Register dated September 16, 2015

The City of Batavia is requesting proposals from qualified administrative services agencies, and/or financial organizations relating to administration, trustee services and/or funding of a deferred compensation plan for employees of the City of Batavia meeting the requirements of Section 457 of the Internal Revenue Code and Section 5 of the State Finance Law, including all rules and regulations issued pursuant thereto.

All proposals must be submitted no later than 30 days from the date of publication in the New York State Register no later than 4:30 p.m.

A copy of the proposal questionnaire may be obtained by e-mailing fairbank@batavianewyork.com .

Time required to research and prepare an appeal not a "good cause” sufficient to excuse an untimely filing of the appeal with the Commissioner of Education

Time required to research and prepare an appeal not a "good cause” sufficient to excuse petitioner's untimely filing of the appeal with the Commissioner of Education

Appeal to the Commissioner of Education, Decision #16,823

Among the issues presented to the Commissioner of Education in this appeal seeking the removal of certain members of a school board was the representation that the petitioners had “good cause” for the late filing of certain elements of their appeal in that it was necessary to “go through” Commissioner’s decisions and other public records in order to proceed with the matter. 

While the Commissioner noted that “It is unclear from the application and record, however, what exactly petitioners needed to “go through” and how this caused a delay,” the Commissioner, citing a number of rulings,* said that “To the extent petitioners may be claiming that they needed time to gather documents and evidence, perform research, and prepare their application, it is well settled that these reasons do not constitute ‘good cause’ upon which to excuse an untimely filing.”

* See, for example, Appeal of Bentley, et al., Decision No. 16,750; Appeal of Levendusky, Decision No. 16,455; Appeal of Thompson, Decision No. 15,706; and Appeal of Bayer, Decision No. 13,561).

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16823

School audits by the State Comptroller issued during the week ending September 12, 2015

School audits by the State Comptroller issued during the week ending September 12, 2015

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following reports were issued during the week ending September 12, 2015. Click on the material highlighted in color below to access the full report.

Canandaigua City School District [Procurement of Professional Services]

http://www.osc.state.ny.us/localgov/audits/schools/2015/canandaigua.pdf?utm_source=weeklynews20150913&utm_medium=email&utm_campaign=091115arelease

Fonda- Fultonville Central School District [Payroll]

http://www.osc.state.ny.us/localgov/audits/schools/2015/fondafultonville.pdf?utm_source=weeklynews20150913&utm_medium 

Monroe 2 – Orleans BOCES [Software Management]

http://www.osc.state.ny.us/localgov/audits/schools/2015/monroe2orleansboces.pdf?utm_source=weeklynews20150913&utm_medium=email&utm_campaign=091115arelease

and the 

Newcomb Central School District [Extra classroom activity fund]

http://www.osc.state.ny.us/localgov/audits/schools/2015/newcomb.pdf?utm_source=weeklynews20150913&utm_medium=email&utm_campaign=091115arelease

Pre-suit investigations by EEOC

Pre-suit investigations by EEOC

EEOC v Sterling Jewelers, Inc., USCA, 2^ndCircuit, Docket 14-1782

Before the EEOC may bring an enforcement action under Title VII against an employer, it must comply with certain administrative obligations, including receiving a formal charge of unlawful discrimination, provide notice of the charge to the employer, investigate the charge and give the employer notice of its determination that there was “reasonable cause” to believe that a violation of Title VII had occurred. EEOC must then make a “good faith effort” to conciliate the matter.*

In this Title VII action a magistrate judge issued a “Report and Recommendation” finding that EEOC not prove that it satisfied its statutory obligation to conduct a pre-suit investigation of allegations that Sterling Jewelers “engaged in a nationwide practice of sex-based pay and promotion discrimination. The magistrate judge recommended that the federal district court grant Sterling’s motion for “summary judgment” dismissing EEOC’s action.

The district court adopted the magistrate judge’s Report and Recommendation and granted Sterling’s motion seeking summary judgment. EEOC appealed.

Citing EEOC v Keco Indus., Inc., 748 F.2d 1097, the Circuit Court of Appeals ruled that the federal district court was incorrect in granting Sterling motion for summary judgment, explaining that the magistrate judge improperly reviewed the sufficiency of the EEOC investigation rather than simply whether there was an investigation. Under Title VII, said the Circuit Court, “courts may review whether the EEOC conducted an investigation, but not the sufficiency of an investigation.”

The court noted that only EEOC’s statutory pre-suit investigation obligation was at issue as the parties agreed that EEOC’s participation in the mediation would have satisfied its obligation to conciliate in the matter if it brought an enforcement action. Further, there were no allegations the EEOC had not satisfied any of its other pre-suit obligation in this instance.

As EEOC had, in fact, conducted an investigation in this case, the Circuit Court vacated the summary judgment order and remanded the matter to the district court for further proceedings.

* See 42 U.S.C. §2000e–5(b)

The decision is posted on the Internet at:

 http://www.ca2.uscourts.gov/decisions/isysquery/d59d4c2a-586c-47c8-90b3-eeebe8ab2867/5/doc/14-1782_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d59d4c2a-586c-47c8-90b3-eeebe8ab2867/5/hilite/1782_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/b2f1d782-6305-4aa0-aa18-f3ee2d8b40ee/5/hilite/

Audit reports for certain governmental entities posted by the State Comptroller on September 10, 2015

Audit reports for certain governmental entities posted by the State Comptroller on September 10, 2015

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued on September 10, 2015. Click on the material highlighted in color below to access the full report.

Department of Economic Development - certain local development corporations

In April 2014, DED made a $16,250.00 advance payment to the LDC. Two months later, the LDC claimed the remaining $48,750 of the contract amount. To receive the second claim, the LDC needed to demonstrate that the entire $65,000 in expenses was incurred during the contract period for work relevant to the contract objectives, and was for expenses not previously paid from another funding source. Auditors found the LDC was able to substantiate only $4,284.09 in expenses under the contract.

http://osc.state.ny.us/audits/allaudits/bseaudits/bse20150824.pdf

Department of Environmental Conservation – oil spill funds

DEC generally collected all fees due the Oil Spill Fund for the facilities tested. However, of 11 sampled major oil storage facilities, auditors identified eight that inaccurately reported the number of barrels of petroleum products received, subject to fees and surcharges, or transshipped. For the sampled facilities, these inaccuracies did not materially affect the revenue collected. DEC’s internal controls over payment of cleanup, administrative, and indirect costs provide reasonable assurance that only appropriate expenses were charged to the fund.

http://osc.state.ny.us/audits/allaudits/093015/14s59.pdf

Department of Environmental Conservation – electronic waste fees

Auditors found DEC properly collected, recorded, and deposited fees and surcharges due, but did not segregate the responsibilities for collecting and recording cash receipts of the fees and surcharges. Also, supervisory review of revenue and deposit activities was not documented.

http://osc.state.ny.us/audits/allaudits/093015/15s18.pdf

Division of Housing and Community Renewal – modernization program at NYC Housing Authority

DHCR officials did not have accurate and up-to-date management information regarding the status of NYCHA’s projects. The information officials provided was dated February 2010. Specifically, five projects (totaling about $4.6 million) were not yet finished, although DHCR officials indicated that they were complete. In addition, eight of the ten projects officials listed as incomplete were, in fact, finished. DHCR officials paid $6.8 million for a change order for one project that was not adequately supported. DHCR did not have formal timeframes for awarding a contract once funding was approved.

http://osc.state.ny.us/audits/allaudits/093015/14s21.pdf

State Education Department – Astor services for children

Auditors identified $39,050 in costs that did not comply with SED’s requirements for reimbursement. The non-reimbursable costs included $25,565 in other-than-personal-service (OTPS) costs that were either not allowed, not properly documented, or were not reasonable or necessary. In addition, auditors identified $13,485 in non-reimbursable fundraising activities as well as two teachers and seven teacher’s assistants who did not have the required certifications for their job titles.

http://osc.state.ny.us/audits/allaudits/093015/14s66.pdf

Unified Court System – Legal Aid Society

Auditors reviewed select payments totaling $5,448,384 UCS made to Legal Aid for salaries, equipment, and real estate rentals and found Legal Aid spent these funds appropriately.  However, UCS overpaid Legal Aid $412,184 for fringe benefit expenses that were not actual and allowable under the terms and conditions of the contract.  Legal Aid did not appropriately reconcile fringe benefits at year end, moved funds in every non-personal services budget category without providing UCS with the required notification, and moved $546,803 from non-personal services budget categories to personal services budget categories without obtaining the required prior written approval from UCS.

http://osc.state.ny.us/audits/allaudits/bseaudits/bse20150826.pdf

A supervisor’s personal daily log recording observations concerning a subordinate’s performance held not to be a record “used for personnel purposes”

A supervisor’s personal daily log recording observations concerning a subordinate’s performance held not to be a record “used for personnel purposes”

Steve Poole et al, v Orange County Fire Authority, Supreme Court of California, Ct. App., G047691, G047850

The California Firefighters Procedural Bill of Rights Act (Gov. Code, §3250 et seq.) provides that a firefighter has the right to review and respond to any negative comment that is “entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer.”

In the Poole case, the California Supreme Court considered whether §3255 gives a firefighter the right to review and respond to negative comments in a supervisor’s daily log, consisting of notes that memorialize the supervisor’s thoughts and observations concerning a firefighter which the supervisor uses as a memory aid in preparing performance plans and reviews.

The court held that in this instance because the log was not shared with or available to anyone other than the supervisor who wrote the log, it does not constitute a file “used for any personnel purposes by his or her employer” and thus §3255 did not apply.

The decision is posted on the Internet at:

http://hr.cch.com/ELD/PooleOrangeCounty.pdf

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Employee's application for Workers’ Compensation Benefits based on "multiple chemical sensitivity" rejected

Employee's application for Workers’ Compensation Benefits based on "multiple chemical sensitivity" rejected

2015 NY Slip Op 06756, Appellate Division, Third Department

An employee [Claimant] sought workers' compensation benefits based upon an alleged disability resulting from her exposure to toxic mold at the workplace and her claim for hypersensitivity reaction to occupational presence of fungi was established.

Claimant was found to have a temporary total disability and an award of benefits was made. Subsequently the claim was amended to include "multiple chemical sensitivity" and awards for a marked disability were continued. In a decision filed March 31, 2010, a Workers' Compensation Law Judge (WCLJ) classified Claimant with a permanent total disability as a result of the work-related injury.

The Workers' Compensation Board modified the March 31, 2010 decision by rescinding the finding of permanent total disability and referring the matter to an impartial specialist to examine Claimant and report to the Board with respect to Claimant's disability classification.

When the matter was restored to the calendar, Theodore Them, the impartial medical specialist who examined Claimant, testified that “multiple chemical sensitivity” was not a medically-recognized condition and, in any event, it was his opinion that Claimant was not suffering from any causally-related disability.

The Board credited the testimony of Them, found no further causally-related disability, thereby reversing the WCLJ's finding of total permanent disability. In this December 19, 2012 decision the Board "closed the case."

Following a number of procedural steps by Claimant, Claimant’s employer sought Board review of a second WCLJ's ruling,*which ruling included a direction to depose Claimant's doctor. The employer contended that the Board's had promulgated a decision on December 19, 2012 that resolved the issue of Claimant's degree of disability by finding that Claimant suffered no causally-related disability and properly closed the case. The Board agreed with the employer and Claimant appealed that determination.

The Appellate Division affirmed the Board’s decision, observing that its review was limited to determining whether the Board abused its discretion or acted in an arbitrary or capricious manner in precluding further development of the record regarding the issue of Claimant's causally-related disability.

The court then ruled that the Board had “properly precluded further development of the record” since the issue of Claimant's causally-related disability was addressed and decided by the Board in its December 19, 2012 decision.

The Appellate Division then explained that “To the extent that Claimant now asserts, on the instant appeal, that the Board erred in crediting the opinion of the impartial specialist that Claimant had no causally-related disability, her remedy was to perfect her appeal from the Board's December 19, 2012 decision,” which had not been done.**

* In a ruling issued April 8, 2013 the WCLJ construed the Board's December 19, 2012 decision as rejecting his prior decision that Claimant suffered a causally-related total disability, but continued the case for further development of the record to determine Claimant's appropriate, lesser degree of disability.

** The Appellate Division noted that Claimant “filed a notice of appeal with this Court as to the December 19, 2012 Board decision, but failed to timely perfect that appeal.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06756.htm

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Some guidelines for obtaining DNA samples from sworn officers “to protect the crime scene”

Some guidelines for obtaining DNA samples from sworn officers “to protect the crime scene”

Bill v Brewer, USCA, 9^th Circuit, Docket #13-15844

In this civil rights action brought pursuant to 42 U.S.C. §1983 by three Phoenix police officers, the United States Court of Appeals for the 9^thCircuit affirmed a federal district court’s dismissal of their complaint. The three police officers had alleged that two other Phoenix police officers violated their rights under the Fourth* and Fourteenth** Amendments as the result of their obtaining DNA samples from the three officers for the purpose of excluding them as contributors of DNA at a crime scene.***

Noting that the samples had been obtained pursuant to an Arizona state court order, the Circuit Court ruled that a state court’s order authorizing the collection of DNA samples satisfied the Warrant Clause of the Fourth Amendment.

The Circuit Court also held that it was not unreasonable, under the circumstances, to ask sworn officers to provide saliva samples for the sole purpose of demonstrating that the DNA left at a crime scene was not the result of inadvertent contamination by on-duty public safety personnel.

The court explained that “The policeman’s employment relationship by its nature implies that in certain aspects of his [or her] affairs, he [or she] does not have the full privacy and liberty from police officials that he [or she] would otherwise enjoy.” It was hardly unreasonable here, said the court, to ask sworn officers to provide saliva samples for the sole purpose of demonstrating that DNA left at a crime scene was not the result of inadvertent contamination by on-duty public safety personnel.”

Although the Circuit Court said that it shared the police officers’ concerns “over potential misuse of DNA samples to reveal private information about contributors,” the court observed that “no such danger is realistically posed” in this situation as the memorandum concerning obtaining such DNA samples “expressly guarantees” that the DNA samples taken from the police officers would be used” for comparison to evidence in this report only” and would not be used for any research type testing, including race, ethnicity or health, provided to any outside organization for those purposes, entered into the employee database, or entered into CODIS, the Combined DNA Index System.**** 

The court noted that the police officers had not alleged “any plausible reason to believe that the Phoenix Police Department will not abide by these limitations,” and the federal district court did not err in declining to speculate about possible future abuse.

* The Fourth Amendment prohibits the unreasonable search of persons. The police officers alleged “obtaining, analyzing, and retaining” their DNA samples violated their rights under the Fourth Amendment.

** The Circuit Court did not specifically address the police officers’ Fourteenth Amendment arguments which presumably contended that the taking of the DNA samples violated their right to “due process.”

*** The samples had been obtained pursuant to an Arizona state court order.

**** CODIS is “a centrally-managed database linking DNA profiles culled from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence, unidentified remains, and genetic samples voluntarily provided by relatives of missing persons.”

The decision is posted on the Internet at:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/31/13-15844.pdf