Selected Reports issued by the Office of the State Comptroller during the week ending December 11, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending December 11, 2015

Click on text highlighted in color to access the full report 

Former pharmacist pleads guilty in $232,000 fake prescriptions scam involving Medicaid and the New York State Health Insurance Program (NYSHIP)

A former Long Island pharmacist admitted today he faked prescriptions to steal $232,000 in a fraud that was uncovered in two audits*by State Comptroller Thomas P. DiNapoli’s office.

The Comptroller reports that William Davis, the former owner of Davis Ethical Pharmacy in Rockville Centre, pleaded guilty to grand larceny in the second degree in Nassau County District Court for sending phony prescription records for reimbursement to Medicaid and the New York State Health Insurance Program (NYSHIP) from 2008 through 2011.

Davis, who currently resides in Lake Ariel, Pennsylvania, agreed to make full restitution of $231,919 on or before his sentencing on January 27.

The improper payments were exposed when the Comptroller examined around $7 million in claims paid to Davis. NYSHIP provides health insurance to some state and local government and school district employees and their families. The state Medicaid Program provides prescription drug coverage for enrollees.

* To read the two audit reports, visit: http://www.osc.state.ny.us/audits/allaudits/093013/12s11.pdfand http://www.osc.state.ny.us/audits/allaudits/093013/12s10.pdf

Halfmoon Town Supervisor Sentenced to 12 months in prison

Former Halfmoon Town Supervisor Melinda Wormuth was sentenced to one year and one day in prison as a result of her convictions for extortion and making a false statement, announced State Comptroller Thomas P. DiNapoli and United States Attorney Richard S. Hartunian and Andrew W. Vale, Special Agent in Charge of the Albany Division of the Federal Bureau of Investigation.

http://www.osc.state.ny.us/press/releases/dec15/121015b.htm?utm_source=weeklynews20151213&utm_medium=email&utm_campaign=121015brelease 


New York State Comptroller Thomas P. DiNapoli published the following audits:

State Education Department: United Cerebral Palsy Association – Rochester area: compliance with reimbursable cost manual

For the year ended Dec. 31, 2013, auditors identified $6,634 in costs charged to special education programs that did not comply with SED’s requirements for reimbursement. Auditors also questioned the appropriateness of $1,544 in costs for consultant services that did not comply with bidding requirements.

http://osc.state.ny.us/audits/allaudits/093016/14s75.pdf

New York City Department of Finance: Controls and Accountability of Court, Trust and Bail Funds

An initial audit issued in April 2014, determined that NYC Department of Finance’s Court Assets Department could not accurately account for court, trust and bail funds. The department also could not demonstrate that it applied the full, correct amount of interest to the Court and Trust accounts. In a follow-up, auditors found Finance officials have made progress in correcting each of the problems identified in the earlier report.  Of the eight recommendations prior recommendations six were implemented and two were partially implemented.

http://osc.state.ny.us/audits/allaudits/093016/15f16.pdf

United HealthCare Insurance Company of New York: Empire Plan Drug Rebate Revenue

An audit report, issued in September  2014, identified $694,227 in drug rebate and discount revenue that was not credited to the Department of Civil Service for the period Jan. 1, 2010 through Dec. 31, 2012. Auditors recommended that UHC remit to the department the $694,227 in rebate and discount revenue identified by the audit, and fully comply with contract provisions that require timely audit access to all documents and information deemed necessary. In a follow-up report, auditors found UHC officials made some progress in implementing the recommendations made in the initial audit report, including remitting $670,470 in additional drug rebate and discount revenue to the department.

http://osc.state.ny.us/audits/allaudits/093016/15f23.pdf

Since taking office in 2007, DiNapoli has 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. Review prior cases at http://www.osc.state.ny.us/investigations/index.htm. 

Courts must defer to an agency's interpretation of its own regulations in its area of expertise

Courts must defer to an agency's interpretation of its own regulations in its area of expertise

Abramoski v New York State Educ. Dept., 2015 NY Slip Op 08880, Appellate Division, Third Department

Reacting to declining enrollment at West Park Union Free School District Number Two [West Park #2], a special act school district created by special legislation in 1973 for the purpose of educating residents of a facility for adolescent girls with emotional disabilities, the West Park School Board [Board] resolved to begin the process of dissolving West Park #2.

The Board notified the State Education Department [SED] of its decision to cease operation of West Park #2 and SED informed the Board of its various responsibilities during the close-down period, including calculating the District's close-down costs.

These costs included the cost of [1] educating students during the final year of operation and [2] any outstanding financial obligations. In response to a question concerning whether the costs of certain contractual obligations that the Board had to pay employees for their post-retirement health and dental insurance coverage for their respective lifetimes would be included in the tuition rate for the close-down period, SED informed the Board that the cost of such lifetime insurance coverage for the District's retirees would not be included in the close-down tuition rate.

Maureen Abramoski and a number of other employees [Abramoski] challenged SED’s determination with respect to excluding the cost of Abramoski's post-retirement medical and dental insurance in the close-down tuition rate of a special act school district. Abramoski ultimately initiated a “combined CPLR Article 78 proceeding and plenary action against SED and other named defendants seeking, among other things, [1] a review of SED's determination excluding the costs related to Abramoski’s lifetime post-retirement health and dental insurance coverage in the close-down tuition rate, [2] an order directing the reinstatement of such post-retirement health insurance and dental insurance coverage and [3] damages for breach of contract. Supreme Court dismissed Abramoski’s various motions and petitions concerning such benefits and she appealed.

The Appellate Division affirmed the Supreme Court rejection of Abramoski’s claims, explaining that a court's review of an administrative determination such as the one at issue in this action is limited to whether the determination was arbitrary and capricious, lacked a rational basis or was affected by an error of law. Here, said the court, SEC's determination was neither arbitrary nor capricious, was rational and was not affected by an error of law.

Further, said the Appellate Division, “courts must apply deference to an agency's ‘interpretation of its own regulations in its area of expertise,’" noting that 8 NYCRR 200.9(f)(1)(i) provides that the tuition rate at issue "shall include administration and direct care costs and the costs of operation and maintenance of instructional facilities." 

The court’s conclusion: Abramoski’s lifetime post-retirement health and dental insurance coverage should not be considered in the close-down tuition rate, sustaining SED’s interpreting of 8 NYCRR 200.9(f)(1)(i) to exclude long-term outstanding debt obligations "that were largely — if not entirely — unrelated to the costs of providing an education to the students attending the District during the relevant tuition period." SED’s interpretation, said the court, “is reasonable and is consistent with a statutory and regulatory scheme that evinces an intent to tailor tuition rates to those costs reasonably related to the special act school district's provision of services to students during the relevant tuition period.”

The Appellate Division also rejected Abramoski’s contention that SED violated her constitutional rights to due process and equal protection as being without merit, explaining that SED was not a party to the contracts that provided Abramoski’s rights to lifetime post-retirement health and dental insurance coverage. The fact that SED's determination may have incidentally affected Abramoski’s ability to collect such benefits, said the Appellate Division, does not support her allegations of constitutional violations.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08880.htm

NYC school principal’s appeal of a disciplinary action brought by the NYC Department of Education pursuant to Education Law §3020 sustained in part

NYC school principal’s appeal of a disciplinary action brought by the NYC Department of Education pursuant to Education Law §3020 sustained in part

Decisions of the Commissioner of Education, Decision #16,848

A NYC school principal [Principal] was found guilty of certain disciplinary charges by an arbitrator pursuant to Education Law §3020(3), appealed the arbitrator’s determination.

The Commissioner ruled that the Principal’s appeal must be sustained in part, noting that Education Law §3020, as amended by adding a new subdivision 3, the City School District of the City of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by the District and the Council of Supervisors and Administrators of the City of New York to negotiate agreements that modify or replace the procedures set forth in Education Law §§3020-a and 2590-j(7).  §3020(3). The Commissioner also noted that “the Commissioner shall review any appeals brought in accordance with such agreements.”

Pursuant to Education Law §3020(3), the Council and the District entered into an agreement [Agreement] establishing a modified disciplinary procedures that, to the extent relevant in this appeal, provided that “at the principal’s option, allegations of misconduct may be presented to an impartial arbitrator who will decide whether just cause exists for the proposed action.”

The agreement further provides that, at the request of the principal, the Chancellor of the New York City Department of Education [Chancellor] may review the arbitrator’s decision, “which review must be complete within 15 days of such decision.”  The Agreement provides that “[t]he employee shall be provided with written notice of the outcome of the Chancellor’s review.”  If the Chancellor implements the arbitrator’s decision against the principal, the principal may then apply to the Commissioner of Education for review of the arbitrator’s decision.

The arbitrator issued a final decision on June 20, 2015, finding Principal guilty of certain charges and specifications and imposed a penalty of suspension, such suspension to terminated effective July 1, 2014. 

Although the Principal wrote asking the Chancellor seeking a review the arbitrator’s decision within 15 days and providing her with a written notice of the outcome of the Chancellor’s review in timely fashion, the record indicates that Principal did not receive any response.  On August 19, 2015, the Principal commenced this appeal from the hearing officer’s determination, contending that the arbitrator’s determination was arbitrary, capricious, irrational, and unsupported by the evidence. 

The Commissioner said that she would not render an advisory opinion on an issue before it becomes justiciable, explaining that Article VII(J)(4)(a)(6) of the Agreement clearly provides that either the superintendent or the principal [1] may request a review of the arbitrator’s decision by the Chancellor and if such a request is timely made, [2] requires the Chancellor to complete such review within 15 days and which further requires the Chancellor to provide the employee with written notice of the outcome of the review.  

Thus, said the Commissioner, the Agreement contemplates that the Chancellor “will review the arbitrator's decision, and render a decision of her own.” 

Noting that Commissioner’s regulations implementing Education Law §3020(3) are set out in 8 NYCRR Part 281 and are consistent with provisions in the Agreement, the Commissioner said that record before her contained no such decision by the Chancellor. 

Although the Principal interpreted the Chancellor’s silence as a default, entitling her to appeal the hearing officer’s decision directly to the Commissioner, the Commissioner said that there was no authority for such an action. 

Accordingly, the Commissioner ordered “the Chancellor to review the [arbitrator’s] decision and provide [the Principal] with written notice of the outcome of such review within 15 days of the date of [the Commissioner’s] decision in accordance with Article VII(J)(4)(a)(6) of the Agreement.”

The Commissioner also noted that the Principal “retains the right to commence a new appeal to the Commissioner in the event that the Chancellor implements the hearing officer’s decision” within 15 days from the Principal’s receipt of written notice of the Chancellor’s decision in the event the Principal is unhappy with the Chancellor’s decision.

 

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16848

_____________________________

The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

_____________________________

 

Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges

Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges

Click on link in highlighted in color to access the text of the decision

Unnecessary use of force on inmates

OATH Index No. 156/16

ALJ Alessandra F. Zorgniotti found that a New York City correction officer violated the Department's use of force directive on two occasions by using unnecessary force on inmates who were restrained and also filing a false report. 

ALJ Zorgniotti recommended termination of the correction office's employment.  

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-156.pdf

Employee served with disciplinary charges after complaining about being denied a "day off" on a holiday

OATH Index No. 2686/15

OATH Administrative Law Judge Kevin F. Casey recommended dismissal of charges alleging an New York City Environmental Police Officer was guilty of “conduct prejudicial to good order and discipline by using inappropriate language” to a superior after finding that the Department failed to show that the officer engaged in misconduct when he complained to a supervisor about being denied the day off on a holiday, in this instance Christmas Day.

The ALJ found that the employee’s supervisor had consented to his repeating his complaint to his co-workers and held that “[a] verbal disagreement or expression of dissatisfaction with a supervisor is not always misconduct, even in a paramilitary setting.”

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2686.pdf

Public Officers Law §36 provides for the removal of an individual from public office for self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust

Public Officers Law §36 provides for the removal of an individual from public office for self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust

Libordi v Isaman, 2015 NY Slip Op 08552, Appellate Division, Fourth Department

Francis Libordi initiated an action in the Appellate Division, 4^th Department, pursuant §36 of the Public Officers Law in an effort to have Kenneth Isaman, a public officer, removed from his position of Town Supervisor of the Town of Hornellsville.*

Libordi alleged that Isaman had been involved in “self-dealing” and had a conflict of interest arising from his employment by an insurance agency that did business with the Town while serving as Town Supervisor. The Appellate Division said that Isaman "conclusively refuted those allegations” and that Libordi failed to present evidence to raise a triable issue of fact with respect to such allegations.

Libordi also alleged another conflict of interest in that Isaman voted at Town Board meetings in favor of appointing his wife to positions with the Town Board, and approving the salaries for her positions.

Noting "[R]emoval from office pursuant to Public Officers Law §36 is an extreme remedy reserved for officials engaged in self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust," the court said that [1] Isaman admitted that he should have abstained from those votes and [2] his failure to do so "does not constitute the type of conduct that would warrant removal from office."

The court then unanimously dismissed Libordi’s action.

* Any citizen resident in the jurisdiction, or the appropriate district attorney, may file an application seeking the removal of a public officer enumerated in §36 of the Public Officers Law with the Appellate Division in the appropriate judicial department. §36 requires that a copy of the application and the charges upon which the application is to be made must be served upon the officer at least 8 days prior to such filing. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08552.htm

Where there is conflicting medical evidence Retirement System may rely on its expert’s opinion when such opinion is supported by substantial evidence

Where there is conflicting medical evidence Retirement System may rely on its expert’s opinion when such opinion is supported by substantial evidence 

Gonzalez v DiNapoli, 2015 NY Slip Op 08491, Appellate Division, Third Department

New York State and Local Police and Fire Retirement System [NYSLPFRS] denied Michael Gonzalez’s application for performance of duty disability retirement benefits.*

Gonzalez, a police officer, was diagnosed with coronary artery disease and underwent triple bypass surgery in 2010. After his application was denied by NYSLPFRS Gonzalez requested a hearing and redetermination. At the subsequent hearing, NYSLPFRS conceded that Gonzalez's heart disease was causally related to his employment pursuant to the statutory presumption set out in §363-a of the Retirement and Social Security Law, but challenged his claim that he was permanently disabled from performing his job duties.

The Hearing Officer found, among other things, that Gonzalez had failed to demonstrate that he was permanently disabled. After NYSLPFRS adopted the findings and conclusions of the Hearing Officer and denied Gonzalez’s application, he initiated a CPLR Article 78 proceeding seeking a court order vacating NYSLPFRS’ decision. 

The Appellate Division affirmed NYSLPFRS’ ruling, explaining that "In connection with any application for . . . performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties."

Moreover, respondent "is vested with the authority to resolve conflicts in the medical evidence and to credit the opinion of one expert over another, and its determination will not be disturbed when supported by substantial evidence."

Gonzalez had presented the report of his treating cardiologist, Dr. Kenneth Kaplan, who opined that Gonzales should not return to his usual police duties due to the stress involved in the job and that petitioner was permanently disabled.

In contrast, NYSLPFRS presented the report and testimony of cardiologist Dr. Sydney Mehl, who had examined Gonzalez and reviewed his medical records at NYSLPFRS’ request. Dr. Mehl opined that Gonzalez was not permanently incapacitated from performing his job duties, including running and physical altercations based on the successful outcome of his by-pass surgery, normal results from his cardiac examination and an electrocardiogram and Gonzalez’s report of having a "good" cardiac stress test.

While Gonzalez had challenged Dr. Mehl's opinion on the ground that Dr. Mehl did not include a list of the records he had reviewed in forming the opinion, Dr. Mehl had testified that he had reviewed all the records sent to him, including Gonzalez's job duties.

The Appellate Division said that notwithstanding the evidence in the record that would support a contrary result, insofar as Dr. Mehl's opinion was rational, fact-based and founded upon a physical examination of Gonzalez and a review of the relevant medical records, NYSLPRS’ determination was supported by substantial evidence and “it will not be disturbed.”

* Gonzalez had also filed an application for accidental disability retirement contending that he was permanently disabled due an accident that occurred on August 12, 2010 while performing his job duties. A hearing addressing his application for accidental disability retirement was conducted with Gonzalez's performance of duty disability retirement application hearing. Gonzalez's application for accidental disability retirement was denied. The court said that as Gonzalez had not addressed the denial of his accidental disability application in his appeal brief, it was deemed abandoned.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08491.htm

Once the appointing authority of an employee in the classified service has received his or her resignation, the resignation may not be withdrawn or rescinded without the approval of the appointing authority

Once the appointing authority of an employee in the classified service has received his or her resignation, the resignation may not be withdrawn or rescinded without the approval of the appointing authority

Cowin v New York State Div. of Criminal Justice Servs., 2015 NY Slip Op 08683, Appellate Division, Third Department

While employed as a Criminal Justice Program Representative 1 by the Division of Criminal Justice Services (DCJS) Thomas C. Cowin was served with a notice of discipline alleging that he had violated certain sections of the DCJS Employee Handbook and Penal Law §220.03* as the result of his alleged receipt of a controlled substance from a coworker that was not prescribed to him. Cowin filed a grievance under the applicable collective bargaining agreement and, after declining an initial offer of settlement from DCJS, arbitration of the matter was placed in abeyance pending the outcome of further settlement discussions.

On July 11, 2013 Cowin received a provisional offer of employment from the Justice Centerfor the Protection of People with Special Needs (Center). Four days later Cowin hand-delivered his letter of resignation to Karen Davis, DCJS's Director of Human Resources Management, [Davis], in which Cowin stated that his last day of work would be July 30, 2013.

Then on July 18, 2013, the Center notified Cowin that its offer of employment with the Center had been rescinded. Cowin immediately sent an email to Davisseeking to withdraw his letter of resignation but by letter dated July 26, 2013, Cowin was told that his request to rescind or withdraw his letter of resignation was denied. This decision was subsequently confirmed by Michael Green, the Acting Commissioner of DCJS, who again advised Cowin that DCJS did not consent to the withdrawal of his resignation.**

Cowin initiated a CPLR Article 78 proceeding alleging, among other things, that DCJS's refusal to permit him to withdraw his resignation was arbitrary and capricious, an abuse of discretion and affected by error of law. Supreme Court partially granted Cowin’s petition, annulling DCJS's determination and ordered that Cowin be reinstated to his former position with back pay and benefits. DCJS appealed.

The Appellate Division said that “Contrary to the conclusion reached by Supreme Court, [Cowin] was not entitled to unilaterally withdraw his resignation without [the] consent” of DCJS. The court cited 4 NYCRR 5.3(c), which, in pertinent part, provides that a resignation delivered to the appointing authority by an employee in the Classified Service "may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority."

The court explained that Green, as the Acting Commissioner of DCJS charged with the administration of the agency, was the "appointing authority" and had the statutory authority to delegate any of his powers to appointed "deputies, directors, assistants and other officers and employees, committees and consultants as he may deem necessary." As Green had delegated his power to receive employee resignations to the Director of Human Resources Management, Davis, the delivery of Cowin’s letter of resignation to Davisconstituted delivery to Green. Thus Cowin could not withdraw his resignation with the consent of the appointing authority or his or her designee.

The Appellate Division said that it found that DCJS’ consent was not improperly withheld, explaining that permitting an individual to withdraw his or her delivered letter of resignation was a matter committed to the sound discretion of the appointing authority and “such a determination will be disturbed only if it constituted an abuse of discretion or was arbitrary and capricious.”

The court found that Green's decision to refuse Cowin’s request to withdraw his resignation was based upon his consideration of several relevant facts and circumstances, including Cowin's unequivocal admission to accepting a controlled substance from a coworker and ingesting it at work in violation of both DCJS's drug-free work policy and the Penal Law. As such conduct could have a potentially detrimental effect on DCJS's reputation, and Cowin's ability to perform his job duties, the court viewed the appointing authority’s denial of Cowin's request to rescind his resignation as neither arbitrary and capricious nor an abuse of discretion.

The Appellate Division then dismissed Cowin’s petition “in its entirety.”

* §220.03 - Criminal possession of a controlled substance in the seventh degree.

** In contrast, an individual's notice that he or she has decided to withdraw, cancel or rescind the resignation may be received by the appropriate official or body before the resignation is actually "delivered" to such person or body. In such situations the courts usually rule that the receipt of a withdrawal of a resignation before the resignation itself is delivered effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08683.htm

________________________

The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

________________________ 

  

Reimbursement of improperly withheld GML §207-c benefits

Reimbursement of improperly withheld GML §207-c benefits

Baker v Clinton County, 2015 NY Slip Op 08898, Appellate Division, Third Department

Craig Baker, a correction officer with the Clinton County Sheriff's office allegedly injured at work on August 8, 2013, was placed on leave, filed a workers' compensation claim and began receiving benefits pursuant to General Municipal Law §207-c. On November 5, 2013, Baker's doctor cleared him to return to work in a light-duty capacity.

The Sheriff, however, did not allow Baker to return to work and on November 25, 2015 served him with disciplinary charges pursuant to Civil Service Law §75. The charges and specifications included allegations that Baker “had falsely reported his injuries.” Baker was suspended without pay as authorized by CSL §75 and a disciplinary hearing was held in January 2014.  Restored to the payroll on January 28, 2014, Baker was subsequently again removed from the payroll on February 12, 2014.

In March 2014, Baker filed a combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment challenging the Sheriff's determination to terminate his General Municipal Law §207-c benefits during the pendency of the disciplinary hearing.* In its answer Clinton County argued that, among other things, Baker had forfeited his claim to recover §207-c benefits under the doctrine of "unclean hands."

Supreme Court granted Baker’s petition and directed Clinton County to pay Baker the §207-c benefits it had withheld from him. The County appealed.

The Appellate Division said that General Municipal Law §207-c provides that when a correction officer suffers a disabling injury in the line of duty, that officer is entitled to continue to receive his or her full salary during the pendency of the disability. The receipt of such benefits, said the court, "constitutes a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated."

The court explained that although a municipality may discipline an officer even if that officer is receiving General Municipal Law §207-c benefits, the statutory benefit may not be withheld without a pretermination evidentiary hearing. Further, where, as is here the case, there was no negotiated §207-c administrative procedure in place, the municipality may, but is not obligated to, use the procedures set forth in Civil Service Law §75 as a means to discontinuing the statutory benefit. Thus, said the Appellate Division, “The pertinent question is whether the officer is afforded the requisite due process.”

There was no dispute that Baker’s §207-c benefits had been suspended prior to the conclusion of the disciplinary hearing. Accordingly the Appellate Division ruled that Supreme Court had properly granted Baker’s petition and directed the Sheriff to restore the unlawfully withheld benefits to Baker.

The Appellate Division disagreed with the Sheriff’s argument that Supreme Court had "misappl[ied]" the unclean hands doctrine and should have dismissed Baker’s petition “based on his misconduct.” Citing National Distillers & Chem. Corp. v Seyopp Corp., 17 NY2d 12, the court explained that the unclean hands doctrine applies where "the [petitioner] is guilty of immoral, unconscionable conduct and even then only when the conduct relied on is directly related to the subject matter in litigation."

In this action, said the court, the subject matter of the proceeding was whether the County  provided Baker the process to which he was entitled prior to terminating his statutory benefits, not whether he was entitled to §207-c benefits. It noted that Baker had only contended that he was entitled to §207-c benefits during the pendency of the disciplinary hearing. Where, as here, there is a finding that an individual is terminated for misconduct, there is no legal authority to recoup the payments made to the individual prior to such a finding of misconduct.

The Appellate Division said that it did not believe that Baker was perpetuating any fraud or committing a wrongdoing by asserting his right to notice and an opportunity to be heard prior to the termination of his §207-c and that it agreed with Supreme Court that the unclean hands doctrine did not apply in this instance.

Turning to the Sheriff’s removing Baker the payroll when he was served with the §75 notice of disciplinary charges on November 25, 2013, restoring him to the payroll on January 28, 2014, then removed him again on February 12, 2014, the court noted that Baker had asked that the disciplinary hearing, initially scheduled for December 6, 2013 within the notice of disciplinary charges, be adjourn. Baker, in turn, agreed that he would be suspended without pay for up to 30 days as authorized by CSL §75[3] and further, until the hearing resumed in January 2014.

In response to the Sheriff’s contention that Supreme Court awarded excessive damages the Appellate Division said that “§207-c benefits are not wages”**and Baker did not concede or otherwise relinquish his benefit rights pursuant to §207-c. According, said the court, “we discern no error in Supreme Court's determination that reimbursement of the improperly withheld benefits was just and proper relief.”

* On April 24, 2014, the Hearing Officer issued his determination recommending that Baker be terminated based on his finding that petitioner had engaged in the misconduct as alleged and on May 2, 2014, the appointing authority terminated Baker from his employment as a correction officer.

** §207-c [“Payment of salary, wages, medical and hospital expenses”] provides that any eligible individual injured in the performance of his or her duties or who is taken sick as a result of the performance of his or her duties so as to necessitate medical or other lawful remedial treatment “shall be paid by the municipality by which he [or she] is employed the full amount of his [or her] regular salary or wages until his [or her] disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08898.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/3916.html

____________________  

Selected Reports issued by the Office of the State Comptroller during the week ending December 4, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending December 4, 2015

Click on text highlighted in color to access the full report

Connect with Comptroller DiNapoli on Facebook
Visit and like  the Comptroller’s Facebook page for updates, photos, event listings and more from this office. The Comptroller always encourage engagement and feedback, so feel free to comment, like, and share hsi page with your family and friends.

https://www.facebook.com/nyscomptroller

State Comptroller DiNapoli positions New York Employee Retirement System investments for a “low carbon future”

New York State Comptroller Thomas P. DiNapoli announced an investment strategy that will raise the New York Common Retirement Fund’s (Fund) commitment to sustainable investments to $5 billion. The cornerstone of DiNapoli’s plan is the creation of a $2 billion index that will exclude or reduce investments in companies that are large contributors to carbon emissions like the coal mining industry, and increase the Fund’s investments in companies that are lower emitters. DiNapoli announced the new low emission index in Paris, where he is participating in an investors’ panel as part of the United Nations Climate Change Conference.

http://www.osc.state.ny.us/press/releases/dec15/120415.htm?utm_source=weeklynews20151206&utm_medium=email&utm_campaign=120415release

State Comptroller notes that limited regulation of adult day care programs poses potential risks to vulnerable adults
Many social adult day services programs (SADS) in New York operate without regulations or licenses, leaving disabled adults or seniors at potential risk, according to an Audit released by State Comptroller Thomas P. DiNapoli. The audit is the first in a series looking at issues affecting the elderly in New York.  

http://www.osc.state.ny.us/press/releases/dec15/120215.htm?utm_source=weeklynews20151206&utm_medium=email&utm_campaign=120215release

The dismissal of a probationary employee will not survive judicial review if the court finds that it was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law

The dismissal of a probationary employee will not survive judicial review if the court finds that it was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law

Rieser v New York City Dept. of Educ., 2015 NY Slip Op 08119, Appellate Division, First Department

Michael Rieser, a probationary teacher employed by the New York City Department of Education [DOE], received an unsatisfactory performance rating and ultimately DOE terminated him from his position. Rieser than filed a CPLR Article 78 petition seeking a court order annulling DOE’s decision to discontinue his employment by DOE and to expunge the unsatisfactory rating of Rieser’s performance as a probationary teacher. Supreme Court granted Rieser’s petition and DOE appealed.

The Appellate Division unanimously reversed the Supreme Court’s ruling on the law and the facts and dismissed Rieser’s Article 78 petition.

The court explained that Rieser failed to show that DOE's determination to discontinue his probationary employment was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law.

As to the unsatisfactory performance rating given Rieser, the Appellate Division said that he failed to show that the unsatisfactory rating was arbitrary and capricious.

The court noted that Rieser’s performance rating was “rationally supported by, among other things, witness statements and the principal's letter describing his investigation and finding that [Rieser] had used corporal punishment on a special education student” and there was no indication that the principal or DOE made their decisions in bad faith.

Another issue raised by Rieser concerned the composition of the Chancellor's Committee that reviewed his performance rating. However the court said that Rieser did not raise this issue at his administrative hearing and thus it was not preserved for the purposes of appeal. In any event, said the Appellate Division, “a substantial [due process] right of Rieser was not violated, since the Committee ruled unanimously in his favor.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08119.htm