A public officer may be removed from his or her office pursuant to Public Officers Law §36

A public officer of a town, village, improvement district or fire district   officer by court may be removed from his or her office pursuant to Public Officers Law §36

Becallo v Zambrano, 2015 NY Slip Op 07091, Appellate Division, Fourth Department

Public Officers Law §36 was enacted to enable a town, a village, an improvement district or a fire district to remove a public officer found to be an unfaithful or dishonest public official. Paul Becallo filed a petition with the Appellate Division pursuant to §36 alleging that a town supervisor was either unfaithful or dishonest in the performance of her duties as the Town Supervisor in an effort to have the Appellate Division remove that individual from her public office.

The Town Supervisor admitted many of the factual allegations set out in Becallo’s petition, including his claim that [1] she had a romantic relationship with an employee of the engineering firm [employee] that was hired by the Town and [2] that she signed the contract with the engineering firm and approved invoices for work completed by the employee and [3] that she had used campaign funds to pay for a bulk mailing of a Town newsletter to senior citizens.

She denied, however, that her acts created a conflict of interest or constituted wrongdoing and submitted documentary evidence refuting another of Becallo’s allegation -- that she had altered the date on a shared services agreement with another Town.

The Supervisor romantic relationship with the employee began in the fall of 2011 while she was serving as a Town councilperson and at that time she had asked the Town Attorney whether there was a conflict of interest as a result of that relationship. The Town Attorney advised her in a written opinion that there was no conflict of interest and reiterated that opinion at a Town Board meeting in April 2014, when she was the serving as the Town Supervisor.

The Appellate Division also noted General Municipal Law §801 provides that "no municipal officer . . . shall have an interest in any contract with the municipality of which [she] is an officer . . . when such officer . . . has the power or duty to . . . approve the contract . . . or approve payment thereunder" but concluded that “[t]hose provisions do not apply here.”

Turning to Becallo’s allegations concerning “the financial arrangement between [the supervisor] and the employee regarding her purchase of a one-half interest in his residence,” the Appellate Division concluded that it cannot "reasonably be inferred that the [financial arrangement] was intended to influence [the supervisor], or could reasonably be expected to influence [her], in the performance of [her] official duties or was intended as a reward for any official action on [her] part." The Appellate Division held that Becallo failed to establish a conflict of interest with respect to the supervisor’s personal relationship with the employee.

As to Becallo’s allegation concerning the supervisor’s use campaign funds, the Appellate Division concluded that even assuming, arguendo, the use of those funds to pay for a bulk mailing of a Town newsletter to senior citizens was improper, such an impropriety does "not remotely rise to the level required for removal pursuant to Public Officers Law §36."

Finding that Becallo’s "petition does not set forth a single act of unscrupulous conduct or intentional wrongdoing, let alone evidence of any gross dereliction of duties or a pattern of misconduct," the Appellate Division dismissed his petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07091.htm

New York State Comproller DiNapoli spotlights New York’s Veterans

New York State Comproller DiNapoli spotlights New York’s Veterans

Source: Office of the State Comptroller

Nearly three-quarters of the approximately 890,000 veterans living in New York served during wartime, including 31 percent in the Vietnam War-era, according to State Comptroller Thomas P. DiNapoli.

The Comptroller said that “New York is home to nearly 900,000 men and women who have served bravely to safeguard our freedom. Across the country and in our state, we’ll be forever indebted to our veterans for their service and their sacrifices. We need to offer essential programs for the men and women who serve in our military to show our appreciation for their service and support their return to civilian life.”

DiNapoli’s report highlighted the programs and services offered to New York’s veterans by the state’s Division of Veterans’ Affairs and other agencies. The 2014-15 state budget allocated more than $21 million for veteran’s programs and services including counseling and benefit assistance services, tuition awards, peer-to-peer support services and nursing homes.

To access the Comptroller’s report please click on http://www.osc.state.ny.us/reports/other/veterans_11_2015.pdf

With both federal and state programs providing important services, DiNapoli urged policy makers at all levels to continuously examine whether existing initiatives appropriately meet the needs of New York's veterans.

DiNapoli also noted that the New York State Common Retirement Fund has a program to provide loans to veterans. The state pension fund partnered with the New York Business Development Corporation (NYBDC) Partnership to create a $5 million commitment for fixed-rate small business loans for returning military veterans who are also business owners. Veterans who serve in the Guard or Reserve, or have been honorably discharged from active duty may apply, through the NYBDC, for small business loans up to $150,000 to start or expand a business.

To learn about the New York State Common Retirement Fund’s loan program for veterans please click on http://www.nybdc.com/how-can-we-help/Loans_for_Veterans_69_7_sb.htm

Overtime paid to a police officer for “special-duty” for service performed for a private entity not included in determining the “final average salary” for retirement purposes

Overtime paid to a police officer for “special-duty” for service performed for a private entity not included in determining the “final average salary” for retirement purposes

Tamucci v DiNapoli, 2015 NY Slip Op 08027, Appellate Division, Third Department

Between 1989 and 2009, Town and Village of Harrison Police Department [HPD] police sergeant Mark Tamucci was a member of New York State Police and Fire Retirement System [PFRS].

During his last three years of employment, Tamucci received special-duty overtime wages for services performed on special details.* After his retirement, the New York State and Local Retirement System sent Tamucci a letter indicating this his final average salary was based on calculations that did not include salary payments he received for his “special-duty overtime” work.

Tamucci asked PFRS to recalculate of his final average salary to include such overtime wages. A hearing was held and the Hearing Officer concluded that the wages that Tamucci earned for services performed on those special details were properly excluded from the calculation of his final average salary. The Comptroller adopted the decision of the Hearing Officer and denied Tamucci 's application for a recalculation of his final average salary.

Tamucci commenced a CPLR Article 78 proceeding in Supreme Court. Supreme Court, finding that Tamucci’s petition raised an issue of substantial evidence, transferred the proceeding to the Appellate Division.

The Appellate Division observed that the Comptroller is vested with the “exclusive authority to determine all applications for retirement benefits and the determination must be upheld if [the] interpretation of the controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence.”**

The relevant elements set out in the Retirement and Social Security Law with respect to determining an individual’s "final average salary" for retirement purposes in this instance are:

1. The average annual compensation of the member for credited government service not exceeding his [or her] three years of credited government service immediately preceding his [or her] date of retirement (See Retirement and Social Security Law §302 [9] [a]).

2. Government service includes, among other things, paid "[s]ervice as an officer or employee of an employer (See Retirement and Social Security Law §302 [12])

The term "Employer" is defined as "[t]he state, a participating employer,*** and any other unit of government or organization obligated or agreeing . . . to make contributions to the retirement system on behalf of its police [officers] and fire [fighters]" (Retirement and Social Security Law §302 [8]).

The Appellate Division said that the Comptroller's finding that Tamucci's services during special details were provided to the relevant private entities, rather than to or for the police department, was supported by substantial evidence. Noting that uncontested evidence in the record established that the private entities HPD order to receive services performed by Tamucci and other officers in the form of special details, the court explained that “A reasonable person could infer that the police department required these private entities to pay for the services because it had determined that such services were not within the scope of its responsibilities to the public.”

The Appellate Division, citing Cannavo v Regan, 122 AD2d 523, said it had previously indicated that the voluntariness of such services is relevant to the inquiry and that  Tamucci “unambiguously testified that he had volunteered for all of the special details on which he had performed services.” In addition, the court noted that there was nothing in the records to indicate that HPD had ever ordered or otherwise compelled Tamucci or any of his fellow officers to perform services on special details.

Considering the evidence that the private entities had contracted with HPD to have these “special detail” services provided to them and the lack of any evidence these “special detail services” were, in fact, required to be performed by HPD, the court concluded that substantial evidence supported the Comptroller's determination that the services that Tamucci performed on special details were not provided to his employer, HPD.

NOTA BENE: An off-duty police officer injured while he or she was off-duty and working for a private employer may not be eligible for General Municipal Law §207-c benefits or Retirement and Social Security Law accidental disability or service disability retirement nor eligible for "defense and indemnification" by his or her public employer pursuant to §18 of the Public Officers Law should he or she be sued concerning an event that occurred in the course of his or her working for a private employer. The Disability Leave for fire, police and other public sector personnelhandbook addresses these and similar situations. For more information click on http://booklocker.com/3916.html

* These “special details” result from private entities contracting with the police department for its officers to provide various services that would not otherwise be provided to such entities.

** Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

*** The term "participating employer" includes "any municipality participating in the [police and fire] retirement system" (see Retirement and Social Security Law §302 [20]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08027.htm 

See, also, Pitzel v DiNapoli, 2015 NY Slip Op 08015, Appellate Division, Third Department,  posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08015.htm

A court’s review of a determination by the Commissioner of Human Rights is limited to the issue whether substantial evidence supports the determination

A court’s review of a determination by the Commissioner of Human Rights is limited to the issue whether substantial evidence supports the determination

Monti v New York State Div. of Human Rights, Serv. Empls. Intl. Union, AFL-CIO, Local 200 United, 2015 NY Slip Op 07092, Appellate Division, Fourth Department

Zajac v New York State Div. of Human Rights & Serv. Empls. Intl. Union, Local 200 United, 2015 NY Slip Op 07097, Appellate Division, Fourth Department

The Commissioner of the New York State Division of Human Rights, adopting the findings and recommendation of the Administrative Law Judge [ALJ] who conducted the administrative hearing concerning their respective complaints, dismissed the complaint filed by Carl A. Monti and the complain filed Corrine Zajac alleging Local 200 had subjected them to unlawful discrimination in violation of the State’s Human Rights Law.

In both actions the Appellate Division unanimously confirmed the decisions of the Commissioner of Human Rights and dismissed their respective petitions.

The Appellate Division explained that its review of a determination by the Commissioner of Human Rights is limited to the issue of whether substantial evidence supports the Commissioner's determination. Further, said the court, an ALJ’s assessment of credibility of the testimony given by the witnesses testifying at the hearing is "unassailable," and the determination must be confirmed if the testimony credited by the ALJ is supported by substantial evidence.

With respect to Monti’s complaint the court said that it concluded that substantial evidence supported the ALJ's determination that Monti failed to establish a prima facie case of unlawful retaliation and that Monti’s termination was based upon legitimate, nondiscriminatory reasons.

Addressing Corinne Zajac’s appeal, the Appellate found that Zajac had not met her burden of establishing that Local 200 had engaged in unlawful discrimination when it terminated her employment. Zajac had alleged that she had been terminated by Local 200  in “retaliation for filing an age discrimination complaint.” Nor, said the court, did Zajac submit any complaint, much less evidence, that Local 200 had further retaliated against her by denying her severance benefits.

The Monti decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07092.htm

The Zajac decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07097.htm
Motion to appeal: Motion, insofar as it seeks leave to appeal as against respondent Service Employees International Union, Local 200 United, dismissed as untimely (see CPLR 5513[b]); motion, insofar as it seeks leave to appeal as against respondent New York State Division of Human Rights, denied.

Selected Reports issued by the Office of the State Comptroller during the week ending November 7, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending November 7, 2015

Click on text highlighted in color to access the full report 

Guilty plea of the theft of $78,000 of NYSERS pension benefits

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Terence Fitzpatrick, 53, of Monmouth County, New Jersey, to the crime of Attempted Grand Larceny in the Second Degree, a class D felony, in Albany County Court. Fitzpatrick faces a maximum penalty of 2 and 1/3 to 7 years in prison.

http://www.osc.state.ny.us/press/releases/nov15/110515a.htm?utm_source=weeklynews20151108&utm_medium=email&utm_campaign=110515arelease 

New York State Comptroller Thomas P. DiNapoli”s office completed the following audits of political subdivisions of the State:

Village of Clayville – Board Oversight

The clerk-treasurer did not provide the board with comprehensive financial reports so that it could properly oversee the village’s financial activities. In addition, the board did not ensure that the clerk-treasurer filed the village’s annual financial reports in a timely manner.

http://www.osc.state.ny.us/localgov/audits/villages/2015/clayville.pdf

Cortland Housing Authority – Financial Condition

Housing authority officials have worked effectively to maintain a strong financial position by controlling expenditures.

http://www.osc.state.ny.us/localgov/audits/publicauth/2015/cortlandhousing.pdf

Essex Fire District #2 – Cash Disbursements

The board does not provide adequate oversight of the district’s cash disbursements. The treasurer did not prepare monthly bank reconciliations or reports, or prepare and file the district’s annual reports with the Office of State Comptroller for the past two years.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/essex2.pdf

Lockport Public Library – Claims Processing

The board did not routinely audit and approve claims prior to payment. Instead, claims were audited and approved for payment by the director, who also signed the disbursement checks to pay the claims.

http://www.osc.state.ny.us/localgov/audits/libraries/2015/lockport.pdf

Port WashingtonFire Department – Budgeting

The board’s adopted budgets have not accurately portrayed expected department operating costs to the companies and the public. Furthermore, by relying on net assets to fund budget shortfalls, the department is not adopting structurally balanced budgets and is instead funding recurring expenditures with one-shot uses of accumulated net assets.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/portwashington.pdf

Roosevelt Fire District – Fire Station Project

Auditors reviewed the process used to construct a new fire station as well as construction-related expenditures and found that the expenditures were within the board-approved amount. However, the board did not enter into written agreements with four contractors that provided services during the project.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/roosevelt.pdf

Town of Sidney – Budget Review

The significant revenue and expenditure projections in the preliminary budget are reasonable. The town took appropriate action to implement or resolve recommendations contained in the 2014 budget review report issued in November 2014. The town’s proposed budget complies with the property tax levy limit.

http://www.osc.state.ny.us/localgov/audits/towns/2015/sidney_br.pdf

Stony Creek Volunteer Fire Company – Cash Disbursements

The board did not establish effective internal controls to address a lack of segregation in the treasurer’s cash disbursement duties. The board did not establish policies or implement any procedures governing debit card use or review or approve any card-related transactions.

http://www.osc.state.ny.us/localgov/audits/firedists/2015/stonycreek.pdf

Western Sullivan Public Library – Library Operations

The library’s fixed costs for operating its three buildings are high, and officials did not perform any comparative cost analysis of operations or segregate cost information by building.

http://www.osc.state.ny.us/localgov/audits/libraries/2015/westernsullivan.pdf

Recent appointments in the Executive Chamber and by State departments and agencies

Recent appointments to the Executive Chamber and by State departments and agencies

Source: Office of the Governor

On November 5, 2015, Governor Andrew M. Cuomo announced the following  appointments to his administration and to State departments and agencies:

Joanne Choi has been appointed Assistant Director of Constituencies for Asian American Affairs for the Executive Chamber. Ms. Choi is currently the Queens Community Liaison for the New York City Department of Health and Mental Hygiene. Previously, she served as a constituent liaison for Congresswoman Grace Meng, and also has experience in community and constituency relations from the Congresswoman’s 2012 campaign and previously-held Assembly office. Ms. Choi earned a B.A. in political science and an M.A. in public policy from Stony Brook University.

Ruth Noemí Colón has been appointed Vice President of Corporate Shared Services for the New York Power Authority (NYPA). Ms. Colon has worked for NYPA since 2011, most recently as Director of Administration and Environmental Justice. Prior to her work with NYPA, she served in various roles at the New York State Department of State, most recently as Acting Secretary of State from 2010 to 2011, as well as the New York City Housing Authority. She holds both a B.A. and an M.A. from the University of Puerto Rico – San Juan, as well as a J.D. and International Law Certificate from the Pace University School of Law.

Lisa Bova-Hiatt has been appointed Executive Director of the Governor’s Office of Storm Recovery. Ms. Bova-Hiatt has served with the Office of Storm Recovery since January 2014, first as General Counsel, then Acting Chief Operating Officer and most recently as its Acting Executive Director. Previously, she served in the administration of New York City Mayor Michael Bloomberg doing legislative affairs. She also held a variety of senior positions with the New York City Law Department between 1995 and 2014. Ms. Bova-Hiatt received her B.S in business administration from Villanova University, and her J.D. from Brooklyn Law School.

Kitty Kay Chan has been appointed New York State Chief Data Analytics Officer. She is currently the Chief Economist at the Department of Financial Services. Previously Dr. Chan served as the Chief Economist and Director of Audit and Review for the New York State Joint Commission on Public Ethics, and as a Deputy Inspector General for the New York State Inspector General’s Office. Before that, she served as the Director of Economics for the New York State Office of the Attorney General and held positions at the US Federal Communication Commission, the US Department of Agriculture, and a private economic consulting firm. Dr. Chan has taught at New York University, and currently teaches at Columbia. She was a National Science Foundation Fellow and holds a Ph.D. in Economics and a Doctoral Certificate in Environmental Sciences, Policy, and Engineering from the University of Southern California.

Norma Ramos has been appointed Deputy Secretary for Civil Rights. Ms. Ramos has served as the Executive Director of the Coalition Against Trafficking of Women, and previously was the Executive Director of the South Bronx Clean Air Coalition. In addition, she has held positions at the New York City Department of Environmental Protection and the U.S. Environmental Protection Agency. Ms. Ramos has a B.A. From Fordham University, and a J.D. From Temple University School of Law.

Caroline Griffin has been appointed Chief of Staff for DASNY where she is responsible for overseeing intergovernmental relations and managing the Communications + Marketing Department, as well as coordinating policy and operations across DASNY’s multiple business lines. Ms. Griffin has served in the Executive Chamber for Governor Cuomo since 2011, most recently as his Director of Intergovernmental Affairs. Previously, she served in the Office of Intergovernmental Affairs for the administrations of both Governor David Paterson and Governor Eliot Spitzer. Ms. Griffin holds a B.A. in Communications from Boston College.

Kim Nadeau has been appointed Chief Financial Officer and Treasurer of the Dormitory Authority of the State of New York. Ms. Nadeau is currently Vice President for Accounting and Controller at US Light Energy (USLE). Prior to her work with USLE, she served as a Vice President of Accounting and Controller for CH Energy Group, Inc. from 2006 to 2014, and previously held various positions for Northeast Utilities for 1995 to 2006, as well as Coopers and Lybrand LLP from 1989 to 1995. Ms. Nadeau holds a B.S. in Accounting, an M.B.A. and a J.D. from the University of Connecticut.

Emily Saltzman has been appointed Assistant Vice President/Director, Office of Economic Opportunity and Partnership Development, at NYS Homes & Community Renewal. Ms. Saltzman has served as the Director of Community Affairs to Governor Andrew M. Cuomo since 2011. Before joining the Executive Chamber of the State of New York, Ms. Saltzman represented a range of nonprofits, corporations and associations as Government Relations Manager at Brown and Weinraub PLLC. She also held positions at Manhattanville College, Ticketmaster/Citysearch and the New York City Council and served as Assistant Director of Intergovernmental and Constituency Affairs under former Governor Mario M. Cuomo. Ms. Saltzman holds a B.A. from Dartmouth College and an M.P.A. from Columbia University School of International and Public Affairs.

Recent decisions by New York City's Office of Administrative Trials and Hearing Administrative Law Judges

Recent decisions by New York City's Office of Administrative Trials and Hearing  Administrative Law Judges

Employee’s conduct on the job found guilty of creating a risk to others at the workplace

OATH Index No. 1236/14

OATH Administrative Law Judge Kara J. Miller found an employee threatened a stationary engineer on two occasions, improperly lowered medical air pressure, failed to follow a directive to put oil in the air compressor, and left his post and created a potentially hazardous situation by failing to tighten the feed valve on the regulator for one of the boilers.

Judge Miller credited the engineer's testimony that after an alarm sounded in the boiler room, the employee stormed into the engineer's room, asked what was going on, picked up the engineer's computer monitor and lifted it in the air while threatening the engineer. The ALJ also credited the engineer's testimony that the employee had approached him in the parking lot as he was walking to his car and threatened him in a loud and profane manner.

ALJ Miller recommended termination of the employee be terminated from his position, finding that his conduct created a risk to others working at the facility. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1236.pdf

Correction officer found guilty of violating a number of his agency’s rules

OATH Index No. 1962/15

A New York City correction officer [CO] was found to have been absent from his residence without authorization while on sick leave and was given instructions to report to the Department’s Health Management Division [HMD] with his shield, his identification [ID] and his personal firearms.

When he reported to HMD, he was placed on immediate suspension because it was his fourth violation. He surrendered his shield and ID but not his firearm, stating that the weapon was at his other residence in Pennsylvania. Although directed to await an escort to accompany him to the Pennsylvania residence to retrieve the firearm, the CO left the facility. The CO then claimed to have found the weapon at his Brooklyn residence on the following day.

OATH Administrative Law Judge Ingrid M. Addison found the CO insubordinate for being out of residence without authorization, failing to surrender his firearm when requested, disobeying the order to remain at HMD, and failing to promptly notify the Department that he had legally changed his name.

Judge Addison recommended that the CO be termination from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1962.pdf

 ______________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://booklocker.com/books/7401.html

______________________

 

An applicant for §207-c of the General Municipal Law disability benefits must show that the disability was directly caused by a job-related illness or injury

An applicant for §207-c of the General Municipal Law disability benefits must show that the disability was directly caused by a job-related illness or injury
Caulkins v Town of Pound Ridge, 2015 NY Slip Op 07655, Appellate Division, Second Department

§207-c of the General Municipal Law provides for the payment of “salary, wages, medical and hospital expenses” of law enforcement personnel disabled as the result of injuries or illness incurred in the performance of their official duties. In order to be eligible for disability benefits pursuant to §207-c, however, the employee must "prove a direct causal relationship between job duties and the resulting illness or injury."*

Tammy Caulkins, a Town employee, was receiving §207-c disability benefits. A hearing officer found that Caulkins' disability was not related to a line-of-duty injury that Caulkins had suffered in October 2008. The Town Board of the Town of Pound Ridge adopted the findings of the hearing officer, made after a hearing, and discontinued Caulkins §207-c disability benefits.

Caulkins sued the Town seeking a court order directing the Town Board to reinstate her §207-c benefits. Supreme Court denied her petition, which ruling was affirmed by the Appellate Division.

The Appellate Division said that judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence, explaining that substantial evidence consists of "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

In this instance the Appellate Division found that Caulkins did not sustain her burden of demonstrating that her disability was the direct result of her October 2008 “on-the-job” injury and substantial evidence supported the hearing officer's determination that her current disability was not causally related to the on-the-job injuries she had suffered October 2008.

* A firefighter seeking benefits pursuant to §207-a of the General Municipal Law must also "prove a direct causal relationship between job duties and the resulting illness or injury" in order to be eligible for such disability benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07655.htm

____________

Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions addressing disability and similar leaves absence. For more information click on http://booklocker.com/books/3916.html

____________

 

An employee who alleged she was subjected to retaliation because she testified before a grand jury was not engaged in “protected activity” within the meaning of the State’s Human Rights Law

An employee who alleged she was subjected to retaliation because she testified before a grand jury was not engaged in “protected activity” within the meaning of the State’s Human Rights Law

Clarson v City of Long Beach, 2015 NY Slip Op 07614, Appellate Division, Second Department

Sandra Yu Clarson, an Asian-American woman, served as the City Comptroller for the City of Long Beach [City]. Alleging that the City had terminated her employment in retaliation against her because "she cooperated and provided testimony to a grand jury regarding alleged criminal activity of a city councilperson, and that the City subsequently hired a less qualified, white male to fill her former position," Clarson sued the City to recover damages for unlawful retaliation in violation of Executive Law §296, New York State’s Human Rights Law.

The City moved to dismiss the complaint for failure to state a cause of action but Supreme Court denied the City's motion. The Appellate Division reversed the lower court’s decision.

The Appellate Division explained that when considering a motion to dismiss the complaint for failure to state a cause of action, the court must accept the plaintiff's allegations as true, afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

In this instance, said the court, Clarson failed to state a cause of action alleging retaliation in violation of Executive Law §296(1)(e), which section provides that “it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices."

In order to make a prima facie showing of retaliation within the meaning of Executive Law §296, a plaintiff is required to show that:

(1) he or she was engaged in protected activity;

(2) his or her employer was aware that he or she participated in such activity;

(3) he or she  suffered an adverse employment action based upon his or her activity; and

(4) there was a causal connection between the protected activity and the adverse action."

The Appellate Division said that an employee engages in a "protected activity" by "opposing or complaining about unlawful discrimination."

However, the court found that Clarson’s testimony before the grand jury “was unrelated to opposing or complaining about statutorily prohibited discrimination,” and, therefore, “was not ‘protected activity' as contemplated by the [the State's Human Rights Law].”

Further, notwithstanding Clarson’s contention to the contrary, the court said that her complaint does not allege a cause of action for retaliation based on whistle-blowing activities in violation of Civil Service Law §75-b.

The Appellate Division reversed the Supreme Court’s decision “on the law,” and granted the City’s motion to dismiss the complaint is granted.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07614.htm

Educators are ineligible for unemployment insurance between academic terms only if given timely assurance of reemployment for the next academic term

Educators are ineligible for unemployment insurance between academic terms only if given timely assurance of reemployment for the next academic term

Upham (Dutchess Community Coll.--Commissioner of Labor), 2015 NY Slip Op 07898, Appellate Division, Third Department

Labor Law §590(10) prohibits a professional employed by an educational institution from receiving unemployment insurance benefits during the period between two successive academic terms if the educational institution has given the professional a reasonable assurance of continued employment.

In cases where educational institutions have failed to set forth the terms or conditions of continued employment or have made such employment contingent upon certain conditions, courts have found that a reasonable assurance of reemployment was lacking and thus the individual was eligible for unemployment insurance benefits.

Paul Upham served as an adjunct instructor at a community college and, during the fall 2013 semester, he taught three courses in history and government. Prior to the end of that semester, the chair of his department asked Upham if he wanted to teach potentially four courses during the spring 2014 semester and he expressed an interest in doing so.

After the semester ended, the college sent Upham a letter "anticipat[ing] that [he would] be invited to return to teach," during the spring 2014 semester "subject to enrollment and/or budget constraints."

Upham had applied for unemployment insurance benefits before receiving this letter.  Following a hearing, an Administrative Law Judge concluded that Upham was, in fact, eligible to receive benefits because the college had not given him a reasonable assurance of continued employment within the meaning of Labor Law §590(10).

The Unemployment Insurance Appeal Board sustained the administrative law judge’s decision and the college appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling, explaining that while Labor Law §590(10) makes a professional employed by an educational institution ineligible for unemployment insurance benefits during the period between two successive academic terms, such ineligibility is triggered by the claimant having been given a reasonable assurance of continued employment by the institution.

A "reasonable assurance," in turn, is a representation by the educational institution "that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period." Whether the claimant has been given a “reasonable assurance” is a factual question for the Board to resolve and its determination will be upheld if supported by substantial evidence.

While the department chair mentioned that Upham could teach potentially four courses during the spring 2014 semester, which exceeded the number that he taught during the fall 2013 semester, this was never confirmed during any subsequent conversations nor in the letter sent to Upham.

Significantly, the Appellate Division noted that the letter did not specify the details of the spring 2014 semester teaching assignment and conditioned Upham’s further employment upon "enrollment and/or budget constraints."

Accordingly, said the court substantial evidence supports the Board's finding that Upham was entitled to receive unemployment insurance benefits.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07898.htm