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

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

Source: Office of the State Comptroller

Click on the text in color to access the Comptroller’s report.

On September 25, 2016, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued. Click on the text in color to access the Comptroller’s report.

State Department of Education: Compliance with the Reimbursable Cost Manual

The Sunshine Developmental School provides special education programs for about 600 children between the ages of three and five years in Brooklyn, Queens and the Bronx. Sunshine’s special education programs are funded by the New York City Department of Education (DoE), as well as other school districts and counties whose children are served by its special education programs. The DoE and other localities reimburse via tuition payments based on reimbursement rates set by SED. Auditors found $1,776,434 in unsupported or inappropriate costs charged to the programs audited. The ineligible charges by Sunshine include personal service costs of $1,392,542 and non-personal service costs of $383,892.

http://osc.state.ny.us/audits/allaudits/093015/12s64.pdf

Department of Health: Questionable payments for practitioner services and pharmacy claims

Auditors found the doctor’s medical records did not meet the minimum standards to support his Medicaid claims. A review of a sample of the records found that they contained inadequate and sparse detail. Further, DOH’s review of the records found that they lacked sufficient details to ensure adequate treatment of complex diseases, contained no treatment plans and were illegible. There was insufficient assurance that the doctor provided appropriate medical care and that services totaling $1,039,404 warranted Medicaid payment. Auditors also questioned whether pharmacy claims totaling approximately $15 million for prescription drugs ordered by the doctor were all necessary.

http://osc.state.ny.us/audits/allaudits/093015/12s35.pdf

Department of Health: Bureau of Narcotic Enforcement [Follow-up]

An initial audit report issued in November 2012 examined whether the Bureau of Narcotic Enforcement was effectively and efficiently combating prescription drug diversion and abuse in New York state, in large part through its analysis and use of prescription data that it maintains electronically. Auditors found several areas where the bureau could improve its ability to ensure its resources are used effectively to stem drug diversion and abuse through a range of efforts, from prevention and deterrence to detection and prosecution. In a follow-up report, auditors found DOH has made progress in enhancing its electronic prescription data and in some of the routine analyses that it performs using this data. It has also improved security and accountability over blank prescription forms returned to its office and to its suppliers.

http://osc.state.ny.us/audits/allaudits/093015/15f6.pdf

Metropolitan Transportation Authority: Diversions of service for maintenance and capital projects

An initial report issued in July 2011 determined that while the MTA has a number of policies and procedures for managing and controlling subway diversions, more needed to be done. The audit found that diversion costs were not adequately monitored, and daily work on diversions often started late and ended early. The public was not adequately informed about diversions, shuttle bus service was not planned using current ridership data and the budget for advertisements to communicate information about diversions appeared to be too low. In a follow-up, auditors found MTA officials have made some progress in correcting the problems identified. However, additional improvements are needed.

http://osc.state.ny.us/audits/allaudits/093015/14f10.pdf

Metropolitan Transportation Authority: Staten Island Railway on-time performance

The Staten Island Railway’s (SIR) on-time performance percentage generally approached or exceeded its standard of 95 percent. However, auditors also noted that SIR does not completely report the timeliness of trains to the public. Sometimes trains were intentionally held beyond scheduled departure times to accommodate passengers disembarking from the Staten Island Ferry. Also, trains headed to the ferry were sometimes given priority over scheduled outbound departures, causing the outbound trains to be delayed.

http://osc.state.ny.us/audits/allaudits/093015/15s56.pdf

Certain political subdivisions of the State continue of experience fiscal stress

Certain political subdivisions of the State continue of experience fiscal stress

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has designated 44 municipalities across the state as fiscally stressed -- 12 counties, 11 cities and 21 towns. For the third consecutive year DiNapoli’s office has evaluated the financial stability of local governments and has identified 70 municipalities in fiscal stress at least once during this period. The report is posted on the Internet at: http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/munis_stressed2014.pdf

“The financial trends in some local governments have not improved over the past three years, and it is looking tougher for New York’s cities,” said DiNapoli. “While it is clear that our municipalities continue to struggle with balancing revenues against increasing costs, we also know that sensible budgeting and developing comprehensive multiyear financial plans are crucial to overcoming both current and future fiscal challenges.”

The latest round of scores is based on 2014 financial information provided to DiNapoli’s office by local governments as of Aug. 31, 2015 and includes only municipalities with fiscal years ending on Dec. 31, 2014. In New York, all counties and towns, 44 cities and 10 villages have a calendar-based fiscal year – a total of 1,043 communities.

Based on their 2014 financial statements, 15 entities have received the highest designation of “significant fiscal stress.” This includes the counties of Monroe, Broome, Nassau, St. Lawrence, Franklin and Rockland; the cities of Glen Cove and Albany; and the towns of East Fishkill, Jasper, Ramapo, Pierrepont, Coeymans, Cherry Valley and Parish.

Eleven communities have been listed in the second highest category of “moderate fiscal stress.” This includes Suffolk County, the cities of Poughkeepsie, Little Falls, Fulton and Glens Falls; and the towns of Hempstead, Colonie, Napoli, Saugerties, Rochester and German Flatts.

Another 18 municipalities have been listed in the third category as “susceptible to fiscal stress.”

DiNapoli’s monitoring system evaluates local governments on nine financial indicators and creates a fiscal condition score. Indicators include fund balance, cash-on-hand and patterns of operating deficits. The system also evaluates environmental information such as population trends, poverty and unemployment. Each municipality receives a separate environmental score.

When examining the scoring results, DiNapoli noted 14 municipalities were designated in stress for each of the three years since he implemented the system, 21 were in stress in two out of three years and 35 for only one of three years. Most notably, four counties have been in significant stress for all three years (Franklin, Monroe, Rockland and St. Lawrence).

Other findings include:

* Last year 35 calendar year entities were designated as fiscally stressed;

* Twenty calendar year entities moved into a fiscal stress category in 2014;

* Eleven calendar year entities moved out of fiscal stress category in 2014;

* In 2014, more than 21 percent of counties and 25 percent of calendar year cities were in a fiscal stress category, while just over 2 percent of towns were stressed;

* Downstate had a larger percentage of calendar year entities in stress, with 25 percent of those on Long Island (4 of 16) and 8 percent of those in the Mid-Hudson region (10 of 123) listed; and

* More than two dozen municipalities failed to file their financial data in time to receive a fiscal stress score in all three reporting years. This includes the city of Ithaca and 25 towns.

The fiscally stressed governments identified today join the previously announced 115 municipalities and school districts that have been classified in some level of fiscal stress as of their 2014 fiscal year end date.

Last year, DiNapoli’s legislative proposal to help local governments across New York improve their long-term budget planning was signed into law. The law allows counties, cities, towns and villages identified as fiscally stressed to be reimbursed by the state’s Financial Restructuring Board for Local Governments for all or part of the costs associated with long-term budget planning, including hiring financial advisors to assist in the development of multi-year budget plans.

Multiyear financial planning is a tool that will enable these entities to develop revenue and expenditure trends, establish long-term priorities and goals, and take into consideration the impact of near-term budgeting decisions on future fiscal years. It also allows officials to assess alternative approaches to financing operations.

In addition, DiNapoli's Division of Local Government and School Accountability conducts ongoing outreach with local government officials throughout the fiscal monitoring process and has created a number of tools to help municipal officials better understand their financial data, the impact it has on their score and their financial condition. The Comptroller’s office has also launched a new training academy for local government officials that will increase training efforts related to financial oversight and budgeting activities.

For a copy of DiNapoli’s report Three Years of the Fiscal Stress Monitoring System, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/threeyearsfsms_0915.pdf

To view the complete, sortable list of fiscal scores for municipalities, visit:
http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsms.cfm

For more detailed information about the Comptroller’s fiscal stress monitoring system and to view reports related to local government fiscal stress visit:
www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

For access to state and local government spending, public authority financial data and information on 50,000 state contracts, visit Open Book New York. The easy-to-use website was created by DiNapoli to promote openness in government and provide taxpayers with better access to the financial workings of government.

The Jurisprudence of Yogi Berra

The Jurisprudence of Yogi Berra

Source: Brian Costello, Esq., Loyola Law School, Los Angeles 

The late Yankee baseball player Yogi Berra’s way with words reached all the way to legal academia.

In 1997, a group of Loyola Law School, Los Angeles, professors contributed to a law review article The Jurisprudence of Yogi Berra which promised to "examine Yogi's wisdom and demonstrate the parallels between judges' and legislators' comments and what Yogi said - only Yogi said it better." 

The authors included Professors Jan Costello, Bryan Hull, Laurie Levenson, Samuel Pillsbury, Katie Pratt, Ted Seto, Georgene Vairo and Gary Williams.

The law review article is available on the Internet at:

http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1707&context=facpubs

Court reviews the law of an employer’s liability for the negligent in hiring, training, supervising and retaining an employee alleged to have violent propensities

Court reviews the law of an employer’s liability for the negligent in hiring, training, supervising and retaining an employee alleged to have violent propensities

Gonzalez v City of the New York, 2015 NY Slip Op 06869, Appellate Division, First Department

This action arose from the shooting death of Shirley Fontanez by her boyfriend, a New York City Police Officer, Frederick Maselli, at his home, on July 23, 2007. After the shooting, Maselli killed himself. Plaintiff Keyla Virginia Gonzalez, as administrator of the Estate of Fontanez, alleged that numerous complaints were made to the City of New York concerning Maselli's abusive conduct toward Fontanez and her daughter, that the City was negligent in hiring, training, supervising and retaining Maselli, and in failing to take action to remove his firearm, and thereby caused Fontanez's wrongful death.

Although Supreme Court granted the City’s motion for summary judgment dismissing the action on the ground that any negligence on City's part for failing to discharge a police officer with violent propensities could not have been the proximate cause of Fontanez's death, since at the time of the fatal shooting, Maselli was off-duty and was acting outside the scope of his employment, the Appellate Division disagreed and said that the dispositive issue that to be resolved was whether the fact that the police officer was off duty when he committed the fatal shooting breaks any connection, as a matter of law, between the fatal injuries and the employer's alleged negligence regarding an employee with violent propensities.

The Appellate Division found that under the circumstances, this case presented genuine issues of material fact as to whether the City negligently supervised and retained an officer with violent propensities, and whether the intervening intentional tort of the off-duty officer was itself a foreseeable harm that shaped the duty imposed upon the City when it failed to guard against a police officer with violent propensities. When such questions of breach of duty and proximate cause exist, summary judgment is not proper. These questions of fact, said the court, must be reserved for the jury.

In its analysis of the relevant law involved, the Appellate Division noted, in part, the following:

1. Citing Haddock v City of New York, 75 NY2d 478, the court said that in this case the alleged duty owed to plaintiff stems from New York's long recognized tort of negligent hiring and retention and this tort applies equally to municipalities and private employers.

2. Under the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment in contrast to employer liability under legal doctrine of "respondeat superior," where an employer is held liable for the wrongs or negligence of an employee acting within the scope of the employee's duties or in furtherance of the employer's interests.

Here, said the court, the alleged breach of duty stems from the claim that during the Maselli’s employment with the City, the City became aware or should have become aware of problems with the police officer that indicated he was unfit (i.e. possessed violent propensities), that the City failed to take further action such as an investigation, discharge, or reassignment, and that Fontanez's damages were caused by the City's negligent retention, or supervision of Maselli. The duty not to entrust a gun to a dangerous or incompetent police officer thus extends to any person injured as a result of the negligent entrustment.

3. New Yorkcourts have held governmental employers liable for placing employees, like police officers who are known to be violent, in positions in which they can harm others.

4. The torts of negligent retention and supervision of governmental employees with dangerous propensities do not specifically require allegations that the employees' misconduct occur within the course and scope of the employment. Rather, what the plaintiff must demonstrate is a connection or nexus between the plaintiff's injuries and the defendant's malfeasance.

The Appellate Division said that in its view, both the type of harm that occurred and the person upon whom the injury was inflicted were foreseeable within a degree of acceptability recognized by New York law and it was reasonably foreseeable that such an officer would injure a member of his own family, including his girlfriend.

Finally, the Appellate Division said it was aware of the fact that all police personnel involved in this case have adamantly denied ever receiving even a single complaint about Maselli’s alleged violent propensities. In contrast, said the court, Plaintiff Gonzalezhas presented evidence that the City was informed on numerous occasions, prior to the fatal shooting, about Maselli’s abusive conduct toward Fontanez and her daughter.

Under the circumstances, the Appellate Division ruled that this case presented genuine issues of material fact as to whether the City negligently supervised and retained an officer with violent propensities, and whether the intervening intentional tort of the off-duty officer was itself a foreseeable harm that shaped the duty imposed upon the City when it failed to guard against a police officer with violent propensities.

When such questions of breach of duty and proximate cause exist, summary judgment is not proper. Reversing the ruling of the Supreme Court, the Appellate Division held that “[T]hese questions of fact must be reserved for the jury and Supreme Court should not have granted the City's motion for summary judgment on the issue of proximate cause.”

The decision is posted on the Internet at:

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http://www.nycourts.gov/reporter/3dseries/2015/2015_06869.htm

Employee deferred compensation plan proposals requested

Employee deferred compensation plan proposals  requested

Source: New York State Register dated September 23, 2015

The Town of Lyons 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 Town of Lyons 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.

A copy of the proposal questionnaire may be obtained from the Town of Lyons Town Clerk,  Sal Colatarci, 43 Phelps St., Lyons, NY 14489. Telephone: (315) 946-6252 (ext. 10) or e-mail the Town at  e-mail: townofly@rochester.rr.com

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

A public employee’s First Amendment right of free speech involving matters of public concern is subject to the Pickering Balancing Test

A public employee’s First Amendment right of free speech involving matters of public concern is subject to the Pickering Balancing Test

Munroe v Central Bucks School District, United States Court of Appeals, Third Circuit, Docket #14-3509

It is well settled that “Public employees do not surrender all of their First Amendment rights merely because of their employment status. Thus a public employer may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." As the United States Supreme Court commented in Pickering v Board of Education, 391 U.S. 563* “Free and unhindered debate on matters of public importance constitutes a core value of the First Amendment.”

When the Central Bucks School District, a school district in Pennsylvania [Respondent] terminated Natalie Monroe [Teacher] from her teaching position, she sued the District alleging “First Amendment retaliation.” Teacher contended that her dismissal resulted from her making a number of derogatory comments about her own students on her personal Internet blog. In its defense, one Respondent witness testified that Teacher’s blog entries concerning the school and her students that “To say it was a disruption to the learning environment is an understatement.”

The United States District Court for the Eastern District of Pennsylvania granted the Respondent’s motion for summary judgment, holding that in its opinion Respondent had not violate Teacher’s constitutional right to free expression based on its determination that “as a matter of law that [Teacher’s] comments do not merit protection under the balancing test established by [Pickering and thus] ”it believed it was unnecessary to reach the question of whether [Teacher’s] speech directly caused her termination.”

Teacher appealed but the U.S. Circuit Court of Appeals, Third Circuit, sustained the district court’s ruling, holding that applying the Pickering balancing test, “[Teacher's] speech did not rise to the level of constitutionally protected expression.”

The court said that "the [public employer] has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general" and "the government as employer" possesses "far broader powers than does the government as sovereign."

The Circuit Court’s decision pointed out that should a person enter government service, he or she by necessity must accept certain limitations on his or her freedom as government employers, like their private counterparts, still "need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services."

Thus, said the Circuit Court, a public employer may impose speech restrictions that are necessary for efficient and effective operations but where employees are speaking as citizens about matters of public concern, they face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Accordingly, “speech that relates solely to mundane employment grievances does not implicate a matter of public concern.”

As to Teacher’s speech, the Circuit Court said that assuming that her speech “implicated a matter of public concern, this does not mean that her speech constituted speech protected by the First Amendment.” Further, said the court, “even if [Teacher's] speech was a matter of public concern, it was not constitutionally protected because the Pickering balancing test weighed in favor of [Respondent].”

* A summary of Pickering, “Essentials of the "Pickering Balancing Test” is posted on NYPPL at http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The decision is posted on the Internet at:

http://www2.ca3.uscourts.gov/opinarch/143509p.pdf

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation

Morse v Fusto, US Circuit Court of Appeals, Second Circuit, Docket 13-4074

Qualified immunity protects public officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights that a reasonable person would have known.

A grand jury indicted a dentist [Dentist], charging Dentist  with one count of Grand Larceny in the First Degree in violation of Penal Law §155.42 and eleven counts of Offering a False Instrument for Filing in violation of Penal Law §175.35.

These charges led to Dentist’s suspension from the New York Medicaid Program upon which his practice had depended; the liquidation of his dental practice as a consequence of such suspension; the loss of his teaching position at a New York hospital;* the public dissemination of the story of his indictment, including at least one press release issued by the Office of the Attorney General; and newspaper articles in various newspapers.

Upon his acquittal of all charges, Dentist brought an action against a Special Assistant Attorney General and an Audit-investigator [Defendants] in federal district court alleging that Defendants had deprived him of his constitutional right to a fair trial by intentionally manipulating certain information on spreadsheet summary charts before they were presented to the grand jury in order to create the false impression that Dentist billed Medicaid for dental services that he did not provide.

Essentially, Dentist contended that Defendants, acting as government officials in an investigative capacity, knowingly created false or misleading evidence.

Defendants, in rebuttal, claimed “qualified immunity,” and asked the federal district to grant them summary judgment dismissing Dentist’s complaint.

The district court denied Defendants’ motion and the jury returned a verdict in favor of Dentist based on its finding that Defendants “knowingly created false or fraudulently altered documents” to the grand jury.

Defendants appealed the district court’s denial of their motion for summary judgment, contending that “their conduct was not clearly prohibited by the Constitution and that they were therefore entitled to qualified immunity as a matter of law.”

The U.S. Circuit Court of Appeals affirmed the district court’s ruling, denying Defendant's motion for summary judgment stating that it had concluded that the Defendants were not entitled to qualified immunity. The court said that Dentist’s Constitutional rights had been violated and “the law giving rise to the violation was clearly established at the time of the violation.”

Further, the Circuit Court also concluded that “the district court did not err by declining to order a new trial despite its conclusion that one of the factual assertions upon which the verdict was based was insufficiently supported by the evidence.”

* Dentist regained his teaching position following his acquittal.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/09dd697f-b0ed-464a-9fbc-07c4e98c7a23/12/doc/14-1993_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/09dd697f-b0ed-464a-9fbc-07c4e98c7a23/12/hilite/

State’s removing a private lawsuit from State court to Federal court waives a State’s 11th Amendment immunity but may not affect its general sovereign immunity

State’s removing a private lawsuit from State court to Federal court waives a State’s 11^thAmendment immunity but may not affect its general sovereign immunity

Beaulieu v State of Vermont, US Circuit Court of Appeals, Second Circuit, Docket #13-4198-cv

704 current and former employees of the State of Vermont [Plaintiffs], brought an action in State court contending that because their weekly pay is or was reduced for partial-day absences in excess of their accrued leave, they are or were not paid on a “salary basis” under the Fair Labor Standards Act [FLSA] and are thus entitled to overtime pay at one and one-half times their regular rate.

Vermont  removed the action from Vermont   state court to the United States District Court, District of Vermont.

Vermont then moved to dismiss Plaintiff’s action based on its claim that it was immune from private lawsuit. The District Court agreed and dismissed the lawsuit “by reason of Vermont’s sovereign immunity* from private lawsuits.” Plaintiffs appealed.

The Circuit Court of Appeals affirmed the District Court’s ruling, explaining that although Vermont’s removal of Plaintiffs’ private lawsuit from Vermont state court to the United States District Court resulted in a waiver its Eleventh Amendment immunity from suit in federal court, it had not waived its general sovereign immunity from private lawsuits within the meaning of Vermont State Law.

Plaintiffs had argue that a statutory provision, Vermont Statutes Title 21, §384(b)(7) constituted an express waiver of the Vermont’s immunity from private actions brought under the FLSA. The Circuit Court disagreed, noting that although Title 21 provides that “[A]n employer shall not pay an employee less than one and one-half times the regular wage rate for any work done by the employee in excess of 40 hours during a workweek,” the statute further provides that “this subsection shall not apply to: (7) State employees who are covered by the Federal Fair Labor Standards Act.”

In the words of the Circuit Court, “Plaintiff's argument misunderstands the difference between the applicability of a federal statute to a state enacting lawful obligations upon the state, and the state's amenability to a private entity's suit to enforce such an obligation. There is no doubt that the FLSA applies to Vermont and creates a legal obligation on Vermont to pay its employees in accordance with the statute's terms. Nonetheless, Vermont's sovereign immunity—unless waived or forfeited—bars suit by a private entity seeking to enforce the FLSA's terms.”

Accordingly, said the court, “[t]he fact that Vermont state employees are covered by the FLSA does not mean that those employees are entitled to sue Vermont under the FLSA's private right of action,” concluding that the District Court correctly dismissed Plaintiffs private lawsuit on the basis of Vermont's general sovereign immunity, which Vermont had not waived. 

* The Doctrine of Sovereign Immunity holds that the state cannot commit a legal wrong and thus is immune from civil suit or criminal prosecution unless it has unequivocally waived such immunity.

 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/e04cb9a1-65fc-473d-8e22-25494c8e1ec3/2/doc/13-4198_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/e04cb9a1-65fc-473d-8e22-25494c8e1ec3/2/hilite/

Former NYS Member of the Assembly sentenced after being found guilty of fraud and theft

Former NYS Member of the Assembly sentenced after being found guilty of fraud and theft

Source: Office of the State Comptroller

Former New York State Assemblyman William Scarborough, of Queens, New York, was sentenced to 13 months in prison and two years of supervised release after being convicted of wire fraud and theft from a program receiving federal funds and related to his wrongful receipt of per diem payments from New York State for alleged travel expenses.

A written plea agreement required him to resign his position as a Member of the New York State Assembly.

The text of the Comptroller’s press release reporting this action is posted on the Internet at:

http://www.osc.state.ny.us/press/releases/sept15/091415.htm?utm_source=weeklynews20150920&utm_medium=email&utm_campaign=091415release

An individual is entitled to be represented by an attorney in an administrative hearing

An individual is entitled to be represented by an attorney in an administrative hearing

Matter of Odom (Commissioner of Labor), 2015 NY Slip Op 06861, Appellate Division, Third Department

Odom appealed a determination by the Unemployment Insurance Appeal Board, ultimately ruled, among other things, that Odom was disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct.

The Appellate Division reversed the Board’s determination and remanded the matter to the Board for further proceedings.

The court said that the record demonstrated that at the commencement of the administrative hearing Odom informed the Administrative Law Judge that her attorney was unavailable, but that she "would like for him to come" to the hearing. 

Notwithstanding this statement by Odom, said the Appellate Division, “the Administrative Law Judge continued to question [Odom] until she agreed to proceed pro se.”*

The court found that Odom’s right to have counsel present to represent her a the administrative hearing was violated under these circumstances.

* By proceeding pro se, Odom would be serving as her own attorney in this quasi-judicial proceeding.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06861.htm